Arlen Specter seems to be at war with himself. In the space of about a month, the Republican senator introduced bills that would both expand presidential privilege and attempt to constrain it.
In early July, Specter introduced a bill that would amend the Foreign Intelligence Surveillance Act to make it optional for the president to submit himself to judicial oversight when the administration opts to eavesdrop on American citizens.
Then, at the end of the month, he introduced legislation that would subject the Bush administration's use of signing statements to judicial oversight.
It is, to say the least, a schizophrenic approach to the Constitution.
With the FISA legislation, Specter seems prepared to write the judiciary out of the Constitution where a president's war powers are concerned, endorsing the administration's unitary executive theory. The bill essentially would legalize the administration's eavesdropping program, while also taking the courts out of the mix.
Specter has publicly derided the surveillance program. In an op-ed in the Washington Post, he called the eavesdropping program "a festering sore on our body politic" and insisted that it "must be subject to judicial review to ensure compliance with the Fourth Amendment."
But he also wants the program's constitutionality decided. He says his compromise would do that by having a court review the program.
The bill is a tradeoff -- the Bush administration promises to submit the broad outlines of the eavesdropping program to a special court in an exchange for a revision to FISA that would eliminate the requirement that individual requests for surveillance be submitted.
The legislation comes at a time, Glenn Greenwald writes on Salon.com, when several court decisions "have signaled that the federal judiciary is increasingly willing to do what Congress has so glaringly failed to do in the Bush era -- that is, impose minimal limits on presidential power."
The Supreme Court's Hamdan v. Rumsfeld decision -- narrow as it was -- "reaffirmed the principle that the president is bound by the restrictions imposed on him by Congress, even with regard to the exercise of his war powers. In doing so, the Court rejected the radical Bush claim to unchecked presidential power in the area of national security."
The Hamden decision did not address the eavesdropping program, but the Specter bill seems to have been written with the Hamdan decision in mind.
"Specter's bill single-handedly reverses the judicial pushback," Greenwald writes. "With his proposed FISA bill, the senator takes the constitutionally guaranteed congressional power that was just reaffirmed by the Supreme Court and gives it back to the president. It was precisely this theory of unchecked presidential power that the Hamdan decision rejected as alien to the Constitution."
Specter's complicity in this lends credence to the notion that, despite his moderate reputation, he was all-too willing to follow current Republican orthodoxy.
At the same time, Specter offered a second piece of legislation, one that attempts to return balance to the relationship among the three branches of government by allowing Congress to challenge in court the president's use of signing statements as de facto vetoes.
Sen. Specter's legislation was built upon a report from the American Bar Association that called the manner in which the president has used the signing statements "contrary to the rule of law and our constitutional system of separation of powers." The report outlined the history of signing statements, demonstrating that President Bush's use of them (800 so far, 200 more than all other presidents combined) is far different and far more pernicious than any of his predecessors. Earlier presidents used them but never as a replacement for the veto -- the president's sole avenue to enter the legislative process.
The president, the report says, resisted the veto (until late July), avoiding the possibility that Congress might attempt an override. Instead, he has used the signing statements to announce his intention to ignore all or parts of new laws with which he disagrees or to interpret them in ways that are contrary to legislative intent -- especially in regards to intelligence issues, on which he believes Congress has nothing more than an advisory role.
That's the key to understanding the signing statements. The president views the legislative branch as the junior branch, believing that the executive can operate -- especially in what the president has determined is a time of war, as hazily defined as this war may be -- without oversight and without interference.
Specter says he is ready to do battle over this notion, to defend the legislative branch's prerogatives -- but his waffling actions on the FISA bill leave me to wonder whether he's more concerned with the power of the legislative branch than with civil liberties.
Hank Kalet is a poet and managing editor of the South Brunswick Post and the Cranbury Press. Email firstname.lastname@example.org. See his blog at www.kaletblog.com.
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