R.I.P. Senator Specter, You Will Be Missed

The Snarlin has ceased; via CBS News:

US Senator Arlen Specter, whose political career took him from Philadelphia City Hall to the US Congress, died Sunday morning at his home in Philadelphia at the age of 82 from complications of non-Hodgkins Lymphoma. He was born February 12, 1930.

His career was marked by what the pundits and Specter himself called “fierce independence.” But long before Specter ever stepped onto the Senate floor in Washington DC, he made it into national prominence by serving as assistant counsel for the Warren Commission, which investigated the 1963 assassination of Pres. John F. Kennedy.

Specter postulated the controversial “single-bullet theory” that was eventually embraced by the panel and still stands to this day, despite the cry of conspiracy theorists who say there was more than one gunman in Dallas that November day.

“Admittedly a strange path for a bullet to take, but sometimes truth is stranger than fiction,” Specter said.

We have had a complicated relationship with Arlen Specter here at Emptywheel, sometimes castigating him, sometimes praising him, sometimes laughing at him, sometimes laughing with him. Specter engendered all those things. But I always sensed a very decent heart beating underneath Specter’s surface, even if it was all too often masked by his votes for, and often vociferous support of, ever more destructive policies of the right.

For this, Specter earned the nickname “Scottish Haggis” here in the annals of Emptywheel. The term had its root in Mr. Specter’s predilection for Scottish Law, and goes all the way back to the original incarnation at The Next Hurrah. For a number of reasons, offal and otherwise, it was a nickname that stuck and seemed appropos and seemed to reflect the complicated nature of Senator Specter.

On a personal note, I did not have an abundance of interaction with Sen. Specter and his office, but in that which I did have, I found him and his office to be beyond both kind and professional. One instance stands head and shoulders above the others, and surrounded the Obama scuttled nomination of Dawn Johnsen to be head of the Office of Legal Counsel (OLC). It was my contention from the outset that the whip count votes were there to confirm Professor Johnsen for the job she was perfect for. And, in the roiling aftermath of the Bush/Cheney unitary executive excesses, the country desperately needed Johnsen’s intellectual sense of honesty and Constitutional integrity.

The only reason Dawn Johnsen did not get confirmed as OLC head was Barack Obama used her as false bait and cat nip for the more noisy progressive liberals. It was a glaring sign of depressing things to come from the not nearly as Constitution minded Barack Obama as had been pitched in his election run. Not only could Johnsen have been confirmed, as I pointed out before, she could also have been recess appointed by Obama. Despite all the ridicule I took at the time, that point has been proved conclusively by the later recess appointment of Richard Cordray to be head of the CFPB (another instance of Obama using a supremely qualified progressive, Elizabeth Warren, as bait and then hanging her out to dry).

The point was never that Dawn Johnsen couldn’t be confirmed, it was that Barack Obama and the insiders of his White House did not want her confirmed into leadership of the OLC. I knew that from talking to several inside the DOJ and Senate Judiciary Committee, but that was all off the record. When I found an obscure old comment from Arlen Specter indicating he was willing to support a cloture vote for Johnsen as far back as his second meeting with Dawn Johnsen on or about May 12, 2009, it was by then an old, and quite obscure comment. Specter could have walked it back or dissembled on the subject.

Arlen Specter didn’t walk it back or dissemble, instead he personally confirmed it to me. With the already in the bag vote of Sen. Richard Lugar, that was the 60 votes for Dawn Johnsen at OLC. Specter knew it would infuriate both the GOP and the Obama White House, and he knew exactly what story I was writing. He stood up. Oh, and, yes, he knew about “Scottish Haggis” too. The man had a sense of humor.

For the above vignette, and several others, I will always have a soft spot in my heart for Snarlin Arlen Specter. His life and work in government spanned over five decades, he has got my salute today.

Sen. Specter repeatedly had to fight off serious cancer, and he did so with aplomb, courage and his good humor. He also was a tireless champion for the NIH and funding of cancer and stem cell research. When confronted with the last battle, the one which finally took him, Specter was upbeat, defiant and determined to get back to his part time hobby of stand up comedy. May the Scottish Haggis have many laughs wherever he may travel.

