Where's Congress In This Power Play?

By Frederick A.O. Schwarz Jr. and Aziz Huq
Sunday, April 1, 2007

Thirty years ago, a Senate committee headed by the late Sen. Frank Church exposed widespread abuses by law enforcement and intelligence agencies dating to the Franklin D. Roosevelt administration. In the name of "national security," the FBI, CIA and National Security Agency spied on politicians, protest groups and civil rights activists; illegally opened mail; and sponsored scores of covert operations abroad, many of which imperiled democracy in foreign countries.

The sheer magnitude of the abuses unearthed by the committee shocked the nation, led to broad reforms and embarrassed Congress, whose feckless oversight over decades was plain for all to see. As a result, Congress required presidents to report covert operations to permanent new intelligence committees and created the Foreign Intelligence Surveillance Act, which squarely repudiated the idea of inherent executive power to spy on Americans without obtaining warrants. New guidelines were issued for FBI investigations.

For those of us involved in that effort to bring accountability and sunshine back to government, it is discouraging to read daily accounts of a new era of intelligence power abuses, growing out of a "war" on terrorism that is invoked to justify almost any secret measure.

In the past five years, we have learned that the executive branch has circumvented federal bans on torture, abandoned the Geneva Conventions, monitored Americans' phone conversations without the required warrants and "outsourced" torture through "extraordinary rendition" to several foreign governments. Recently we learned that the FBI recklessly abused its power to secure documents through emergency national security letters.

Once again, congressional oversight of the growing national security, intelligence and law enforcement establishments has fallen short. But there are now obstacles to reestablishing effective oversight that did not exist three decades ago.

For one thing, the country and Congress are far more polarized. There was a high degree of bipartisan unity on the Church Committee, and Republican President Gerald R. Ford generally cooperated in the effort to expose abuses and create remedies. The committee, formally known as the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, was created in Watergate's wake and had a Democratic majority. But it focused on abuses by administrations of both parties. Indeed, its inquiries revealed that three Democratic icons, Presidents Roosevelt, John F. Kennedy and Lyndon B. Johnson, all knew about or approved questionable activities. Howard Baker Jr., a senior Senate Republican who served on the panel, disagreed with some proposals but said it had carried out its task "responsibly and thoroughly."

But Congress now faces an even bigger problem than heightened partisanship. Past presidents have never claimed that the Constitution gave them power to set aside statutes permanently. (Richard M. Nixon was no longer in office when he declared: "When the president does it, it means that it is not illegal.") The Bush administration, however, appears committed to eliminating judicial and congressional oversight of executive action at all costs. This pernicious idea, at odds with the Founders' vision of checks and balances, lies at the heart of many of today's abuses.

In some ways, the "Magna Carta" of this combative ideology was the minority report issued by eight of the Republicans on the Iran-contra committee that investigated the Reagan administration's handling of covert arms sales to Iran and the secret -- and illegal -- effort to finance the contra rebels fighting in Nicaragua.

Among the report's signers was then-Rep. Dick Cheney, who led the group. They rejected the idea that separation of powers would "preclude the exercise of arbitrary power" and argued that the president needed to act expeditiously and secretly to achieve American aims in a dangerous world. Their solution to executive abuse was to water down congressional and judicial oversight. The minority report referred approvingly to "monarchical notions of prerogative that will permit [presidents] to exceed the law" if Congress tried to exercise oversight on national security matters. Cheney later insisted in an interview that "you have to preserve the prerogative of the president in extraordinary circumstances," by not notifying Congress of intelligence operations.

Cheney's views have not shifted since then. In December 2005, he referred reporters to the minority report for his view of "the president's prerogatives." And for the first time in U.S. history, executive branch lawyers have argued that the president has power to "suspend" laws permanently in the name of national security. In signing statements for new laws, the chief executive has repeatedly asserted this broad power. In internal legal opinions on torture, Justice Department lawyers have proposed that the president can set aside laws that conflict with his ideas of national security. Under this logic, laws against torture, warrantless surveillance and transfers of detainees to governments that torture all buckle.

We do not know precisely which laws were turned aside, because the administration still refuses to reveal Justice Department opinions that define what laws the executive will and will not follow. Such secrecy, which has nothing to do with the legitimate protection of sources and methods of intelligence agencies, cannot be justified.

This crisis of constitutional faith did not begin with the current Republican administration. After a burst of reforms in the 1970s, Congress quickly fell back into Cold War apathy, finding it easier to let standards lapse than to hold the executive branch to account. The Iran-contra scandal was the first warning that the Church Committee's lessons had been sidelined by the executive branch. Attorney generals issued looser guidelines on FBI investigations. The White House became a keen user of unilateral executive orders that bypassed Congress.

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