Skip to comments.Arlen Specter and the White House’s “Preposterous” Defense
Posted on 03/28/2006 1:38:55 PM PST by neverdem
March 28, 2006,
Arlen Specter and the White House’s “Preposterous” Defense
The Judiciary Committee chairman vents his frustration with the White House.
Senate Judiciary Committee chairman Arlen Specter Tuesday said the White House has "pretty much abandoned" the "preposterous argument" that the National Security Agency's warrantless-surveillance program was authorized by Congress when it passed the authorization for the use of military force in the war on terror. But Specter said the White House "has an argument" that the program is legal based on the president's inherent authority under Article Two of the Constitution although Specter said he does not know enough about the program to make his own judgment.
"Their position is that the president has the inherent authority, and that's that," Specter said of the White House.
Specter made the comments after a Judiciary Committee hearing that featured testimony on his bill to create a judicial oversight mechanism for the NSA program. Under Specter's proposal, the Foreign Intelligence Surveillance Court would review whether the surveillance is constitutional. "The FISA Court has an unblemished record of integrity and the ability to maintain a secret," Specter said.
Specter's proposal is an alternative to another bill, sponsored by fellow Judiciary Committee Republican Sen. Mike DeWine, which would place oversight of the program in a subcommittee of the Senate Intelligence Committee.
At the hearing, Specter, along with a number of Democratic senators, complained that the White House has not shared enough information about the program to give senators any basis for deciding whether the NSA program is constitutional or not. Answering that question, Specter said, "would require knowing what the program is."
Utah Republican Sen. Orrin Hatch, who is also a member of the Intelligence Committee, said he had been given details about the program and was satisfied but not absolutely certain that it is constitutional. "I am familiar with the program," Hatch said, "and I have to say that I agree with [the] proposition that the Congress cannot take away the president's authority under Article Two of the Constitution."
"You have been briefed," Specter said to Hatch. "You say you believe it is constitutional...but you are not a judge."
"That's true," Hatch answered. "And I may very well be wrong."
After the hearing, Specter said he had discussed his oversight proposal with the administration. But in a brief interview with reporters, he suggested that he is not getting much cooperation from the White House.
"I've talked to the attorney general about it, and I talked to Harriet Miers about it."
"What is their position?"
"Their position is that the president has the inherent authority, and that's that the authority under Article Two."
"Are they relying more on Article Two these days, rather than on the authorization for military force?"
"Yes. I think they've pretty much abandoned that preposterous argument. They may have an argument under Article Two, but they don't have an argument, really, under the force resolution."
"How could they satisfy you that they're right under Article Two?"
"Trust somebody in addition to Sen. Hatch with the program."
Specter also discussed a conflict with Judiciary Committee Democratic Sen. Russell Feingold over Feingold's call to censure President Bush. Specter has scheduled a committee hearing for Friday on the censure resolution, but he said Feingold has asked that it be delayed.
"He says he's going to be someplace else," Specter said of Feingold. "I don't know if I can have a hearing without him, and my instinct is, I'm offering him a hearing, and if he doesn't take it, he's not going to have a hearing."
A frustrated Specter seemed to hint that, in order to pressure Feingold to go along with the hearing on Friday, he, Specter, might threaten to hold a committee vote on the censure resolution on Thursday. Faced with that situation, he suggested, Feingold might decide to be there on Friday. "I'd like to put it on the agenda," Specter said. "We could vote on the censure resolution on Thursday. I'm going to put it on the agenda and try to vote on it."
"Yes. I'd like to bring the matter to a head. That may produce a Friday hearing you know cause and effect?"
Late Tuesday, Feingold denied that he had asked that the hearing be delayed. "There is no truth to the claim made today by Chairman Specter that I have asked for a postponement of Friday's hearing on the censure resolution, and I am very puzzled how the chairman could have reached that conclusion," Feingold said in a statement. "I hope the chairman is not backing away from his commitment to hold the hearing on Friday morning."
Byron York, NR's White House correspondent, is the author of The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President and Why They'll Try Even Harder Next Time.
Specter should be fired.
Now....who are we going to believe Specter or Feingold...not that it matters...they both spoke (LOL).
Just curious if the hearing WILL happen on Friday now.
Thanks for the post!
Thanks for the links!
Please, remind me why Specter was so desperate to be Judiciary Chairman.
Is Senator Specter corrupt? A sleeper agent? Or merely mentally unbalanced?
Specter is corrupt. Been so since his days on the Philly City Council.
This does not surprise me.
I don't believe the AUMF argument was weak. And I do think it was necessary in order to assert long-held principles.
If congress authorises the president to take ALL steps necessary to prosecute a war, the President should be able to take that to include spying on americans who might be communicating with the enemy. That is certainly a step to prosecute the war.
TO the degree that was a necessary step, congress could easily enumerate the things it is NOT allowing the president to do, or could enumerate the powers it is giving the president. It probably wouldn't pass constitutional muster for the reasons given above, but the courts hate to restrict things when congress didn't bother to do so.
FIRST and FOREMOST: THIS IS AMNESTY PURE AND SIMPLE.
Attempting to say it is not amnest is an insult to any intligence.
This is about as absurd as clinton's attempt to say tax increases were "contributions"
The fact these people are illegal should ban them from EVER obtaining citizenship.
When you consider the CURRENT LAW HOLDS you have to hide for 10 years, the McCain bill is a RELAXING of current law!
Agreed. Especially his "magic bullet" theory before the Warren Commission. He must have gotten a gold plated shovel for slinging that BS.
That is a misstatement. The FISA Judge refused to recognize the Patriot act, and then told the New York Times the President was violating the law.
The FISA Court of Review smacked them down over it. One of the FISA Judges resigned after the Court of Review said the President was right, and the FISA Judge was wrong.
He is probably one of the "sources".
I disagree with your point, for numerous reasons. But you are certainly entitled to keep your position on this, and you have well laid out why you hold the way you do.
I'm not going to flesh out my rationale here, but will give bullet points.
Whenever, during the present war, the President shall deem . . . public safety demands it, he may cause to be censored under such rules and regulations as he may, from time to time establish, communications by mail, cable, radio, or other means of transmission passing between the United States and any foreign country.
If (I think it's a matter of "when") the DoJ drops the AUMF argument, will you think it was a weak argument, or a strong argument?
More detail on In re: Sealed Case ...
I said, " ... it's an error in logic, on several levels, to point to In Re: Sealed case and say 'that stands for the proposition that the NSA Terrorist Surveillance Program is Constitutional.'"
First, In re: Sealed Case wasn't on the issue of what constitutes the extent of permissible wiretapping - it never got to a 4th amendment analysis. Second, we don't know what sort of "probable cause" (shorthand for finding a connection to foreign attachment) is present in the NSA Terrorist Surveillance Program. It's not possible to draw a reasoned opinion on constitutionality until a fact pattern is presented. Third, the cases that In re: Sealed Case relies on, primarily Truong and Keith, a) involved judicial oversight and b) resulted in some evidence being tossed for failure to meet 4th amendment requirements.
I just bumped into an earlier post of mine on the same subject ...
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