A Leap of Faith, Off a Cliff (NYT Editorial) Constitutional Showdown

[kpete]

June 15, 2006
Editorial
A Leap of Faith, Off a Cliff

On Monday, the Bush administration told a judge in Detroit that the president's warrantless domestic spying is legal and constitutional, but refused to say why. The judge should just take his word for it, the lawyer said, because merely talking about it would endanger America. Today, Senator Arlen Specter wants his Judiciary Committee to take an even more outlandish leap of faith for an administration that has shown it does not deserve it.

Mr. Specter wants the committee to approve a bill he drafted that tinkers dangerously with the rules on wiretapping, even though the president has said the law doesn't apply to him anyway, and even though Mr. Specter and most of the panel are just as much in the dark as that judge in Detroit. The bill could well diminish the power of the Foreign Intelligence Surveillance Act, known as FISA, which was passed in 1978 to prevent just the sort of abuse that Mr. Bush's program represents.

The committee is considering four bills. Only one even remotely makes sense now: it would give legal standing to groups that want to challenge the spying in court. The rest vary from highly premature (Senator Dianne Feinstein's proposed changes to FISA) to the stamp of approval for Mr. Bush's claims of unlimited power that Senator Mike DeWine drafted.

Mr. Specter's bill is not that bad, but it is fatally flawed and should not go to the Senate floor. He is trying to change the system for judicial approval of government wiretaps in a way that suggests Congress is facing a technical problem with a legislative solution, when in fact it is a constitutional showdown.

more at:
http://www.nytimes.com/2006/06/15/opinion/15thurs1.html?_r=1&oref=slogin&pagewanted=print

[enough]

1. A good concise statement.

another snip>

Mr. Specter says his bill would impose judicial review on domestic spying by giving the special court created by FISA power to rule on the constitutionality of the one program that Mr. Bush has acknowledged. But the review would be optional. Mr. Specter's bill would eliminate the vital principle that FISA's rules are the only legal way to eavesdrop on Americans' telephone calls and e-mail. It would give the president power to conduct surveillance under FISA "or under the constitutional authority of the executive." That merely reinforces Mr. Bush's claim that he is the sole judge of what powers he has, and how he exercises them.

snip>

[enough]

2. There was also a good editorial from USA Today on this yesterday.

I just wish the Democrats would get together and speak up about this constitutional crisis.


http://www.usatoday.com/news/opinion/editorials/2006-06-14-our-view_x.htm?csp=34

Congress keeps itself, public in the dark on surveillance

snip>

Today, six months after The New YorkTimes disclosed that the National Security Agency has been wiretapping international phone calls of U.S. residents without court orders, and one month after USA TODAY revealed that the NSA has been compiling a huge database of domestic phone records, Congress is poised for its first action.

The Senate Judiciary Committee is set to consider a bill by its chairman, Arlen Specter, R-Pa., that would consolidate a gaggle of lawsuits challenging the constitutionality of the warrantless wiretapping program. It would send the issue to a special court created by the Foreign Intelligence Surveillance Act (FISA), which approves — or in some rare instances denies — wiretap requests.

Specter's goals are admirable. He wants to ensure that challenges to these programs get their day in court and are not dismissed on technical grounds. But his measure would do more harm than good. It appears to embrace the president's dubious claim that he has the constitutional authority to order wiretaps without the FISA court's approval.

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(Posted by Deminks yesterday)