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Senator Arlen Specter Betrays Our Country
Huffington Post
Chris Durang
May 17, 2006

Senator Arlen Specter has just betrayed the country. Upsettingly, I think he knows better, but he's caved in.

For months, he has been a consistent voice expressing upset at Bush's breaking the law requiring the government to get warrants in order to do wiretapping surveillance. Bush just "saying" the law didn't apply to him was not a very good precedent; in that scenario the President decides which laws apply to him and which don't, and even leaves us guessing which ones he thinks they are.

Specter was a Republican voice in opposition to that.

And he has been working on a bill that was going to require the Bush administration to get the Foreign Intelligence Surveillance Court to rule on the legality of the warrantless wiretapping, to rule on Bush's position that his role as commander-in-chief meant he didn't have to follow the law requiring a warrant from the FISA court.

But as of today, Specter has backed down, and is no longer including that stipulation in his bill. And he's also allowed a provision that will make it harder to challenge the Bush administration's actions in court on the surveillance program.

I am a resident of Specter's state, Pennsylvania, so I am particularly galled by this. I have two senators in Pennsylvania: Specter, and that pinhead Rick Santorum (who we all have good hopes we'll soon be rid of).

Senator Specter is a smart man. And like John McCain USED to be, you could count on him to have some nuanced responses to issues.

I think what is so upsetting is that I believe - from watching the judicial committee meetings he ran in February - that Specter knows better, that he knows it's dangerous what Bush is doing to the rule of law, and to the balance of power. Senator Lindsay Graham, also Republican and also on the committee, likewise seemed very disturbed by the Administration's position.

So it's upsetting - I think they're choosing their party above their country, and they know it.

Specter has often shown intelligence, but what you can't count on him to do is follow through on his more moderate impulses: time and again, party loyalty and timidity trumps all, making him useless as a counter balance to the dangerous Bush presidency. Apparently making nice among his fellow Republicans is more important than saving the country.

I had higher hopes for Specter because I watched the February hearings the Judiciary Committee had with Bush's personal lawyer, Alberto Gonzales - oh I'm sorry, I mean with the country's Attorney General, Alberto Gonzales, I can't imagine why I called him Bush's personal attorney.

The hearings were triggered by the New York Times article revealing that the administration was conducting wireless surveillance on American citizens without getting a court warrant, as was required by the Foreign Intelligence Surveillance Act.

(Of course, Bill Bennett wants the whistleblower who gave this information and the New York Times reporters put in jail, rather than thanked for giving us the information. Apparently Mr. Bennett enjoys it when our country starts to resemble communist Russia in terms of secrecy and secret foreign prisons of people held without access to lawyers or the Red Cross. Just how did he become the self-appointed Moral Barometer of the country, and may we please laugh him out of that position? But I digress.)

Senator Specter is the chairman of the Senate Judiciary committee, and in these important hearings, Specter famously and confusingly chose not to put Gonzales under oath, much to the confusion and irritation of all the Democrats.

But that quirk aside (meant to show respect? meant to guard against possible perjury indictments later?), Senator Specter showed true upset at the administration's defense of its warrantless wiretapping, which seems very much in clear violation of the law.

And don't forget how notoriously easy the FISA court's approval of giving warrants has been - so much so, it can only be the most trusting of people who would not wonder just what surveillance the Bush people were doing that they thought they couldn't get warrants for?

So they didn't get the required warrants. Cheney in particular, we've learned, was behind the decision not to get them.

So did the President break the law? Sure. But we're asked to take on faith that he's doing it for our own good, everything to protect us from the terrorists.

Plus, as Gonzales said in the hearing, any law that interferes with the President's role as Commander-in-Chief, he doesn't have to follow. And what's more, he (and Gonzales) gets to decide which laws it is that he can ignore. Kind of like the Pope or a king. The Decider decides. No one else has a say in it. No checks and balances.

That's their position. Gonzales' argument boiled down to: he didn't break the law because the law doesn't apply to him, and it doesn't apply to him because he says it doesn't, so he didn't break it. It sounds very much like "Alice in Wonderland" logic to me.

