Has the Onion Infiltrated the Offices of Time Magazine?

Marty Lederman

This Time Magazine story about the Specter/Administration negotiations basically concedes that the Specter bill gives the President unlimited authority -- indeed, authority even greater than that he enjoyed in the mid-1970's, before FISA was enacted. (Why greater powers than pre-1978? Because under the Specter bill, the constitutional challenges that were common then, and that at least imposed modest limits on such wiretapping, could be transferred to the FISA court, with secret proceedings, strict confidentiality rules, and the power to dismiss such claims "for any reason.")

The story correctly states that the bill "limits presidential power in only narrow, almost symbolic ways [mainly, a requirement of "twice yearly" reports to the Intel Committees, which might not be any more onerous than the present requirements] — which is surely why Bush signed on for it." The article is even entitled "Why the Eavesdropping Deal May Have More Bark Than Bite."

But then it can't help adding the nonsensical subhead "The wiretapping deal is just the latest sign of how the White House is losing ground in the fight over wartime powers." And the lede?:

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.

Hello? He didn't get "explicit acknowledgement" of his wartime powers. Instead, he got:

Repeal of the FISA provision limiting his wartime powers.

Repeal of the all-important FISA provision making the statute the "exclusive means" of electronic surveillance.

Re-insertion of a provision giving him constitutional authority to ignore any statutory limits.

Elimination of any substantive statutory restrictions.

A voluntary and powerless FISA court review.

Effective elimination of all private suits challenging the electronic surveillance.

Etc.

Does that sound to you like "just the latest sign of how the ground is slipping out from under the White House"?

(See here for more on the Time story.)
Posted 6:32 AM by Marty Lederman [link]