The Only Explanation: Arlen Specter Has Been Replaced By An Android Running Windows ME

Arlen Specter, 6/11/06:

Absolutely not. That was an erroneous report. If anybody has violated the law, they’ll be held accountable, both as to criminal conduct and as to civil conduct. And in no way did I promise amnesty or immunity or letting anybody off the hook.

Via Greenwald, Arlen Specter’s proposed legislation:

Section 801 of Specter’s legislation is entitled “Executive Authority,” and it specifically amends the criminal punishment provision of FISA (which is Section 109(a), (50 U.S.C. 1809(a)), as follows:

(1) General . . .

(B) FISA. — Section 109(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1809(a)) is amended —

(i) in paragraph (1), by inserting “or under the constitutional authority of the executive” after “authorized by statute”; and

(ii) in paragraph (2), by inserting “or executed under the constitutional authority of the executive” after “authorized by statute.”

(2) Retroactive effect — The amendments made by paragraph (1) shall be construed to have the same effective date as the Foreign Intelligence Surveillance Act of 1978.

Translated from lawyerese, Specter’s amendment proposes retroactive amnesty for any FISA-related lawbreaking stretching back to the date that FISA was enacted, in 1978. I honestly cannot think of any wingnut that has even suggested an idea this wingnutty. Don’t bother calling Specter’s office because, honestly, what can you say about this sort of thing. Go back to Russia? The guy has lost his mind.






41 replies
  1. 1
    Sstarr says:

    I wish to commit a wide variety of crimes, which I would like to have retroactivly legalized if and / or when they are discovered. Whom do I have to contact to make this happen? Is there a fee? Any paperwork? Is the legislative branch shameless enough to let any crime be retroactivly legalized, or are there some (i.e. baby eating) that are beyond the pale? Do I have to be the cheif executive to have my crimes legalized, or could I just be lesser member of the executive branch? What about a county weed commissioner?

    Thank you.

  2. 2
    KC says:

    Well, Specter’s not the only one who has lost his mind. Put Specter together with the Supreme Court’s no knock ruling, and I can’t help but wonder when the Republicans in DC became the fairly radical statists they are?

  3. 3
    Andrew says:

    I’ve figured out what John Cole can do to redeem himself (yes, I realize this is a TimF post):
    Move to Pennsylvania and vote against Santorum and Specter whenever they are up for reelection.

    It’s not far, really.

  4. 4
    Steve says:

    Wow. And Greenwald already ate crow unnecessarily on this issue, after Specter flat-out denied there was an amnesty and Greenwald assumed he must have gotten bad info. The truth couldn’t be much clearer.

    Let me try to lay out the state of the legal arguments.

    1) Everyone pretty much agrees that the President has some degree of “inherent constitutional power” to conduct foreign intelligence gathering.

    2) Saying that it’s an “inherent power” doesn’t necessarily mean that it’s unlimited. Most legal scholars agree, pursuant to the Youngstown framework, that there’s room for Congress to impose some degree of reasonable regulation without impermissibly infringing on the President’s power.

    3) Supporters of FISA believe that it constitutes just such a reasonable regulation; it doesn’t tell the President that he can’t gather foreign intelligence, it just imposes an easy-to-satisfy warrant requirement so that we can all be ensured that surveillance is, in fact, only being used to gather foreign intelligence.

    4) Opponents of FISA believe that it’s unconstitutional because this power belongs to the President alone, and Congress isn’t even allowed to implement oversight procedures to ensure that the President isn’t secretly exceeding his powers.

    So, then, Specter’s latest bill does far more than simply grant an amnesty. The bill says “”Nothing in this Act shall be construed to limit the constitutional authority of the President to gather foreign intelligence information or monitor the activities or communications of any person reasonably believed to be associated with a foreign enemy of the United States.” In other words, it effectively repeals FISA as far as anyone in the Executive Branch is concerned; it codifies the view of FISA opponents that any limitation whatsoever on the President’s surveillance abilities, even if it’s a standard warrant requirement designed to ensure that he limits himself to legitimate foreign surveillance, is unconstitutional.

