NSA Spying: Congress warned Bush TWICE before NYT story?

by Kagro X

If you haven't already added Jane Mayer's New Yorker profile on David Addington, Cheney's Chief of Staff and chief architect of the administration's "legal theories" on the "war on terror" to your Must Read List, you should do so immediately. I thank emptywheel for bringing it to my attention. This article, especially in combination with the recent PBS Frontline presentation, "The Dark Side," makes a solid and quite explicit case for something that many have been arguing for a long time, namely that the current administration's constitutional affrontery is a direct outgrowth of our collective failure to definitively and directly repudiate and exterminate the expansionist views of executive power represented by the Watergate and Iran-Contra scandals.

But believe it or not, that's not what I'm here to talk about today -- though it always deserves discussion.

Rather, I want to focus on a relatively minor point made by Mayer almost at the end of her article. It's relevant to much of the discussion we have here, and elsewhere around the blogosphere, regarding the necessity of impeachment.

An oft-cited favorite mong the many non-"strategic" objections to impeachment is the one that asserts that there are other last ditch efforts that can be made to put a stop to the administration's illegal actions. (Now, this argument, of course, ignores the impeachability of the actions we'd be looking to stop, but that's a whole separate argument.) The preferred tactic here is the exercise of Congress' "power of the purse." That is, they argue that Congress can and should simply cut off the funding used to conduct these illegal operations -- whether they be domestic spying, torture, extraordinary rendition, or what have you.

And my response has always been that such a tactic ignores the sad history of the Boland Amendment, which was the mechanism by which Congress in the early 1980s hoped to cut off funding for the Contras. The Reagan administration, as we all now know, merely circumvented Congress and funded the Contras covertly, for which crime against the Constitution precisely no one was punished, and Democratic Congressional oversight led to... well, a lot of scathing committee reports and press releases.

Thanks to Mayer's article, though, it turns out that there's much more I could have been incorporating into my answer.

But first, a brief break for some background.

Back on March 9th, Josh Marshall chimed in at his TPM Cafe, declaring his agreement with Matthew Yglesias that impeachment was, as he rather glibly put it, "a bad idea." He was pretty roundly taken to task for his dismissal, though he did have his defenders. None of them were named Josh Marshall, though, because Josh offered his rationale over at The Hill, where nobody could respond directly to it.

And the crux of Josh's argument was this:

The clearest case for impeachment is one in which the president refuses to follow the law and accede to the Congress’s and the court’s oversight powers. The only solution to such a constitutional crisis would be for the Congress to remove the president from office for violating his oath and committing political high crimes. But that’s just not the case at the moment because Congress has made little if any effort to rein him in. So impeaching him can’t make any sense because the Congress — in the constitutionally indolent hands of the Republican majority — has made no attempt to oversee the president by constitutional means.

Not particularly impressive, I thought at the time.

Tell me how you'd translate that, if not this way: Impeachment isn't appropriate because nobody's warned the president yet that he was supposed to follow the law.

What about the not-so-indolent hands who crafted FISA in the first place? Wasn't it clear enough that it was meant to be the exclusive method by which this kind of surveillance was to be overseen? And wasn't it Congress who said so? Is it Josh's argument that each Congress must expressly renew its commitment to any and every statute ever passed, if they're to have any hope of impeaching a president who violates them?

And what about the not-so-indolent Senators of the 109th Congress who voted 90-9 to prohibit the use of torture, in backing the McCain amendment, only to have the president attempt to nullify it with a "signing statement?" Is there something in the Constitution that requires McCain to issue a "double dog dare" before being allowed to decide that the president is refusing to follow the law and accede to the Congress' oversight powers? Does McCain have to catch Bush red-handed, waterboarding some poor soul? Or can Bush's public declaration that he doesn't have to listen to Congress count as refusing to accede?

Now, back to Mayer's article on Addington, for the "new" stuff:

[Former Reagan administration Deputy Attorney General Bruce] Fein suggested that the only way Congress will be able to reassert its power is by cutting off funds to the executive branch for programs that it thinks are illegal. But this approach has been tried, and here, too, Addington has had the last word. John Murtha, the ranking Democrat on the House Appropriations Subcommittee on Defense, put a provision in the Pentagon’s appropriations bills for 2005 and 2006 forbidding the use of federal funds for any intelligence-gathering that violates the Fourth Amendment, which protects the privacy of American citizens. The White House, however, took exception to Congress’s effort to cut off funds. When President Bush signed the appropriations bills into law, he appended “signing statements” asserting that the Commander-in-Chief had the right to collect intelligence in any way he deemed necessary. The signing statement for the 2005 budget, for instance, noted that the executive branch would “construe” the spending limit only “in a manner consistent with the President’s constitutional authority as Commander-in-Chief, including for the conduct of intelligence operations.” [Emphasis supplied.]

That's right. Congress twice included this language in Defense Department appropriations bills:

None of the funds provided in this Act shall be available for integration of foreign intelligence information unless the information has been lawfully collected and processed during the conduct of authorized foreign intelligence activities: Provided, That information pertaining to United States persons shall only be handled in accordance with protections provided in the Fourth Amendment of the United States Constitution as implemented through Executive Order No. 12333.

