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Specter: Wiretapping Needs ‘Judicial Review’

Image has not been found. URL: /wp-content/uploads/2008/09/specter.jpgSen. Arlen Specter (R-Pa.) (WDCpix)

Sen. Arlen Specter (Pa.), a Republican long known for breaking with his party over the reach of post-9/11 executive power, is still at it. Monday, the five-term senator again demanded a judicial examination of the phone companies’ role in the Bush administration’s warrantless wiretapping program.

His comments buck a central White House demand as it negotiates with congressional Democrats over how to renew the controversial spying program. The administration has made retroactive immunity for the participating telecoms a key tenet of any renewal legislation, arguing that the companies were merely doing what the government requested for the safety of the nation. Most congressional Republicans agree. But Specter, the highest ranking Republican on the Senate Judiciary Committee, said he doesn’t want the companies let off the hook so quickly.

Nationalsecurity_755.jpg
Nationalsecurity_755.jpg

Illustration by: Matt Mahurin

“It’s very important that there be judicial review of what the phone companies have done,” Specter told a large audience gathered in Washington Monday for a conference of the American Civil Liberties Union. “It seems to me that it’d be very difficult to grant retroactive immunity when you don’t even know for sure what you’re giving retroactive immunity for.”

The hot-button issue has been at the center of controversy for much of this year, pitting most Democrats and civil libertarians against the White House and most Republicans. While the Senate voted in February to approve a compromise that includes immunity for the phone companies, House leaders held their ground, passing a bill without the immunity language. The resulting stalemate has led to the expiration of the wiretapping law — and charges from the White House that the country is in greater peril as a result.

“Lack of liability protection,” Director of National Intelligence Mike McConnell told Senate lawmakers earlier this year, “would make it much more difficult to obtain the future cooperation of the private-sector partners whose help is so vital to our success.”

Civil libertarians responded to news of the warrantless program — first reported by The New York Times in December 2005 — by launching a series of lawsuits against the phone companies. The groups contended that the program is an infringement on their constitutional rights. In a blow to their cause, however, the U.S. Supreme Court in February declined to hear an ACLU case against the National Security Agency. The court reasoned that the ACLU had no right to sue because it couldn’t prove it was a target of the secret spying program.

Specter this week blasted the court for its decision. “For the Supreme Court of the United States not to take up that case is really very discouraging,” he said. “The Supreme Court is not that busy.”

Specter has not sided with privacy and civil-rights groups in every instance of the wiretapping debate. In February, he voted against an amendment to the Senate bill that would have allowed roughly 40 lawsuits against the phone companies to proceed. The vote signified his feeling that the government shares some responsibility for any constitutional breaches that might surface as a result of those or similar suits. Specter had sponsored a failed amendment to have the government take the place of the phone companies in future litigation.

The Bush administration’s warrantless wiretapping program was established soon after the 9/11 attacks. The strategy allowed the NSA to sidestep judicial oversight when it intercepted communications between domestic residents and those living abroad when one party was suspected of terrorist ties. Almost all the major phone companies participated at the administration’s request. That shouldn’t mean, however, that the Constitution becomes irrelevant, Specter argued.

“It’s really important to find out what they’re doing and if it violates constitutional rights,” he said. “Government does not have governmental immunity.”

Comments like that drew enthusiastic cheers from the liberal ACLU audience. But the greatest applause line of the afternoon came after Specter skewered Congress for what he said was a gross negligence in its general oversight duties since the 9/11 attacks.

“Please,” Specter responded, “not so much applause when I tell you how inept Congress is.”

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