    In other words, this is the kind of provision you would put into FISA if you were convinced that a court was about to rule it unconstitutional and you wanted to save it. Since it’s very hard to imagine a court doing any such thing – and, indeed, the Bush Administration has done everything in its power to avoid a court ruling on the subject – Specter’s bill represents a total capitulation. I am not exaggerating.

  5. 5
    Steve says:

    Here is what Specter himself says about this part of the bill:

    I believe the program violates the Foreign Intelligence Surveillance Act. Notwithstanding that violation, the president might have the authority to order the surveillance under his inherent Article II constitutional authority, which supersedes a statute.

    A determination of whether the president has such power depends on the court’s balancing the national security interests against the Fourth Amendment’s prohibition of unreasonable searches and seizures. The president does not have a “blank check.” The determination of constitutionality is up to the court, which is uniquely qualified to make that judgment because of its unblemished record for secrecy and expertise.

    All I can say is, if the quote really represents what Specter is trying to do, he’s going to have to go back and edit the bill some more. Because in its current version, it most certainly does not say “we’re not trying to regulate whatever portion of the President’s authority is determined by a court to be immune from regulation.” It says “we’re not trying to regulate the President’s authority,” period.

  6. 6
    fwiffo says:

    Is it really legal to apply new law retroactively like that? I mean, isn’t that what ex post facto is about? (I’m not aserting that it’s not legal – I’m actually asking.)

    Legality aside, Specter’s pants are clearly incendiary devices which do not conform to DOT class C.

  7. 7
    Steve says:

    Ex post facto says you can’t create crimes retroactively. You can certainly grant amnesty retroactively, though.

  8. 8
    jg says:

    Opponents of FISA believe that it’s unconstitutional because this power belongs to the republican President alone

    Fixed. :)

    At least in my experience arguing with Bush supporters this is how they actually see it.

  9. 9
    Remfin says:

    Pretty much. Checks and balances will rise like a Phoenix from the ashes of Congress the day a Democrat is sworn in, until then – burn, baby, burn!

  10. 10
    Perry Como says:

    Put Specter together with the Supreme Court’s no knock ruling, and I can’t help but wonder when the Republicans in DC became the fairly radical statists they are?

    As Orin Kerr stated, “Justice Scalia and the Living, Breathing Fourth Amendment“. The fascists win again.

  11. 11
    Mr Furious says:

    Stop the Presses. Specter is Dick of the Week. And an early favorite for Dick of the Year.

  12. 12
    Al Maviva says:

    I realize this is the Bush fellater, in-the-bag-for-Republican-Jayzus way of thinking, but is it possible that Spector (as well as the 7 sitting FOIA court designee judges who testified to Spector’s committee) thinks that the presidential powers argument, as relates to AQ, is at least a non-trivial argument?

    The stakes are high for congress on this issue. Congress can force the issue in the courts, and if the courts are willing to play (there’s no guarantee do the ‘political question’ doctrine) then Congress may have grounds for impeachment if they win. While everybody makes nice noises about impeachment, everybody also remembers what happened the last time that was tried. At least on the wiretaps issue, Bush has been polling pretty well. It also gives the non-impeachment favoring Republicans an argument, “look at them Dems and librull Republicans… they love terr-wrists.” That’s good campaign grist.

    On the other hand, if Congress loses the argument on Article II powers grounds, then FISA may well be gone, eviscerated, and Congress has no control over wiretaps. Assuming the closed-door briefings have gone decently, Spector may have a number of good reasons to go this way.

    Of course it’s possible that Spector’s brain checked out and went on a golf junket. But Senators usually take fairly well considered action, at least when they have six months to think about something.

  13. 13
    Punchy says:

    So…if I read Spector correctly…they’ll be amending the Geneva Convention 3 days after we have absolute proof of military torture?

    I had no idea the gov’t could provide retroactive amnesty for any crime they committed. This seems just fucking crazy. Doesn’t this blank-check them into any action, legal or otherwise, they want to?

    Scary shee-ot.

