Reading the Washington Post account of the Arlen Specter-Bush Adminstration deal on expanded FISA court powers (no legislation can expand or contract the president’s Article II powers) three things stand out:
* Chairman Specter’s oft-repeated concern for review of the president’s assertion of powers has resulted in a proposal the crafting of which has excluded to date the people’s House, and so all the talk about serving constitutional ends is ironic given the cut-out of the House of Representatives.
* When the bill gets to the House, and to its Judiciary Committee, I hope Chairman Sensenbrenner again leads the way in seriousness about the war, by making sure that the legislative history fully articulates the president’s independent Article II authority, and fully explicates the level of review the FISA court will be using and assures that that level is to extremely deferential in time of war.
* Most important of all, I see that the Adminstration has wrung an enormous concession from Specter, one which should be added to in the House mark-up:
“At the administration’s insistence, the bill would impose higher penalties for ‘officials who knowingly misuse foreign intelligence information.'”
Leakers of secrets concerning the counterterrorism programs of the United States are going to face enormous penalties after this bill passes, and I hope the House uses the occasion to consider carefully penalties for publication of such secrets as well.
Like Article II, the First Amendment can neither be added to or subtracted from via legislation, but no serious observer believes that the First Amendment exempts the media from otherwise applicable laws. No matter what the final legislation says, the publication of anything –including most secrets– will not be subject to prior restraint.
But since the Senate is in a hurry to test the limits of the president’s Article II powers, perhaps the House would like to assert that, contrary to the apparent beliefs of the inbred editor class, the privileges of the press –unlike the president’s power– do not grow more robust in time of war, and that media organizations that violate law by publishing classified information are subject to penalties proportionate to the damage those organizations do.
At a minimum, the new law should spell out that there is no privilege that exempts a journalist from testifying before a grand jury in a case investigating the source of leaks of national security information. The new law might also want to spell out the financial penalties that news organizations must pay if they refuse to cooperate in a grand jury investiation.
The papers that are applauding the attempt to cabin Article II will no doubt find a way to regard their First Amendment rights as superior to the president’s Article II powers, but the public won’t be so accommodating.
The MSM is ready to pronounce the Specter-White House deal a reversal for the White House.
Don’t be so sure. As President Reagan’s desk sign used to read: “There is no limit to what a man can do or where he can go if he doesn’t mind who gets the credit.”
If Chairman Specter wants the credit for expanding a president’s FISA powers, the penalties for leakers, and whatever else the House adds on to another piece of war powers legislation, President Bush will gladly oblige the Chairman, and take the new authorities and the higher penalties.
And surely Chiarman Specter will not object when the House exercises its constitutional role to strengthen rather than weaken the president’s pwoers in the new bill.