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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Friday, January 13, 2006

Only a Select Committee can investigate the NSA scandal

Whatever one’s views are on the NSA warrantless eavesdropping program, most people agree that the scandal raises some of the most profound issues our Government can face -- the limits of Executive power, to what extent a "wartime" President is constrained by law, how the Congress and judiciary check and balance Presidential power, and whether the President has the right to ignore Congressional law on national security grounds. All but the shrillest and most blindly loyal Bush apologists seem to agree that these are matters which, at the very least, require a through airing and investigation by Congress.

Even George Bush himself encouraged a Congressional investigation into this scandal, acknowledging on Tuesday that such an investigation would be "good for democracy." Republican Senator Arlen Specter has also said that he believes the Bush Administration’s eavesdropping program ought to be investigated, and has now announced his intentions to hold hearings on this scandal in early February before the Senate Judiciary Committee which he chairs.

This investigation, however, cannot be conducted by Specter's Judiciary Committee. Given its constraints, composition, and history, the Senate Judiciary Committee -- like all standing Committees in the Congress -- is clearly not designed, and is not able, to conduct a thorough and serious investigation of the pressing and potentially complex issues raised by this scandal. And beyond the limitations which every standing Committee has, the Alito hearings just demonstrated that the Judiciary Committee is especially slow-moving, dysfunctional and plagued by bickering and long-standing animosities.

The severe limitation of standing Congressional Committees generally has given rise to a bipartisan consensus that serious Congressional investigations must be conducted by a specially created Select Committee which is given the mandate, and the resources, to conduct a genuinely probing investigation. For that reason, every significant government scandal over the last thirty years involving allegations of abuse of power by the nation’s executive branch -- including Watergate, Iran-Contra and the widespread abuses of the intelligence community -- have been investigated by a focused Select Investigative Committee formed by Congress to specifically investigate that scandal. Such investigations are not conducted by standing committees. Indeed, House Republicans just created exactly this type of Select Committee to investigate the Federal Government’s response to Hurricane Katrina.

For our nation's most significant scandals involving allegations of abuses of executive power, a judgment has always been made that the issues presented are too serious and complex to be entrusted to a garden-variety standing Committee. These standing Committees are burdened by significant constraints on their time and resources and are distracted by numerous other competing demands on their attention, all of which combine to render impossible a thorough and and rigorous investigation.

By important contrast, Select Committees are deliberately structured to ensure that the members comprising the Committee are well-versed in the technical and legal issues presented and can therefore meaningfully question witnesses on these issues. That is why Congressional Rules provide for the creation of Select Committees -- because they can be structured and equipped with the resources from the beginning which are necessary for the specific investigation. And the fact that they have only one mandate -- to investigate the matter at hand -- ensures that the investigation remains substantive and focused.

Select Committes can and should also include lawyers with experience conducting these kinds of investigations, who can skillfully and tenaciously cross-examine witnesses and ensure that the truth is being revealed. Sam Dash and Arthur Liman respectively performed this vital role for the Watergate and Iran-Contra investigations, and if the investigation into the NSA scandal is to be meaningful, it needs a Select Committee with lawyers and other experts of this type to actively participate in the investigation.

Presumably, the investigation which so many people on both sides are urging be conducted into the NSA scandal should be a real and meaningful investigation, not a show trial dominated by partisan agendas, weighed down by entrenched animosities or rendered inadequate by a lack of expertise and skill. The Senate Judiciary Committee is entirely incapable of conducting an investigation of that sort. Only a Select Committee devoted to this investigation and bestowed with the necessary investigative tools and resources can ensure that Americans get a real investigation into this scandal.

UPDATE: Digby also thinks that it's imperative that we have a Select Committee investigate the NSA matter, and sets forth some very compelling reasons why the Judiciary Committee is woefully inadequate for this exceptionally important task.

UPDATE II: Jane Hamsher concurs, and offers some scenarios for what such a Committee would look like and why it would uniquely enable a real investigation.

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