  14. 14
    Perry Como says:

    On the other hand, if Congress loses the argument on Article II powers grounds, then FISA may well be gone, eviscerated, and Congress has no control over wiretaps.

    Versus… Congress has no meaningful control over wire taps currently. We now have a unitary Executive with unenumerated powers that can do anything it wants. Force the issue and get a decision. If the court rules in favor of the Executive, so be it. But at least there is some legal backing — other than “I’m the President and whatever I do is legal” — at that point.

  15. 15
    srv says:

    On the other hand, if Congress loses the argument on Article II powers grounds, then FISA may well be gone, eviscerated, and Congress has no control over wiretaps.

    It’s time SCOTUS says what Article II is. We don’t gain anything but ambiquity by leaving radical Unitary Executive Theory in the playbook.

    Let’s find out if the President is King or not and go from there.

  16. 16
    Steve says:

    I don’t get what you’re saying at all, Al. Specter is saying (see my quote above) that this bill is drafted in anticipation of a court ruling on the scope of the President’s Article II powers. It’s not like this bill is drafted to avoid a court ruling on the subject. So anything that can be passed now, could equally well be passed once the courts have decided.

    Let’s boil this down to a very specific example. If the Executive believes an American citizen has spoken with al-Qaeda, do you think the Executive has the inherent power to eavesdrop without a warrant, no matter what Congress says, on all subsequent international calls made by that citizen, whether they’re with al-Qaeda or not?

    How about subsequent domestic calls, by the way, the thing they claim they don’t listen to? Why the heck, if you really think someone is involved with al-Qaeda, would you NOT listen to their domestic calls? And is there any reason to make a constitutional distinction between listening to international calls that aren’t with al-Qaeda, and listening to domestic calls that aren’t with al-Qaeda?

  17. 17
    Davebo says:

    But but…

    Micheal Moore is fat~!

  18. 18
    Anderson says:

    Steve:

    All I can say is, if the quote really represents what Specter is trying to do, he’s going to have to go back and edit the bill some more. Because in its current version, it most certainly does not say “we’re not trying to regulate whatever portion of the President’s authority is determined by a court to be immune from regulation.”

    Okay, I am not in the business of defending Specter, but as reported by Tim F., that *is* exactly what the bill is doing.

    What does “under the constitutional authority of the executive” mean? No one knows, until the SCOTUS tells us.

    To the extent that there is some sort of “constitutional authority” that creates a separate and independent basis for surveillance, FISA doesn’t really have to be amended, b/c FISA would be unconstitutional to the extent that it trespassed on said authority.

    So the most positive way to read Specter’s language is that it’s basically meaningless; at most, it might save the entire FISA statute from being stricken, if Justice-Alito-writing-for-the-Court were so minded.

  19. 19
    Steve says:

    But the language has to mean something. Of course the President has some amount of constitutional authority whether the courts rule on the issue or not; it’s just that until the courts rule, we may disagree on the scope of that authority. But you can’t put language in the bill that says “we’re not intending to tread on the President’s constitutional authority” while simultaneously taking no position on what that constitutional authority is; that just makes no sense.

    If you wanted to say “in the event a court determines that some portion of this law intrudes on the President’s constitutional authority, that portion shall be null and void but the rest shall remain valid,” that’s called a severance clause and it’s done all the time. But Specter’s language looks nothing like that.

  20. 20
    Pb says:

    Yeah, that’s the thing, if this bill goes through as written, then it will be a *recognition* by the legislative branch of the executive branch’s purported Constitutional authority here, and that sort of thing can have weight in the judicial branch, even though they’re supposed to be the ones to ultimately determine such Consitutional issues.

  21. 21
    Anderson says:

    Yeah, that’s the thing, if this bill goes through as written, then it will be a recognition by the legislative branch of the executive branch’s purported Constitutional authority here

    Pb, I think it can be taken either way–the Bushistas would certainly read it as you suggest, but I don’t think that even the Roberts-Scalia-Alito Court is going to buy into the notion that Congress tells the Court what the Constitution means.

