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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.

Saturday, March 04, 2006

Bill Frist threatens to re-structure the Intelligence Committee in order to block NSA hearings

(updated below - updated again)

The Senate Intelligence Committee was created in 1976 and, from the beginning, it has been unique in its structure and operation. Due to the urgency of ensuring that our country has nonpartisan and non-politicized oversight over the Government’s intelligence activities, the Intelligence Committee is structured so that -- unlike every other Senate Committee -- the majority is unable to dominate the Committee’s operation and agenda, and the minority has much greater powers than it does on any other Senate Committee.

With the March 7 vote looming on Sen. Rockefeller’s motion for the Committee to finally hold hearings to investigate the scope and nature of the Administration’s NSA warrantless eavesdropping on American citizens -- and with several Committee Republicans indicating their intent to vote for hearings -- Majority Leader Bill Frist threatened the Committee yesterday and warned it not to hold any hearings.

Frist specifically threatened that if the Committee holds NSA hearings, he will fundamentally change the 30-year-old structure and operation of the Senate Intelligence Committee so as to make it like every other Committee, i.e., controlled and dominated by Republicans to advance and rubber-stamp the White House’s agenda rather than exercise meaningful and nonpartisan oversight.

Yet again, Republicans are threatening to radically change long-standing rules for how our government operates all because they cannot manipulate the result they want. From redistricting games to changing the filibuster rules, when Republicans are incapable (even with their majorities) of manipulating the political result they want, they use their majority status to change how our government works in order to ensure the desired political outcome.

While Frist’s threat here is, in one sense, of a piece with those tactics, it is actually quite extraordinary and motivated by a particularly corrupt objective. The whole purpose of the Senate Intelligence Committee – the only reason why it exists – is to exercise oversight over controversial intelligence activities. Whatever else one might want to say about the NSA warrantless eavesdropping program, it is controversial on every front. There is no conceivable rationale for the Intelligence Committee not to hold hearings.

It would be an extraordinary abdication of the responsibility owed to Americans by the Intelligence Committee for it not to investigate the Administration’s warrantless eavesdropping program – a program which scores of prominent politicians and scholars from across the political spectrum have condemned as being legally dubious at best, and which polls show a majority of Americans oppose and believe is illegal.

This is what happened: After publicly pledging to hold NSA hearings, Committee Chair Pat Roberts refused to allow a scheduled vote to take place on February 16 because, according to reports, at least two and perhaps three Committee Republicans (Snowe, Hagel and DeWine) were prepared to vote for Sen. Rockefeller’s motion to hold hearings. As Newsweek reported before the scheduled February 16 vote:

[T]hree Republicans—Chuck Hagel of Nebraska, Olympia Snowe of Maine and Mike DeWine of Ohio—are expected to join with the Democrats on the committee to vote to demand more information about the secret eavesdropping program from the White House and intelligence agencies.

The vote was pushed off until March 7, and it now appears highly likely that Rockefeller’s motion has the support of a majority on the Committee. As a result, Bush Congressional allies are in high gear trying to do anything -- and the right word is "anything" -- to block these hearings.

On March 1, Harry Reid wrote a letter to Bill Frist, which was released by Reid’s office yesterday, demanding that Sen. Roberts allow a vote on Rockefeller's motion to hold NSA hearings and threatening to bring the matter to the full Senate if Roberts again blocks an up-or-down vote on the motion (h/t Metarhyme):

The Intelligence Committee’s meeting on March 7th presents an important credibility test for Senator Frist and Senator Roberts. If both are serious about their desire to let this committee perform its duties, Chairman Roberts will keep his word and permit the committee to conduct a vote on Senator Rockefeller’s reasonable proposal to review the Administration’s controversial domestic spying program. . . . .

Attorney General Gonzales’ letter to the Senate yesterday is the latest demonstration of how the Administration’s shifting rationale for this program has raised concerns that are causing members on both sides of the aisle to request a full and complete investigation.

I understand that the Chairman has reversed himself again, and has promised a vote for March 7th. This vote will be a critical test of whether this Republican-controlled Congress can conduct critical oversight of the Bush Administration, the intelligence community, and a Bush Administration surveillance program that has raised many legitimate concerns. While I appreciate the Chairman’s commitment to this vote occurring on March 7th, further procedural maneuvers to delay or prevent reasonable and thorough oversight by the Intelligence Committee on the Administration’s handling of pre-war intelligence or the NSA matter would be a troubling development that would require the attention of the full Senate.

