Civil Liberties

Reaffirming Voting Rights

Fear of being voted out of office is the only thing that seems to convince Congress to do the right thing.
Is President Bush's effort to claim extra-constitutional powers as a wartime commander-in-chief finally being reined in by congressional Republicans and courts? Or will the Republican Congress and increasingly docile judges figure out ways to legalize Bush's extralegal incursions after the fact?

Exhibit A is the administration's secret program to wiretap American citizens in express violation of even the wide police and spying powers of the USA Patriot Act. The administration claimed, in a doctrine put forth by Alberto Gonzales, then White House counsel, now attorney general, that the commander-in-chief role superseded other laws, and that Congress's post-9-11 votes for war essentially gave Bush dictatorial powers.

This rankled even some Republicans, since the White House had not bothered to inform congressional leaders of the extralegal spying. Now Senate Judiciary Committee Chairman Arlen Specter, after weeks of negotiations with Gonzales, has emerged with a compromise that would superficially bring the White House into constitutional compliance, but would actually make Congress complicit in gutting both the law and the Fourth Amendment's protections against illegal searches and seizures.

The idea is that the secret FISA court, named for the 1978 Foreign Intelligence Surveillance Act, would decide whether it is constitutional for the wiretap program to ignore the court's legally mandated role to authorize such taps. If the court found that the White House needed additional authority for an illegal program, it would guide Congress on how to legalize it.

So much for the Pennsylvania senator's overrated role as the rare Republican legislator who still cares about the Constitution. Specter's real role is fig leaf.

Ultimately, of course, the issue would have to be decided by that "other" court. But with the addition of Justices Samuel Alito and John Roberts, Bush and Gonzales now have a rock-solid Supreme Court bloc of four, and a sometime fifth vote in Justice Anthony Kennedy. Two weeks ago, the high court narrowly held that even detainees at the U.S. prison at Guantanamo Bay, Cuba, must be accorded basic rights of due process and the prisoner-of-war protections of the Geneva Conventions. But once again, the Republican Congress may put the cloak of legality over clearly extra-constitutional actions.

At a hearing Thursday of the Senate Armed Services Committee, Republican senators John McCain of Arizona and Lindsey Graham of South Carolina, who have criticized the administration's military tribunals, voiced support for using the preexisting Uniform Code of Military Justice instead as the basis for trying accused terrorists.

But McCain, like Specter, has a history of bold talk coupled with actions that help the administration when the chips are down. McCain and Bush were bitter rivals in the 2000 Republican primaries, when Karl Rove's operatives accused the senator of everything from mental instability to having fathered an illegitimate child. Now, however, we are seeing an improbable truce, because Bush and war hero McCain need each other.

McCain needs Bush's conservative base in his push for the 2008 nomination, and he has been delivering pandering speeches to the fundamentalist right that once disdained him. Press accounts suggest that Rove and Vice President Dick Cheney, in turn, seem to have concluded that McCain, liked by some independents and Democrats, is their best bet for the Republican right to hold power beyond 2008. With the exception of a few high-profile maverick actions, like the bipartisan McCain-Feingold Act limiting campaign contributions, and his expressed displeasure over abuses at Guantanamo and Abu Ghraib, McCain votes like an ordinary right-winger. Ultimately, count on McCain to help Bush legalize extra-constitutional processing of detainees, with minimal reform and window-dressing.

Amid the continuing bob-and-weave defense of extralegal activities this week, there was one bright spot. You might have missed it, crowded onto the back pages by the welter of bad news on everything from bombings in Mumbai, India, to the Big Dig catastrophe and a new cycle of violence in the Middle East. The ultraconservative House of Representatives voted, 390 to 33, to extend the protections of the 1965 Voting Rights Act, which otherwise would expire next spring. Even Bush signaled support. House Republican leaders had tried to water down the act by weakening federal protections in states and counties with long histories of denying minorities the vote. A key amendment, proposing to gut the right of voters to receive bilingual materials, lost, 238 to 185.

This victory for civil rights had less to do with a sudden Republican outbreak of conscience than with politics in the best sense -- Republican fear of voter retribution by an increasingly pluralist electorate. If Bush's despotic designs are thwarted, it will not be courtesy of vanishingly rare profiles in courage by Republican legislators or by bravely independent courts, but because the voters finally grasp the stakes.

Copyright © 2006 by The American Prospect, Inc. This article may not be resold, reprinted, or redistributed for compensation of any kind without prior written permission from the author. Direct questions about permissions to permissions@prospect.org.
Robert Kuttner is co-editor of The American Prospect.