    But you can’t put language in the bill that says “we’re not intending to tread on the President’s constitutional authority” while simultaneously taking no position on what that constitutional authority is; that just makes no sense.

    Sure you can! Comparable stuff happens all the time. I can sign a quitclaim deed renouncing any claim I may have to a piece of land, without specifying (or even knowing) what right, if any, I’m conveying.

    Certainly the statute could be written in the severance-clause manner that you describe, but I am not buying the notion that the President somehow acquires Constitutional authority because the Congress says it’s not treading upon that authority, whatever it is.

  22. 22
    Steve says:

    But of course that’s how the President obtains authority, under the Youngstown doctrine. If Congress refuses to disagree with the President, then the courts are going to interpret the President’s power more broadly. Whereas if Congress stands firm behind its claim of power, the courts won’t defer to the President and will make the tough call instead.

    And it certainly makes no sense to say “to the extent a court determines any part of this statute to be illegal, we hereby immunize you from being prosecuted for violating that part of the statute.” It’s a self-evident statement.

  23. 23
    Anderson says:

    Okay, let me back down. I looked at Greenwald’s comment thread, and found a comment by Greenwald (1:38 p.m., can’t link directly) that clarifies what’s probably going on here, & shows why I’m wrong:

    The whole point of the NSA scandal is that a President may have the constitutional authority to engage in certain actions (such as warrantless eavesdropping for foreign intelligence gathering), but once Congress regulates or limits that authority — as it did under FISA — then the President has no right to violate that law in exercising his powers. That’s the whole point of Youngstown — that the President can engage in certain acts constitutionally in the absence of Congressional limits, but once Congress imposes limits, the President is constrained by them.

    What we have currently under FISA is a situation where the President claims an Article II power (eavesdropping) but Congress has LIMITED that power (by requiring warrants for it). Thus, currently, we have the Youngstown situation — the Court would have to decide whether the President can ignore Congressional limits on his power.

    But Specter’s bill changes all of that. It specifically provides that nothing in the bill is intended to limit the President’s inherent eavesdropping powers in any way, which means that Congress is saying that there is no longer a conflict between FISA and the President’s “inherent authority.” Instead, the President’s “inherent authority” — which was always limited by FISA — no longer is. Instead, the President can exercise that authority with no limits at all.

    Nicely argued & persuasive: the President probably had wide powers before FISA, but FISA reined them in, and to distinguish his “constitutional authority” implies a deliberate decision not to apply the Youngstown analysis to the President’s actions.

  24. 24
    Al Maviva says:

    So anything that can be passed now, could equally well be passed once the courts have decided.

    Not really. The Article II argument is a constitutional argument, and if the administration won, other types of electronic surveillance – such as the more traditional surveillance of foreign intel agents – might be held to be beyond Congress’ reach and falling within the Commander-in-Chief power. Spector may be thinking that he can concede a bit of ground here on agents of terrorist entities, in exchange for entirely avoiding the downside risk of a court fight. He may also see some merit in the Administration’s intelligence gather approach, I wouldn’t know, I don’t get closed door briefings of that sort and wouldn’t know the details.

  25. 25
    fwiffo says:

    It seems like every day is up-is-down day. Didn’t it used to be that conservatives were the ones that distrusted government power? I swear to God, that’s the way I remember it being. Wasn’t it the far-right, black helecopter, “gimme my gun to protect myself from the guvmint” crowd that was concerned about this kind of stuff? Did all that college drinking invert all my memories about ideology?

    Now, we have conservatives gutting wiretap laws, and the conservative wing of the SCOTUS upholding no-knock.

    Seriously, am I the only person who finds this to all be completely backwards?

  26. 26
    Anderson says:

    I see that Steve has made Greenwald’s argument even more concisely. Basically, I forgot about Youngtown. Me and John Yoo, lemme tellya ….

  27. 27

    Pity the state of Pennsylvania has no Recall method to remove Specter from office and replace him with a senator who actually has balls.

    The whole political system is now awash with bad (and by bad I mean sloppy) spinmeisters who lie and deceive and are never held accountable for their actions and attitudes. Isn’t lying against the law anymore?

