Domestic Spying (02/21/06)

The above graphic is from Maine television station WCSH6 .  After writing on January 19, Chairman of the House Intelligence Committee Peter Hoekstra (R- MI) again took the Congressional Research Service (CRS)  to task February 1  for partisanship in concluding in two separate memos that the President had exceeded his authority in the NSA warrantless surviellance program.  He wrote CRS Director Daniel P. Mulholland,  

Once again, I would appreciate your assistance in ensuring that CRS refrain from speculating with respect to highly sensitive national security matters on which it has no authoritative knowledge, as well as ensuring that CRS allows the position of Congress on policy issues relating to intelligence to bc determined by elected Members of Congress, Republican and Democrat, rather than by CRS staff.

Hoekstra copied his memo to the House Leader and Chairmen of the Administration and Appropriation Committees.  Was this an unveiled threat to the funding of the CRS, which is operated by the Library of Congress?

I’m not the only one who thinks so.  UPI’s Homeland and National Security Editor Shaun Waterman quotes Federation of American Scientists’s Steven Aftergood in his February 20 story, “CRS attacked again on wiretap bias.”   

Aftergood said that after the GOP got control of Congress in 1996, their leadership had closed down the non-partisan Congressional Office of Technology Assessment for “being too independent.”

“The subtext of the current assault on the (congressional research service),” he said, was “You are next.”

On February 7 ,   Senator Diane Feinstein (D-CA)  and Representative Jane Harman (D-CA and ranking member of House Intelligence) sent their own memo to Mulholland in support of CRS’s work.

Then on February 8 , Congressman James Sensenbrenner, Chairman of the House Judiciary Committee wrote Mulholland, attaching letters by Law Professors Robert Alt and John C. Eastman.  Interesting that Alt is associated with the John Ashbrook Center  and Eastman with the Claremont Instituter, both dedicated to teaching the value of limited government, a catch-word for conservatives.  Ironic, that they support the imperial presidency, which the founding fathers would have found scary, I would think, having just seceded from a monarchy.

 By the way, Hoekstra had already jumped on Harman for letters to President Bush, asking for wider dissemination of information to Congress.  In a letter January 4 , he wrote,

I am surprised and somewhat bewildered at your request because, in my observation, you have never previously complained or stated concern about the limited number of people briefed on this program. Now you have written two letters to the President stating such concern, and, in fact, accusing the President of violating the law based on, what I consider, a strained analysis.

CSR is successor to the Legislative Reference Service, founded in 1914 to provide “nonpartisan, objective analysis and research on all legislative issues.”

On January 5 , analysts Elizabeth B. Bazan and Jennifer K. Elsea issued their memorandum entitled, “Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information.”  The memorandum concluded, “it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here under discussion, and it would likewise appear that, to the extent that those surveillances fall within the definition of ‘electronic surveillance’ within the meaning of FISA…Congress intended to cover the entire field with these statutes. To the extent that the NSA activity is not permitted…it may represent an exercise of presidential power at its lowest ebb, in which case exclusive presidential control is sustainable only by ‘disabling Congress from acting upon the subject.’… no court has held squarely that the Constitution disables the Congress from endeavoring to set limits on that power. To the contrary, the Supreme Court has stated that Congress does indeed have power to regulate domestic surveillance….If the NSA surveillance program were to considered an intelligence collection program, limiting congressional notification of the NSA program to the Gang of Eight, which some Members who were briefed about the program contend, would appear to be inconsistent with the law, which requires that the ‘congressional intelligence committees be kept fully and currently informed of all intelligence activities,’ other than those involving covert actions.”

On January 18 ,  analyst Alfred Cumming issued his memorandum entitled “Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions.”  That report found that “Based upon publicly reported descriptions of the program, the NSA surveillance program would appear to fall more closely under the definition of an intelligence collection program, rather than qualify as a covert action program as defined by statute.”

To keep up on this issue and others regarding government secrecy, I highly recommend  Steven Aftergood  and Sabrina I. Pacifici  



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