Elena Kagan on Illegal Wiretapping

From Elena Kagan’s first comments about Cheney’s illegal wiretapping program yesterday (at 2:10), it sounds almost like she’d vote for rule of law in the al-Haramain case (though the case is probably in the gray area of cases on which she should recuse herself).

DiFi: And we have just had a case. It came–by a District Court Judge in California, as of March 31 of this year, the al-Haramain case, and Senator Specter and I have discussed this. It’s my understanding that what the judge did here was find the Terrorist Surveillance Program illegal, and essentially say that the plaintiff was entitled to damages from the government. So I guess the question might be whether that case goes up to the Supreme Court or not. But clearly the judge here dealt with something that was outside of the scope of law–which was the Terrorist Surveillance Program–and made a finding that it was, in fact, illegal.

Kagan: I believe that is what the judge said in that case and that case is still pending of course and might come before the Court. I think that the appropriate analysis to use with respect to that case or many others in this area would be the Youngstown analysis which makes very important what Congress has done. Where Congress authorizes the President, it’s one thing, where Congress has said nothing, it’s still another, where Congress has specifically barred the activity in question, you’ve got a much much higher bar for the President to jump over in order to find the action Constitutional.

After all, as DiFi with her historic concern for FISA being the “exclusive means” to conduct wiretapping seems intent to remind Kagan,  warrantless wiretapping was specifically barred.

But maybe not. Read more

The Value of Advice and Consent: Clapper Nomination

I’m going to have more to say about James Clapper’s nomination to be Director of National Intelligence. But for now I want to point out similarities between how the Administration’s treated that nomination and its involvement in primaries.

Two things make James Clapper’s nomination anything but a done deal.

Most important to us little people is Clapper’s certainty in 2003 that we hadn’t found Iraqi WMD because Saddam managed to move all of them to Syria before US troops secured them.

The director of a top American spy agency said Tuesday that he believed that material from Iraq’s illicit weapons program had been transported into Syria and perhaps other countries as part of an effort by the Iraqis to disperse and destroy evidence immediately before the recent war.The official, James R. Clapper Jr., a retired lieutenant general, said satellite imagery showing a heavy flow of traffic from Iraq into Syria, just before the American invasion in March, led him to believe that illicit weapons material ”unquestionably” had been moved out of Iraq.

”I think people below the Saddam Hussein-and-his-sons level saw what was coming and decided the best thing to do was to destroy and disperse,” General Clapper, who leads the National Imagery and Mapping Agency, said at a breakfast with reporters.

Obama wants a man with a history of not questioning his own assumptions to take on a position invented, at least partly, to make sure the intelligence community questions its assumptions to prevent failures like 9/11 and the Iraq War.

The more important problem to the Senate Intelligence Committee–that is, to those with a vote on the matter–is that Clapper has a history of advocating for continued strong military control over intelligence functions, a view that puts him at odds with Dianne Feinstein and Kit Bond and others on SSCI. As Josh Rogin reports,

Yesterday, we reported that the leaders of the Senate Intelligence Committee were resisting the nomination of James Clapper to become the next director of national intelligence because he had argued in an April 28 memo against strengthening that very position.

Today, we have obtained a copy of the memo (pdf), which is entitled, “Discussion Draft: Provisions for FY2010 Intelligence Authorization Act that would expand DNI authorities over leadership and management of DOD’s intelligence components.”

The paper, written by Clapper’s staff, but not signed by Clapper himself, spells out 17 concerns that the Pentagon apparently had with the intelligence policy bill making its way through Congress. It’s clearly an attempt to defend the secretary of defense’s authority over defense intelligence agencies against what the memo’s writers see as encroachment by the Office of the DNI.


The administration sees Feinstein’s and Bond’s objections as part of their overall push for greater committee jurisdiction over defense department assets. For their part, Hill sources lament that Clapper’s memo seemed to be criticizing a bill that they thought had already been negotiated with the administration.

Regardless, Feinstein said she won’t move the nomination until her bill gets passed and her concerns are addressed. She meets with Clapper this week.

Read the whole Rogin post–and his earlier post on it–to understand why this is not just about a difference of opinion on the role of DNI and DOD in intelligence, but also about the Administration’s ongoing reluctance to allow Congress to exercise full oversight of the intelligence community.

