All the doors are closing -- Part II

by Kagro X

Last installment, I went over the latest developments that indicated that there was no relief in sight from the Article III courts on the question of executive overreach in the NSA domestic spying program. And I ended by asking, rhetorically, whether we might somehow, magically, find ourselves delivered by some lone, white hat, Article II (not I, as I originally misstated) hero.

What do Shane Harris and Murray Waas of the National Journal have to say on that front?

Justice Department Probe Foiled

By Shane Harris and Murray Waas, National Journal
© National Journal Group Inc.
Thursday, May 25, 2006

D'oh!

That's right. Our friends at the DoJ had to end their probe of the NSA's domestic spying activities, due to the denial of security clearances to its attorneys. By the "defendant" NSA, it would appear.

And would you indulge a pause at this point to ask who at the DoJ proposed to conduct such an inquiry? Why, it's the Office of Professional Responsibility...

a small ethics watchdog set up in 1975 after department officials were implicated in the Watergate scandal.

Well, I'll be! At last, an answer to the question, "Who's watching the watchers?" It's the people the watchers are watching, of course. Although to be fair, these particular people being watched by the watchers are watching everybody. So really, in some sense, this should come as no surprise. Not counting the staggering idiocy of it, of course. On the other hand, it's an enormous victory for small government advocates, wouldn't you say?

But why would OPR be the outfit in charge of probing the legality of the NSA's program? After all, they're not the general investigative arm of the DoJ, are they? No. They are:

... responsible for investigating allegations of misconduct involving Department attorneys that relate to the exercise of their authority to investigate, litigate or provide legal advice....

See, what was actually happening here, Harris and Waas tell us, was this:

An internal Justice Department inquiry into whether department officials -- including Attorney General Alberto Gonzales and then-Attorney General John Ashcroft -- acted properly in approving and overseeing the Bush administration's domestic eavesdropping program...

That's quite a different story, when you return to the question of why the security clearances were refused. Or for that matter, why they were necessary at all. This wasn't the NSA saying that Justice Department lawyers weren't cleared to learn the intimate details of their domestic spying program in order to pass on its legality (a job that the Civil Division was busy denying that the courts were capable of). This was the NSA vetoing the Justice Department's "internal affairs" investigation into whether or not DoJ's approval of the program was kosher.

Why should they be able to do that? And what would it have to do with a security clearance, anyway? Indeed, being an internal investigation into what the Department brass knew and when they knew it would necessarily focus on... what the Department already knew and when they knew it. As Harris and Waas note:

The only classified information that OPR investigators were seeking about the NSA's eavesdropping program was what had already been given to Ashcroft, Gonzales and other department attorneys in their original approval and advice on the program, the two senior government officials said. And, by nature, OPR's request was limited to documents such as internal Justice Department communications and legal opinions, and didn't extend to secrets that are the sole domain of other agencies, the two officials said.

So much for the "unitary executive" theory. It used to be that the left hand just didn't know what the right hand was doing. Today, the left hand isn't even authorized to know even if it wanted to.

But here, again, is a situation in which we're seeing procedural parlor tricks being used to avoid substantive review of policy-making. And with it, any real hope (if you still harbored it) of the situation being seriously investigated where it started, among the Article II players.

Article I? Well, we know better than to depend on them, right? They "don't have the numbers."

But didn't Congress just wake from its slumber with regard to executive overreach, albeit in a fit of pique over the FBI's search of Rep. William Jefferson's office?

In Part III, we'll see how the answer to whether they're awake depends, literally, on what day of the week it is.

Comments

[Kenneth Fair]

I think you may have confused Article I with Article II here. Article I is Congress, Article II is the Executive.

[Articles]

Congress has been using the NSA program since it began. Before Clinton or Bush. It's not a question of executive, it's a question of who gets access. Plame's CIA analysts will now work for DIA/NSA, so access in the past by CIA may not be an issue, but, then again, how could it be; CIA and Congress already accessed your records. What if they don't like you like Plame does'nt like Bush?

[Kagro X]

Yes, yes! Quite so!

Friggin' Romans! Damned numerals!