Specter's Greasy Fingers

Paper elephant and Senate Judiciary Committee Chairman Arlen Specter is showing more of his hand than he knows regarding the NSA program created by President Bush's executive order to conduct terrorist communications intercepts, as he presents a baffling new set of rules:

The federal government would have to obtain permission from a secret court to continue a controversial form of surveillance, which the National Security Agency now conducts without warrants, under a bill being proposed by Senate Judiciary Committee Chairman Arlen Specter (R-Pa.).

Specter's proposal would bring the four-year-old NSA program under the authority of the court created by the 1978 Foreign Intelligence Surveillance Act. The act created a mechanism for obtaining warrants to wiretap domestic suspects. But President Bush, shortly after the 2001 terrorist attacks, authorized the NSA to eavesdrop on communications without such warrants. The program was revealed in news reports two months ago.

Specter's plan could put him at odds with the administration, which has praised a rival proposal that would exempt the NSA program from the surveillance law. Specter's proposal would also require the administration to give a handful of lawmakers more information about the program than they now receive, such as the number of communications intercepted and a summary of the results.

Self-appointed FISA expert Glenn Greenwald, like many liberal commentators, is utterly baffled by Specter's proposal:

It is, of course, so disorientingly bizarre to hear about a proposed law requiring FISA warrants for eavesdropping because we already have a law in place which does exactly that. It's called FISA.

Actually Glenn, you are quite wrong. Again.

The Justice Department, the FISA Court of Review, and quite a few other learned folks have explained both in public and apparently in more detail in front of closed congressional hearings on the matter, FISA does not cover this NSA program (though it does cover others). Glenn has never been able to get his head around the fact that FISA is not all-encompassing.

After the confidential review of the program that silenced the majority of congressional Democrats and Republicans, Specter must have also ultimately come to the same conclusion that current FISA law does not apply to program of this nature.

Read the nature of Specter's proposal again:

Specter's proposal would bring the four-year-old NSA program under the authority of the court created by the 1978 Foreign Intelligence Surveillance Act.

This one sentence tells us that this program is currently legal outside of the control and competencies of FISA. Specter wants to expand the reach of FISA with new rules so that the program created by Bush would fall under a Congressional sphere of influence.

From the beginning, the President, White House Counsel, The Justice Department and NSA lawyers familiar with the intimate details of this program have all maintained that the program was well within the Executive's Article II powers (and outside of FISA's domain), and they also maintained that the AUMF also granted a statutory exemption to FISA as well.

If I am interpreting this properly, the deal Specter appears to be trying to make is offering the Executive Branch a far broader range of available actions in exchange for more direct Congressional involvement. ”We'll let you do more,” the words slither forth, ”but we want to be involved, too…”

This would appear to be a tremendously bad deal, all the way around.

Liberals and libertarians alike may complain about an “imperial presidency,” but President Bush has not used any more of his Constitutionally-mandated Commander-in-Chief authority than any other previous wartime executive, and the powers granted to him by Article II to capture foreign intelligence are well-established. Specter would make a deal to expand powers that don't need expanding, as long as he can have greasy Congressional fingers in the proverbial pie as well.

The founders would not be amused.