Specter’s Senate Secrecy Hijinx (8/31/06)

Sam Ayers of the Yale did thiscartoon .

While the House of Representatives was distracting me with its antics regarding the estate tax et. al, the Senate was working away to loosen requirements on the National Security Agency and the Central Intelligence Agency as the Judiciary Committee held hearings on Arlen Specter’s (R-PA) S.  3001  “Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006″ on  July 26 and marked the bill up on August 3, in conjuction with consideration of his S. 2453, introduced March 16.  Jerry Berman, Jim Dempsey, Nancy Libin of the Center for Democeracy and Technology  Information analyzed that bill on March 22. Both of Specter’s bills were introduced, of course, long before  the August 17, 2006  Eastern District of Michigan  ruling  siding with the American Civil Liberties Union in its lawsuit  in challenging the National Security Agency’s warrantless wiretapping program.  The Tech Law Journal’s synopsis of the ruling is here.

The Bill of Rights Defense Committee, founded in 2001,  has posted a copy of Specter’s substitute to S. 2453l submitted at the hearing.  The substitute:

Would (1) make FISA optional and endorse the President’s assertion that he has unlimited power to wiretap Americans, (2) make it even more difficult for Americans to obtain judicial review of extra judicial surveillance activities by establishing a set of rules that make it very hard to get a full and fair hearing on the merits, and (3) authorize electronic surveillance in violation of the Fourth Amendment’s requirements of probable cause and particularity and its prohibition against general warrants.

On June 19, BODC had sent a letter to Specter outlining its concerns.  The letter was cosigned by:

  • American Civil Liberties Union
  • Center for American Progress
  • Center for Democracy and Technology
  • Center for National Security Studies
  • First Amendment Foundation
  • National Association of Criminal Defense Lawyers
  • National Association of Muslim Lawyers
  • National Committee Against Repressive Legislation
  • National Lawyers Guild—National Office
  • Open Society Policy Center
  • People For the American Way
  • Privacy Activism
  • United Methodist Church, General Board of Church and Society
  • World Privacy Forum

BODC posted a form July 27 to send a free fax your senator opposing the legislation.  It updated the form August 3, reporting that the matter has been tabled until the Senate returns on September 5.

It has also posted these action suggestions.

It looks like rather than limiting the imperial presidency, the Senate is following the bidding of Bush and the Justice Department to change FISA.  Neither the Library of Congress, nor the Government Printing Office has a copy of the bill as marked up, as of today.


Some background on the District Court decision:  The ACLU argued that the program violates both the Federal Intelligence Surveillance Act (FISA) of 1978 and the Fourth Amendment to the U.S. Constitution.

Judge Anna Diggs Taylor’s 44-page decision ruled against the  Bush Administration contention that the Authorization of Use of Military Force (AUMF), passed by Congress in 2001 in response to the 9/11 attacks granted the president the authority to order the warrantless surveillance.

It was never the intent of the Framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights.

A hearing will be held before Judge Taylor on Sept. 7, and her decision will not be enforced in the meantime pending the government’s appeal. At that time, the government must either justify a further stay (pending appeals) or discontinue the NSA program immediately.   The administration has vowed to appeal.

Judge Taylor’s Detroit court is under the 6th Circuit Court of Appeals, which has  historically been less than friendly towards the unitary executive theory. If the 6th Circuit upholds Judge Taylor’s ruling, and the Bush administration will almost certainly appeal the case to the U.S. Supreme Court.

Lawyers are predicting that U.S. Supreme Court will not uphold the NSA’s warrantless surveillance program as it currently stands, based on the decisions in Hamdi v. Rumsfeld (2004) and Hamdan v. Rumsfeld (2006).


Richard Silverstein as of last month started a peace blog aggregator featuring

35 progressive blogs by Israelis, Palestinians, Lebanese, and Diaspora Arabs and Jews which focus on the Israeli-Arab conflict. 

You can contact him through a form on his blog, Tikun Olam. 



Started tutoring math and English today at Virginia Western Community College. 


Blog statistics:

During the first six months: 985 individuals viewed 12,053 pages in this blog.
During the next six months another 984 individuals viewed another 14,289 pages. 

 I guesss that’s a case of compounding interest.  Wish there was some way to know who you are.  Email me!



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