ACLU Whine Over Specter’s NSA Legislation

Today, Senator Arlen Specter struck a deal on the NSA issue.

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.

The Political Pitbull weighs in.

This is good news for those of us in support of this program as a common sense tool to fight terrorism. It effectively prevents organizations such as the ACLU from challenging the constitutionality of the program with legal fishing expeditions unless they can prove that a specific individual’s rights were violated by the program–a task that will likely prove extremely difficult because of the classified nature of the program.

And, indeed the ACLU are upset with this development.

The American Civil Liberties Union today strongly condemned a new proposal drafted by Senate Judiciary Committee Chairman Arlen Specter (R-PA) that embraces the president’s claims of inherent power to secretly wiretap Americans without meaningful checks. Also today, the organization renewed its request to the Justice Department’s Inspector General to open an investigation into the involvement of the department in the warrantless spying on Americans by the National Security Agency.

“The Specter bill would essentially whitewash the illegal actions of the Bush administration,” said Anthony D. Romero, ACLU Executive Director. “Congress should not move forward on any legislation until and unless it has a full understanding of the facts. President Bush has used 9/11 as a blank check to abuse his power to the detriment of the rule of law and the Constitution. What we need now is vigorous congressional oversight and a thorough investigation into the NSA’s illegal spying programs.”

This is a good compromise that has been reached. To date there has been no credible claim that any one individual has suffered any harm from the program. This keeps special interest groups from undermining our national security without having credible evidence that it has harmed an actual individual’s rights. So, I give a rare “bravo” to senator Specter. That doesn’t happen often.

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