With the Senate [tag]Judiciary Committee[/tag] scheduled to hold a hearing today on Committee Chairman [tag]Arlen Specter[/tag]’s (R-Pa.) “[tag]compromise[/tag]” proposal on warrantless searches, it’s worth taking another moment to remember just how awful the senator’s idea really is.
In the end, the [tag]White House[/tag], which has circumvented the law with a [tag]warrant[/tag]less-[tag]search[/tag] program that operates with no accountability or oversight, struck a deal with Specter in which the president didn’t have to give up anything. [tag]Specter[/tag] huffed and puffed about Bush’s legally dubious surveillance scheme, at one point saying that “there is no doubt that this is inappropriate,” but when it came time to strike a deal, the president got everything he wanted — and then some.
In announcing the “compromise” last Thursday, Specter said, “I am authorized to say that if the bill is not changed, the president will submit the terrorist surveillance program to the Foreign Intelligence Surveillance Court.” But what Specter failed to disclose is that his legislation does not require Bush to submit the program to the FISA court; it merely gives him the option. Nothing in the Specter legislation requires the Attorney General to obtain court approval before engaging in electronic surveillance. The compromise is a sham because it makes optional what Bush is already required to do. […]
It would [also] reserve the right for the president to do an end-run around any procedures that FISA offers as long as he claims inherent authority under the Constitution.
On Monday, Specter wrote a Washington Post op-ed defending his proposal, falsely arguing that his plan would not expand presidential power to almost absurd lengths. To its credit, the Post responded today with an editorial of its own — explaining how wrong Specter is.
No matter how adamantly Mr. Specter denies that his bill would give Congress’s blessing to domestic spying outside of [tag]FISA[/tag]’s strictures, it does so explicitly and unambiguously. It adds the following language to a statute that now provides the sole legal means for the government to spy on Americans in national security cases: “Nothing in this Act shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers.” Mr. Specter argues that the bill doesn’t accept the president’s assertions of unilateral power but merely acknowledges them. But this is incorrect.
Under the Supreme Court’s decades-old understanding, presidential power is at its lowest ebb when the president is acting contrary to the will of Congress, and at its zenith when he is using his own powers in concert with legislative authorization. Right now, to conduct warrantless surveillance domestically Mr. Bush must act at the very least in sharp tension with FISA. Under Mr. Specter’s bill, however, the legislature would be explicitly acknowledging an alternative source of authority for snooping. It would thereby legitimize not only whatever the NSA may now be doing but lots of other surveillance it might dream up.
Specter’s “fierce” negotiations with the White House produced a plan whereby [tag]Bush[/tag] could continue to conduct [tag]surveillance[/tag] without warrants, continue to do so without oversight, and continue to bypass FISA judges whenever he feels like it. All the while, the [tag]president[/tag] ends up with more unchecked legal authority than when he started. I’d call this many things, but a “compromise” isn’t one of them.
The Judiciary Committee hearings should be pretty interesting — Senate Dems are not going to respond well to Specter’s plan — so stay tuned.