The point is, the folks who need to approve Clapper’s nomination are none too thrilled about him and it will be very easy to spin a narrative about why he’s the wrong person for the job.

Read more

Greenhouse Eats Offal for Breakfast

I was at a loss for words about Arlen “Never Know Whether He’s Haggis or Scrapple” Specter’s loss on Tuesday. In the Village, our tragic figures never have the glory of Shakespeare or the Greeks, but rather only the tawdriness of Hollywood, and the whole thing really just made me sad–sad about the state of our politics.

Luckily, Linda Greenhouse has said most of what I would have said and more. You really ought to read the whole thing–so I’m just going to quote the last few lines.

Having spent four years in Albany covering the New York Legislature early in my journalism career, I don’t regard myself as naïve about politicians, their foibles or their inevitable compromises. What I mean to convey by these reflections on Senator Specter’s trajectory is not surprise so much as sadness — sadness because he knew better.

Specter knew better–and even admitted as much, which is more than most of his colleagues do. But the ideology of Specter-for-Specter nevertheless always won out.

Reading Tea Leaves on Warrantless Wiretapping

Sorry I’ve been distracted all day. And yes, I will try to comment on the surprise news that Steven Kappes will be leaving the CIA next month later this evening.

But in the meantime, I wanted to look at this exchange between Arlen “Scrapple that used to be Haggis” Specter and Eric Holder on the recent al-Haramain verdict.

SEN. SPECTER: Mr. Attorney General, there will be another opportunity to test the constitutionality of the warrantless wiretaps through the appellate process and, hopefully, to the Supreme Court of the United States. And from the decision made by Chief Judge Walker recently in the San Francisco case, holding that the warrantless wiretaps were unconstitutional, saying that the requirements of the Foreign Intelligence Surveillance Act precluded the warrantless wiretaps, that there had to be probable cause and a warrant.

There was an opportunity to have a review by the Supreme Court of the United States in the case arising out of Detroit which federal court there declared the warrantless wiretaps unconstitutional. The Sixth Circuit cited there was no standing. I thought the dissent was much stronger than the two judges in the majority. Well-known that standing is frequently used as a way of avoiding deciding tough questions, and Supreme Court of the United States denied cert.

So at this point, after a lot of specification, a lot of discussion, we do [not?] know, dispositively, whether the president’s power as commander in chief, under Article II, justifies warrantless wiretapping or whether the explicit provisions of Foreign Intelligence Surveillance Act govern.

Would you press to have the case coming out of the San Francisco federal court go to the Supreme Court for a decision there?

ATTY GEN. HOLDER: We have really not decided what we’re going to do at this point with the decision that was made by the judge. The focus there had really been not necessarily as much on the legality of the TSP as the protection of sources and methods. And a determination as to what we are going to do with the adverse ruling that we got from the chief judge — the district court judge, has not been made as yet. We are considering our options.

SEN. SPECTER: What do you think?

ATTY GEN. HOLDER: (Laughs.) Well, I think that I haven’t made up my mind yet. I think that we have to see what the impact will be on this case with regard to a program that I guess ended, I think, 2007, 2006.

My view is that, to the extent that — I can’t get in too many operational things here, but the support of Congress, the authorization from Congress to conduct these kinds of programs is a way in which the executive branch should operate. It is when the executive branch is at its strongest, when we have the firmest foundation, is when we work with members of Congress to set up these kinds of programs, and especially when one looks at, as you point out, you know, the requirements under FISA.

So I think that we will have to consider what our options are and try to understand what the ramifications are of the judge’s ruling in the Al-Haramain case.

Read more

Obama Killed The Johnsen Nomination, Not Ben Nelson Nor The GOP

It strikes me as necessary to follow up a bit on the death of the Dawn Johnsen nomination to lead the Office of Legal Counsel at the Department of Justice. Specifically, it needs to be clear the conventional wisdom of the main media, and even a surprising number of normally more clear headed progressive bloggers, that the nomination failed because of opposition from Republican obstruction coupled with opposition by Ben Nelson, is completely and patently false.

