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.