The Specter Letter

Has Senate Judiciary Committee chairman Arlen Specter finally reached the end of his rope when it comes to patience with this Administration's stonewalling? A letter [PDF] he sent to Vice President Cheney yesterday seems to indicate that he's getting pretty close.

This week, Specter was planning to seek approval from his committee to hold a closed session with telephone industry executives regarding the recent revelation that their companies have provided call data to the federal government. The execs had requested the closed session to avoid being subpoenaed. However, in advance of Tuesday's 2:30 p.m. committee meeting, Specter writes in his letter to Cheney:

"I was advised yesterday that you had called Republican members of the Judiciary Committee lobbying them to oppose any Judiciary Committee hearing, even a closed one, with the telephone companies. I was further advised that you told these Republican members that the telephone companies had been instructed not to provide any information to the Committee as they were prohibited from disclosing classified information.

I was surprised, to say the least, that you sought to influence, really determine, the action of the Committee without calling me first, or at least calling me at some point. This was especially perplexing since we both attended the Republican Senators caucus lunch yesterday and I walked directly in front of you on at least two occasions enroute from the buffet to my table."

Specter goes on to note that at a meeting of Republican committee members at 2 p.m. Tuesday, he announced his plan to go ahead with a closed meeting with the telecom execs, with Senator Hatch then "urged" him to delay, "saying he would get Administration support for my bill which he had long supported" (the bill to provide for judicial oversight/sanction of the warrantless eavesdrop program). Specter says that he agreed to this delay, a decision which was not particularly popular with Committee Democrats, who protested Specter's decision quite vociferously.

The letter continues (and I'm going to quote at length because it's important): "It has been my hope that there could be an accommodation between Congress's Article I authority on oversight and the President's constitutional authority under Article II. There is no doubt that the NSA program violates the Foreign Intelligence Surveillance Act which sets forth the exclusive procedure for domestric wiretaps which requires the approval of the FISA Court. It may be that the President has inherent authority under Article II to trump that statute but the President does not have a blank check and the determination on whether the President has such Article II powers calls for a balancing test which requires knowing what the surveillance program constitutes.

If an accommodation cannot be reached with the Administration, the Judiciary Committee will consider confronting the issue with subpoenas and enforcement of that compulsory process if it appears that a majority vote will be forthcoming. The Committee would obviously have a much easier time making our case for enforcement of subpoenas against the telephone companies which do not have the plea of executive privilege. That may ultimately be the course of least resistance.

We press this issue in the context of repeated stances by the Administration on expansion of Article II power, frequently at the expense of Congress's Article I authority. There are the Presidential signing statements where the President seeks to cherry-pick which parts of the statute he will follow. There has been the refusal of the Department of Justice to provide the necessary clearances to permit its Office of Professional Responsibility to determine the propriety of the legal advice given by the Department of Justice on the electronic surveillance program. There is the recent Executive Branch search and seizure of Congressman Jefferson's office. There are recent and repeated assertions by the Department of Justice that it has the authority to criminally prosecute newspapers and reporters under highly questionable criminal statutes.

All of this is occurring in the context where the Administration is continuing warrantless wiretaps in violation of the Foreign Intelligence Surveillance Act and is preventing the Senate Judiciary Committee from carrying out its constitutional responsibility for Congressional oversight on constitutional issues. I am available to work this out with the Administration without the necessity of a constitutional confrontation between Congress and the President."

This seems to be Specter's "I'm mad as hell, and I'm not gonna take it anymore!" moment. I certainly hope it is. He has been far too patient with this Administration's stonewalling and back-handed put-offs for way too long. Coming close on the heels of this recent lambasting of a DoJ official by the Judiciary Committee, Specter's letter may signal a sea change in the way the Commmittee operates from here on out. Let's hope so.