Byron York writes at NRO about Arlen Specter’s recent shananigans involving the NSA wiretaps.? It’s obvious he is still a flaming RINO when he can’t come to grips with the fact that Bush has all the authority in the world to protect this country:
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.”
Preposterous!? How hard is it to understand that the AUMF authorized the President:
“to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks of September 11, 2001, . . . in order to prevent any future acts of international terrorism against the United States.”
So you think that maybe, just maybe,?the President authorizing taps to listen to the very group that attacked us that day as they make calls into the US would be considered preventing future acts?
Preposterous my ass.
And lets not even get into the Art II argument, they will lose that one EVERY time:
In early September 2002, just before the first anniversary of the September 11 terrorist attacks, a group of lawyers gathered in a heavily protected, windowless room in the Department of Justice building in Washington. There were three federal appeals-court judges, Laurence Silberman, Edward Leavy, and Ralph Guy. There was Theodore Olson, the U.S. solicitor general. There was Larry Thompson, the deputy attorney general. And there was John Yoo, the Justice official who had closely studied questions of war powers and presidential authority. Rounding out the group were a few other department staffers, one official from the FBI, and David Addington, Vice President Cheney’s top lawyer.
[…]The conflict began with the passage of the Patriot Act in October 2001. The act tore down the “wall” that had arisen in the Justice Department that blocked intelligence officials and criminal investigators from working together and sharing information. That wall had been cemented by a set of internal department guidelines written in 1995, in which then?attorney general Janet Reno outlined the department’s constricted surveillance procedures.
The Patriot Act was designed to fix that problem. But a month after the act was passed, when the Justice Department submitted surveillance requests to the FISA Court under the new, looser standards passed by Congress, the FISA Court in effect rejected the Patriot Act, and instead reaffirmed the old 1995 Clinton-era standard.
[…]”We’re here today,” Theodore Olson said as the secret In re: Sealed Case court argument began, “because the Foreign Intelligence Surveillance Court’s May 17th order . . . has perpetuated a serious and increasingly destructive barrier which has hamstrung the president and his subordinates” in their work to protect “the United States and its citizens from attack and from international terrorism.” The FISA Court’s ruling, Olson continued, was “inexplicable.”
[…]The entire session lasted just a few hours, and the Justice Department waited for the Court of Review’s ruling. When it came, in November 2002, it was a slam-dunk win for the government.
In its opinion, the Court of Review said the FISA Court had, in effect, attempted to unilaterally impose the old 1995 rules. “In doing so, the FISA Court erred,” the ruling read. “It did not provide any constitutional basis for its action ? we think there is none ? and misconstrued the main statutory provision on which it relied.” The FISA Court, according to the ruling, “refus[ed] to consider the legal significance of the Patriot Act’s crucial amendments” and “may well have exceeded the constitutional bounds” governing the courts by asserting “authority to govern the internal organization and investigative procedures of the Department of Justice.”
And then the Court of Review did one more thing, something that has repercussions in today’s surveillance controversy. Not only could the FISA Court not tell the president how do to his work, the Court of Review said, but the president also had the “inherent authority” under the Constitution to conduct needed surveillance without obtaining any warrant ? from the FISA Court or anyone else. Referring to an earlier case, known as Truong, which dealt with surveillance before FISA was passed, the Court of Review wrote: “The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”
It was a clear and sweeping statement of executive authority. And what was most likely not known to the Court of Review at the time was that the administration had, in 2002, started a program in which it did exactly what the Court of Review said it had the power to do: order the surveillance of some international communications without a warrant.
Would these judges satisfy Arlen?
See author page
