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March 23, 2007
Balance of power
When Democrats won control of Congress last year, many speculated about how the Bush administration would respond. Without a supportive Republican-controlled Congress, would the administration become more conciliatory in its expansive interpretation of executive prerogative? Or would it become even more intransigent and embrace the electoral setback as just another obstacle to be overcome in its pursuit of policies deemed vital for national security? Although the 110th Congress has been in session for only three months, a few initial trends can be identified. In the realm of domestic surveillance, for example, the administration has changed course in several respects. Whether such corrections have been the result of a deliberate strategy or of unplanned missteps—or of something else entirely—is less clear.
Among the most prominent examples of the Bush administration’s broad interpretation of executive prerogatives has been the NSA’s warrentless surveillance program. As disclosed in late 2005, the program allowed the government to monitor two-way communications in which at least one party was located in the United States, and to do so without a warrant of any kind. Through 2006, the program was the source of great controversy and Congressional stewing, but the administration remained adamant in defending the national security value of the program (for more, see Capitol Watch, July 2006). But in January, Attorney General Alberto Gonzales revealed that the administration had just secured individual surveillance warrants from the Foreign Intelligence Surveillance Court and that future surveillance would be conducted subject to the court’s approval. In his letter to the Senate Judiciary Committee, Gonzales noted that, “the orders the government has obtained will allow the necessary speed and agility … under these circumstances, the president has determined not to reauthorize the [warrantless surveillance program].” This was a surprising development from the administration, which had vigorously defended the program in the face of mounting controversy and law suits for more than a year. It was, nonetheless, greeted with cautious optimism by many Democrats "The announcement today is welcome news,” said Senator John D. Rockefeller IV (D-WV). “But it is also confirmation that the administration’s go-it-alone approach, effectively excluding Congress and the courts and operating outside the law, was unnecessary.”
Then, earlier this month, the administration experienced another reversal in its domestic surveillance strategy when a Congressionally mandated audit revealed numerous errors in the FBI’s use of “national security letters.” These letters enable the FBI to acquire information such as financial data and telephone records on suspected foreign agents, without the authority of a grand jury or judge. The use of national security letters has grown significantly since the passage of the USA Patriot Act in 2001. Prior to the Act’s passage, the FBI was required to present “specific and articulable” reasons to believe that the requested information belonged to a suspected spy or foreign agent. Since 2001, however, the FBI has needed only to certify that the requested records are “sought for” or are “relevant to” a terrorism or foreign espionage-related investigation. Of a sampling of 293 cases involving national security letters, the audit found 22 possible breaches of regulation, including cases in which the FBI did not even meet the less stringent requirements mandated by the Patriot Act. FBI Director Robert Mueller took responsibility for the errors and claimed that he was “committed to ensuring that [the FBI] correct[s] these deficiencies and live up to these responsibilities.” But the angry reaction from Congress was notably bipartisan in tone. Senator Arlen Specter (R-PA), the ranking Republican on the Senate Judiciary Committee, said that Congress may “impose statutory requirements and perhaps take away some of the authority which we've already given to the FBI, since they appear not to be able to know how to use it.”
In each of these cases, the administration’s expansive interpretation of its domestic surveillance capabilities was dealt a serious blow. In the case of the NSA surveillance program being subsumed into a FISA court-approved process, the setback was self-inflicted. It could easily be interpreted as a deliberate, tactical retreat by the executive branch in the face of a hostile Congress. The FBI’s misuse of national security letters (or rather, the revelation of such misuse) was certainly not deliberate. Most accounts, however, indicate that the errors themselves were unintended cases of incompetence or negligence and not part of a broader strategy of willful deception. Taken together, these cases certainly represent serious setbacks for the Bush administration. But the underlying motivations behind each one—tactical, political retreat and unintended, honest error—would not appear to constitute a fatal blow to the administration’s domestic surveillance strategy, or to any deliberate strategy for dealing with a hostile Congress.
Another recent case, however, presents something of a different challenge for the administration. In late 2006, the Justice Department removed eight U.S. attorneys, supposedly for their lack of political loyalty to the administration. As has been often noted by President Bush and Attorney General Gonzales, U.S. attorneys serve “at the pleasure of the president,” which effectively means that the executive is well within its right to hire and fire U.S. attorneys at any time. In this particular instance, however, it appeared that the administration had plotted to fire these specific U.S. attorneys for some time, and specifically so for their reluctance to pursue investigations that were either favorable to Republicans or unfavorable to Democrats. In conjunction with the earlier setbacks and errors in the Justice Department, the purge of U.S. attorneys only amplified calls for Gonzales’ removal. Senator John Sununu (R-NH) was blunt: “I think the president should replace him.”
Unlike the other cases of Justice Department retreat or error, the purge of U.S. attorneys may appear to have little direct bearing on the executive’s national security or domestic surveillance prerogatives. Indirectly, however, it is very relevant. Until last year, interim U.S. attorneys appointed by the president needed to be confirmed by the Senate after 120 days. Indeed, the prerogative of senators to recommend and oversee political appointments in their home states has been one of that chamber’s most cherished informal privileges. But when Congress reauthorized the USA Patriot Act last year, it approved an obscure provision that removed any legislative or judicial oversight over the appointment of interim U.S. attorneys.
One might assume that such a consequential provision was included in the Patriot Act reauthorization for national security purposes, but it is difficult to know this with any certainty—bills circulating through Congress routinely become so mammoth and complex that legislators find it nearly impossible to digest every clause buried in their text. It is unclear how or why this particular provision was inserted into the reauthorized Patriot Act. What is clear, however, was the Bush administration’s enthusiasm in applying it. In advocating the purge of U.S. attorneys to a White House official, Kyle Sampson—Gonzales’ recently ousted chief-of-staff—offered his unvarnished opinion on the administration’s newly-unhindered appointment power: “[I]f we don't ever exercise it then what's the point of having it?” In applying this power to replace the eight U.S. attorneys, however, the Bush administration very specifically offended a cherished Senate prerogative. Already, Congress has begun to push back. The Senate voted to repeal the offending Patriot Act provision by an overwhelming margin of 94-2, and a House Judiciary subcommittee approved subpoenas requiring several administration officials to testify under oath about the matter.
“Purgegate,” as the scandal has become known, is indicative of something far more damaging to the Bush administration’s broad interpretation of its executive prerogatives. It is a scandal born not of tactical retreat or of honest error, but of cover-up and improper behavior. Taken together, these three setbacks in the realm of domestic surveillance—the collapse of the NSA’s warrantless surveillance program, the FBI’s misuse of national security letters, and the application of an obscure Patriot Act provision for partisan political gain—mark the culmination of years of executive overreach. The resulting retreat, error, and disclosure have scuttled whatever strategy the Bush administration had intended to pursue to deal with the new Democratic-controlled Congress, be it deliberate conciliation, heightened intransigence, or something else entirely.
Although the recent news may appear bad for the executive branch, the greatest burden now rests with Congress. If it is to successfully tug back in its centuries-old power struggle with the executive branch, the legislature will need to prove its relevance with robust and substantive oversight. If it fails, Congress will have missed a golden opportunity to rebalance the constitutional scales of power.
Foreign Policy Association, 22 March 2007
Posted by Daniel Widome at 01:00 AM to U. S. Politics | TrackBack (0)
