Specter Goes To Bat Again For National Security State

Sen. Arlen "Magic Bullet" Specter, in his fifth decade of defending the prerogatives of the national security state, has come through big time for the Bush administration.

A deal negotiated between the White House and Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) came with conditions. Bush is insisting that Congress first give him new leeway in some areas of surveillance and that all lawsuits challenging his eavesdropping policy be funneled to a Washington-based intelligence court that operates in secret.

Following the Supreme Court Hamdan ruling, the implications of which eliminated the two legal rationales (AUMF and Article II) the administration had relied entirely upon in claiming that the extra-legal warrantless NSA domestic spying programs were legal, Bush really needs legislative cover. Marty Lederman points to many problems with the Specter bill, one of which is:

5. Just in case any individuals were actually to challenge the legality of particular surveillance, the Specter bill would permit the AG to transfer all such cases to the FISA court if the AG swears under oath that our national security would be harmed by keeping the case in ordinary courts. In the FISA court proceedings, the court would not be able to require disclosure of any "national security information" to anyone. And get this: The FISA court and FISA Court of Review "may dismiss a challenge to the legality of an electronic surveillance program for any reason." (Because it's Thursday? Or the judge doesn't like the looks of you? Can you imagine the conversation in the Vice President's Office on this one? "OK guys. We've eliminated FISA. Resurrected unlimited Executive power even after Hamdan. Made Specter's beloved 'FISA Court review' voluntary and pursuant to a standard that amounts to nothing. Shifted all litigation challenging our conduct to the FISA court, where all the evidence is off limits to the plaintiffs. Anyone else got anything they've been wanting? Come on, use your imagination . . . ." "Hey, I've got an idea!: Let's give the FISA courts the power to dismiss challenges to the Executive branch for any reason." "Yeah, that's the ticket!")

The administration's flagrant evasion of FISA needs to be brought to the Supreme Court, not covered up by an acquiescent Republican-controlled congress.