Senator Dick Durbin, who was on the Senate Intelligence Committee during the lead up to the war, fills us in on what was going on behind the intel scenes in 2002-2003 and how accurately it matched up with what we were being told publicly. Unfortunately for all of us, he was sworn to secrecy back then…
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Current and former employees of the White House Security Office have reported to Chairman Waxman that there was a systemic failure at the White House to follow procedures for protecting classified information. According to the security officers, the White House regularly ignored security breaches, prevented security inspections of the West Wing, and condoned mismanagement of the White House Security Office.
WASHINGTON - The FBI didn't deliberately break the law by improperly obtaining thousands of Americans' phone, e-mail and financial records, Bureau Director Robert Mueller told the Senate Judiciary Committee on Tuesday.
That was the good news. But then came the bad:
It happened, Mueller said, because of "mistakes, carelessness, confusion, lack of training, lack of guidance and lack of adequate oversight."
Then came this line, which senators didn't find reassuring either:
The FBI's use of inaccurate information to obtain secret search warrants? The problem was "very lengthy documents . . . with thousands of facts."
Mueller didn't mention how the bureau also managed to lose weapons and laptop computers.
He was addressing a series of recent reports of FBI bungling - making the agency seem sort of like Homer Simpson, but with guns - notably an inspector general's conclusion that the bureau had improperly used so-called "national security letters" that allow investigators to obtain private information without a judge's approval.
Reports of those abuses - which the inspector general said could number as many as 3,000 - caused an uproar several weeks ago that's since been eclipsed by another issue that has, for administration critics, far juicier political implications: the firings of eight U.S. attorneys.
The FBI's problems came, Mueller said, at a time of "significant internal transformation and unprecedented worldwide threats." He added that that wasn't an excuse but rather "overarching context."
Committee members didn't appreciate the context.
"I'm not impressed by your assertion that there are thousands of facts," scoffed Sen. Arlen Specter, R-Pa. "That's the FBI agent's job. . . . And if they're wrong on the facts, they're subjecting someone to an invasion of privacy, to a national security letter or to a search warrant that ought not to be issued."
Even reliable administration ally Sen. Jeff Sessions, R-Ala., told Mueller that "any manager could say that if you don't set up a compliance system, you're going to have a problem."
Mueller, a trim, courtly pinata, may have softened the senators' swings with the tone of regret he used to describe his agency's mishaps, a tone that embattled Attorney General Alberto Gonzales might consider adopting when he appears before the committee April 17 to explain the U.S. attorney firings.
Among Mueller's compendium of contrition:
-The inspector general's report was "fair, effective and appropriate."
-"We at the FBI fell short in our obligations to report to Congress."
-"I am responsible for those shortcomings."
He embraced the report's recommendations, promised to discipline agents if necessary and even said he'd "welcome the committee's suggestion for additional improvements."
Judiciary Committee Chairman Patrick Leahy, D-Vt., lauded Mueller's approach, "which seems to be a break from many in this administration now."
That was among several references to the U.S. attorney firings, which gave Tuesday's sparsely attended hearing the feel of an undercard bout, with the big slug fests yet to come: former Justice Department chief of staff Kyle Sampson's testimony on the firings before the same panel Thursday and Gonzales' appearance April 17.
Several senators asked Mueller about the attorneys' firings, but his answers made clear that he wasn't in the loop on them.
That didn't stop Sen. Charles Schumer, D-N.Y., the Democrats' designated agent provocateur on the issue. He asked Mueller how, as a former U.S. attorney himself, he would've felt if he'd been pressured on certain sensitive cases, resisted the pressure, been fired a few months later, told no reason for his firing, then learned that his former bosses were saying it was for performance reasons, though they'd never brought up such performance issues before.
"I really have to resist speculating on that set of facts," Mueller said.
"I figured you would," Schumer responded with a chuckle.
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"We see a war coming on Capitol Hill," a well-connected Republican attorney based in Washington recently told me, as I reported in my last column on the subject. The clash is not surprising, because Vice President Dick Cheney -- who is at the center of many of the subjects the Democratic Congress will be investigating -- is strongly opposed to Congress's inquiring into these areas. He believes the power of the presidency is at stake. Accordingly, as I noted earlier, he has made it quite clear that he is not going to cooperate with these investigations.
Before the conflict develops, it might seem helpful to go over the rules of the game -- to appreciate who is on solid ground, who is on shaky ground, and why this is the case. But as it happens, there are no rules!
