Surveilling Arlen Specter

Will the forever-compromising lawmaker take a real stand against Bush's illegal domestic spying -- or leave a legacy of spineless submission?

By Michael Scherer

Read more: Terrorism, Politics, News, National Security Agency, Michael Scherer

Photo: Reuters/Kevin Lamarque

Sen. Arlen Specter at a Capitol Hill press conference earlier this month.

July 26, 2006 | WASHINGTON -- Even in a moment of apparent triumph, Sen. Arlen Specter could not help acknowledging his disappointment. "Is it frustrating?" he asked rhetorically at a press conference earlier this month regarding the National Security Agency's warrantless wiretap program. "Yes."

The Pennsylvania Republican had called the media to announce a deal with President Bush that would force a judicial review of the NSA operation, which Specter, the head of the Senate Judiciary Committee, has called a "flat violation" of existing law. His uneasiness with the White House came out only under questioning. Specter admitted that he still did not know much about the secret program itself, since the president has refused to brief him on the details. More tellingly, he appeared resigned to not knowing, as if frustration was a fact of life for Congress. "I am used to that," he said.

Such defeatism is rare among the upper ranks of the Senate leadership, especially among powerful chairmen like Specter, who has played a central role in just about every recent legislative battle, from Supreme Court nominees to the Patriot Act reauthorization to the gay marriage amendment. This spirit of resignation will again be put to the test Wednesday morning, when Specter convenes a hearing on his wiretapping bill, a proposal that would radically reshape the legal landscape for warrantless electronic surveillance on Americans and others inside the United States.

For Specter, such public dismay has become routine. Time and again, he has complained about disrespect from the White House, the overextension of executive power, and the limits of his ability to fight back in the current political environment. He has called hearings and chided administration witnesses. But when push comes to shove, he has also unflinchingly bowed to an apparent political reality, choosing compromise over confrontation and incremental procedural victories over significant, substantive ones.

Even at the symbolic high point of his career, during the opening of the confirmation hearing of Chief Justice John Roberts last September, Specter introduced the proceedings by signaling the hopelessness of the task at hand. "Nominees answer about as many questions as they think they have to, to be confirmed," he said of Roberts, who was widely considered a shoo-in at the time. It was an accurate observation, but not exactly the utterance one would expect from a senator who won his last reelection in 2004 on the campaign slogan "Courage. Clout. Conviction."

Specter's posturing has caused some to question the political legacy of one of the Senate's most remarkable members, a former prosecutor of pimps and prostitutes who rose from the courtrooms of Philadelphia to become the Supreme Court's Senate gatekeeper, always remaining a conundrum for both the left and the right. In his 26-year Senate career, he has been attacked as a pro-abortion liberal who upended the nomination of Robert Bork, Ronald Reagan's 1987 Supreme Court nomination. He has also been savaged as the mean-spirited inquisitor who defamed Anita Hill in 1991, after she testified she had been sexually harassed by Supreme Court nominee Clarence Thomas. In 2004, he nearly lost his reelection primary after a strong conservative challenge and was forced to beg for his committee chairmanship after conservatives mounted an effort to unseat him for being too moderate. In recent weeks, he has become a punching bag for liberal bloggers, who have called him a "bald-faced liar" and a "sellout" over his proposed surveillance legislation.

This tumultuous path brings Specter, at the age of 76, to the acme of his career, having survived a brain tumor, a heart bypass and a recent bout with Hodgkins disease. But rather than define himself as an unfettered champion of the values he proclaims, Specter has begun to resemble a living bookend to Frank Capra's fictional Mr. Smith, the naive everyman who went to Washington with an incontrovertible aversion to compromise. For Specter, "compromise" has become another term for victory, not defeat. As one Democratic Senate aide generously explained, "He is interested in the process, not the outcome." In recent months, Specter has bent to the will of the White House on certain revisions to the Patriot Act, the need to hold hearings on telephone companies' involvement in spying, and the warrantless wiretap program.

"The issue for Specter is: What does he think he is getting from this in terms of his reputation by just walking up to the line and flinching?" said attorney Bruce Fein, a veteran of the Reagan Justice Department. Fein has been working closely with Specter on legislation to challenge the numerous presidential signing statements Bush has been using to circumvent bills passed by Congress. "He is not going to be president," Fein said. "What is his legacy going to be?"

Specter's legacy may in large part be defined by the coming showdown over his warrantless wiretap bill. He has maintained that his "compromise" strikes a balance between the nation's national security needs, as defined by the White House, and the responsibility of Congress to exercise oversight, in this case by mandating judicial review of a secret program. But critics have charged that Specter is pulling a bait and switch. The bill might lead to judicial review, they say, but the bill also changes the rules by which the court will judge the president's program -- all but undoing the law that the program may currently violate.

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