In the hearing, Specter was CLEARLY bothered by this "reasoning"; and it was pretty evident he didn't buy the argument.

And he very much didn't buy the other justification given by Gonzales, which was that the 2002 Congressional Resolution on Iraq authorizing the President to use force in Iraq also implicitly gave him permission to do ANY OTHER DAMN THING THE PRESIDENT SAID WAS RELATED TO FIGHTING TERRORISM.

No limit apparently - just say the magic word "I'm fighting terrorism" and he can ignore a law. (The Republicans who like this kind of behavior must have the oddest romanticism about strict fathers always knowing what's right, and bossing people around. It's rather weird. After 6 years of this Bush nightmare, anything that smacks of his saying "trust me on this" should trigger fear, loathing and laughter.)

Well, Gonzales is a real good lawyer as Attorney General, really good at representing his client. Not so good at upholding the law, but after all President Bush is more important than the law or the constitution or the country.

In the hearings, it was a relief to watch a couple of Republicans have trouble accepting this ludicrous legal maneuvering - Specter was clearly bothered, and Senator Lindsay Graham also was clearly concerned. And both were bothered by the clarity of the law in juxtaposition with the clear fact that Bush did not follow that law. (The Democratic senators on the committee also were articulate, and stood up for our rights as well. It's just until we vote in a whole lot more, they can't actually do anything.)

But it looked like Specter in particular was going to stand up to the White House on this issue. On February 5, 2006, Senator Specter was quoted in the New York Times as saying:

"...he believed the Bush administration had violated the law with its warrantless surveillance program and that its legal justifications for the program were "strained and unrealistic."

"The program "is in flat violation of the Foreign Intelligence Surveillance Act," said the chairman, Senator Arlen Specter of Pennsylvania."

"...Senator Specter said that he would ask Mr. Gonzales to seek the FISA court's own assessment of whether the program is legal."

And Specter held fast to that wish to get a court's ruling of whether the President's ignoring of the FISA requirement was legal or not.

Until today.

He has once again weakened, and from a pending bill he has now withdrawn the requirement that a COURT rule on the legality of the President's position. He is playing softball, he is NOT holding the President accountable. The Republicans, even the moderates, are circling the wagon to protect this President who has so harmed our country.

I believe that Bush and Cheney and Gonzales and our Piano Playing, Plane-hopping Secretary of State are True Believers - they're in their own world, and they've decided it's okay to bend democracy and/or break the laws because they have a Higher Calling - Bush's is maybe to the God he thinks is whispering in his ears, the others is to a Neo-Con's "we know how to make the world safe, nuclear weapons aren't so bad" mantra.

They have the rigidity and the certainty of people who believe they're right. I consider them mentally ill, and very dangerous. If the President can decide what laws he follows and which ones he doesn't, we are nearly to totalitarianism, are we not? Remember the phrase "It can't happen here"? Well, I'm not sure.

But Senators Specter and Graham know better - I could see it in their intelligent upset at those hearings.

As an American I feel betrayed by both of them. And as a Pennsylvania resident who calls and writes Specter at different times, I feel powerless to affect change in my state or in the country - until we vote the bums out. God, we better.

Here's the article from the Hill that tells how Senator Specter capitulated again:

Specter strikes NSA deal
By Alexander Bolton

Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) and conservative members of his panel have reached agreement on legislation that may determine the legality of the National Security Agency's (NSA) surveillance program, GOP sources say.

Specter has mollified conservative opposition to his bill by agreeing to drop the requirement that the Bush administration seek a legal judgment on the program from a special court set up by the Foreign Intelligence Surveillance Act (FISA) of 1978.

Instead, Specter agreed to allow the administration to retain an important legal defense by allowing the court, which holds its hearings in secret, to review the program only by hearing a challenge from a plaintiff with legal standing, said a person familiar with the text of language agreed to by Specter and committee conservatives.

Conservative Republicans who pushed for the change say that it will help quell concerns about the measure's constitutionality and allow the White House to retain a basic legal defense.

An expert in constitutional law and national security, however, said that the change would allow the administration to throw up huge obstacles to anyone seeking to challenge the program's legality.

