Arlen “Scottish Haggis” Specter Enumerates Bush’s Law-Breaking

(Thanks to Selise for the YouTube)

Yesterday, Scottish Haggis went even further than he did the other day the other day in asserting that Bush broke the law when he instituted his illegal wiretapping program. He asserted flatly that Bush had violated two statutes (FISA and the National Security Act).

I believe it is vital that the courts remain open. I say that because on our delicate constitutional balance of separation of powers, the Congress has been totally ineffective on oversight and on restraining the expansion of executive authority. But the courts have the capacity, the will, and the effectiveness to maintain a balance.

But we find that the President has asserted his constitutional authority under article II to disregard statutes, the law of the land passed by Congress and signed by the President.

I start with the Foreign Intelligence Surveillance Act, which provides that the only way to wiretap is to have a court order. The Executive Branch initiated the Terrorist Surveillance Program in flat violation of that statute. Now, the President argues that he has constitutional authority which supersedes the statute. And if he does, the statute cannot modify the Constitution. Only a constitutional amendment can. But that program, initiated in 2001, is still being litigated in the courts. So we do not know on the balancing test whether the Executive has the asserted constitutional authority.

But if you foreclose a judicial decision, the courts are cut off. Then the executive branch has violated the National Security Act of 1947, which mandates that the Intelligence Committees of both the House and the Senate be informed of matters like the Terrorist Surveillance Program. I served as chairman of the Judiciary Committee in the 109th Congress. The chairman and the ranking member, under protocol and practice, ought to be notified about a program like that. But I was surprised to read about it in the newspapers one day, on the final day of argument on the PATRIOT Act Re-authorization. It was a long time, with a lot of pressure–really to get the confirmation of General Hayden as CIA Director–before the executive branch finally complied with the statute to notify the full Intelligence Committees.

Now, on the other hand, the courts have been effective–and I will amplify this at a later time because I want to yield soon to Senator Whitehouse and give the opponents an opportunity to speak before 4:30. But in the Hamdan case, the Supreme Court held that the President does not have a blank check in the war on terror. Justices held that the President cannot establish military commissions unless Congress authorizes it. In Hamdi, the Supreme Court concluded due process required that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that contention. In Rasul v. Bush, the Supreme Court held that the Federal habeas corpus statute gave district courts jurisdiction to hear challenges by aliens held at Guantanamo Bay.

Well, this is not Pakistan, where President Musharraf can suspend the Supreme Court Justices and hold the Chief Justice under House arrest. This is America. The balance is maintained only because the courts are open. I believe it would be a major mistake to close the courts on pending litigation when the courts have provided the only effective way to check expanded executive authority, which we have seen in many lives. I will amplify those later, on matters such as signing statements. [my emphasis]

Two points about this. First, Haggis made a special point to say it was the executive branch–and not the President–that violated the National Security Act. You think Haggis is still pissed Dick Cheney bypassed him on the illegal wiretap program?

Also, Kit Bond tried to rebut Haggis’ point by claiming the entire Gang of Eight was briefed on the program. As the schedule of briefings shows, that is false. I wonder how Haggis feels about the fact that Bond is as disingenuous responding to Haggis’ arguments as he is to Feingold’s?

15 replies
  1. phred says:

    Thanks for that last paragraph EW. I have given Reid and Pelosi a lot of crap for having been notified as members of the Gang of 8, and therefore having a self-interest to protect the President from impeachment. Your last paragraph suggests my assumptions here are wrong. If that is the case, do you have any idea why Pelosi continues to refuse to impeach and both she and Reid appear to keep doing the President’s bidding? I should think if they were truly cut out of the loop (hence having their toes stepped on as a matter of form, sort of like the Dem Senators getting mad at the Rep Senators to objecting to every amendment a couple of weeks ago), then they would be highly motivated to exact some retribution on the executive branch.

    • emptywheel says:

      Keep in mind, the briefing on these issues was different depending on the program. THe only group that has always been informed of all the illeagl programs was the Intell committees. Since Nancy was ranking member on that in 2001-2003, she got some of the briefings, but didn’t keep getting them afterwards, when she became minority leader (which is where Kit is wrong–Specter was never official due a briefing, but he was due direct communication from CHeney on other issues). THis is generally true of both torture and the wiretap program.

      As to why that doesn’t justify impeachment? It does. But for whatever reason the Dems refuse to do it.

