This week’s passage and enactment of the FISA amendments ( H.R. 6304 ) was not without controversy (obviously), but I was particularly struck by an aspect of the story that’s received remarkably little attention: Sen. Arlen Specter sponsored an amendment ( S.Amdt.5059 ) to the particularly controversial grant of immunity to telecoms that had worked with NSA; under his amendment, such immunity would have been contingent upon a court’s determination that the telecom’s activities were “provided in connection with an intelligence activity that violated the Constitution of the United States.”
What a spectacle: a United States Senator – a former prosecutor and the senior Republican on the S e nate Judiciary Committee, no less! – effectively declared himself to be incapable of determining what the Constitution does and does not proscribe. (Of course, Senator Specter was not alone: 37 senators voted for his ill-conceived amendment .)
Specter’s attempt to pass the buck on this constitutional question should disturb both proponents and critics of the NSA surveillance activities at issue. That said, and as I’ve noted previously , Senator Specter’s approach to the issue of the constitutionality of NSA surveillance activities is but one example of his tendency to (1) punt controversial issues to the courts, yet (2) loudly chastise the courts for “denigrat[ing] … congressional authority” when the politics winds suit the change in approach.