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That is, there is simply no well-established law of the land regarding what Congress can require a president, or a vice president, to provide them. Similarly, there is no well-settled law regarding what the president can, and cannot, withhold from Congress by citing "executive privilege" or other rationales. Thus, while this ground has been traveled many times, it still remains essentially uncharted.
Of course, there are precedents, and even U.S. Supreme Court rulings, in this area. But they have virtually no applicability when the contest involves Congress and the White House. Also, while forests have doubtless been consumed to publish copious learned treatises, essays, articles, and reports on this subject, at bottom, this is a matter not of law, but purely of politics. There is, however, evidence regarding this matter that can be drawn from history.
Allow me to elaborate - in this column, and the next - on the legal and political situation.
The Elusive Rules Regarding Congress's Access to Executive Branch Information
The Constitution is silent regarding Congress's power to investigate the president, and his constitutional partner, the vice president. It is equally silent about the power of a president and vice president to withhold information from Congress, when it is requested.
Thus, the implied powers of Congress and the President, respectively, are exclusively at issue; express constitutional language offers no guide.
Moreover, federal courts often cede jurisdiction in disputes between these constitutionally co-equal entities, for they involve "political questions." In the end, such disputes are most frequently resolved by political accommodation by either the Congress, or the President.
Column continues below ↓"Congressional oversight is one of the most important responsibilities of the United States Congress," the Committee on Rules of the U.S. House of Representatives states, adding that this responsibility extends to "the review, monitoring, and supervision of federal agencies, programs and policy implementation, and it provides the legislative branch with an opportunity to inspect, examine, review and check the executive branch and its agencies." For all practical purposes, then, there is nothing that transpires within the Executive Branch that is beyond Congressional oversight.
Historical Practice: Congress Seeks and Gets Wide-Ranging Information on the Executive
Indeed, since the beginnings of our government, Congress has sought, and been given, information relating to every facet of executive actions.
The fact that a president's actions are undertaken pursuant to his Constitutional authority, such as that granted by the Commander-in-Chief clause or the "Take Care" clause, does not preclude Congress from examining that activity. There is almost no area of presidential activity into which Congress has not previously made inquiry. Thus, Bush and Cheney are going to be hard-pressed to justify any refusal to cooperate with the Democratic Congress.
When Congress seeks information from the Executive Branch, it typically starts with an informal request at the staff level, made of an official in one of the departments or agencies. If the request is refused, the relevant congressional staffer goes to a member of his or her committee, and requests that the member seek the information. If the member is also turned down, the request is taken to the full committee, or its chair, and a decision is made whether to issue a subpoena.
Often, before the Chairman or the full committee issues a subpoena, further informal negotiations occur. There is a long-existing tradition, recognized by all three branches, that Congress and the President are expected to work through a series of negotiations and accommodations to avoid a constitutional clash. Sometimes this process works, and the Congress narrows its requests, agrees to keep the information confidential, or obtains the information informally. When it does not work, the president must claim privilege.
The Bush Administration has been reluctant to claim "executive privilege" - given the bad name Nixon gave the use of the privilege. Accordingly, the Administration has on several occasions claimed a "deliberative privilege" - even though no such privilege exists, and it is merely another name for executive privilege.
Often, Congress folds when the president invokes executive privilege, for there is no real judicial remedy (as noted above, courts tend to punt, citing the "political question" doctrine). However, a determined Congress - or committee thereof - can prevail over a recalcitrant president (or vice president) if its members are determined and persistent.
Thus, if the 110th Congress, controlled by the Democrats, fails to get the information it needs -- and the public wants -- about the workings of the Bush/Cheney presidency, it will not be because it does not have the tools with which to obtain that information. Rather, it will be because it lacks the will to use those tools.
Forcing Executive Compliance with Congressional Information Requests
When Congress plays hardball, it gets the information it wants from the president. The Congressional Reference Service (CRS) has prepared a complete manual on oversight, which they updated recently. In the manual, CRS has laid out all Congress needs to know to crack any stonewall Bush and Cheney may erect to block their oversight efforts.
Lou Fisher, one of the authors of the CRS manual, catalogued a number of the methods available to Congress in his essay: "Congressional Access To Information: Using Legislative Will And Leverage." Drawing on historical examples, Fisher shows that Congress has a host of tools, of various size and shape and depending on the situation, to "extract information from the President."
Together, the manual, the update, and Fisher's excellent article provide an adept guide to everything Congress needs to exercise meaningful oversight as to the Bush Administration - everything, that is except the intestinal fortitude required for winning this staring contest, without blinking.
In my next column, I will take a specific look at some of the weapons in this awesome arsenal.
