Arlen Specter’s Sellout


It is within the court’s duty to ensure that power is never condensed . . . into a single branch of government. —Chief Federal District Judge Anna Diggs Taylor, American Civil Liberties Union, et al. v. National Security Agency

Judge Anna Diggs Taylor’s August 17 ruling that the National Security Agency, with the secret approval of the president, violated American law and the Constitution—with its warrantless spying on international communications of American citizens—is increasingly under attack.

Not only the president and his supporters discredit her judicial competence, but even some law professors who agree with her result (many do not) admonish her for writing with too much passion and too little legal analysis. But Harvard Law School’s Laurence Tribe calls her decision “splendid,” adding she has shown that “President Bush and his advisers weren’t merely skating on thin legal ice . . . they were skating underwater.”

This lay constitutionalist agrees with Professor Tribe. Whatever the fate of her ruling in the appellate courts, one finding by Judge Taylor is ironclad: “The President, indisputably, has violated the provisions of FISA (Foreign Intelligence Security Act) for a five-year period.”

Another law professor agreeing with what he calls Taylor’s “stinging opinion” is Jonathan Turley of the George Washington University law school and a frequent litigator in the courts on behalf of the Constitution. But Turley has gone farther than Judge Taylor. In “NSA ruling much like a pig in a parlor” (Chicago Tribune, August 20), Turley—who is in my network of constitutional scholars I frequently consult— says:

“Federal law expressly makes the ordering of surveillance under the [NSA-Bush] program a federal felony. That would mean that the president could be guilty of no fewer than 30 felonies in office.” (Bush says he has reauthorized the program 30 times.) And, Turley continues, “it is illegal for other government officials to carry out such an order.”

“This,” he notes, “is the pig in the parlor that polite people in Congress refused to acknowledge.”

The troublesome Judge Taylor has shone sunlight on these presidential felonies. That’s why, Turley adds, “Republicans are now struggling to find a way to protect the president from public accountability.”

The often independent Senate Judiciary Committee chair Arlen Specter (R-Pennsylvania) is now—surprisingly—the White House’s major accomplice in trying to find the president and his felonious colleagues a way out of this acute inconvenience, especially with midterm elections looming.

Arlen Specter has negotiated with the White House what he calls a “compromise” bill that would “modernize” the Foreign Intelligence Surveillance Act that the president has repeatedly violated.

Jim Dempsey of Washington’s Center for Democracy and Technology—an expert civil liberties source of mine for decades—cites, among other connivances in Specter’s legislation:

“A new Section 9 [to FISA] that would vastly expand the scope of warrantless surveillance that never has to be submitted to a court.” As Jim Dempsey explains it to me, the government would be able to say to the FISA Court: “There are so many people we can’t name whom we want to put under surveillance that we need one warrant to cover them all”—rather than the specific individual warrants under present law.

This would amount to—as Shayana Kadidal, a key litigator for the New York—based Center for Constitutional Rights, says—”whole programs of warrantless surveillance.” Kadidal adds:

“Senator Specter’s proposal” would enable “the President to target anyone believed ‘to have communication with or be associated’ with any organization ‘believed’ to be preparing for terrorism—or any persons associated with them. That description includes more or less every attorney I work with at the Center for Constitutional Rights, according to the government’s claims about our clients.”

But to please the president much further, Kadilal points out on the University of Pittsburgh law school’s Jurist website:

“For good measure, Section 801 of the bill would also eliminate the criminal liability of the President and all his minions who ordered or participated in warrantless surveillance if they could convince a court that the surveillance fell within the inherent Presidential Constitutional Power that the administration claims justifies the NSA program.”

But this insistence on commander-in-chief Bush’s “inherent Presidential Constitutional Power” has been used by the administration to justify the abuse, and worse, of our suspected terrorist prisoners in violation of our War Crimes Act and the Geneva Conventions. In June, the Supreme Court ruled that the president does not have this “inherent” power to act unilaterally and violate our laws and international treaties.

Specter’s sellout is puzzling since he has stated more than once his conviction that Bush has indeed violated the Foreign Intelligence Surveillance Act—as Judge Taylor unambiguously decided.

By the time you read this, the Republican Congress may have folded Specter’s appeasement bill into an omnibus piece of legislation in order to more fully protect the president, his lawyers, and his implementers from any consequences of their felonies.

Meanwhile, there is a surprising lack of curiosity in most of the press about the federal judge who placed these felony charges directly on George W. Bush. Who is she? Did you know, for instance, that she arrived in Mississippi on the day civil rights workers James Chaney, Andrew Goodman, and Michael Schwerner disappeared—and that she went to the Neshoba County Courthouse to find out from the dread sheriff Lawrence Rainey Jr. what happened to them. (The sheriff, later allegedly implicated in their murders was—not surprisingly in Mississippi at the time—acquitted.)

Next week: More about dauntless judge Anna Diggs Taylor.