The false meme was already in play with the first substantive reporting by Sam Stein at Huffington Post as I noted yesterday. It is being propagated by the Washington Post (Republicans and “moderate lawmakers”), the New York Times (conservatives and two Democrats), even progressive stalwarts like Glenn Greenwald and McJoan at DKos have discussed the effects of the Republicans and Ben Nelson on the torpedoed nomination (although, to be fair, neither ascribes full blame on the GOP and Nelson).

Perhaps the best example of purveying the false wisdom comes from Jake Tapper at ABC. Tapper, in an article supposedly about the Obama White House not having the stomach for a fight on Johnsen, nevertheless proceeds to regurgitate the usual suspects:

Senate Republicans opposed her nomination overwhelmingly, meaning Senate Majority Leader Harry Reid, D-Nev., needed 60 votes to bring her nomination to the floor of the Senate for a vote.

The White House put all the blame on the Republican minority — White House spokesman Ben LaBolt said, “Senate Republicans will not allow her to be confirmed” — but it was a bit more complicated than that.

A Senate Democratic leadership source said that throughout 2009 two Democrats said they would vote against her — Sen. Ben Nelson, D-Neb., and Sen. Arlen Specter, D-Pa. The only Republican of the 40-member GOP caucus who said he would vote for her was her fellow Hoosier, Sen. Dick Lugar, R-Ind.
Specter remained opposed to Johnsen’s nomination even after he switched parties in April 2009, but his primary opponent Rep. Joe Sestak, D-Pa., began to attack Specter for his opposition to her nomination.

Johnsen’s nomination expired at the end of 2009, but in January 2010 Specter said he’d vote for her.

This is a bunch of bunk. I have previously written extensively on why there were at least 60 votes for Johnson’s confirmation for the entire second half of last year after Al Franken was sworn in, and why there still were 60 votes for her confirmation this year upon Obama’s renomination, even after the Scott Brown victory in Massachusetts. If you have any question, please click through and refer to those articles; for now though, I want to revisit the false light being painted on Ben Nelson and Arlen Specter on the nomination’s failure. Read more

Happy Stimulus Day to Susan Collins, Who Killed Billions in School Funding

ThinkProgress has an absolutely devastating report on 111 Republican members of Congress who have attacked last year’s stimulus bill, but who have since taken credit for it. Click through for details on Republican hypocrisy close to you, but for a taste, here are the MI GOP stimulus hypocrites.

Rep. Fred Upton (R-MI) Signed A Letter Hailing Stimulus Funds As An ‘Important First Steps For Individuals And Their Families.’ The letter, signed by other members of the Michigan congressional delegation, was sent to the Director of Recovery Auto Workers and Communities. [Letter from Michigan Delegation to Ed Montgomery, 5/6/09]

-Rep. Upton Voted Against The Recovery Package Twice [Roll Call Vote #46; Roll Call Vote #70]

Rep. Vern Ehlers (R-MI) Signed A Letter Hailing Stimulus Funds As An ‘Important First Steps For Individuals And Their Families.’ The letter, signed by other members of the Michigan congressional delegation, was sent to the Director of Recovery Auto Workers and Communities. [Letter from Michigan Delegation to Ed Montgomery, 5/6/09]

-Rep. Ehlers Voted Against The Recovery Package Twice [Roll Call Vote #46; Roll Call Vote #70]

Rep. Dave Camp (R-MI) Signed A Letter Hailing Stimulus Funds As An ‘Important First Steps For Individuals And Their Families.’ The letter, signed by other members of the Michigan congressional delegation, was sent to the Director of Recovery Auto Workers and Communities. [Letter from Michigan Delegation to Ed Montgomery, 5/6/09]

-Rep. Camp Voted Against The Recovery Package Twice [Roll Call Vote #46; Roll Call Vote #70]

Rep. Thad McCotter (R-MI) Signed A Letter Hailing Stimulus Funds As An ‘Important First Steps For Individuals And Their Families.’ The letter, signed by other members of the Michigan congressional delegation, was sent to the Director of Recovery Auto Workers and Communities. [Letter from Michigan Delegation to Ed Montgomery, 5/6/09]

