Glenn Greenwald defines "specter" - Arlened Again!

Spec- ter ... noun
1. A ghostly apparition; a phantom.
2. A haunting or disturbing image or prospect

Glenn Greenwald reports via his Unclaimed Territory that Arlen Specter has caved in a post entitled "GOP Senators block judicial review of NSA program". The Judiciary Chairman has once again talked of oversight and then allowed Bu$hCo to slide. Pennsylvania's Senior Senator is all grumble and stumble. A phantom indeed. Here is a good portion of Glenn's post:

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.

Could anything be more obvious at this point than the fact that the Bush administration deeply fears having the legality of its eavesdropping activities adjudicated by a federal court? They have engaged in one maneuver after the next to prevent that adjudication.

One would think that if they really believed that they had the clear-cut legal justification for warrantless eavesdropping which they claim to have, they would be eager to have a court rule on this issue so that this unpleasant controversy -- with all of these mean-spirited and utterly baseless allegations of lawbreaking -- can finally be put to rest. And yet, time and again, they do precisely the opposite: they desperately invoke every available measure to prevent any judicial ruling as to the legality of their behavior.

Without the provision which was originally "demanded" by Sen. Specter, it is basically impossible for any plaintiff to ever challenge the legality of the NSA 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:

[GWU Law Professor Mary] Cheh said plaintiffs would likely have to jump over very high hurdles to have their cases heard. The administration could, for example, invoke the “state-secrets privilege” and deny plaintiffs access to information, or it could try to deny plaintiffs’ legal standing. Cheh said it would be difficult for plaintiffs to demonstrate in court that they have been injured by the surveillance program because the program is secret.

There are other ways for the legality of this program to be challenged. For instance, a criminal defendant who can prove that evidence being used by the Government against him was derived from the illegal eavesdropping program can challenge the admissibility of that evidence, which, in turn, would require a court to rule on the legality of the eavesdropping program (because if the program is illegal, no evidence derived from it is admissible). But in such a case, the administration -- as they have done so many times before -- could simply drop the case or agree not to use the evidence in question, as a way of avoiding a ruling as the legality of the NSA program. Sen. Specter's bill was the sole mechanism to ensure that a federal court would rule on the legality of the administration's eavesdropping conduct -- which is precisely why its loyal soldiers on the Judiciary Committee refused to agree to any bill that contained that provision.

It is always worth noting that nothing in any of these bills immunizes the administration from being held accountable for its previous and ongoing violations of FISA. These bills simply render legal on a going forward basis warrantless eavesdropping. They do not make these programs retroactively legal.

I was optimistic that enough was enough yet I forgot this is The Rubber Stamp Congress. Taylor Marsh posting at FireDogLake, plus other solid lefty bloggers, looked into Arlen's soul.

I wonder if somebody in The White House has some interesting "data" on some of the Congressional leadership in how they often seem to ignore the many illegal and poorly conceived actions of the Bu$h and his cabal.

Alternatively or additionally, do these GOP leaders and soldiers dare return to minority status if and when the truth about Bu$hCo comes out. Are they putting their desire to be players ahead of their duties to the nation? Given my fears about what this cabal has been up to it might be that the ReThuglicans fear a "forty years in the wilderness" experience if Bu$hCo could ever be even partially forced to explain their actions.

I want my country back! Peace ... or War!