You're not getting your oversight

by Kagro X

"Stop talking about impeachment!"

"Focus on the elections!"

"Win back the Congress, and then we'll have subpoena power and oversight authority!"

It seems to me that it's time to have a nuts and bolts discussion about what we're supposed to be gaining in exchange for agreeing to sit on our hands and watch what we say.

How exactly do we see subpoena power and oversight authority under a Democratic Congress actually playing out?

Let's start the inquiry by taking a look at how attempts at oversight, however pathetic they might be, are going in the current, Republican Congress.

What's it like when something so crazy happens that even Congressional Republicans can't hide from the public demand for an inquiry, and call Bush "administration" officials out on the carpet, as they did following the Sago mining disaster?

If ever there was a perfect illustration of the Bush administration's attitude toward Congress, it came precisely one hour, six minutes and 20 seconds into Monday's Senate Appropriations subcommittee hearing on mine safety.

The administration's two top mine safety officials had finished testifying, but Chairman Arlen Specter (R-Pa.) asked them to stick around for an extra hour in case other questions came up -- as is the panel's custom. Sorry, said David G. Dye, the acting assistant secretary of labor for mine safety and health. He and Ray McKinney, the federal administrator of coal mine safety, had too much real work to do to sit around listening to a group of pesky senators. A rescue team was still in the Sago Mine, Dye said, and a mine fire was burning in Colorado.

"We were happy to prepare for the hearing but we really need to get back," Dye announced. "We've got some really pressing matters."

Specter, a man who doesn't take well to real or perceived slights and who, more to the point, writes the mine agency's budget, dryly noted that the assembled senators also had some "pressing matters" on their plates. "So we don't think we're imposing too much to keep you here for another hour," he said. At which point the administration officials walked out a back door of the hearing room.

That's it. They just... walked out.

In an official hearing before the United States Senate, presided over by the venerable Arlen Specter, on whom so much now depends, the "administration" simply up and walked out when it didn't feel like playing along anymore.

And this, in a nutshell, is the way this executive branch treats its supposedly equal partner: as an annoying impediment to the real work of government. It provides information to Congress grudgingly, if at all. It handles letters from lawmakers like junk mail, routinely tossing them aside without responding.

But what about other avenues of oversight? Like Justice Department investigations?

An investigation by the Justice Department ethics office into the conduct of department lawyers who approved the National Security Agency's domestic surveillance program has been closed because investigators were denied security clearances, according to a letter sent to Congress on Wednesday.

The head of the department's Office of Professional Responsibility, H. Marshall Jarrett, wrote in the letter to Representative Maurice D. Hinchey, Democrat of New York, that "we have been unable to make meaningful progress in our investigation because O.P.R. has been denied security clearances for access to information about the N.S.A. program."

Mr. Jarrett said his office had requested clearances since January, when it began an investigation, and was told on Tuesday that they had been denied. "Without these clearances, we cannot investigate this matter and therefore have closed our investigation," the letter said.

Oh well. At least there's always the courts.

It's official: The Bush administration formally said Friday that it will try to halt a lawsuit that accuses AT&T of helping the National Security Agency spy on Americans illegally. In an 8-page document (PDF) filed with a federal court in the northern district of California, the U.S. Justice Department said it will intervene in the lawsuit and try to have it tossed out of court. [...] The Justice Department said in its filing that the "United States intends to assert the military and state secrets privilege" and have the case dismissed. The state secrets privilege, outlined by the Supreme Court in a 1953 case, permits the government to derail a lawsuit that might otherwise lead to the disclosure of military secrets.

