Report from the September 7 Senate Judiciary Committee Mark-Up

On Thursday, September 7, the Senate Judiciary Committee met to mark up the Cheney-Specter bill, S. 2453. Instead of showing any desire to reassert their constitutionally established powers to hold the executive branch accountable to the rule of law, the Republican majority chose instead to lie down and grant the president a "blank check" to trample our rights as he sees fit.

The most striking example of this willingness to bow down to the president occurred when Senator Russ Feingold (D-WI) sought further clarification of S. 2453. He repeatedly asked his Republican colleagues to elaborate on the meaning and scope of the bill, but it soon became clear that his colleagues could not clearly explain the meaning of a bill the majority was ready to approve. The members of the Senate Judiciary Committee were willing to approve a bill granting the president unprecedented authority to spy on his fellow citizens without any clear understanding of the scope of the bill or a rational explanation of its necessity. They had the opportunity to strike some of the bill's most problematic provisions, and failed to do so on party line votes.

In addition to Senator Feingold's concerns, Ranking Member Senator Patrick Leahy (D-VT) noted that this bill would essentially "pass a law to break a law." It would grant the administration powers a federal court has already ruled unconstitutional. Senator Dianne Feinstein (D-CA) questioned the hastiness of the decision to approve a bill, the most important legislation the committee will produce all year, when the program can easily fit within the parameters established in the Foreign Intelligence Surveillance Act (FISA) with "modest modifications." As a member of the Senate Intelligence Committee, Senator Feinstein has been briefed on some of the specifics of the program, making her well qualified to make that assessment. Senator Ted Kennedy (D-MA) noted that FISA had originally been approved with only one objection, due to the careful consideration between the competing concerns of security and civil liberties. He further questioned why the executive branch has been so unwilling to work with Congress on such an important issue.

Rather than engaging in substantive discussion, supporters of the president's warrantless wiretapping program used their time to continue their superficial and off-point rhetoric. Senator John Cornyn (D-TX) sought to criticize Judge Anna Diggs Taylor's recent NSA decision and complain about the "judge shopping" that allowed the case to end up in her court. Yet he failed to point out, as the National Association of Criminal Defense Lawyers' Jack King did in his Washington Post letter to the editor (www.washingtonpost.com/wp-dyn/content/article/2006/09/05/AR2006090501192.html), "the ACLU and its plaintiffs filed exactly one suit, in exactly one forum, in which cases are randomly assigned. The fact that Judge Taylor's name came up when the wheel was spun was pure chance."

In the end, the two-hour rule was invoked and the committee adjourned without taking a vote. While it seems likely that they will revisit the issue next week, Chairman Specter has also indicated that he may seek to bypass his own committee and bring the Cheney-Specter bill directly to the floor. With a bipartisan group of Senators already objecting to the legislation, we are hopeful that the Senate will stand firm in its commitment to the rule of law and reject this appeasement of the president.