Specter's Folly

Fri Jul. 14, 2006 10:00 AM EDT

Two PR coups in one week. Not bad for a lame duck president. First came news of the Pentagon's sudden love affair with the Geneva Conventions, swallowed whole by the press. By Friday morning the press had turned to praising the good sportsmanship of Judiciary Chairman Arlen Specter on the surveillance issue, i.e. caving in lock, stock and barrel to the White House.

Specter had advertised his new wiretapping legislation as a bill that would force the National Security Agency to go before the secret Foreign Intelligence Surveillance Court so the program's legality and constitutionality can be assessed. But Specter's "victory" is nothing more than an elaborate ruse that will actually increase the president's ability to listen in on Americans at his own discretion, should Congress approve it. In fact, the hearing is not even in the bill's text. It is simply something Bush "agreed" to pending the approval of the bill in Congress. Furthermore, he may revoke that agreement at any time.

The illegal wiretapping program is already being reviewed in many courts around the country and bringing the case before FISA would "short-circuit" those cases, said Kate Martin, director of the Center for National Security Studies, a Washington, D.C., civil liberties group. "Those courts should rule on the legality of the program." She feels the administration is deliberately trying to stop the cases already in progress and faults Congress for not obtaining the essential information necessary to adequately review the president's claims of executive privilege. "The bill is not a compromise between the White House and Congress," Martin told Mother Jones Friday morning. "It would be a surrender to the president's claims that, one, he can wiretap without a warrant, and two, that he can break the law."

More comments from some of the experts:

"Specter's bill repeals each and every restriction on the President's ability to eavesdrop, all but forecloses judicial challenges, and endorses the very theory of unlimited executive power which Hamdan just days ago rejected (and in the process, rendered the administration's FISA-prohibited eavesdropping on Americans a clear violation of the criminal law)," writes Glenn Greenwald, an attorney and first amendment expert. "With this bill, Specter—the self-proclaimed defender of Congressional power—did more to bolster the administration's radical executive power theories than anything the administration could have dreamed of doing on their own, especially in the wake of Hamdan (permit me here to apologize for all of those times I tepidly defended Specter by characterizing as unduly pessimistic and cynical predictions that he could cave completely; the humiliations he is willing, even eager, to publicly endure are without limits).''

"Barely two weeks after Hamdan, which appeared to be the most important separation of powers decision in our generation," writes Jack Balkin, the Yale Law School lawyer who specializes in constitutional law and director of Information Society Project, "the Executive is about to get back everything it lost in that decision, and more."

Encapsulated in this bill are several measures that essentially reinforce Bush's warrentless surveillance and/or give him more ways to do it. The bill:

  • gives the administration greater flexibility in making emergency applications to the FISA court; it extends the grace period (the time period where the president can order a wiretap before applying for a warrant) from 3 days to a week.
  • would allow for roving wiretaps instead of taps that pick up a specific phone line or email address
  • says monitoring a call between two overseas locations that is transmitted through the U.S. would NOT need FISA approval
  • does not require the government to get a warrant for each individual case; basically, under "the constitutional authority of the executive" it would allow the administration to tap into anyone's phone or computer without judicial approval
  • says that if the NSA program is taken before the FISA court, even if it is found unconstitutional, the court will consider an explanation about how the program is "reasonably designed to ensure that the communications intercepted involve a terrorist agent of a terrorist or someone reasonably believed to have communications associated with a terrorist." (i.e. the very argument the White House has previously been using to justify its actions)
  • "Other than that," Martin remarked, "it's a great bill."