Senate Judiciary Committee Chairman Arlen Specter on Tuesday said the White House has "pretty much abandoned" the "preposterous argument" that the National Security Agency's warrantless-surveillance program was authorized by Congress when it passed the authorization for the use of military force in the war on terrorism.
But Specter said the White House "has an argument" that the program is legal, based on the president's inherent authority under Article Two of the Constitution — although Specter said he does not know enough about the program to make his own judgment.
"Their position is that the president has the inherent authority, and that's that," Specter said of the White House.
Specter made the comments after a Judiciary Committee hearing that featured testimony on his bill to create a judicial oversight mechanism for the NSA program. Under Specter's proposal, the Foreign Intelligence Surveillance Court would review whether the surveillance is constitutional.
"The FISA Court has an unblemished record of integrity and the ability to maintain a secret," Specter said.
Specter's proposal is an alternative to another bill, sponsored by fellow Judiciary Committee Republican Sen. Mike DeWine, which would place oversight of the program in a subcommittee of the Senate Intelligence Committee.
At the hearing, Specter, along with a number of Democratic senators, complained that the White House has not shared enough information about the program to give senators any basis for deciding whether the NSA program is constitutional or not. Answering that question, Specter said, "would require knowing what the program is."
Utah Republican Sen. Orrin Hatch, who is also a member of the Intelligence Committee, said he had been given details about the program and was satisfied — but not absolutely certain — that it is constitutional.
"I am familiar with the program," Hatch said, "and I have to say that I agree with (the) proposition that the Congress cannot take away the president's authority under Article Two of the Constitution."
"You have been briefed," Specter said to Hatch. "You say you believe it is constitutional ... but you are not a judge."
"That's true," Hatch answered. "And I may very well be wrong."
After the hearing, Specter said he had discussed his oversight proposal with the administration. But in a brief interview with reporters, he suggested that he is not getting much cooperation from the White House.
"I've talked to the attorney general about it, and I talked to Harriet Miers about it."
"What is their position?"
"Their position is that the president has the inherent authority, and that's that — the authority under Article Two."
"Are they relying more on Article Two these days, rather than on the authorization for military force?"
"Yes. I think they've pretty much abandoned that preposterous argument. They may have an argument under Article Two, but they don't have an argument, really, under the force resolution."
"How could they satisfy you that they're right under Article Two?"
"Trust somebody in addition to Sen. Hatch with the program."
Specter also discussed a conflict with Judiciary Committee Democratic Sen. Russell Feingold over Feingold's call to censure President Bush. Specter has scheduled a committee hearing for Friday on the censure resolution, but he said Feingold has asked that it be delayed.
"He says he's going to be someplace else," Specter said of Feingold. "I don't know if I can have a hearing without him, and my instinct is, I'm offering him a hearing, and if he doesn't take it, he's not going to have a hearing."
A frustrated Specter seemed to hint that in order to pressure Feingold to go along with the hearing on Friday, he, Specter, might threaten to hold a committee vote on the censure resolution on Thursday.
Faced with that situation, he suggested, Feingold might decide to be there on Friday.
"I'd like to put it on the agenda," Specter said. "We could vote on the censure resolution on Thursday. I'm going to put it on the agenda and try to vote on it."
"Yes. I'd like to bring the matter to a head. That may produce a Friday hearing — you know cause and effect?"
Late Tuesday, Feingold denied that he had asked that the hearing be delayed.
"There is no truth to the claim made today by Chairman Specter that I have asked for a postponement of Friday's hearing on the censure resolution, and I am very puzzled how the chairman could have reached that conclusion," Feingold said in a statement. "I hope the chairman is not backing away from his commitment to hold the hearing on Friday morning."
Byron York NR's White House correspondent, is the author of "The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President — and Why They'll Try Even Harder Next Time."
By Byron York
Reprinted with permission from National Review Online