-Rep. McCotter Voted Against The Recovery Package Twice [Roll Call Vote #46; Roll Call Vote #70]

Rep. Candice Miller (R-MI) Signed A Letter Hailing Stimulus Funds As An ‘Important First Steps For Individuals And Their Families.’ The letter, signed by other members of the Michigan congressional delegation, was sent to the Director of Recovery Auto Workers and Communities. [Letter from Michigan Delegation to Ed Montgomery, 5/6/09]

-Rep. Miller Voted Against The Recovery Package Twice [Roll Call Vote #46; Roll Call Vote #70]

Rep. Mike Rogers (R-MI) Signed A Letter Hailing Stimulus Funds As An ‘Important First Steps For Individuals And Their Families.’ The letter, signed by other members of the Michigan congressional delegation, was sent to the Director of Recovery Auto Workers and Communities. [Letter from Michigan Delegation to Ed Montgomery, 5/6/09]

-Rep. Rogers Voted Against The Recovery Package Twice [Roll Call Vote #46; Roll Call Vote #70]

But I think another Republican–along with her “moderate” buddies, Joe Lieberman, Ben Nelson, Arlen Specter, and Claire McCaskill–who deserve some scorn today. Among the $100 billion they demanded be stripped from the stimulus package before they’d support it was money for school modernization and state fiscal stabilization funds.

We now know that–as predicted–states are reeling with budgetary problems to an extent that may cause 900,000 further job losses.

States are looking at a total budget gap of $180 billion for fiscal 2011, which for most of them begins July 1. These cuts could lead to a loss of 900,000 jobs, according to Mark Zandi, chief economist of Moody’s

Granted, the money that Collins took out of education stimulus last year would not have made up the difference in the cuts we’ll see from states in the upcoming fiscal year. But Collins and her buddies do deserve a reminder that their so-called fiscal moderation last year has lasting effects on the Americans losing their jobs.

Obama Had 60 Votes For Dawn Johnsen's Confirmation Last Year; Johnsen Stalled Again This Year

3855The Obama Administration’s confounding unwillingness and/or inability to move the nomination of Dawn Johnsen as head of OLC has manifested itself yet again. The renomination of Johnsen was set to be voted out of the Senate Judiciary Committee Thursday, but somehow they just “ran out of time” before they could get to it, even though they found time to muse about a couple of far less significant district court judges and other lesser nominees.* It is a continuing and puzzling pattern of delay and diversion that has kept Dawn Johnsen’s nomination in limbo for better than a year.

I previously wrote about the failure of the Obama Administration to support the Dawn Johnsen nomination, a far less than good faith effort that finally resulted in Johnsen’s nomination being killed by operation of Senate Rule XXXI when they adjourned on Christmas Eve, December 24, 2009. It turns out what I wrote has been borne out and, as lawyers are wont to say, proved up pretty well.

As I will detail below, there is now crystal clear evidence that Barack Obama and Harry Reid had the sixty (60) votes for cloture on the confirmation of Dawn Johnsen all along last year, at least subsequent to July 7, the day Senator Al Franken was sworn in, and despite that fact refused to call a vote and get Johnsen installed in her critical post at OLC. Here is what I wrote immediately following the Christmas Eve death of her nomination:

Moreover, the bleating by Harry Reid and the Obama Administration that it is all the fault of mean old Republican obstructionism simply does not hold water. The Democrats hold a 60 seat caucus block, sufficient to overcome Republican obstruction. Of those, the Main Justice article is quite clear there were only two Democratic problem children, former Republican Arlen Specter and the ever whiny Ben Nelson, who never passes up an opportunity to betray his party. That means there were potentially only 58 Democratic votes for Johnsen’s nomination. But Republican Richard Lugar firmly supported Dawn Johnsen, so that makes 59 votes, only one shy of confirmation.

In addition to Lugar, both Republican Senators from Maine, Susan Collins and Olympia Snowe, have refused to rule out voting for Johnsen and were being lobbied hard by extremely influential women’s groups and liberal constituents. Both Collins and Snowe have a history of agreeing, when pressured, to allow up or down votes on Presidential nominees, even from Democrats.

