In Part I of this series (
Next Hurrah version,
Daily Kos version), I took a look at how the "administration" is attempting to shut the Article III courts out of their role in checking and/or balancing against the "national security" power grab.
Part II (Next Hurrah version, Daily Kos version) was explained why it was even more unlikely than usual that any other Article II actors would step up to check it.
That leaves the job to the Article I players, and we know where that's going...
In fact, it's old news:
Senate Rejects Wiretapping Probe
But Judge Orders Justice Department to Turn Over Documents
By Charles Babington and Carol D. Leonnig
Washington Post Staff Writers
Friday, February 17, 2006; Page A06
The Bush administration helped derail a Senate bid to investigate a warrantless eavesdropping program yesterday after signaling it would reject Congress's request to have former attorney general John D. Ashcroft and other officials testify about the program's legality. The actions underscored a dramatic and possibly permanent drop in momentum for a congressional inquiry, which had seemed likely two months ago.
Note the methods, by the way: the Bush administration would reject Congress's request to have former AG Ashcroft and others testify about the program's legality. Mmmmm... can't wait to get me some of that oversight we're all holding out for.
By the way, what happened with that subhead: "But Judge Orders Justice Department to Turn Over Documents"? Still waiting, though the order gave DoJ 20 days to comply. Seems they got an extension, so that the Office of Legal Counsel (OLC) could have another 120 days to review the materials. You remember OLC, right? Formerly the post of upstanding attorneys John Yoo, Jay Bybee, etc. (Also granted, 60 days for the Office of Intelligence and Policy Review (OIPC) to review the documents, at the request of OIPC counsel James A. Baker. All indications are that this is not the James A. Baker, but there's no better way to find out when Google doesn't answer the question than to put it out there on the blogs and see who knows.)
So, no Senate probe. But does that mean we're done with our Article I examination? Not at all. Not if you haven't examined how, once again, the Bush administration stands ready to claim that Article II powers trump Article I every time:
Sources: NSA leak probe includes Congress
WASHINGTON
(CNN) -- The FBI wants to interview top members of Congress from both parties about the leak to The New York Times concerning the National Security Agency's domestic surveillance program, sources told CNN.
The Capitol Hill newspaper Roll Call first reported that the FBI wanted to question federal legislators as part of its probe. The sources do not know if any members have been interviewed yet.
Yes, once again, the only aspect of the story getting any serious investigation is how the story got out, not the story itself. And now that the Article II folks have convinced the Article I folks that they have no business crossing the separation of powers boundaries and questioning them, Article II is back to do what? To question Article I.
Does this ring another bell for anyone?
Angry lawmakers demand FBI return seized documents
Search of congressman's office unconstitutional, they say
WASHINGTON
(AP) -- House Speaker Dennis Hastert demanded Wednesday that the FBI surrender documents and other items agents seized on Capitol Hill in what lawmakers said was an unconstitutional raid.
"I think those materials ought to be returned," said Hastert, adding that the FBI agents involved "ought to be frozen out of that (case) for the sake of the Constitution."
Mind you, these events both took place in the same week. On May 24th, Nancy Pelosi declared the search of Jefferson's office a violation of the "speech or debate" clause. On May 25th, Nancy Pelosi declared the FBI's interest in rooting around on Capitol Hill for the source of the "leak" to be perfectly acceptable. Even routine.
Make a note of that. Corruption probes conducted by FBI against Congress, bad. (And this is not to say there isn't a solid argument that it is bad. Norm Ornstein certainly thinks so.) Whistleblowing probes conducted by FBI against Congress, on the other hand, good.
And that's no throwaway note, either. Because whistleblowing's back in the news, too.
High Court Trims Whistleblower Rights
- By GINA HOLLAND, Associated Press Writer
Tuesday, May 30, 2006
(05-30) 14:54 PDT WASHINGTON (AP) --
The Supreme Court scaled back protections for government
workers who blow the whistle on official misconduct Tuesday, a 5-4 decision in which new Justice Samuel Alito cast the deciding vote.