In response, Sen. Frist yesterday wrote a truly amazing letter (.pdf) to Reid expressly threatening to radically re-structure the Senate Intelligence Committee if the Committee votes to hold NSA hearings:

I am increasingly concerned that the Senate Intelligence Committee is unable to its critically important oversight and threat assessment responsibilities due to stifling partisanship that is exhibited by repeated calls by Democrats on the Committee to conduct politically-motivated investigations. . . .

I would propose that we meet with Senators Roberts and Rockefeller as soon as possible. The Committee was established and structured to reflect the Senate’s desire for bipartisanship, and to the maximum extent possible, nonpartisan oversight of our nation’s intelligence activities. If attempts to use the committee’s charter for political purposes exist, we may have to simply acknowledge that nonpartisan oversight, while a worthy aspiration, is simply not possible. If we are unable to reach agreement, I believe we must consider other options to improve the Committee’s oversight capabilities, to include restructuring the Committee so that it is organized and operated like most Senate Committees.

These are truly desperate and extreme measures to block an investigation of the President’s conduct. Sen. First is literally threatening the Committee not to exercise oversight over the President’s warrantless eavesdropping on Americans.

The Senate Intelligence Committee was created 30 years ago to perform exactly this oversight function – to investigate our government's intelligence activities. Here is how the Committee itself describes its purpose:

Created pursuant to S.Res. 400, 94th Congress: to oversee and make continuing studies of the intelligence activities and programs of the United States Government, and to submit to the Senate appropriate proposals for legislation and report to the Senate concerning such intelligence activities and programs. In carrying out this purpose, the Select Committee on Intelligence shall make every effort to assure that the appropriate departments and agencies of the United States provide informed and timely intelligence necessary for the executive and legislative branches to make sound decisions affecting the security and vital interests of the Nation. It is further the purpose of this resolution to provide vigilant legislative oversight over the intelligence activities of the United States to assure that such activities are in conformity with the Constitution and laws of the United States.

Since the Committee’s inception, a consensus has existed among both parties that the unique rules of the Committee – which provide a much greater balance of power between the majority and minority in order to ensure that intelligence oversight is not politicized – is critical to the Committee’s ability to exercise meaningful oversight. That – meaningful oversight – is what Frist is threatening to abolish unless the Committee caves in to Frist’s thuggish demands that the President’s warrantless spying on Americans not be investigated.

Here is Pat Roberts himself, in a speech on the floor of the Senate on January 14, 2003, detailing the unique balance in Committee Rules between the parties and emphasizing the critical importance of this structure for the Committee's fulfillment of its oversight duties:

Rule 6 actually permits the vice chairman to authorize a committee investigation. Rule 7 actually permits the vice chairman to issue a subpoena. Rule 8 actually permits the vice chairman to authorize witness interrogation by committee staff.

Rule 11 requires staff members brief both majority and minority members, which means there are no secrets from the minority.

These authorities and privileges enjoyed by the vice chairman illustrate clearly the unique nature of this committee and the importance of these authorities in maintaining its nonpartisan nature.

The unique bipartisan nature of this committee is its greatest strength and is essential to the ability of the committee to develop a consensus product and to avoid all of the politics of our Nation's intelligence activities. . . .

The legislative record reflects that the Senators who really created the Intelligence Committee believed--this is so important--that the less partisan nature of the committee would serve to make the intelligence community more willing to keep the Congress fully and currently informed of highly sensitive intelligence activity. For a quarter of a century, this has permitted the committee to fulfill its primary responsibility:

Oversight of the intelligence activities of the United States Government.
My 6 years on the committee tell me that is absolutely true.

Marvel at the desperate and truly radical means which Frist is invoking in order to block an investigation into the Administration's warrantless eavesdropping program. To threaten to abolish the 30-year-old consensus for how the Senate Intelligence Committee functions – all in order to protect the Bush Administration from scrutiny and oversight – is truly extraordinary, and is unquestionably the conduct of individuals who are seeking to prevent scrutiny in order to conceal wrongdoing. Such threats are particularly unfathomable in light of the fact that the motion for hearings will pass only if it has the support of Republicans on the Committee.

According to Committee Member Barbara Mikulski, the questions which the Committee’s hearings would explore include:

What was the rationale for the necessity of the secret order?

