Why the Eavesdropping Deal May Have More Bark Than Bite

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It was as much a sign of White House desperation as anything. In the final, face-to-face negotiations between President Bush and Pennsylvania Republican Senator Arlen Specter on Tuesday for oversight of Bush's controversial domestic eavesdropping program, the President made one final attempt to retain near-absolute wartime powers. The White House had argued throughout the months of staff-level negotiations that Bush needed explicit acknowledgement of his wartime powers in the Specter bill at the heart of the deal. Once again, Specter rejected it, as his staff had from the start — and Bush capitulated.

Specter announced the deal Thursday, and it has not been particularly well received on Capitol Hill or among critics of the Administration. That's because it limits presidential power in only narrow, almost symbolic ways — which is surely why Bush signed on for it. But the timing of the deal is telling; in the ongoing series of negotiations between the legislative and executive branches over the balance of power in the "war on terrorism," it is just the latest sign of how the ground is slipping out from under the White House.

At the heart of the battle is the question of whether the President is above the law. The White House has repeatedly argued he is — at least when he is acting as commander-in-chief in time of war. The only constraint on his power in those circumstances, the White House has argued, is the Constitution itself; no laws passed by Congress or treaties ratified by it can limit what the President does. Back when the story of Bush's wiretapping broke in December, the Administration was still holding the line on that argument. And with the politics of the issue on Bush's side — most Americans were more concerned about security than civil liberties — it looked like he might win the fight.

But Specter, chairman of the Senate Judiciary committee, took it upon himself to reassert some limited congressional and judicial oversight of the President's wartime powers. In talks with the Justice Department, the White House and the NSA , his staff pushed to have the program's constitutionality reviewed by the same secretive court, established by the Foreign Intelligence Surveillance Act (FISA) Congress passed in the 1970s, that is charged with approving warrants for domestic wiretapping — the same court, in fact, that the Administration had bypassed when it conducted eavesdropping without obtaining warrants.

The resulting bill would still give Bush much of the authority to pursue his eavesdropping program — something most Senators still support. Under the deal, Bush conditionally agreed that he would apply for authority to the secret FISA court which. However the specific agreement to have the program reviewed by the court, Specter and Gonzales said, is not actually written into the bill, and is valid only if the bill makes it through the House and Senate unaltered. The deal also requires in writing twice-yearly reports to the congressional intelligence committees on "any electronic surveillance programs in effect." And it would also give the Administration more time to apply for warrants retroactively after an emergency eavesdropping operation has already begun.

But in truth, the deal as a whole has been overtaken by events. While negotiations were under way, other members of Congress got the White House to agree to brief intelligence committee members on the eavesdropping as well as other anti-terror programs. More importantly, the Supreme Court has weighed in; in the case of Hamdan vs. Rumsfeld, it severely limited the White House's claims of unchecked wartime powers by ruling that the special military tribunals set up for detainees at Guantanamo were unconstitutional.

In the wake of that ruling, the White House is scrambling to find a way to retain some of the powers it once claimed absolutely — which explains the timing of the agreement with Specter. Signing on to his deal was an attempt by the White House to limit just how much oversight it would have to agree to. It was, in other words, the best deal the White House was likely to get.

It may well be too late for Bush and the White House, though — just as it may be for Specter's bill as well. The deal is unlikely to make it through both houses of Congress unaltered. Already House Republican Heather Wilson of New Mexico has announced she will introduce legislation that differs from the Specter bill, and Democrats in both chambers are rallying against the new deal. Which means that instead of drawing the line in the ongoing war powers battle, the White House may end up drawing a blank.