February 6, 2006

Et Tu, Arlen?

by PG

Criticism from Democrats about the NSA spying program is unlikely to have shocked Bush, but having Sen. Arlen Specter, the moderate Republican who chairs the Senate Judiciary Committee, do the same is less predictable. Only a few days after the president declared in his State of the Union,

So to prevent another attack -- based on authority given to me by the Constitution and by statute -- I have authorized a terrorist surveillance program to aggressively pursue the international communications of suspected al Qaeda operatives and affiliates to and from America. Previous Presidents have used the same constitutional authority I have, and federal courts have approved the use of that authority. Appropriate members of Congress have been kept informed. The terrorist surveillance program has helped prevent terrorist attacks. It remains essential to the security of America. If there are people inside our country who are talking with al Qaeda, we want to know about it,
Specter went on "Meet the Press" and said,
[the AUMF] contention is very strained and unrealistic. The authorization for the use of force doesn't say anything about electronic surveillance, issue was never raised with the Congress. And there is a specific statute on the books, the Foreign Intelligence Surveillance Act, which says flatly that you can't undertake that kind of surveillance without a court order.

The rest of the interview follows --

MR. RUSSERT: The White House also says that they didn't go to Congress because people in Congress told them that they would compromise this surveillance plan if they requested permission to conduct it.

SEN. SPECTER: Well, the administration also has said, Attorney General Gonzalez has been questioned, reported, and I asked this in a letter I sent to him, saying that if the administration went to Congress, they were likely to be denied the authority. So, it's very hard in that kind of a context to claim that Congress intended to give the authority if the administration thought that Congress would turn it down.

Now, on the issue as to whether the program would be compromised, you don't know that until the administration goes to the Intelligence Committees, or the chairmen and the ranking, and lays the program on the line with sufficient detail so that there can be some Congressional oversight. And I think up until this time, Tim, that's never been done.

MR. RUSSERT: The President has said that there have been at least 12 briefings of senior members of Congress.

SEN. SPECTER: Well, the statute requires that the committee be informed. And the committee constitutes 15 members. And they have the so-called "gang of eight": the chairman and ranking member of the Intelligence Committees of each House, and the majority leader and the Democratic leader in each House. That really is not--is not what the statute requires. And if the administration thinks that's too broad because the Congress leaks, and regrettably that's a fact of life, we ought to change the law. They've never asked us to do that. And I think we would do that if they could have a showing that a more restrictive approach is warranted.

MR. RUSSERT: As you well know, this program began shortly after September 11, 2001. The President, when he ran for re-election in 2004 was up in the great city of Buffalo, New York, on April 20. And this is exactly what he said. Let's watch.

(Videotape, April 20, 2004)

President GEORGE W. BUSH: Now, by the way, anytime you hear the United States government talking about wire tap, it requires--a wire tap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so.

(End videotape)

MR. RUSSERT: Was that misleading?

SEN. SPECTER: Well, it depends on what the President had in mind. I think it's a fair question for the President. If the President was talking about what goes on domestically in the United States, I think it is accurate. If he had in mind the entire program, including what goes on when one of the callers or recipients is overseas, it's incorrect.

MR. RUSSERT: He said, "A wiretap requires a court order. Nothing has changed, by the way. We're talking about getting a court order before we do so."

SEN. SPECTER: Well, it depends, as I've just said, on what he had in mind. If you're talking about a wiretap in the United States, he's accurate; if you're talking about the broader program, he's inaccurate. That'd be a good question to pose to the President, Tim, at his next news conference. Can't ask me, because I'm not the President.

MR. RUSSERT: Well, tomorrow you will see the attorney general, Mr. Gonzales. At his confirmation hearing in 2005 Senator Russ Feingold of Wisconsin asked him about doing eavesdropping, surveillance, without a search warrant, and Gonzales said, "That's a hypothetical question," while the program was in place and ongoing.

SEN. SPECTER: Well, I have reviewed that transcript, and I think the attorney general is under an obligation to face that question. They had an extended discussion about torture and about electronic surveillance, and the attorney general did talk about a hypothetical question, and I think that's fair game. And I'm sure--I'm going to defer to Senator Feingold on that, that's his issue, but let's see what the attorney general has to say. I think--I think that's a fair question.