      • phred says:

        Thanks EW. I continue to be mystified by the accommodation of the Dems for the rampant law breaking of the exec. I can only imagine there is a self-serving reason for the leadership to do so. I hope to live long enough to find out what it is ; )

      • Quebecois says:

        But for whatever reason the Dems refuse to do it.

        Good morning EW.

        I do not want to derail the discussion, but I’m really intersted in those reasons. Would you please hypothesize??? Thanks.

      • bmaz says:

        Yes; and I want to take the unusual step of amplifying and explaining what EW said (Crikey I better get this right eh?). It is not just that Pelosi got truncated briefings because of her change in status; it is that all of the intel committee folks, in both houses, were likely each given somewhat different, tailored, briefings with none of them, form either party, given the whole unadulterated story. I would further hazard a guess that most were given little “off the record” pep talks “to help them put it all into context” that further falsely and/or disingenuously muddied the waters. At this point, each of said intel gangs has a vested personal interest in A) Not letting it become public that they participated in such sheer lawlessness; and B) That they were played for such fools, and in such a repetitively obvious manner.

        At this point, we are left with a Congress comprised of two basic vegetable groups. The first that is simply too stupid, uninformed and undesirous of becoming informed to really understand the scope of what has happened and that want to look strong and are, therefore, compliant. The second, knows damn well enough what went on by this point in time, but either have directly the issues described in the preceding paragraph, or feel they are effectively in the same position because of having followed the misleading leaders to start with. Both groups of vegetables thus have a vested interest (both personal and electoral) for not delving into this wrongful behavior, having accountability and setting the record straight for the future. It is truly a sad an sick situation producing total inertia against that which is necessary to protect our Constitution and country.

  2. danps says:

    Hi Marcy – sorry I’m late to the party on this one, but I hope you can respond: Doesn’t he have a well-deserved reputation of being all bark and no bite? He seems to talk tough in public and cave in private. I’d like to be more encouraged but haven’t we seen this before?

    • Rayne says:

      Hence the moniker, “Haggis”.

      Spineless sheep’s organ filled with offal and cereal-matter — cooked.

      BTW, Gung Haggis Fat Choy on this first day of the Year of the Rat.

  3. Mary says:

    About time someone mentioned the NSAct violations. Rockefeller and Pelosi and Harman – they all helped Bush violate that Nat Sec Act for that matter.

    There is no legally acceptable “Gang of Four” for briefing purposes. It’s an illegal approach. And no one mentions it. They needed to have a full Gang of 8 briefing followed as soon as expedient with full intell committee briefings.

    Now that Haggis is looking at the possiblity of a Dem president, he’s thinking maybe someone should mention that the Nat Sec Act shouldn’t be violated? Yeah – whatever.

    The Bush/Cheney planting of covert info with Judy Miller was equally and very clearly a violation of the Nat Sec Act (not a instadeclassification) but no one will pay much attention to that either.

  4. oldtree says:

    Why must it be someone that will turn around and approve anything that cheney tells the puppy to say comes out to tell everyone about the law? Pretty damn sick.

  5. danps says:

    Aha. I wondered where that came from – I knew Haggis was an unappetizing mix of sheep innards but didn’t know about the “spineless” part. So with that in mind how is his potential anger towards Cheney or Bond relevant? He’ll do nothing with either.

  6. BlueStateRedHead says:

    There must be an overweaning reason for the Senator to take time from the so much more important football tape destruction investigation. EW mentions the Cheney pissing off issue, others cite the possibility of a Dem. Pres. EW can you do one of your super-duper bottom liners on this.

  7. ticktock says:

    “You think Haggis is still pissed Dick Cheney bypassed him on the illegal wiretap program?”

    Portion of letter:

    Washington, June 8, 2006.
    Hon. Arlen Specter,
    Chairman, Committee on the Judiciary, U.S. Senate, Washington, DC.

    “The executive branch has conducted the TSP, from its inception on October 4, 2001 to the present, with great care to operate within the law,”

    So this whole thing started on October 4, 2001…

    Reiterating a post I did the other day….

    If the war on terrorists is such an important issue why wasn’t the issue brought forth back by our government when Qwest’s former ceo was apparently refused warrant-less surveillance in February 2001 prior to 9/11?
    Instead apparently the incident is revealed years later in an article in a Washington Post October 17th 2007.
    Also, why is warrant-less wiretapping wrapped around 9/11 because it appears the procedure was introduced (& probably inacted) months prior to the incident.

    What about this activity that was apparently “incepted” around February of 2001?….

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