At Long Last Subpoenas: So What?

Nick Juliano of Raw Story tells us the Senate Judiciary Committee has finally authorized subpoenas Bush administration documents related to the National Security Administration (NSA) domestic surveillance affair.

About time, huh? We found out about the warrantless spying program clear back in December of 2005. It has seemed as if the new Democratic heads of the congressional oversight committees have wanted to be able to say "See, we tried to play nice," before they pulled the pins from the hand grenades. Of the NSA related subpoenas, Senate Judiciary Committee Chairman Patrick Leahy (D-Vermont) said:

This Committee has sought information about the authorization of and legal justification for this program time and again – in letters, at hearings, and in written questions, yet this Administration has rebuffed all requests... This stonewalling is unacceptable and it must end. If the Administration will not carry out its responsibility to provide information to this Committee without a subpoena, we will issue one.

Of course, for committees to approve subpoenas is a different thing from actually issuing them. And issuing subpoenas is a different thing from the White House actually responding to them.

If It Ducks Like a Duck

We're still waiting to see how Secretary of State Condoleezza Rice responds to attempts by Representative Henry Waxman (D-California) to make her testify before the House Committee on Oversight and Government Reform regarding the Niger yellow flake/Valerie Plame affair. Rice claims that because she was National Security Adviser at the time, the concept of executive privilege protects her from having to testify.

Subpoenas were also an issue in the Attorney Gate scandal, and who on earth knows what all that sound and fury will lead to. In fact, who knows if any of he Democrats' oversight efforts will amount to anything? According to Reuters, Democrats have held more than 400 oversight hearings since they took over Congress in January. What have they accomplished?

A good argument says that by showing their fangs, the Democrats on the Senate Armed Services Committee scared the administration off from putting Joint Chiefs of Staff chairman Peter Pace up for a second term. Pace would have had to face another confirmation hearing, one that Defense Secretary Robert Gates feared would be, "a backward-looking and very contentious process."

"Contentious" is a mild way of putting it. Sitting across from the SASC under oath, Pace would have been flayed alive about all things leading up to the Iraq invasion, most notably the Office of Special Plans (OSP), the Pentagon unit created by Paul Wolfowitz and Douglas Feith to cook the intelligence on Iraq.

The handling of Pace's situation mirrors the Bush crowd's standard operating procedure. They don't fight decisive political battles if there's a good chance they might lose. The case of Jose Padilla, the U.S. citizen held as an enemy combatant without formal charges (in violation of about half of the Bill of Rights), is a good example. Alberto Gonzales and his Justice Department sandbagged the case for years, right up until it reached the showdown point in the Supreme Court. Then he backed down and had Padilla formally charged by a federal court in Florida. (It's important to remember that the formal charges did not include involvement in the "dirty bomb" plots that were the original justification for holding Padilla as an enemy combatant.) You can safely bet your shiniest penny that Padilla's trial won't go into jury deliberation any time soon.

The odds are also against any of the congressional investigations into administration malfeasance producing anything of note as well. At least not the way Congress is going about things. 400 something oversight hearings, that's a scattergun approach, the kind of approach that GOP master strategists typically steer their political opponents into. If the Democrats attempt to look into each and every instance of malfeasance by the Bush administration, it will never get to the bottom of anything because there is (literally) too much malfeasance to do justice to. If the congressional Dems don't focus their efforts on the big-ticket items, they'll spin their wheels until the end of the Bush term and never find a single smoking gun. The GOP in turn will accuse the Dems of having wasted time and abusing its power as majority party by conducting vindictive, political fishing expeditions.

You hear arguments these days from both ends of the political spectrum that Congress should drop all this "backward looking" investigation and get along with the business of the people. This position has a certain attractive quality. Certainly, after six years and change of Bush shenanigans, it would be nice to see the country rise from its neo-malaise and move forward. But there are several problems with letting bygones be bygones.

We need to have some idea what actually happened behind the curtain before the administration's neocons get a chance to hide the evidence and rewrite history. Key administration figures need to be held accountable for their actions, even if accountability only consists of our knowing what they did. Most importantly, though, we must have Congress reassert its constitutional authorities and reinstate limits on what has become a tyrannical executive branch.

With that in mind, the focus of congressional oversight and investigation should be on those things the Bush administration has claimed as executive rights and privileges in time of war. Despite what many would have you believe, there really are no such things as presidential "war powers." Yes, presidents have exercised extraordinary measures in past wars, but the "authority" for those acts largely consisted of what the presidents could get away with. Sometimes the Congress and the courts went along, sometimes they didn't.
The Constitution makes the president commander-in-chief of the military and of the militia (National Guard) when it is called up for federal service. Virtually all other war and foreign policy related powers belong to Congress. I have searched high and low for any statute that grants a president special powers in wartime, and the only thing I have found is this brief subparagraph in Title 50 of U.S. Code:

Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.

I suspect that this law would be declared unconstitutional if challenged in the courts, but constitutional or not, Mr. Bush and his Attorney General Alberto Gonzales have clearly violated it. It may be moot to argue whether Congress ever declared war against anyone in our current struggle against Islam-unism. The "specific statutory authorizations" Congress gave Mr. Bush to conduct his war on terror may or suffice as "declarations of war," but even if they do, Bush and 'Berto were way over their 15 day limit when the NSA warrantless domestic surveillance story broke in December of 2005.

So if I were to choose, I'd pick the NSA issue as Congress's primary subject of investigation, and I'd keep the fire hose trained on the Justice Department. Justice is the cabinet department that justified all the administration's sins.

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Commander Jeff Huber, U.S. Navy (Retired) writes from Virginia Beach, Virginia. Read his commentaries at Pen and Sword.