MR. RUSSERT: You mentioned the Foreign Intelligence Surveillance Act of 1978, passed by Congress, signed by President Jimmy Carter. That law says that you can go forward with eavesdropping without a court warrant as long as you go back to the foreign--the FISA court, as it's called, within 72 hours. What have you heard from the administration as to why they did not choose to take that path?

SEN. SPECTER: Well, that was one of the questions I posed in a detailed letter I sent some time ago to the attorney general, and he wasn't entirely responsive, but the thrust of what he had to say was that it was too massive to undertake and too complicated and it would have resulted in delays. His answer wasn't very clear, and that's why we're having the--the hearing to go into it.

I think this issue, Tim, of the Foreign Intelligence Surveillance Court is really big, big, big, because the President--the administration could take this entire program and lay it on the line to that court and go through what is involved in some detail, but they don't want to deal with Congress because of leaks. That court has really an outstanding record of not leaking, out of being experts, and they would be preeminently well-qualified to evaluate this program and either say it's OK or it's not OK. And if they said it was OK, it would give the American people great reassurance; and if they said it wasn't OK, knowing all the facts, then that ought to be changed.

MR. RUSSERT: Have you asked the administration, the President, to take the program and present it to the court?

SEN. SPECTER: Yeah, I have. I did that, in effect, in the letter that I sent to the attorney general, and his answer was unresponsive, simply said something like, "Well, we'll exhaust all alternatives." But that's going to be my lead question to the attorney general tomorrow.

MR. RUSSERT: When President Carter signed the Foreign Intelligence Surveillance Act into law, he had a presidential signing statement, and in that signing statement he said this, quote, "It clarifies the executive's authority to gather foreign intelligence by electric surveillance in the United States," suggesting that any inherent powers in Article 2 of the Constitution, or other--other legislation, that this, this FISA law, was central and now would be controlling. Do you agree with that?

SEN. SPECTER: Well, I think that it's a very powerful statement when the President--Carter at the time--signed it, and said that that was the way electronic surveillance ought to be conducted, and only with a warrant. And that was a presidential concession as to who had the authority. Congress exercised it by passing the law, and the President submitted to it.

Now, there is an involved question here, Tim, which we're going to get into in some depth, as to whether the President's powers under Article 2, his inherent powers, supercede a statute. If a statute is inconsistent with the Constitution, the Constitution governs and the constitutional powers predominate. But here you have the President signing on and saying this is it, and that's why I've been so skeptical of the program because it is in flat violation of the Foreign Intelligence Surveillance Act, but that's not the end of the discussion. There's a lot more to follow, and we won't be able to cover it all here this evening--today, this morning, but we're going to have a hearing tomorrow and some more hearings after that because of the importance of this issue and because of its complexity and depth.

February 6, 2006 1:10 AM | TrackBack

I doubt many Republicans were shocked to see Sen. Specter's comments, actually. He's lost his power to surprise on that count.

Posted by: A. Rickey at February 6, 2006 5:42 AM

I am currently wading through the Congressional Research Office report on this subject, following which there remain the Justice Department "rebuttal" and letters from prominent ConLaw professors. The issued raised by both sides are quite complex. But the really intriguing issue has to do with the claimed implicit constitutional power of the President as Commander-in-Chief. I haven't heard from the originalists on this in any detail on this implicit power: What was the "original intent" of the founders/ratifiers? What was the "original meaning" at the time the Constitution was approved? What was the "original understanding" on the part of - "We the People", male white voters, elites, etc, at the time the Constitution was approved? The Constitution's text on the subject of Presidential powers is relatively brief, especially as compared to Congress' powers. Yes, times have changed significantly since the approval of the Constitution. But how do the originalists look at this issue?

Posted by: Shag from Brookline at February 6, 2006 6:30 AM

Shag, there's an old saying:

"The President can be Commander-in-Chief of the army if and only if Congress actually gives him an army in the first place."

You can start there.

Posted by: KipEsquire at February 6, 2006 8:42 AM


John Yoo says the original intent was to give the president king-like warmaking powers. Personally, I'm with David Cole in finding this ridiculous, but it's the theory.

Posted by: PG at February 6, 2006 11:05 AM
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