The "option" of checks and balances

Arlen Specter strikes a deal with Bush over warrantless spying.

Published July 14, 2006 2:03PM (EDT)

When the White House announced earlier this week that it would afford at least some of the protections of the Geneva Conventions to detainees at Guanánamo Bay, the story made headlines in newspapers all across America. It's a sign of how far we've come in the past five and a half years: What once would have been automatic -- an announcement that the executive branch will comply with a final ruling from the judicial branch -- is so remarkable now that it counts as front-page news.

Which brings us to today's news.

The White House has apparently reached a deal with Senate Judiciary Committee chairman Arlen Specter over the president's warrantless-spying program. Under the deal, the president will be required to submit the program to the Foreign Intelligence Surveillance Court for legal review. At least that's how Specter sees it. "If the bill is not changed, the president will submit the Terrorist Surveillance Program to the Foreign Intelligence Surveillance Court," the Associated Press quotes Specter as saying. "That is the president's commitment." The White House sees it differently. Again, from the AP: "An administration official who spoke on condition of anonymity said the bill's language gives the president the option of submitting the program to the intelligence court, rather than making the review a requirement."

Not that the language matters, of course. Assuming for a moment that the deal actually requires Bush to submit the program to the FISA court -- and assuming that Specter's legislation actually makes it through Congress -- Bush could use one of his signing statements to write the legal review requirement right out of the bill.

But even if Congress does require legal review, and even if Bush doesn't eliminate it with a stroke of his pen, isn't this all a little amazing? The president gets caught running a spying program that violates federal law, about which he was legally required to brief Congress but didn't, and the reaction from the tough-talking Senate Judiciary Committee chairman is a deal that will, as the New York Times explains, reaffirm the president's "constitutional authority" to spy on foreign powers and their agents; give the administration more authority to use "emergency" wiretaps with retroactive court approval as well as other surveillance tools; and deny jurisdiction to anyone but the FISA court to hear challenges to the warrantless wiretap program.

This is what the Times' David Sanger calls a "tactical retreat" for the White House. It sounds more like a gold-plated rubber stamp to us -- accommodation and after-the-fact approval where serious oversight would seem to be required. It's an "interesting bargain," says Sen. Patrick Leahy, the ranking Democrat on the Judiciary Committee. "[The president is] saying, 'If you do every single thing I tell you to do, I'll do what I should have done anyway.'"

Well, not exactly. What the president is actually saying is, "If you do every single thing I tell you to do, I might do what I should have done anyway." We don't know when "checks and balances" became an "option" for the executive branch to consider -- actually, we do -- but it sure is good work if you can get it.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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Arlen Specter D-pa. Espionage George W. Bush Patrick J. Leahy