No? Well, no matter. Surely this time Specter will get tough! Like he did with those "administration" officials who walked out of his mine safety hearings. Say, what did he do about that, anyway? Aw, nevermind. At least we know that when Specter says he's gonna get answers, by God, he goes out and gets those answers! Or at least, if he doesn't, he stands ready to make up his own. But things will be very different under a Democratic Congress, right? Because although Bush has shown nothing but contempt for even the weakest, most watered-down attempts of the Republican Congress Politburo to conduct oversight, there's every reason to believe that there will be far more compliance for Democrats. Here's the thing, though: the reason we think oversight under Democrats will be more effective is that we'll make use of Congressional subpoena power to do our digging. But exactly what is it about Democratic subpoenas that makes us think the Bush "administration" will be interested in complying with them? Well, there's always the threat of hitting them with charges of contempt of Congress, right?

In the federal law of the United States, contempt of Congress is the crime of obstructing the work of United States Congress, with a punishment of up to one year in prison and up to $1,000 in fines. The United States Congress generally brings this action for refusing to testify before a Congressional committee, or failing to provide a committee with requested documents.

So that's how we'll enforce our subpoenas. Isn't it? Maybe not:

In order to be convicted of contempt of Congress, the congressional committee subject to the contempt first reports a resolution that the affected individual is guilty of contempt. This takes a majority vote of the committee. The full United States House of Representatives or United States Senate then must approve the resolution, which sends the matter to a federal attorney, who may call a grand jury to decide whether to indict the affected individual, and prosecute if the grand jury affirms an indictment. This version of the procedure was put into place in 1857 and exists in order to provide a balance of power so the House and Senate cannot run amok and jail all their political opponents with contempt charges. The Congress is also restricted in that contempt citations can only be brought on matters that relate to legislative purposes within the jurisdiction of the committee that brings the charges.

From time to time, Congress lodges contempt of Congress charges against members of the United States government, usually members of the executive branch of the United States who claim that releasing their records to a committee would cause more harm than good, or sometimes that the records are protected by executive privilege and must remain secret. This can put the executive branch in an unusual ethical position, since the executive branch employs the United States Attorney, who decides whether to bring cases of contempt of Congress to the grand jury. In addition, it is often the United States Attorney who advises executive branch members in the first place whether to withhold controversial documents or provide them to the congressional committees.

So the enforcement of the vaunted Congressional subpoena power we're all so hot to get our hands on in order to check the out-of-control Bush "administration" actually falls to... the Bush "administration?" Er... well... (shuffling of feet)...

So where does this leave us? Exactly what bridge is it we think we'll cross when we come to it? Yes, yes, we all want to make sure the Bush "administration" lives up to its reputation of non-compliance first, before we start spooking the "swing voters" (presumably those who haven't yet "swung" from the 31% the president is clinging to) with honest discussions of what we're actually going to have to do to set things right. But it's time for the political "pragmatists" to start thinking on the question of what they'll do when their plans don't turn out to be all that "pragmatic" after all.

It's time for us to discuss what's so pragmatic about assuming the Bush "administration" will suddenly reverse course, and own up to its wrongdoing in the face of Democratic inquiries. Maybe nothing. Maybe it's all about taking things one step at a time. But make no mistake: the steps have been taken. There won't be time to waste on reinventing the wheel if the reins of government are passed into our hands in January. This "administration" has defied Congress -- a supposedly co-equal branch -- and it is no solution to say that Democrats pose a better alternative because they propose making really, really sure that the defiance is genuine.

What I think is a "realistic" or "pragmatic" way of looking at the question of impeachment is this: if there's an impeachment, it's much more likely to be over executive encroachment on Congressional prerogatives -- the diminution of Congressional power -- and not any of the rest of the garbage this "administration" is guilty of.

Not only is self-defense (not to mention self-interest) ultimately the only thing that would motivate Congress to act, but it's also the only "high crime" for which the withholding of evidence needed to convict can itself be the evidence needed to convict.

Setting a precedent for impeachment on the specifics of the charges against which we proposed to exercise oversight only goes so far. But setting a precedent for impeachment based on non-compliance with the oversight itself is a far-reaching and much-needed line in the sand. One that we failed to draw definitively after Nixon, and having failed to do so again after Reagan, we now find ourselves scratching our heads in wonderment at Bush's defiance of that same line, not yet drawn.

