Senator Arlen Specter tried to convince people that his new FISA compromise bill with the White House amounts to, well, a compromise, instead of the surrender that it obviously is. Specter finds himself stuck between an unconstitutional incursion on wartime powers, and a program he calls a "festering sore" even as he guarantees its continuance:

President Bush's electronic surveillance program has been a festering sore on our body politic since it was publicly disclosed last December. Civil libertarians, myself included, have insisted that the program must be subject to judicial review to ensure compliance with the Fourth Amendment.

The president has insisted that he was acting lawfully within his constitutional responsibilities. On its face, the program seems contrary to the plain text of the 1978 Foreign Intelligence Surveillance Act (FISA), which regulates domestic national security wiretapping. The president argues, however, that his inherent constitutional powers supersede the statute. Without knowing the exact contours of the program, it's impossible to say whether he is right or wrong. But three federal appeals court decisions suggest the president may be right.

The integrity of our nation's adherence to the rule of law requires an answer to the question of whether this program is legal. The protection of our nation's security and individual rights requires a modification of the program if it is not lawful as currently fashioned. The challenge, which I have been trying to meet legislatively, is to structure a procedure under which the courts can adjudicate the lawfulness of this highly sensitive program while maintaining the secrecy the president contends is so important.

Three appellate decisions indicate much more than just "the president may be right"; the case law indicates that Congress can pass as many statutes as it wants, but they can't override the authority inherent in Article II. What Specter proposes is to pass a law that pretends to make legal what already existed as legal authority in the Constitution so that Congress can pretend to have some control over intelligence-gathering against wartime enemies. It's a political fig leaf, but for Congress, not for the White House.

I suspect that is why Bush agreed to a judicial review, as long as the bill did not dictate one. He knows that a judicial review will uphold his authority under Article II. For that matter, so does Congress. No one has attempted to push this into the courts for the simple reason that a loss would be a permanent reminder of the limits of legislative authority. The White House probably wanted Congress to take the issue to the Supreme Court after the program got revealed in the New York Times last December and his critics started complaining vociferously about listening to international communications between people already identified as or suspected of being terrorists or terrorist accomplices.

In my opinion, anything which moves this to a judiciak review will bring some closure to the debate and therefore represents a positive step. If Specter would just argue that his bill at least does that in this one instance, as the White House has already established its commitment to the review, then it would be easier to accept his reasoning. But if Specter continues to pretend that this bill does anything to enforce authority where it does not exist, then he can keep making that argument until he's blue in the face. No one buys that at all, not even most Bush supporters who believe he has the authority to conduct this program. All Specter did was put a happy face on a Congressional climb-down, and everyone knows it.

For those who agree with me on the politics but disagree with me on the substance of the Constitutional conflict, be sure to read TalkLeft, who has good links to opposing arguments.

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Tracked on July 25, 2006 7:05 AM