Monday, July 24, 2006

A mouth without teeth

In today's Washington Post, Arlen Specter defends his flawed deal with the White House over its warrantless surveillance program. His main point:

Critics complain that the bill acknowledges the president's inherent Article II power and does not insist on FISA's being the exclusive procedure for the authorization of wiretapping. They are wrong. The president's constitutional power either exists or does not exist, no matter what any statute may say. If the appellate court precedents cited above are correct, FISA is not the exclusive procedure. If the president's assertion of inherent executive authority meets the Fourth Amendment's "reasonableness" test, it provides an alternative legal basis for surveillance, however FISA may purport to limit presidential power. The bill does not accede to the president's claims of inherent presidential power; that is for the courts either to affirm or reject. It merely acknowledges them, to whatever extent they may exist.


That may be his intent, but by not pressing the point he avoids a resolution of the issue. If the president has inherent authority, let's establish that once and for all. All Specter's bill does is allow the current murky situation to continue.

And I'm not impressed by this part:

The negotiations with administration officials and the president himself were fierce. The president understandably rejected a statutory mandate to submit his program to FISC, on the grounds that such a mandate could weaken the presidency institutionally by binding his successors. Indeed, such a mandate might not withstand a future president's contention that it unconstitutionally limited his Article II powers to conduct surveillance without court approval.

Of course the president didn't want binding restrictions in this matter. So what? The entire purpose of Congressional oversight is to restrict the power of the executive branch. If the president thinks such a restriction is unconstitutional, let him challenge it in court -- and resolve the matter once and for all. By refusing to go that route, Specter is giving the administration wiggle room -- which, experience shows, Bush will use for all it's worth.

Specter's unconvincing final paragraph:

In my opinion, it is intolerable to let this matter drift indefinitely. If someone has a better idea for legislation that would resolve the program's legality or can negotiate a better compromise with the president, I will be glad to listen.


Okay, here's mine: write a bill that orders Bush to use the FISA process, or whatever process Congress thinks should be used. Negotiations be damned; let Congress have the cojones to do their job. Then let Bush challenge that bill in court, using his "inherent authority" argument. Have both sides agree to expedited consideration before the Supreme Court. And thus settle the question once and for all.

There are pitfalls to that approach: if the final bill does not have substantial support in Congress, Bush could veto it rather than go the court route. But if the bill is pitched as a simple way to decide the limits of Bush's authority, it ought to garner reasonably wide support.

An alternative might be to pass a bill that simply asserts Congressional authority in this matter, without specific restrictions -- then pass a separate bill containing specific measures. The first bill can be used to force a court decision on the overall constitutionality, while the second is where Congress hammers out the contentious details.

But one way or the other, let's settle it.

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