  28. 28
    Steve says:

    Spector may be thinking that he can concede a bit of ground here on agents of terrorist entities, in exchange for entirely avoiding the downside risk of a court fight.

    You’re not listening, Al. Specter is not inserting this language as some sort of compromise to avoid a court ruling. He is, by his own admission, inserting this language in anticipation of the fact that there WILL be a court ruling! Once again, I quoted him upthread.

    So he claims that the language in question isn’t intended to be anything more than a saving clause, while Greenwald and I are arguing that it actually has the substantive effect of ceding power to the President for purposes of that court battle.

  29. 29
    Perry Como says:

    Didn’t it used to be that conservatives were the ones that distrusted government power?

    Yebbut, John Kerry windsurfs and some random blogger made a comment about a turkey. You need to keep things in persepctive.

  30. 30
    Keith says:

    Stop the Presses. Specter is Dick of the Week. And an early favorite for Dick of the Year.

    Sure you don’t mean “Pussy of the Week/Year”?

  31. 31
    Punchy says:

    Let’s ask Cindy Sheehan and Ann Coulter to have a civil debate on the issue of wiretaps and warrants. We can have Mr. Cole and Markos of Kos moderate it, and Bill O’Lielly give the color commentary.

  32. 32
    Mr Furious says:

    Sure you don’t mean “Pussy of the Week/Year”?

    LOL! Interesting point. That may disqualify him…

  33. 33
    Andrew says:

    Let’s ask Cindy Sheehan and Ann Coulter to have a civil debate on the issue of wiretaps and warrants. We can have Mr. Cole and Markos of Kos moderate it, and Bill O’Lielly give the color commentary.

    This event should take place at the University of Malmo.

  34. 34
    Ryan S. says:

    If you can’t break the rules. Make the rules!

  35. 35
    Faux News says:

    He may also see some merit in the Administration’s intelligence gather approach, I wouldn’t know, I don’t get closed door briefings of that sort and wouldn’t know the details.

    Same here Al. I am but a mere “cog in the machine” and lack the A List status (official briefings) that “Brian” has. That is why I read “Wonkette”.

  36. 36
    tBone says:

    Okay, let me back down. I looked at Greenwald’s comment thread, and found a comment by Greenwald (1:38 p.m., can’t link directly) that clarifies what’s probably going on here, & shows why I’m wrong:

    Jesus Christ, Anderson. If I wanted to hear people admitting they’re wrong, I wouldn’t read blogs. Please amend your statement above and then continue arguing your original point using increasingly torturous leaps of logic and strategic jackalope releases until everybody gets tired and moves on to a new thread. Sheesh.

  37. 37
    Perry Como says:

    and strategic jackalope releases until everybody gets tired and moves on to a new thread

    Or at least until a prison shower scence pops up.

  38. 38
    Krista says:

    Perry, you’re obsessed, honey. That’s twice in two threads you’ve brought that up.

  39. 39

    Oh please! This guy was covering up for the powers-that-be all his career.

    I almost hate to raise it because of the big dust up over AIDS here awhile back, but does no one here have any memory of “the magic bullet”? If the guy is willing to deny the laws of motion then what’s a little Constitution?

  40. 40
    Specter and Chaos says:

    Specter is a Plame pal. Plame and the CIA may have made this an issue to get this amnesty for CIA; using DIA and NSA assets. This would be the reason it became an issue while Plame investigated the domestic political groups and Congress investigated the 501s. Retired CIA operations officers started alot of them.

    What is sad is that Plame’s old boss Alan Foley(not Laurence) is going run all the CIA analysts moving over to NSA(DIA) planned by the new director at CIA. So, any use of NSA assets by CIA agents is not an issue. They now work there and with those assets. There was no wrong doing by CIA at NSA or by Plame and this issue. It is no longer important.
    The deal may have something to do with Rove not getting indicted as Fitz passed on Plame. Now, Specter is for blanket amnesty.

  41. 41
    BIRDZILLA says:

    So thats whats become of DATAs evil twin LORE

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