In a victory for the Bush administration, justices said the 20 million public employees do not have free-speech protections for what they say as part of their jobs.
What's the upshot of the Garcetti v. Ceballos decision? For SCOTUS analysis, you can pretty much always turn to Jack Balkin:
After Ceballos, employees who do know what they are talking about will retain First Amendment protection only if they make their complaints publicly without going through internal grievance procedures. Although the Court suggests that its decision will encourage the creation and use of such internal procedures, it will probably not have that effect. Note that if employees have obligations to settle disputes and make complaints within internal grievance procedures, then they are doing something that is within their job description when they make complaints and so they have no First Amendment protections in what they say. Hence employees will have incentives not to use such procedures but to speak only in public if they want First Amendment protections (note that if they speak both privately and publicly, they can be fired for their private speech). However, if they speak only publicly, they essentially forfeit their ability to stay in their jobs, first because they become pariahs, and second, because they have refused to use the employer's internal mechanisms for complaint (mechanisms which, if they used them, would eliminate their First Amendment rights). In short, whatever they do, they are pretty much screwed. So the effect of the Court's decision is to create very strong incentives against whistleblowing of any kind. (Another possible result of the case is that employees will have incentives to speak anonymously or leak information to reporters and hope that the reporters don't have to reveal their sources).
Shorter Balkin: If you go to the papers with your story, your First Amendment rights are protected. But if you go "up the chain of command" instead, you're out of luck.
So, where were we? Ah, yes. The FBI is investigating Members of Congress on suspicion of their having leaked word of the NSA program to the papers. And if they did it, their colleagues don't appear to be interested in affording them protection under the speech or debate clause, although if they had been bribed to do it and were hiding the cash in their desks, the stash would, they argue, be entitled to such protection. But maybe now they can turn to the First Amendment and Ceballos, arguing that they had to go public in order to preserve any protection for their speech at all, now that physical evidence is "speech or debate," but actual speech isn't. Thankfully, we'll probably see the FBI drop its inquiries in the coming days, being that their targets are now protected under Ceballos.
Not.
Of course, even if the right hand suddenly decided to acknowledge and agree with the left, you'd still have your own Article I colleagues to deal with. You remember them: the ones who just got finished saying they would cover for you if you hid bribe money in your desk? They read the papers, right? They know Ceballos says you're supposed to go to the press, right?
Pffft! Get outta here, ya dummy!
Panel Is Told Disclosures Pose Danger to Security
By ADAM LIPTAK WASHINGTON, May 26 -- Recent disclosures of classified information by the press have damaged national security, several Republican members of the House Intelligence Committee said Friday at a hearing on news
organizations' legal responsibilities.
The criticism focused on articles in The New York Times concerning a National Security Agency surveillance program and, to a lesser extent, on disclosures in The Washington Post about secret C.I.A. prisons overseas.
Some Republicans on the committee advocated the criminal prosecution of The Times. Their comments partly echoed and partly amplified recent statements by Attorney General Alberto R. Gonzales that the Justice Department had the authority to prosecute reporters for publishing classified information.
OK, OK. To be fair, the Republicans at this hearing weren't disputing the Ceballos holding, and saying you should lose your First Amendment rights when you go to the press. Not at all! They were saying that the members of the press who print your allegations should lose their First Amendment rights.
And that leaves us where? No Congressional probes under Article I, because the Article II players refuse to testify. No internal probes by the Article II players, not to avoid the appearance of impropriety, but because they refuse to grant themselves the clearance necessary to see what's in their own files. No Article III adjudication, because the Article II defendants say it's a "state secret." And no press investigation, because the Article II gang (with complicity from Article I) says anyone who conducts one will be fitted for leg irons.
So you tell me where the "checks and balances" are. You tell me where the Article I power Jane Harman is relying on ultimately lies. Ironically, you'll find it in... Article II. Section 4.