Comments

[Mimikatz]

Very good analysis. I think it is very important to trumpet the evidence that Bush thinks he is King George, especially the refusal to grant subpoenas to DOJ and the new wiretapping evidence. One knock on the GOP Congress is that it won't exercise any oversight, and I think the Dems can batter them with that. I do think we should start with impeaching Rumsfeld, then Cheney, then Bush, if he won't resign. It will be VERY hard for any GOPers to defend Rumsfeld. Once it's done, it will become easier to go on to Cheney and then Bush.

[janinsanfran]

Very good. I find myself marveling at those who think that getting a Democratic majority in Congress will somehow do the job of restoring a Constitutional rule of law in this country. Unfortunately, past behavior of politicians is a pretty good predictor of future behavior. We expect executive stonewalling fed by cowardly temporizing. And no Democratic aspirants for the Presidency, aside from Feingold, seem to me to have indicated that they don't aspire to exercise the authoritarian power Republicans have grabbed.

We have to try to use the impeachment power spurred by agitation at the roots -- and appealing to Congressional hurt pride, as you suggest. Pretty slim reeds to hang democracy on, but we have no others.

[jonnybutter]

setting a precedent for impeachment based on non-compliance with the oversight itself is a far-reaching and much-needed line in the sand.

Hard to argue with that. Hard to argue with any of your arguments in the whole series. There is a difference between what 'pragmatic' has come to mean, and what's actually doable. I personally like what mimikatz suggests (and have done my best to float the idea in other psyberfora): impeaching some of the other criminals first, both for its own sake, and for the reasons KgrX and Ron K. talked about (no pardons).

[Mimikatz]

And we shouldn't make the mistake that was made in Watergate with leaving the underlings to go scot free. Particularly Cambone ought to be so tarred that he can never hold public office again, and David Addington, lest they be our children's Cheney and Rummy.

[viget]

I agree Mimikatz. Of all the WH officials, Addington scares me the most, because of his unyielding belief in the unitary executive. It is he who is Cheney's Rasputin, and as we know, Cheney, not Bush is the real Decider. I wouldn't be surprised if Addington wasn't heavily involved in the Abu Gonzales memos (or if he even drafted them himself).

Somewhat OT and IANAL, but can intrepid prosecutors at the DoJ take the NSA to court for refusing to grant security clearances for their investigations? They probably already have enough evidence for probable cause that the law is being broken to support a warrant application to search these "secret rooms" in the telcos that are supposedly vacuuming up phone conversations from the major data trunks. Isn't this obstruction of justice to prevent the DoJ from investigating when they already have enough evidence to support "probable cause" that the law is not being followed? And the EO detailing the procedures of classification clearly states that it is improper to classify something to hide illegal behavior.

Can a court case be made here?

[Kagro X]

I don't care where we start, just get that word out there and start removing some people from office, just to show it can be done, and it isn't even all that painful.

Hell, we may even be greeted as liberators.

[Blue Meme]

Superb post. The spying, the lying, the fraud and the corruption are not the biggest evil we face. The creeping dictatorship is.

I just don't see that anyone other than Feingold, Kennedy and Leahy really get it. The most frightening thing is that the branch most emasculated seems content to function as the palace eunuch.

[shep]

Um, any chance we could raise our sights a little here fellas?

This isn't about Democrat power. It's about the beast. When the people have been brought along sufficiently - with the help of Democrats and Republicans (and prosecutors) and the media being drug along - the means by which we haul these miscreants out of office will be manifest.

Keep pressure on Democratic politicians and, especially, the press to speak the truth of Republican corruption. Make the people see exactly who the Republicans are and what they've been doing. Prosecute them to the full extent of the law.

When that happens, impeachment will look too good for them. The felons in the Republican congress, the war criminals in the Republican administration (and vice versa). Those who aren't in prison will be thrown from office, their party's ideology destroyed, it's influence dead.

Impeachment? Pish-tosh. A flaming wooden stake in the heart of the Republican movement.