Arlen Specter: The Manchurian Senator

Massimo Calabresi of TIME Magazine has a new story out on the surveillance "deal" between Arlen Specter and the White House. It has to be read to be believed. Here's how it begins:

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.

Good lord is that dumb. How is it that otherwise intelligent reporters are so totally unable to see things for what they are when it comes to the Bush administration? How can you cover politics for a living and be so easily duped by a self-serving narrative?

The notion that Specter was able to extract any meaningful concessions from the White House can be put to rest definitively by performing even a cursory review of his proposed bill. The bill gives the president everything he could have ever hoped for and requires nothing of any significance in return.

But by spinning this as some sort of capitulation on the President's part, both sides win. Specter is able to paint himself as the heroic maverick who stood up to the White House, and the White House is able to portray its dream surveillance law as something the President only reluctantly agreed to. Has anyone in the media ever read the story of Brer' Rabbit and the briar patch? The White House would like nothing better than for the media to treat this bill as some sort of moderate compromise, which is why they are pushing this particular narrative so hard.

As Glenn Greenwald, Marty Lederman, and Jack Balkin have all explained quite effectively, Specter's bill would render meaningless the statutory scheme that has been in place for the last three decades. It would instantly return us to the pre-FISA era of unfettered executive branch discretion. Seriously, if Specter had been a Manchurian candidate owned and operated by the White House, he could scarcely have done more to further their objectives.

To put this in perspective, consider the fact that over the last five years we've been engaged in an ongoing debate in this country over whether the Patriot Act sufficiently protects the civil liberties of Americans. Well, Specter's bill makes the Patriot Act look like something that was drafted by the ACLU. The Patriot Act merely tweaked some of FISA's provisions, leaving its basic statutory scheme in place; Specter's bill guts FISA entirely. It's like having a five year long debate over what shade of beige to paint the living room, only to then take a wrecking ball to the entire house.

The strangest part of this is that had the White House proposed this bill on its own, even at the height of the President's popularity following 9/11, it would have been an absolute non-starter in Congress. It's just far too radical. But because the president has been openly defying the law for so long now, and because Specter is seen as the White House's chief Congressional antagonist on this issue, the bill is being treated, at least initially, as if it is some sort of middle-of-the-road, uncontroversial piece of legislation.

It will be truly ironic if the Bush administration is rewarded for its law-breaking with a bill that, as recently as six months ago, no one would ever have dreamed had a snowball's chance in hell of gaining Congressional approval. This is a strategy that the GOP has mastered. First you take a position that is so outrageous and extreme that it catches everyone off guard. You then advocate for that position so stubbornly and so aggressively that, before long, you've made a lot of formerly extreme positions seem moderate by comparison. Eventually you agree to a "compromise" that replaces the status quo with something that just a short time earlier would have seemed unthinkable. It's amazing how effective this strategy is at shifting the basic terms of the debate.

My hope is that the media and Congress will figure out this ruse before Specter's bill becomes law. This post at Balkinization by Jane Harman (the Chair of the House Intelligence Committee) is an encouraging sign. It is important that Democrats like Harman come out against this bill quickly and not adopt their normal wait-and-see approach. If that happens it may help shift the terms of the debate back toward where they should be and change the media coverage somewhat. I hope so, because it has been uniformly terrible so far.

UPDATE: I see Marty reacted similarly to the TIME article. He compares it to The Onion. He also highlights an encouraging editorial from the Washington Post.

Any reasonable court looking at this bill would understand
it as withdrawing the nearly three-decade-old legal insistence
that FISA is the exclusive legitimate means of spying on
Americans. It would therefore legitimize whatever it is the NSA
is doing -- and a whole lot more. . . .

This bill is not a compromise but a full-fledged capitulation on
the part of the legislative branch to executive claims of power.