The agreement appears to pave the way for the committee to approve Specter's bill and one sponsored by Sen. Mike DeWine (R-Ohio) granting the surveillance program legal authority. GOP aides say the chances of the bills' reaching the Senate floor this year are unknown because of a crowded schedule and the dwindling number of workdays left this session.

Legal standing is a crucial question in every case heard before a federal court. Lawyers and legal experts widely acknowledge that a plaintiff cannot bring a case to a federal court if the plaintiff has not suffered damage.

In other words, individuals or groups that merely take an interest in a case, such as a privacy-rights advocacy group in the example of the surveillance program, cannot ask for a ruling from a federal court. Because the administration can use questions of standing and other tactics to keep plaintiffs out of court, the requirement that a plaintiff challenge the surveillance program -- instead of mandating that the administration itself ask for a ruling on the program's legality -- gives the White House an important advantage.

In return for Specter's concession, Republicans skeptical of his bill have agreed that the FISA court should have jurisdiction over challenges to the surveillance program. This would make a legal judgment more likely because the administration is thought to be more willing to share evidence and information in the FISA court than in courts open to the public.

Mary Cheh, a law professor at George Washington University who specializes in constitutional law, secrecy and national security, said that only allowing the judiciary to review a challenge to the surveillance program in response to a plaintiff's challenge gives the administration legal cover.

"Of course the administration is going to throw up all sorts of obstacles to a court ever hearing them," she said, referring to plaintiffs' challenges.

Cheh said plaintiffs would likely have to jump over very high hurdles to have their cases heard. The administration could, for example, invoke the "state-secrets privilege" and deny plaintiffs access to information, or it could try to deny plaintiffs' legal standing. Cheh said it would be difficult for plaintiffs to demonstrate in court that they have been injured by the surveillance program because the program is secret.

If plaintiffs are challenging the legality of evidence gathered against them through the NSA program, the administration could avoid a legal ruling on the program by dropping plans to use the controversial evidence or dropping the case.

But a GOP aide familiar with the compromise said more than 20 cases are "in the pipeline" in which plaintiffs have challenged the surveillance program. It was very likely that the court would rule on one of the cases if Specter's bill passed, the aide added.

Cheh noted that administration lawyers could file a future motion to challenge any of the plaintiffs' standing.

Republican Sens. Chuck Grassley (Iowa), Jon Kyl (Ariz.), Jeff Sessions (Ala.), John Cornyn (Texas) and Tom Coburn (Okla.) were said to have concerns about Specter's bill. All are members of the Judiciary Committee, and their support is crucial to passing NSA-related legislation though the panel because Democrats say it is premature to pass a bill until more details of the surveillance program are known.

Since the program's existence became known last year, Democrats have called for greater disclosure of its details, something the Bush administration has resisted.

Sen. Orrin Hatch (R-Utah), a senior member of both the Judiciary and Intelligence committees, said he would support Specter's bill because it doesn't "tie the hands of the administration" or force it to "waive its rights."

Republicans say that under the new compromise all Republicans on the Judiciary Committee are expected to support the Specter bill. Support for that legislation is seen as smoothing the way for the DeWine bill. Several Judiciary Committee Republicans have demanded that either both bills pass out of committee or nothing NSA-related does.

Specter, meanwhile, has declined to comment on the specifics of his negotiations with conservatives.

"We are working close to an agreement on the Republican side as to my bill, and I would like to move ahead with Senator DeWine's bill and Senator Schumer's bill at the top of our agenda next week," Specter said during an executive session of the Judiciary Committee last Thursday. Sen. Charles Schumer (N.Y.) is a Democratic member of the committee.

The panel had been expected to mark up Specter's and DeWine's bills Thursday but, instead, the committee will work on legislation on same-sex marriage. Two prominent conservative leaders, Dr. James Dobson of Focus on the Family and Tony Perkins of the Family Research Council, met Senate Majority Leader Bill Frist (R-Tenn.) and Assistant Majority Leader Mitch McConnell (R-Ky.) last week.

The delay of the markup on the NSA-related bills could imperil the compromise on the Specter and DeWine bills. The longer the agreement has to last before committee action, the more likely it is to be mulled over and picked apart, a GOP aide said.

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