The Specter Spectre


Clever guy that Arlen Specter. When the Ranking Member of the Senate Judiciary Committee publishes a long essay to liberals in the New York Review of Books he wants them to know he "appreciate[s] an imbalance in our 'checks and balances' that has become increasingly evident in recent years."

But when the cable cameras are on him, when he's talking to his base, he's glibly warning that an investigation into Bush-era torture policies would be a "witch hunt" that can easily be avoided if only investigators "walk in and ask where the file cabinets are."

You can understand why the Republican senator from Pennsylvania wants to be all things to all people. He's now facing another primary challenge from Pat Toomey, a staunchly conservative opponent, so he has to keep up his bona fides with the right.

But he also has a history of standing up to presidents of his own party when he believes they aggrandize their constitutional powers. The problem for Sen. Specter is that the current political debate over Bush-era torture policies leaves him tongue-tied and twisted, contorting himself over apparently contradictions in logic and policy.

For example, how exactly does he reconcile his meat-and-potatoes opposition to a "torture commission" with his statement in the Review that his experiences with the Bush Administration "have crystallized for me the need for Congress and the courts to reassert themselves in our system of checks and balances"?

He writes of the need for "vigorous congressional oversight of the executive branch" but never explains how blocking a bipartisan torture investigation would accomplish that function. Is he arguing that Congressional oversight should only always look forward and not back? If that's the case how in the world would the legislators ever offer a rejoinder to executive branch overreaching?

What about if the White House deceives the Congress? One of Sen. Specter's main points in his essay is his accusation that the Bush White House didn't level with Congress about domestic surveillance programs.

Yet isn't deception—formalized, even stylized-- part of the story of how Bush-era officials authorized and justified their torture policies? Why does deception over warrantless surveillance—or deception in the use of signing statements, for that matter- demand Congressional action while deception over torture policies merits only a recommendation from Sen. Specter that investigators look "at the file cabinets"?

The answer we'll get, of course, is that oversight protecting the privacy of Americans is a lot more important than oversight protecting the rights of terror suspects. Or that there is enough bipartisan support to protect the rights of citizens to be free from warrantless surveillance than there is to pursue any sort of meaningful review of the past conduct of high-ranking officials of a past administration, especially when the new administration already has denounced and rejected the policies in question.

Still, I'd like to hear Sen. Specter himself explain the contradictions he has created for himself.

Andrew Cohen is CBS News Chief Legal Analyst and Legal Editor.. You can read more of his posts in Hotsheet here.