Echoes of the Nixon era

Arlen Specter's FISA bill would put President Bush above the rule of law, just as an earlier president would've wanted.

By Glenn Greenwald

Read more: Opinion, Glenn Greenwald

Photo: Reuters/Yuri Gripas

Senate Judiciary Committee chairman Arlen Specter

July 31, 2006 | With one piece of legislation, Sen. Arlen Specter seeks to expand the Bush administration's radical theory of executive power beyond the wildest dreams of Dick Cheney or even John Yoo. Just when it looked as though some semblance of checks and balances was being restored, Specter -- the Pennsylvania Republican who masqueraded for months as a tenacious opponent of the White House -- offers a bill that would strike an immeasurable blow for the Bush vision of an imperial presidency.

Specter's bill (S. 2543) is titled the National Security Surveillance Act, and it is framed as a series of amendments to the Foreign Intelligence Surveillance Act, known as FISA. The Senate approved FISA in 1978 in the wake of decades of eavesdropping abuses by the executive branch under both parties. FISA allowed aggressive eavesdropping by the president against terrorists and other enemies of the United States, but required that it be conducted with judicial oversight to ensure this awesome power would no longer be abused.

In reality, Specter does not want to amend the mandates of FISA so much as abolish them. His bill makes it optional, rather than mandatory, for the president to subject himself to judicial oversight when eavesdropping on Americans, in effect returning the nation to the pre-FISA era. Essentially, the president would be allowed to eavesdrop at will, precisely the situation that led to the surveillance abuses of the Nixon White House and J. Edgar Hoover's FBI.

Specter's bill will have three troubling consequences if it becomes law. First, it makes lawbreaking legal. When the New York Times revealed last December that the Bush administration has been eavesdropping without judicial approval for the past four years, it meant that the president has been systematically violating a law that makes such eavesdropping a crime punishable by up to five years in prison. If laws are to have any meaning, then elected officials cannot simply violate them with impunity. Specter's bill not only virtually guarantees there would be no consequences for this deliberate, ongoing criminality, but rewards and endorses the president's lawbreaking by changing the law to conform to the president's conduct.

Richard Nixon infamously told David Frost in a 1977 interview that, by definition, "when the president does it, that means it is not illegal." Specter, in effect, wishes to make the Nixonian theory of presidential infallibility the law of the land. In the process, he also embraces a more modern and equally extreme theory of presidential power, and that is the second alarming implication of his bill.

Specter's proposal is based on the plainly erroneous -- and truly radical -- premise that Congress has no power to regulate presidential war powers, as spelled out in Article II of the Constitution. That is the John Yoo/David Addington "president as monarch" theory that the Bush administration has been peddling to justify everything from the lawless detention of U.S. citizens to the use of torture as an interrogation tool to the president's deliberate violations of U.S. law governing eavesdropping.

Recent judicial 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 recent decision in Hamdan v. Rumsfeld was hailed as a historic victory for the restoration of checks and balances. The narrow result of Hamdan was to declare illegal the Bush administration's military commissions at Guantánamo on grounds that they violated congressional law requiring that such tribunals conform to the Geneva Conventions. But the broader significance of Hamdan was that it 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.

Specter's bill single-handedly reverses the judicial pushback. 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. Yet Specter's bill, at its core, endorses that theory, and Specter himself, in a Washington Post Op-Ed, justified his bill by espousing this view of unlimited presidential power. Specter argued: "The president's constitutional power either exists or does not exist, no matter what any statute may say."

Specter's justification for his bill is simply wrong as a matter of constitutional law. As Georgetown law professor Marty Lederman put it, Specter's constitutional argument is "utter malarkey" and rests on nothing more complex or noble than a "basic misunderstanding of modern separation-of-powers doctrine." Congress unquestionably has the power -- and has always had it -- to regulate the exercise of numerous presidential powers. Indeed, when Attorney General Alberto Gonzales testified before Specter's Judiciary Committee, even he told Specter that it is false to claim 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.

Next page: Is Specter just pretending?