What's the matter with Arlen Specter?

By Nancy Jane Moore

Why is Sen. Arlen Specter caving to the president on the surveillance issue?

Specter is the man who introduced legislation on July 26 challenging the constitutionality of Bush's use of signing statements as a non-veto veto (Washington Post report), the leading Republican supporter of abortion rights, someone usually considered a major irritant to Bush.

But on the surveillance issue, Specter appears to have gone over to the dark side.

Under the Specter/Bush proposal, the Foreign Intelligence Surveillance Court would decide whether the National Security Agency's warrantless information gathering actions -- including tapping into phone and email records with the apparent cooperation of telecommunications companies -- is constitutional.

Why should the FISA court, which is only set up to review and fast track warrants in classified cases, address constitutionality? That's the purpose of the Supreme Court and as near as I can tell, this proposed law steps on the Constitution by trying to reassign that power.

Or as Electronic Frontier Foundation Senior Staff Attorney Lee Tien puts it:

When the privacy of millions of Americans is at stake, we deserve more than a closed hearing by a secret court.

A Washington Post report on testimony before the Senate Judiciary Committee leads me to believe that the bill doesn't even require the White House to submit new programs to the FISA court:

Another witness at yesterday's hearing, Steven G. Bradbury, an acting assistant attorney general, made it clear that legislation introduced by Judiciary Committee Chairman Arlen Specter (R-Pa.) after negotiations with the White House would "encourage" -- but not require -- Bush or a future president to present any future surveillance program to the secret FISA court for approval.

According to The New York Times, Specter seems to think he's wrung a major concession out of Bush:

"I would just suggest to you" the senator said, "that given the president's attitude on the surveillance program and his attitude on executive power generally that it was not a simple concession, but really was quite a breakthrough."

Senator Specter, don't you understand? You don't need to compromise here. If Congress stands up to the president and reins him in, it won't matter whether he agrees or not.

You can read the proposed legislation in this pdf file on the EFF website.