Congress Stirs to Rein in the President
The constitutional crisis facing the United States has only deepened as a result of Attorney General Alberto Gonzales's testimony on warrantless domestic spying before the Senate Judiciary Committee on Monday. Karl Rove's well-publicized scheme to tar critics of the secret NSA program as friends of terrorism has fallen flat. Despite the committee's indulgence of Gonzales's stonewalling, the hearing revealed deep bipartisan concern about a presidency that defies all checks and balances. Committee chair Arlen Specter promised further hearings and said he would consider subpoenas for documents the Administration is withholding. These are the first indications that the institutions of restraint on presidential power, while comatose, may not be dead.
Further indications followed unexpectedly and quickly. The first was the call for a full Congressional inquiry into the warrantless spying program by Republican Representative Heather Wilson of New Mexico. A former National Security Council aide under George H.W. Bush, Wilson heads the House Intelligence Subcommittee on Technical and Tactical Intelligence, which oversees the National Security Agency. In a New York Times interview Wednesday, she called for a "painstaking" review that would include not only classified briefings but access to internal documents and interviews with NSA staff. She also called for a briefing of the full House Intelligence Committee on the program's operational details.
Lo and behold, Gonzales and Gen. Michael Hayden, deputy to the director of US national intelligence, showed up just hours later on Wednesday afternoon to brief the full House Intelligence Committee--for the first time ever--on the warrantless spying. Wilson claimed credit for the White House reversal but said, "I don't believe it complies with the National Security Act, which requires that the committees be kept fully informed of intelligence activities."
Meanwhile, the Republican chair of the House Judiciary Committee, James Sensenbrenner of Wisconsin, wrote a letter to Gonzales demanding answers by March 2 to fifty-one pointed questions about the warrantless surveillance program. And Specter announced he would introduce legislation requiring President Bush to have a special court examine the eavesdropping program.
These developments may seem like an earthquake after long years in which Bush scornfully defied all attempts at restraint and most of the Congress meekly acquiesced. But it is still a long way from effective checks and balances on executive power. The Bush Administration may still try to parlay its retreat into Congressional support for warrantless spying, just as it turned McCain's anti-torture bill into a legalization of prisoner abuse.
More forthright action is unlikely without public pressure. Turning Congressional concern into effective restraint will require a string of battles whose goal is not immediate victory but rather education of the public on why constitutional restraint on executive power matters. This kind of public education--from Congressional hearings to courageous civic resistance--is what finally terminated the criminal regimes of Senator Joe McCarthy and President Richard Nixon.
The next step toward any kind of accountability for Bush Administration criminality is to penetrate the wall of silence that surrounds Administration deceit. Leaks, ranging from the photos of Abu Ghraib to the Downing Street memos to the warrantless spying, have driven the anti-Bush backlash. Investigations like those proposed by Representative Wilson could well be the next arena.
The House Progressive Caucus has adopted an informal strategy of encouraging as many members of Congress as possible to introduce Resolutions of Inquiry. These ROIs allow members to pose factual questions to the President or Cabinet officials, and since the resolutions are privileged, relevant committees are required to report back to the House within fourteen legislative days.
In this session alone, Democrats have introduced twenty-two ROIs, the majority of which have centered on prewar intelligence, Plamegate and rendition. The assault began in July 2005, with Congresswoman Barbara Lee and others introducing a succession of seven ROIs in one month. The Downing Street memo ROI prompted extensive debate in the International Relations Committee about the role of Congressional oversight in relation to the war in Iraq, and while the resolution failed, the vote marked the first time all Democrats on the committee voted unanimously concerning Iraq.
On Wednesday, Progressive Caucus members turned their attention to questions of US torture and rendition. Representative Ed Markey's resolution was one of three ROIs that came before the committee requesting documents on any person subject to torture after being transferred to another country by US officials. It won support from Republicans James Leach, former chair of the Banking Committee, and antiwar conservative Ron Paul, but it was defeated by the Republican majority. Representative John Conyers and others now have their sights set on the NSA spying controversy, with four more ROIs expected to come up in the next few weeks.
The Senate is anticipating its own battles over information access and Congressional oversight. Last December, in response to the Administration's claims that Congress had access to the same intelligence as the President when deciding to go to war in Iraq, Senator Ted Kennedy offered an amendment to the Intelligence Authorization Bill requiring the disclosure of the President's Daily Briefs. The amendment passed with the support of Pat Roberts, Republican chair of the Intelligence Committee. The measure also included two other amendments requiring information on US rendition policy. In response, for the first time twenty-seven years, the Senate failed to pass an intelligence authorization bill because an unknown senator placed a hold on the bill. Kennedy has refused to back down, promising a head-on clash with the Administration.
Abuse of Presidential authority is likely to come up in other venues as well. A debate lies ahead on renewal of the Patriot Act. Senator Specter has promised to hold hearings on the Guantánamo prison. The Senate leadership has promised Intelligence Committee hearings on the abuse of prewar intelligence. Looking further to the future are Representative Conyers's proposals for a special prosecutor, a vote of censure and a select committee to investigate impeachable offenses by President Bush. Human rights groups have recently brought suit to find NSA spying unconstitutional. And of course, there are the upcoming Congressional elections.