Once in section 8124 of H.R. 4613, passed by the 108th Congress on July 22, 2004, and once in section 8104 of H.R. 2863, the conference report for which was passed by the 109th Congress just days after the Times story broke. Each time, the president purported to nullify the effect of the legislation with identical signing statement language, on August 5, 2004:

Also, the executive branch shall construe section 8124, relating to integration of foreign intelligence information, in a manner consistent with the President's constitutional authority as Commander in Chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch.

and December 20, 2005:

The executive branch shall construe section 8104, relating to integration of foreign intelligence information, in a manner consistent with the President's constitutional authority as Commander in Chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch.

So where does this leave us? The president is explicitly warned twice, by two different Republican Congresses, that foreign intelligence gathering that circumvents FISA and the Fourth Amendment are not only illegal, but that Congress forbids the expenditure of federal funds for their operation, and the "administration" twice says, "we don't have to listen." Does that not count? Does it only count -- say, for Josh Marshall -- if Congress attempts to "rein in" the president at a big, fancy hearing, with television cameras, and to which blogger/journalists are invited to occupy front row seats?

Congress doesn't just exercise its "oversight" in hearing rooms. The "power of the purse" is supposed to count, too. And it's a big part of the supposed "plan" to rein in the Bush administration after we win the elections by pretending we're not going to have to take things to the next level -- and the only level that's left, I might add -- when Bush refuses again to comply.

The bottom line is that the Bush administration has already defied the "power of the purse" -- and this was no big deal to them, since that "power" may well have died in the early 1980s when this same crew ignored Boland. Add to that the fact that the Bush administration has also already simply walked out of oversight hearings when they got fed up with having to answer uncomfortable questions.

While I understand the political considerations that motivated the declaration that impeachment was "off the table," I'm genuinely concerned that there may be no plan for what to do when our hard-won "oversight" meets with administration intransigence. And I'm equally concerned that the leading lights among our burgeoning blogosphere punditocracy appear to have set standards for constitutional obligations that have no grounding in reality.

Comments

[mainsailset]

Holy Shit!

[Katie Jensen]

Excellent analysis after reading Josh's article. VERY INTERESTING.

[DeanOR]

I think part of their game is to pretend that they are following the rules, as we go through legal and legislative processes and public debate and they continue merrily doing whatever they please. Americans are going through a psychological process of breaking through denial and realizing step by step that our government lies to us, that freedoms are eroding, that we may not be the good guys around the world, that Congress doesn't care about the welfare of the country, etc. The Bushies love it that we are so slow to get it.

[Kagro X]

That's absolutely part of the plan. Go back to the "reality-based community" comment, and tell me that doesn't appear to be exactly what they're doing.

While we're judiciously studying what they did -- if we ever even do that much -- they'll be perpetrating the next great crime.

[prostratedragon]

Using the appropriations process to counter violations of the Constitution is a wonderful device for sapping the energy of Congress since, as the Boland amendments history reminds us, you have to keep renewing the prohibition in each new budget cycle. This gives the rovians an opportunity to keep hammering at Congresspeople, etc. It is an inappropriate way to think of Constitutional remedies except as a stopgap, since the whole point in having a Constitution is to keep a set of major issues settled for long periods.

[Kagro X]

Good point, pd. I don't know that anybody arguing for the use of the power of the purse meant that it be anything but a stopgap solution, but even as such, you're right in saying that its use would itself demonstrate the need for a more permanent one.

[Katie Jensen]

To me it's the same dynamic as what happens in domestic violence. A person walks into your life...they sell themselves to you (they do not introduce themselves as the person who is going to be beating you into submission later), they tell you things that make them too good to be real (compassionate conservative). Then one day when you least expect it, they beat the crap out of you. You loved them, you thought they were wonderful, you thought they would always protect you, you were afraid and you needed their protection. The perpetrator of the violence will minimize, deny and blame.

It's not a big a deal, only 2500 dead...you know how many were killed in WWII??? We didn't do it. We didn't do anything illegal, bad or harmful, no torture. Not happening. Blame...those damn terrorists make us have to do this. We have no choice. We must take away your freedoms for your own good. Your desire to know is causing the problem...if you folks would just do what we say, we wouldn't have to tap your calls!!

So now we have a nation waking up with a black eye, murmuring "yah, but he was just trying to protect us." "Once we have the terrorist caught we'll go back to our freedoms. "It's really not that big a deal."

We start to minimize deny and blame. It's the terrorist's fault, only the bad guys are losing their freedoms. Power and control has worked in the past so it's okay now.

It's a strange phenomenon. No one wants to admit that life could be changing in such a significant way, because most of us feel powerless to stop it. By the time we get geared up about this...it will be too late.

I think we all got a little complacent about our democracy and didn't realize how cunning and baffling power and control really is. Women who are beaten don't like it, they aren't stupid. There is something about the dynamic that invokes denial.

Katie

[Mary]

Great points. There was another bill I recall as well that based funding on briefings being provided to the appropriate Congressional committee and it got a signing statement too.

Btw - the Detainee Treatment Act that the Supreme Court reviewed Hamdan - had a signing statement that indicated the President's powers would be exercised consistent with the consitutional limits on the judiciary. How's that one? The court seemed less than impressed (crickets chirping?) but it goes a ways to explaining his petulant "I will abide by the court's ruling" that caused Lou Dobbs to ask, "why would he even need to say such a thing?"

Super analysis & Murtha get the bag of chips.