Right on cue. For weeks, Sen. [tag]Arlen Specter[/tag] (R-Pa.) has talked tough in response to revelations about Bush’s legally dubious [tag]surveillance[/tag] efforts. Over the weekend, Specter even complained publicly, “[T]here really has to be in our system of law and government, checks and balance, separation of powers, congressional oversight and bob, there has been no meaningful congressional oversight on these programs.”
But Specter being Specter, his steadfastness didn’t last. Yesterday, Republicans on the Judiciary Committee struck a “compromise” on legislation on NSA surveillance.
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 ([tag]FISA[/tag]) 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.
In essence, according to GOP lawmakers, Bush’s surveillance programs have worked outside the law, but Senate Republicans are prepared to make them legal — after the fact — while making it next to impossible for someone to have the legal “standing” to challenge the administration’s conduct in court.
As Glenn Greenwald explained:
Without the provision which was originally “demanded” by Sen. [tag]Specter[/tag], it is basically impossible for any plaintiff to ever challenge the legality of the [tag]NSA[/tag] program. In very general terms, in order to have standing to bring such a suit, a plaintiff would have to prove that they have been specifically injured by the warrantless eavesdropping beyond the injuries of an average citizen. But the program is secret and there have been no investigations into it. As a result, nobody knows whose calls have been intercepted without warrants.
Therefore, any would-be plaintiff would be immediately trapped in the type of preposterous, bureaucratic Catch-22 in which American law specializes and which the Bush administration is eager to exploit — namely, since nobody knows whose conversations have been eavesdropped on, nobody could ever make the showing necessary to maintain such a lawsuit, and since the administration claims that all such information is highly classified, the evidence necessary to make that showing can never be obtained. Thus, in the absence of the provision in Sen. Specter’s bill, the administration would be able, in virtually all circumstances, to block a ruling on the legality of the NSA eavesdropping program.
Who could have imagined that Specter would give in? Oh, that’s right, everyone could have imagined it.