Republican Senator Arlen Specter of Pennsylvania, chairman of the Judiciary Committee that will begin hearings into the warrantless NSA wiretap program tomorrow morning, was on Meet the Press this morning to discuss these hearings. As usual, he had some interesting and possibly revealing things to say about this program and the hearings that reinforce his image as one of the more frustrating and hard to read members of Congress.
During this appearance he had an interesting exchange with moderator Tim Russert that I found to be particularly interesting and possibly revealing, in that it appeared to be somewhat supportive of, or at least open to strongly considering, the Bush administration's primary argument in defense of this program, namely, that the Constitution granted the president the power to conduct such wiretaps, and that the FISA Act does not apply to them, and may in fact itself be unconstitutional.
I've underlined what I think is the most interesting section:
Russert:
When president Carter signed the Foreign Intelligence Surveillance Act into law, he had a presidential signing statement, and in that signing statement he said this:
(Foreign Intelligence Surveillance Act of 1978 Signing Statement, October 25, 1978)
"It clarifies the Executive's authority to gather foreigh intelligence by electronic surveillance in the United States."
suggesting that any inherent powers in Article II of the Constitution or other legislation, that this--this FISA law--was central, and now would be controlling. Do you agree with that?
Specter:
Well, I think that it's a very powerful statement when the president--Carter at the time--signed it, and, uh, said that that was the way electronic surveillance ought to be conducted, and only with a warrant. And that was a presidential concession as to who had the authority. Congress exercized it by passing the law, and the president submitted to it.
Now there's an involved question here, Tim, which we're going to get into in some depth, as to whether the president's powers under Article II--his inherent powers--supercede a statute. If a statute is inconsistent with the Constitution, the Constitution governs and the Constitutional powers predominate.
But here you have the president signing on and saying "this is it", and that's why I've been so skeptical of the [NSA wiretap] program because it is in flat violation of the Foreign Intelligence Surveillance Act--but that's not the end of the discussion.
There's a lot more to follow, and we won't be able to cover it all here this evening...today...this morning, but we're going to have a hearing tomorrow and some more hearings after that, because of the importance of this issue and because of its complexity and depth.
What I found most interesting and potentially revealing about this exchange is that while he starts out by conceding that FISA does in fact limit a president's ability to conduct warrantless wiretaps, he then goes on to say that the president's inherent constitutional powers (as specified in Article II) always supercede any statutes passed by Congress, if such statues are inconsistent with the Constitution.
While this is obviously true--just because Congress passes legislation and the president signs it doesn't mean that it is therefore constitutional--why did Specter point this out right after agreeing that FISA limits Bush's ability to conduct warrantless wiretaps, unless he was implying that perhaps FISA itself might be unconstitutional?
He then goes on to reiterate his first point, namely that when a president signs a statute into law, "this is it"--i.e. it's now the law, which he and everyone else has to now follow. On its face, this statement would again seem to reinforce the limitations that the FISA Act places on a president's ability to conduct domestic wiretaps.
But according to what he had just said about how the Constitution always trumps statutes that are inconsistent with it, if this statute (i.e. the FISA Act) is in fact found to be inconsistent with the Constitution--which he obviously implies that it might be--then it would clearly be unconstitutional, and the president would therefore not be bound by it, even if Congress passed it and a previous president had signed it into law.
Basically, what Specter is saying is that FISA limits the president's ability to conduct warrantless wiretaps, unless it was found to be unconstitutional, in which case such limitations would be unconstitutional, and thus not valid. I.e. FISA clearly limits the president's ability to conduct warrantless wiretaps--unless, of course, it doesn't.
Huh?
Why would he say such a thing, if not to set up what is likely to be the cornerstone of Gonzales' defense of the wiretap program during these coming hearings? Namely, that despite Congress's having passed it and president Carter's having signed it, the FISA ACT was nevertheless inconsistent with the Constitution and therefore unconstitutional, and thus not binding on what he (Gonzales) claims is the president's inherent Acticle II powers to conduct domestic wiretaps.
Was Specter implicitely indicating his support of the legality of this wiretap program by these remarks, despite his seemingly skeptical attitude towards it? Or was he simply trying to lay out and be fair to both the anti and pro-wiretap program arguments that we're likely to hear in these and any subsequent hearings into this wiretap program, and indicating that he wasn't prejudging their outcome?
Given his history of saying things that either intentionally or unintenionally muddy the waters, though, and of course his obvious loyalties to the president, one has to wonder what he was really trying to say and do here.
I'll let the legal and political experts here dissect this more thoroughly, but I've got to say that I'm not exactly encouraged by these remarks, which at first seem to cast doubt on the legality of this wiretap program, but which can also be seen to open the door to justifying it legally.
What do you think Specter was saying or telegraphing here?
Update: Thanks for the comments and for voting. In retrospect, I think I should have added a fifth choice that would probably better represent most peoples' opinion of Specter: "It really doesn't what what he thinks of the wiretaps, as he'll just end up swinging whichever way the political winds blow". That would certainly be my vote.