A game of chicken on Capitol Hill

Under White House pressure, the Senate Intelligence Committee
flinched and backed away from an investigation of the Bush
administration’s warrantless eavesdropping program.

In return, the committee got not much from the White House other
than a vague commitment to provide greater disclosure and to cooperate
on legislation affecting the wiretapping, which the White House insists
isn’t needed in any case.

The administration also played hardball with the Senate Judiciary
Committee, rejecting a request by chairman Arlen Specter to have former
attorney general John Ashcroft and his former deputy, James Comey,
testify about the origins of the secret program, apparently because
their testimony might reveal a deep division with the Justice
Department about its legality.

The House Intelligence Committee, however, seems to be made of
sterner stuff and is pressing ahead with an oversight investigation
into the National Security Agency’s eavesdropping on the overseas calls
and e-mails of U.S. residents.

Congress keeps shying away from the underlying issue in the case _
whether the president can ignore the laws it passes because of the
post-9/11 resolution authorizing the use of force and his war-fighting
powers under the Constitution. And Congress also doesn’t seem to have a
great deal of appetite for insuring that Americans’ fundamental civil
liberties, especially the right to privacy, are respected.

There is an applicable law here, the 1978 Foreign Intelligence
Surveillance Act, that set up a special court to issue secret warrants
for espionage and terrorism wiretaps. The Bush administration elected
to skip the warrant process. The public may finally get a look at the
administration’s reasoning for that after a federal judge ordered the
Justice Department to turn over its internal memos and legal opinions
on the program. But that’s thanks to a suit filed by civil liberties
groups and not anything Congress did.

Congress is debating rewriting FISA both to streamline it and state
explicitly that it does apply to NSA’s eavesdropping. It is also
debating exempting the NSA program from FISA altogether. But unless the
lawmakers are willing to forcefully exercise their oversight function,
and insist on the administration’s compliance and disclosure, it won’t
much matter what Congress does.

(Contact Dale McFeatters at McFeattersD(at)SHNS.com)