Posted on 02/10/2006 6:05:52 AM PST by conservativecorner
Yesterday on the floor of the Senate, as some news outlets have reported, Sen. Arlen Specter said he is "now in the process of drafting legislation" that would "require the administration to take the program" of eavesdropping on our enemies when they communicate to and from the United States "to the Foreign Intelligence Surveillance Court." (See here for a PDF of the Congressional Record of Specter's remarks.)
I have been a Specter-watcher for some years now, and I have long since come to the conclusion that he is not a clear thinker on matters constitutional. But this embryonic proposal of his is a new low in befuddlement. Here is how he envisions it working:
"The Foreign Intelligence Surveillance Court ought to take a look at the program, make a determination from this day forward whether it is constitutional, and if it is constitutional, then they ought to, under the statute [Specter is drafting], report back to Congress with their determination as to whether it is constitutional."
It seems that the senator is unaware of the venerable constitutional principle that the courts of the United States do not issue advisory opinions. That is, they do not entertain abstract questions about the constitutionality of policies in some general or hypothetical sense. One cannot obtain, from a court, any official opinion on a "what if we tried out this policy?" question, or a decision on a query like "how about if we had the following sort of situation involving a suspected al Qaeda agent . . . ?"
Courts adjudicate questions that are specific, not general; that are actual and concrete, not hypothetical and abstract. They decide real cases and controversies in which the rights of real persons are involved. Specter's proposal flies in the face of over two centuries of judicial refusal to entertain requests for advisory opinions, and looks like an attempt to enlist the courts as adjuncts to legislative deliberation, if the quoted passage above can be made to bear any sense at all. The FISA court judges will surely rebuff this effort to turn them into Senate Judiciary Committee staffers.
In short, Arlen Specter plans to violate the separation of powers by this proposed referral of the overall problem of NSA surveillance to the FISA court. It is at once an invasion of the judiciary's proper province, and an invitation to the courts to step outside their legitimate role under the Constitution. And that is not even to come to the other separation of powers issue here, the way Specter's proposal treats the executive power.
Talk about closing the barn door after the horse has escaped! Only the dimmest bulb in the terrorist world would use a cell phone to discuss sensitive plans since the fact that such calls are not private has been so widely presented in the press.
Why are we allowing this "secret" court rule on this - who is on this court? This is pure BS and I, for one, am sick of it.
It's time for Frist to yank his butt off the judiciary committee.
Pennsylvania Republicans, contact this Scot and tell him to shove his legislation, but say it in a polite way. How 'EFFING RIDICULOUS is it that the President has to ask permission of any judge to find a kill terrorists? Completely out of line. The judges are not the ones who will be going before the cameras when another terrorist attack happens. They are not charged with finding terrorists and killing them--our Commander in Chief has that job! He must be the one who determines how to do that job.
The Judicial branch is not a creature of the Legislative branch that reports to the Congress upon demand.
When people get their law degrees, they leave any common sense behind......if they had it in the first place!
Bush and Santorum both kissed his ass,...now they pay the price!Scottish Law! Scottish Law! Scottish Law! Ira Einhorn lives! Can't God throw a lightning bolt at this twerp!
The Speck is betting the President will just give up authority without a battle like Carter did.
Never mind, Senator Specter, there will be no need. All phone traffic from terrorists has been stopped, due to the Democrats, the media, and people like you.
Thanks alot!!
BINGO BUMP!
"I have been a Specter-watcher for some years now, and I have long since come to the conclusion that he is not a clear thinker on matters constitutional."
Sounds like a good conclusion to me...
He's not a clear thinker period.
Excerpts from a letter to the Senate "Intelligence" Committee by the Asst. Atty. General.....
Under Article II of the Constitution, including in his capacity as Commander in Chief, the President has the responsibility to protect the Nation from further attacks, and the Constitution gives him all necessary authority to fulfill that duty. See, e.g., Prize Cases, 67 U.S. (2 Black) 635, 668 (1863)
("[T]he Prize Cases . . . stand for the proposition that the President has independent authority to repel aggressive acts by third parties even without specific congressional authorization, and courts may not review the level of force selected."); id. at 40 (Tatel, J., concurring). The Congress recognized this constitutional authority in the preamble to the Authorization for the Use of Military Force ("AUMF") of September 18, 2001, 115 Stat. 224 (2001)
This constitutional authority includes the authority to order warrantless foreign intelligence surveillance within the United States, as all federal appellate courts, including at least four circuits, to have addressed the issue have concluded. See, e.g., In re Sealed Case, 310 F.3d 7 17, 742 (FISA Ct. of Review 2002)
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