Incidentally, Specter’s op-ed demonstrates a shocking level of deference to presidential authority that strikes me as wholly inconsistent with our constitutional tradition:
The negotiations with administration officials and the president himself were fierce. The president understandably rejected a statutory mandate to submit his program to FISC, on the grounds that such a mandate could weaken the presidency institutionally by binding his successors. Indeed, such a mandate might not withstand a future president’s contention that it unconstitutionally limited his Article II powers to conduct surveillance without court approval. The president, however, did personally commit to submitting this program for court review should the bill pass. Even without a legal mandate, his sending this program to the FISC would be a powerful precedent to be considered by future presidents.
President Bush’s record of seeking to expand Article II power has been a hallmark of his administration. The president and vice president have vociferously argued that the administration had the authority for the program without any judicial review. Bush’s personal commitment to submit his program to FISC is therefore a major breakthrough.
Specter seems to consider it a great favor for the president to permit Congress and the courts to scrutinize his actions. “Weakening the presidency institutionally” is the whole point of the Fourth Amendment. We don’t want a president so “strong” that he gets to invade the privacy of Americans without first submitting to court scrutiny.
That last sentence gets the situation precisely backwards: the president is offering to submit his program to FISC only after Congress concedes that doing so is a matter of presidential discretion. The effect of that would be to ratify the administration’s expansive view of presidential power. Such a concession would weaken Congress and the courts the next time an illegal surveillance program is discovered. And it would further erode the principle that the executive branch needs to get permission from Congress and the courts before it conducts a search, not do as it pleases and then browbeat Congress into ratifying its actions after the fact.
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