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A game of chicken on Capitol Hill

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February 18, 2006

By DALE McFEATTERS

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)