If the actions in the secret order were believed to be necessary, why was there no request to change the existing statutory law or for a new law?

What limitations, if any, on spying on U.S. citizens were included in the secret order?

What was done with any information collected on U.S. citizens pursuant to such secret order?

Are there any other secret orders relating to spying on U.S. citizens?

Especially in light of the retractions via "clarification" by Alberto Gonzales of significant portions of his testimony before the Judiciary Committee, and in light of the increasingly compelling evidence that there are other warrantless eavesdropping programs aimed at Americans, what possible rationale could exist for the Intelligence Committee not to have hearings on these questions? How can there be any action taken by the Senate with regard to NSA issues unless it knows the answers to these basic questions? And how can Americans possibly assess the propriety of our Government’s eavesdropping activities if we do not even know what the scope and purpose of these programs are?

And shouldn’t our country’s journalists be reporting on Frist’s extraordinary threats, and shouldn’t they be finding out why Bill Frist would go to such extreme lengths in order to block this investigation? For an Administration with nothing to hide on this NSA scandal, these certainly are rather extreme efforts being exerted to block an investigation.

UPDATE: The ineptitude, sloth and confusion of our national journalists is sometimes so extreme that it's actually hard to believe. Here is an AP article, published by CBS News (h/t David Shaughnessy), which reports on the exchange of letters between Reid and Frist but never even mentions, let alone highlights, the only newsworthy aspect of the exchange -- that Frist threatened to re-structure the Intelligence Committee to block the NSA hearings.

Instead, the AP and CBS simply copy the claim in Frist's letter, base the headline on it, and then blindly recite it as the lede. Thus, the headline of the article is "GOP: Politics Blocking Survey of Spy Units." And the first paragraph of the article simply copies Frist's point and "reports" as follows: "Stifling partisanship is preventing the Senate Intelligence Committee from overseeing the nation's spy agencies, the Senate's Republican leadership says."

Frist's purported concern over the way in which "politics" is preventing the Committee from engaging in meaningful oversight is nothing short of hilarious. There is no oversight from the Intelligence Committee because Pat Roberts uses it to rubber-stamp everything the Administration does. And Frist is trying to block meaningful oversight by preventing NSA hearings designed to investigate the eavesdropping program -- hearings that have bipartisan support on the Committee. That's just obvious (but not mentioned in the article).

Frist's claim that he wants to block the NSA hearings in order to ensure that the Committee can engage in meaningful oversight is as Orwellian an example of up-is-downism as you will find. But you certainly wouldn't know that from the AP article or from CBS News, which "neutrally" mold the article's headline and first paragraph to fit Frist's facially deceitful claim, and then worse, never even mention the only newsworthy part of the whole episode.

UPDATE II: Several people have raised the question of what mechanism Frist would have to use in order to "re-structure" the Committee. Presumably, the full Senate has the power to change the Rules of the Committee, since it enacted those Rules in the first place.

But an additional option is simply to change the composition of the Committee by removing the dissident GOP members (Snowe and Hagel) and replacing them with more cooperative Senators who will helpfully vote against an investigation. From what I can discern from the rather cryptic Rules (.pdf) for Senate Committee Assignments (see page CRS-7 for "non-A Committees," which includes Intelligence), membership assignments are at the discretion of the Majority Leader.

Lest anyone believe that removing Committee members is too extreme a step to take, let us recall this little sordid episode:

House Republican leaders tightened their control over the ethics committee yesterday by ousting its independent-minded chairman, appointing a replacement who is close to them and adding two new members who donated to the legal defense fund of House Majority Leader Tom DeLay (R-Tex.).

Rep. Joel Hefley (R-Colo.), who clashed with DeLay so often that they barely spoke and was considered wayward by other leaders, was replaced yesterday with Rep. Richard Hastings (R-Wash.). Hastings has carried out other sensitive leadership assignments and is known as a favorite of Speaker J. Dennis Hastert (R-Ill.), who made the decision.

Hefley said in an interview yesterday that he believes he was removed because he was too independent. He said there is "a bad perception out there that there was a purge in the committee and that people were put in that would protect our side of the aisle better than I did."

Bush allies are in desperation mode for covering-up their eavesdropping conduct. No reasonable person could doubt that something like this would be beyond what Frist is considering when he says he "must consider other options to improve the Committee’s oversight capabilities, to include restructuring the Committee."

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