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July 24, 2006

[Mumble, Mumble....err...Nevermind]

Arlen Specter (R, CYAssylvania) tries to snatch victory from defeat:

My bill, the result of months of negotiation with the administration, accomplishes this goal by authorizing consideration of the program by the Foreign Intelligence Surveillance Court (FISC), the court created under FISA to consider warrant applications. The FISC has the expertise to handle this question. Its closed proceedings and unblemished record for not leaking would make full consideration both possible and secure. Not only would the bill permit a determination of the program's legality but if it were found unlawful in whole or in part, a framework would exist for modifying the program.

Critics complain that the bill acknowledges the president's inherent Article II power [AHEM!] and does not insist on FISA's being the exclusive procedure for the authorization of wiretapping. They are wrong. The president's constitutional power either exists or does not exist, no matter what any statute may say. [And notice that at no time during the making of this Bill did the Senator's actual fingers leave his hands] If the appellate court precedents cited above are correct, FISA is not the exclusive procedure. If the president's assertion of inherent executive authority meets the Fourth Amendment's "reasonableness" test, it provides an alternative legal basis for surveillance, however FISA may purport to limit presidential power. The bill does not accede to the president's claims of inherent presidential power; that is for the courts either to affirm or reject. It merely acknowledges them, to whatever extent they may exist.

From where the half-vast editorial staff is sitting, that smells like full-on, tail-between-the-legs, Article II-thumping retreat. As in the last time we checked, Congress does not possess the power to override the Constitution and Mr. Specter is perhaps belatedly realizing that SCOTUS is unlikely to conjure one from a few crumbs of Camembert and the leftovers of an unassuming little Fume Blanc.

Posted by Cassandra at July 24, 2006 02:28 PM

Comments

Mr. Specter is an embarrassment to my home State...but "CYAssylvania"? Ouch...

Posted by: camojack at July 25, 2006 01:30 AM

I'm sorry Camo. That was aimed at Specter, not Pennsylvania. Though perhaps I should have stopped and considered that your state had suffered enough through simply having to admit to Rep. Murtha :)

If it's any consolation, I'm not any easier on Maryland.

Posted by: Cassandra at July 25, 2006 05:16 AM

At least we've still got Santorum...for now, anyway.

Posted by: camojack at July 26, 2006 01:40 AM

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