Both Sides of the Moon
July 20th, 2006Yesterday, I had my site featured in Slate’s Blogger page. Given that it was an unsolicited notice of my website, the mention was awesome, and it was doubly so since Slate is my favorite newsmagazine. Now, allow me to shift over to Fred Kaplan’s latest article, found here, and on the subject of the current War.
The opportunity for a nonmilitary solution (the phrase “peaceful solution” may be going too far) is golden right now but not for long. In a remarkable statement, the Saudi foreign minister criticized Hezbollah’s cross-border attacks as “unexpected, inappropriate, and irresponsible acts.” So did the leaders of Egypt, Kuwait, and the United Arab Emirates. Some criticized Israel’s response as “disproportionate,” or they urged “restraint.” But these caveats seemed almost pro forma. Rarely, if ever, have Arab leaders so condemned other Arabs on an issue of conflict with the Jewish State. Yet there’s something else that binds those Arab leaders—they’re all Sunnis, while Hezbollah, Iran, and (nominally) Syria are ruled by Shiites. This is another reason this fire needs to be put out as soon as possible. Otherwise, it might not only ignite the grand battle between Israel and its most fervent foes, but also feed the flames of the region’s larger war between Sunnis and Shiites.
It isn’t clear—it’s a matter of dispute even among the experts—how tightly Syria controls Hezbollah, or to what extent Syria (or Iran) knew in advance of Hezbollah’s actions this past week. Certainly there is some degree of control; very probably, there was some level of advance knowledge. But we won’t know to what degree, at what level—we won’t know if either country has the ability or desire to put a lid on Hezbollah’s activities—unless channels of communication are opened. Yesterday, I wondered when President Bush would send Condoleezza Rice on a mission of “shuttle diplomacy.” There’s something else he has to do first. The point of shuttle diplomacy, when Henry Kissinger and James Baker conducted it, was to talk with leaders who can’t talk with one another, shuttling back and forth conveying messages, feints, fears, and ultimately offers. One problem right now is that the United States—the would-be shuttle diplomat—has long cut off relations with Syria and Iran, both of Hezbollah’s enablers (and thus potential disablers). If Bush doesn’t reopen the lines, there’s no point in sending Rice on the plane; it would be a shuttle to nowhere—and, short of sensational luck, a region sliding to war.
I’m not so sure that the region is sliding into a greater War. All around, you can see the conflict dying down, as Israel apparently has one week left to fight. As much as I opposed the beginning of the War, the fact that there is some chain around their neck is comforting. Further, the Syrians aren’t willing to attack Israel right now, and little suggests that Israel plans to attack Damascus anytime soon. Without an attack by Israel, barring some mojo not seen in the Arab world since the last invasion of Israel decades ago, the outbreak of war is unlikely.
I am happy, however, that someone else is lamenting the fact that Bush has disabled diplomacy by refusing contact with these nations. If I am making that point, and Kaplan is making that point, I do hope that someone in the White House is, too. There’s a bright spot to be found here from this War, which I’m surprised to say, since I was and am reluctant to endorse Israel’s initial invasion of Lebanon, and I refuse to condone its actions in tearing Lebanon apart.
I’d like to redirect you now to this piece in Slate, about how Arlen Specter has caved into the White House on wiretapping, rather than the other way around.
Even by the desultory standards of legal writing, the 18-page draft of the bill is daunting. (Former Department of Justice lawyer and Georgetown law professor Marty Lederman, no stranger to convoluted legislation, declared it “almost unreadable.”) So, perhaps the initial headline writers can’t be blamed for spotting language about judicial review by the FISA court and concluding that it represented a compromise. The problem is the gulf between the real oversight established by the 1978 Foreign Intelligence Surveillance Act, passed in the wake of the rampant domestic snooping of the Watergate era, and the fake oversight envisioned in this bill. FISA mandated judicial review each time the NSA applies for a warrant to eavesdrop. Specter proposes a blanket review of whole surveillance programs. Leave aside for the moment the Fourth Amendment’s requirement that search warrants must be issued on an individual basis and the fact that some of the NSA’s programs reportedly monitor thousands of people. There’s an even bigger problem: Review by the FISA court is optional. Whereas under the 1978 law, the president could authorize surveillance without seeking a warrant for up to 15 days after a declaration of war, Specter’s bill eliminates the declaration-of-war provision and expands that 15-day grace period—to a year.
And Specter is just getting warmed up. Toward the end of the bill, a few sly additions demonstrate that everything else, accommodating though it seemed, was mere preamble. Section 801 proposes to amend FISA by inserting the phrase, “Nothing in this Act shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers.” In other words, none of the constraints just outlined should be interpreted as absolute, because nothing in the preceding pages counts! This provision, along with the accompanying suggestion that the president can find authorization to wiretap either through FISA or “under the Constitution,” effectively codify the Bush administration’s controversial argument that the president’s authority as commander in chief under Article II of the Constitution gives him virtually unconstrained license to do whatever he sees fit, national-security-wise. According to this view, it’s not the NSA surveillance program that’s unconstitutional, but FISA itself. Critics have dubbed this the Article II on Steroids theory; and however much he puffs out his chest at the administration, it appears that Arlen Specter has become a subscriber.
So, to sum up this civic morass: In 1978 Congress passed a sweeping law limiting the power of the president to spy on the American people. A quarter-century later, Bush administration lawyers concluded that this law was unconstitutional. Rather than challenge its constitutionality in the courts, they elected to violate it in secret. And now, in the name of oversight, the chair of the Senate Judiciary committee is proposing to bypass any rigorous judicial assessment of the president’s constitutional prerogatives and instead to endorse the administration’s position—a position, incidentally, that the Supreme Court rejected just weeks ago in another context. The bill amounts to the repeal-by-amendment of FISA.
No surprise there. Arlen is not the lower-case-republican he pretends to be. Just because he’s not Rick Santorum doesn’t mean he’s a moderate, and that’s a shame, because the issue of Wiretapping is one that requires Moderation. Clearly, some sort of wiretapping program is necessary, as any Administration will have to utilize that tool at one point or another. The point of objecting to this program isn’t that wiretaps are unconstitutional or that they should be discouraged, but that some sort of warrants are necessary so as to keep balance. Arlen Specter effectively destroys that, and for hindering Democracy by bowing to Dick Cheney, he ought to be ashamed. What he is trying to get passed is a bad bill that leaves us worse, considering where we started.