The specter of vigorous oversight

Thank you, editors! Normally, I am not pleased when (on rare occasions) they cut stuff from my print columns without advance notice and I am left to discover the excisions when I pick up the paper. But yesterday, they probably did me a big favor when they trimmed a key paragraph in the interests of space.

In a column about the fitful efforts by the GOP Congress to conduct meaningful oversight of the Bush administration, I cited several examples of the Republicans seemingly rousing themselves from their five-year slumber. For instance, I wrote, "Last Thursday, after weeks of prodding by Senate Judiciary Committee chairman Arlen Specter, the White House agreed to comply, at least in part, with a 1978 law and thus submit its warrantless surveillance program for scrutiny by a secret intelligence court."

It turns out that the Specter sentence didn't make it into print. In retrospect, that's just as well -- because the more I look at Specter's deal with Bush, the less I am convinced that it qualifies as an example of meaningful oversight.

This was supposed to be Specter's finest moment, his triumph in holding President Bush accountable to the rule of law. Bush's domestic surveillance program, exposed last December, directly violated the 1978 Federal Intelligence Surveillance Act, which basically decreed that all proposed surveillance targets be reviewed in advance by a secret FISA court . The law expressly states that FISA shall be the "exclusive" overseer of such executive activity. Bush's program, however, was proceeding without any legislative or judicial oversight. Hence, Specter's avowed determination to get some compliance.

Well, I've now read all the fine print in the ballyhooed deal -- and it looks like yet another triumph for the imperial presidency. Or, as Yale constitutional law professor Jack Balkin calls it, "a virtual blank check to the Executive...a complete and total sham."

Basically, rather than holding Bush to the rule of law, Specter's deal alters the rules to help Bush. The compromise bill makes it clear that FISA and its panel of judges are no longer the "seclusive" overseer of electronic survillance; under Specter's deal -- which still has to be approved by Congress -- electronic survillance would now be authorized "under the constitutional authority of the executive, or the Foreign Intelligence Surveillance Act of 1978."

Under the constitutional authority of the executive...now there's a loophole that would swallow an SUV. That's boilerplate for the Bush legal team's argument that the president has inherent powers to do what he wants in wartime, under Article II of the Constitution. In fact, Specter's bill states this even more explicitly in Section 801: "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." For the legal eagles at the White House, that sentence is the gold standard.

So the political question is, what will the congressional Democrats do about this? Will they basically accept the Specter compromise as a prudent "middle ground," for fear that they will be labeled as "soft of terrorists" if they fight for tougher restrictions on Bush? Or, as some First Amendment experts are urging, will they have the guts to frame the issue to their own advantage?

First Amendment lawyer Glenn Greenwald offered this formula over the weekend: "This is not a debate about whether to eavesdrop on al Qaeda -- everyone is for that -- but is about whether George Bish should have the power to eavesdrop on Americans with no oversight, an awesome power which this country overwhelmingly decided (by enacting FISA) 30 years ago, in the wake of decades of abuses, that we do not trust the president -- any president -- to have."

But it's probably not a good bet to expect the Democrats to go to the mat on this...not when they couldn't even stand firm and defend their online political ad which showed a quick visual of flag-covered coffins in Iraq.

As I noted here Friday (see below), the Democratic Congressional Campaign Committee (which is running the effort to take over the House) had posted a web ad which touched on the war in Iraq by showing some coffins of slain soldiers. The Republicans squawked that this was "despicable," that the ad should be removed, and two incumbent southern Democratic congressmen agreed. For a couple days late last week, the national Democrats staunchly defended the ad, and suggested that the GOP had some nerve, given the fact that they where the ones who had shown disrespect for the troops by sending them into battle with inadequate body armor and equipment.

But, sure enough, late last Friday (politicians always do their embarrassing stuff on Fridays, when they don't think the press will notice), the Democrats pulled the ad off their website. They replaced with a minimum wage ad.

Why did they go belly up?
DCCC spokesman Bill Burton replied: "We're moving to another major effort that we're highlighting on our Web site."

Well, that certainly clears it up. Here's a translation: "We prefer not to say why we validated the Republican charge by bowing to their demands."