The Specter spectacle

Sen. Arlen Specter has a bill before the Senate which will essentially allow the President to do whatever he wants -- free of Congressional or Judicial oversight -- and will do so retroactively thus making all the sins of the past now legal. It's outrageous yet it would appear that almost no one is paying attention.

When I first wrote about the Hamdan decision, I heaved a sigh of relief because this significant decision could easily have gone the other way. I followed up with some comments about how the decision might not prove to be all that significant depending on what followed. My prime concern was that the Dems would not follow up strongly (which they have not) and that the Rovians might successfully spin the story through the medai so as to mitigate the damage. But the spectacle of Specter's whitewash bill is breath-taking. As Glenn Greenwald says:

In essence, 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). 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).

In another article Greenwald writes that

Specter here echoes the central myth which the President's most disingenuous followers have been disseminating ever since the NSA scandal began -- that because the President has the "inherent authority" under the Constitution to eavesdrop, Congress cannot restrict, regulate or limit that power in any way. That is just plainly wrong. The whole point of our system of Government is that the three branches share power in all areas. That is what "checks and balances" means. Congress has every right to regulate even those powers which the President possesses. That is beyond dispute at this point.

The Supreme Court in Hamdan just ruled not more than three weeks ago that even though the President has the Constitutional power to create military tribunals for war detainees (just as he has the Constitutional power to eavesdrop), he is required to do so in accordance with the laws enacted by Congress. That was the whole point of Hamdan -- that the President is required to abide by the law even with regard to the exercise of his Constitutional powers. And just to make certain that this point was not lost on the Arlen Specters of the world, the Court (f. 23; emphasis added) explained :

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring).

Justice Kennedy, in his Concurring Opinion, emphasized that this has been the law since at least Youngstown, which he quotes to make that point (emphasis added): "If the President has exceeded these [Congressional] limits, this becomes a case of conflict between Presidential and congressional action . . . And '[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.'"

Most amazingly, when Alberto Gonzales testified before Specter's own Judiciary Committee, had told Specter that it is false to claim -- as Specter just did -- that Congress lacks the power to regulate or restrict "inherent Constitutional powers" of the President:

GONZALES: Well, the fact that the president, again, may have inherent authority doesn't mean that Congress has no authority in a particular area. And when we look at the words of the Constitution, and there are clear grants of authority to the Congress in a time of war. And so if we're talking about competing constitutional interests, that's when you get into, sort of, the third part of the Jackson analysis.

The whole premise of Specter's defense of the President and his bill is just indisputably false. It has been unambiguously rejected by Youngstown, Hamdan, and even Alberto Gonzales. Both Marty Lederman and Anonymous Liberal add their astonishment that Specter could articulate such a plainly false legal argument. And it is not some obscure legal error, but a principle that lays at the core of how our system of government works. The President does not have the power to operate outside of the laws of our country, and that's particularly true when it comes to actions he takes against American citizens on U.S. soil.

As always, the two things that allow this power-grab to succeed are the two faces of the lack of effective opposition -- in Congress and in the media. Glenn again:

But all of that can happen only if Democrats fail to resolutely stand up for themselves and articulate what is really at stake here. If they do, they can make this issue about what it really, in fact, is about: (a) do we want the President to be able spy on us in secret and with no limits or safeguards, as we had before 1978 with great abuse?; and (b) do we really need to abolish the long-standing safeguards which, as a country, we imposed on our Government in order to prevent abuses, all because George Bush claims he can't defeat Al Qaeda unless we fundamentally change how our government works, allow him to spy on us without oversight, and give him unchecked power?

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The media's reports on this travesty illustrate, yet again, that the single greatest problem our country faces -- the principal reason the Bush administration has been able to get away with the abuses it has perpetrated -- is because our national media is indescribably lazy, inept, dysfunctional and just plain stupid, for reasons discussed in this comment from Jao and my response.

The reporters who write on these matters literally don't understand the issues they are reporting, even though the issues are not all that complicated. Notwithstanding the fact that this bill expressly removes all limits on the President's eavesdropping powers -- and returns the state of the law regarding presidential eavesdropping to the pre-FISA era, when there were no limits on presidential eavesdropping of any kind -- Charles Babington and Peter Baker told their readers in The Washington Post -- in an article hilariously entitled: "Bush Compromises On Spying Program" -- that "the deal represented a clear retreat by Bush" and that "the accord is a reversal of Bush's position that he would not submit his program to court review."

Anyone with a basic understanding of what FISA was and of the conflicts in play could read the Specter bill and see that the last thing it does is entail "compromises" on the part of the White House. Nobody who knows how to read could read that bill and think that. At this point, I believe they don't even read the bill. It's hard to see how they could read the bill and then write that article.