Thought Theater

Specter Backs Down: Reliably Unreliable genre: Polispeak & Six Degrees of Speculation

True to form, Senator Arlen Specter has agreed to remove the teeth from his bill that is intended to clarify the legality of the NSA surveillance program. The key provision would have forced the administration to bring the program before a FISA appointed court so that it could determine the legal standing. Read the full article here.

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.

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.

Specter has a history of being a vocal skeptic on questionable administration activity when the issues first garner widespread public attention. Unfortunately, as the issues are debated and discussed legislatively, he typically falls in line with the party position and backs away from any substantive actions.