For a while there, it looked like Congress was poised to take the president’s warrantless-search program seriously. Senate Republicans acted as if they believed the White House circumvented the law; some House Republicans wanted a thorough investigation; and even conservative scholars and activists were willing to acknowledge that Bush had gone too far.
And yet, this week, key GOP lawmakers indicated they’re willing to sweep the whole thing under the rug. The House Intelligence Committee Chairman Peter Hoekstra (R-Mich.), for example, will launch an inquiry, but only to help Bush do what he’s already doing.
[A]n aide to Representative Peter Hoekstra, the Michigan Republican who leads the committee, said the inquiry would be much more limited in scope, focusing on whether federal surveillance laws needed to be changed and not on the eavesdropping program itself. […]
Jamal Ware, a spokesman for Mr. Hoekstra, said: “This is not an inquiry into the program. It’s a comprehensive review of the FISA statute. ” He said Mr. Hoekstra “wants to set up a process to move forward and look at the entire statute and ways to modernize it.”
A Senate inquiry, which had bi-partisan support, was scuttled yesterday as well
Senate Republicans blocked a proposed investigation of President Bush’s domestic spying operation Thursday as the chairman of the Intelligence Committee said he had reached an agreement with the White House to pursue legislation establishing clearer rules for the controversial program.
The White House did shift course on one thing yesterday. For weeks, the Bush gang has resisted suggestions that FISA should be changed — it would be a subtle concession that the administration has been operating outside legal limits. As far as the White House was concerned, if Bush’s warrantless searches are perfectly legitimate and legal, why change the law?
But yesterday, there was a new message from the administration: If Congress wants to empower us to do what we’re already doing, fine.
“We maintain that the president does not need additional congressional authority,” White House spokeswoman Dana Perino said. But she said the administration was now willing to discuss a GOP proposal that contained “some good legislative concepts that would not undermine the president’s ability to protect Americans.”
Perino was referring to a proposal by Sen. Mike DeWine (R-Ohio) that would specifically authorize the National Security Agency to eavesdrop on international calls involving U.S. residents and suspected terrorists overseas without first obtaining a court warrant.
It’s quite a shell game. Both Intelligence Committees effectively announced that they won’t ask any questions about the program’s legality or execution, but are committed to changing FISA to make Bush’s actions legal — after the fact.
Senate Intelligence Committee Chairman Pat Roberts (R-Kan.) said he’d won a key concession from the White House — now the Bush gang “has agreed to brief more intelligence committee members on the nature of the surveillance program.” This is absurd. This “concession” means that the White House has given Roberts a vague promise about following a disclosure law that the president has ignored for three years.
The news wasn’t all bad — Congress may not care about whether the administration follows the law and/or discloses its activities, but the judicial branch is a little more engaged.
In a victory for three privacy advocacy groups seeking Justice Department records about the program, U.S. District Judge Henry H. Kennedy Jr. ruled yesterday that the department cannot decide on its own what documents it will provide, because news reports in December revealing the program’s existence have created a substantial public dialogue about presidential powers and individual privacy rights. Kennedy rejected Justice’s argument that, because so much of the surveillance program involves classified information, the agency alone can determine when it is feasible to review and possibly release documents.
“President Bush has invited meaningful debate about the warrantless surveillance program,” Kennedy wrote, alluding to comments Bush has made at news conferences and speeches acknowledging public disagreement about domestic spying. “That can only occur if DOJ processes its requests in a timely fashion and releases the information sought.”
The Justice Department will appeal, of course, but this appears to be the only avenue left to shed light on the president’s warrantless-search program.