Barack Obama and Rahm Emanuel had 59 votes in favor of Dawn Johnsen’s nomination, a distinct possibility of picking up Collins, Snowe or both, and are more than aware Arlen Specter needs big help in his reelection campaign in Pennsylvania and that Ben Nelson can always be bought. And despite all of the above, the Obama White House did not ever request Harry Reid to call a vote. The only rational conclusion from this is the Obama White House did not want Dawn Johnsen, their own nominee, to be confirmed.

My calculations on the 60 votes being available were confirmed upon Obama re-nominating Johnsen when it was immediately announced to much ballyhoo that Arlen Specter would be the 60th vote for cloture on the re-nomination; albeit apparently only after Johnsen has been again dragged through the committee process and other vagaries of prolonged confirmation procedure. The TPM report of Specter’s intention to support Johnsen’s confirmation confirms exactly what I stated, Specter was the 60th vote (there were always 58 Dems plus Richard Lugar) and was there all along; all Obama and Harry Reid had to do was call the vote. Read more

How Republicans (and a Few Democrats) Avoided Limits on Section 215

In the markup of the PATRIOT reauthorization last week, Dick Durbin and Russ Feingold repeatedly pointed out that in 2005, the Senate Judiciary Committee had unanimously approved language to require Section 215 only be used with people who had some known tie to terrorism or a foreign power. Back then, everyone on the Committee supported the change Durbin and Feingold have been proposing as an improvement on Section 215. 

Now, Durbin and Feingold did so to point out the indefensible position of those who–like DiFi–said in 2005 that the current and proposed law amounts to an invitation for a fishing expedition, but are nonetheless insisting on issuing just such an invitation now.

But that doesn’t explain how it happened that, sometime between the Committee markup and the final bill in 2005-6, real limits on the use of Section 215 were eliminated over the apparent objections of the entire Committee. And while I’m just beginning to piece together that story, the history seems to support my suspicions that Section 215 and NSLs became the new vehicles for Bush’s illegal data mining program just as it was being exposed.

The primary bill that became the Patriot Improvement and Reauthorization Act of 2005 was HR 3199, introduced by Jim Sensenbrenner, then-Chair of the House Judiciary Committee, on July 11, 2005; in addition, then-Chair of the Senate Judiciary Committee Arlen Specter introduced S 1389 on July 22, 2005.

Sensenbrenner’s bill introduced the following language into Section 215, requiring that,

the information likely to be obtained from the tangible things is reasonably expected to be (A) foreign intelligence information not concerning a United States person, or (B) relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities.

That is, when this was introduced in the House, it basically allowed Section 215 to be used for anything, provided it pertained to international terrorism. That language remained in the bill through the House Judiciary and House Intelligence Committee markups of the bill and was adopted by the House as a whole.

But the Senate substituted its own bill, including the language limiting Section 215 orders to those with a definitive tie to terrorism or foreign intelligence, specifically requiring the judge to make sure there was some kind of tie.

Read more

Hey Specter, How’s Your Persuasion of Grassley Coming Along?

photo.thumbnail.jpgIn my recap of Netroots Nation, I forgot to mention that I was the asshole first swinging a cell phone around, asking Arlen "Scrapple" Specter to call Chuck Grassley from the stage to try to convince him to stop claiming the death panels he once voted for are death panels.

Specter did try Grassley backstage, but didn’t get him. And then he and Grassley had a twitter exchange, one on which Grassley has followed up on twice now

Distortion of end-of-life debate is atempt 2avoid debate:govt takovr,xplodin deficit,cost of Pelosi bill Focus shld b viabl nonGovt plan

Sounds like Grassley doesn’t want to talk about his fear-mongering on death panels, now that he has been outed as supporting it in the past. And of course, Grassley wants to find a way to oppose a real bill even if he supports it. His job is about obstruction, and nothing but obstruction, at this point.

Meanwhile, Specter hasn’t provided an update on his promises to persuade Grassley to be less obstructionist since Friday at 5:01 PM.

I will try to persuade Senator Grassley that the availability of counseling is appropriate and should be included in health care reform.

So, how about it, Specter? You told us that one of the reasons we should support you to be elected a Democratic Senator from PA was because you would be able to persuade your Republican colleagues.

Are you conceding defeat?