February 20, 2006

Balance of power strip-tease

According to the WaPo, when Sen. John Rockefeller proposed a broad inquiry into the NSA wiretapping program last week, White House Chief of Staff Andrew Card called moderate Republican Senators Chuck Hagel and Olympia Snowe to urge them against voting for the measure.

The two senators then had a three-way conference call with Senate Intelligence Committee Chairman and generally acknowledged White House toadie Pat Roberts. According to the WaPo, they both told Roberts they would vote for Rockefeller's inquiry if it came up. Roberts was then able to pull out an adjournment, on a party-line vote, until March 7.

After their support of the adjournment drew heat, Hagel and Snowe apparently "bridle[d] at suggestions that they buckled under administration heat. The White House must engage "in good-faith negotiations" with Congress, Snowe said in a statement."

So, the White House applied the full-court press and got...an adjournment. On one issue. The Republican-controlled House is starting its hearings soon, and has signalled that it will not take kindly to a fluff session with AG Gonzales like the one before the Senate.

One interesting development is that the White House seems unlikely to get out of this with its "inherent executive authority" argument intact. Under this argument, the wiretapping program, and virtually any other executive action in war, are authorized directly by Article II, and Congressional authority (via FISA) is thus irrelevant. Justice Jackson's sliding scale of executive power puts this power at the lowest point when it conflicts with the express intent of Congress. Under the White House's primary defense of the program, this calculus was defunct as of September 11, 2001.

The administration will thus likely have to seek Congressional approval, and will almost certainly get it. But it will have had to ask. Even Pat Roberts is making noises that Congress will need to legislate the NSA program into legitimacy - it will not give the White House carte blanche for all executive nullification of Congress' decisions. And look at what hasn't even happened yet:

(1) The House hearings where the AG will be warned in advance about the consequences of stonewalling (side note: will he be sworn? I think probably not);

(2) DOJ's release of documents on specific wiretaps that were conducted in response to EPIC's FOIA request;

(3) The Senate voter on whether to launch an inquiry, whether as broad as Rockefeller proposes, or something more restrained.

(4) Possible litigation over the issue. How will the third branch react to the Exec's claim that it never needed to obtain judicial warrants, and that it did so only as a courtesy to the courts, rather than as a constitutional necessity?

Meanwhile, the Democrats debate each other as to whether any of this is worth pursuing. Given the trends, I sense gains for moderate Repubs in the next two elections.

On the legal merits of the executive wiretap issue, Greenwald provides an index of his analyses, categorized by issue.


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