Against the Cheney/Specter Presidential Blank Check

A federal judge hearing a case about the President’s warrantless wiretapping program cut to the heart of the issue yesterday: “We’re debating a rather abstract but rather vital issue. Does the president have the power to do something despite the fact that Congress said ‘thou shalt not have this power.'” And it’s worth remembering, again, that even the administration isn’t claiming that FISA authorized the warrantless domestic wiretaps, and their arguments deriving this authority from the AUMF are 1)farcical, and 2)have been rejected by the Supreme Court. Acting against an act of Congress is the area where Presidential power is at its “lowest ebb,” and five years after 9/11 it’s implausible in the extreme to suggest that such lawlessness is justified.

S.2453, which will likely be voted out by the Senate Judiciary Committee led by Arlen “least deserved reputation for moderation in history” Specter this week, would compound this serious constitutional problem by retroactively legitimizing the President’s lawlessness while putting toothless checks on the administration in place. As Greenwald has described it:

Section 702(b) of the bill (entitled “Mandatory Transfer for Review”) protects the administration in numerous ways from meaningful judicial review:

First, it requires (if the Attorney General requests it, which he will) that all pending cases challenging the legality of the NSA program (which includes the EFF and ACLU cases) be transferred to the secret FISA court. Thus, the insufficiently deferential federal judges would have these cases taken away from them. Second, it would make judicial review of the administration’s behavior virtually impossible, as it specifically prohibits (Sec. 702(b)(2)) the FISA court from “requir(ing) the disclosure of national security information . . . without the approval of the Director of National Intelligence of the Attorney General.” That all but prevents any discovery in these lawsuits. Third, it quite oddly authorizes (Sec. 702(b)(6)) the FISA court to “dismiss a challenge to the legality of an electronic surveillance program for any reason” (emphasis added). Arguably, that provision broadens the authority of the court to dismiss any such lawsuit for the most discretionary of reasons, even beyond the already wide parameters of the “state secrets” doctrine.

Contact your Senators and tell them not to let this bill pass. With the administration willing to openly break the law to aggrandize its power, we need a serious congressional check, not writing the principle of “Please, Sir, May I Have Another” into a legislative enactment. And also consider giving a little something to candidates like Jim Webb; the more Democrats in the Senate next term, the better the chance of reining in the White House.