White House Still Loves Maliki

"Coffin identified by date a series of memos and orders that 'may be responsive' to the Senate committee's demands. They include 43 separate authorizations from President Bush for the program, which had to be renewed approximately every 45 days beginning on Oct. 4, 2001.

"The letter also lists dates, from October 2001 through February 2005, for 10 legal memoranda from the Justice Department. . . .

"The disclosure of the existence of the documents and their dates sheds new light on some events surrounding the NSA program, including a now-famous legal dispute in March 2004. A half-dozen senior Justice officials threatened to resign if the White House did not agree to change parts of the program that Justice lawyers had determined were illegal. Coffin's letter indicates that Bush signed memos amending the program on March 19 and April 2 of that year. The details of the dispute have never been revealed publicly."

Legal blogger Marty Lederman finds the Coffin letter fascinating for several reasons -- chief among them its assertion that: "The Office of the Vice President reserves the limitations on congressional inquiries set forth in Barenblatt v. United States, 360 U.S. 109 (1959), which makes clear that the power to inquire extends no further than the power to legislate."

Why is that so interesting? Lederman writes: "Now, I happen to think that this so-called 'limitation' on congressional inquiries is not nearly so clear: Many of the earliest legislative investigations were not for the purpose of designing statutory amendments, but were instead 'only' to investigate wrongdoing or malfeasance in the Executive branch; and the better view is probably that Congress has at least some such broad investigative power, unrelated to its lawmaking functions.

But even if it were the case that Congress can only investigate in areas where it can legislate, . . . so what? Such an objection would only be meaningful in the context of this subpoena if there were some question about Congress's power to legislate with respect to the relevant Executive branch conduct.

"So think about what the VP's letter is suggesting -- that perhaps Congress can't legislate on the topic of the government's domestic electronic surveillance!"

To back up his assertion, Lederman notes that in Sunday's New York Times, James Risen and Eric Lichtblau reported that the administration still refuses to concede being bound even by the minimal restraints of the newly-amended surveillance statute:

Risen and Lichtblau wrote: "Bush administration officials have already signaled that, in their view, the president retains his constitutional authority to do whatever it takes to protect the country, regardless of any action Congress takes. At a tense meeting last week with lawyers from a range of private groups active in the wiretapping issue, senior Justice Department officials refused to commit the administration to adhering to the limits laid out in the new legislation and left open the possibility that the president could once again use what they have said in other instances is his constitutional authority to act outside the regulations set by Congress.

"At the meeting, Bruce Fein, a Justice Department lawyer in the Reagan administration, along with other critics of the legislation, pressed Justice Department officials repeatedly for an assurance that the administration considered itself bound by the restrictions imposed by Congress. The Justice Department, led by Ken Wainstein, the assistant attorney general for national security, refused to do so, according to three participants in the meeting. That stance angered Mr. Fein and others. It sent the message, Mr. Fein said in an interview, that the new legislation, though it is already broadly worded, 'is just advisory. The president can still do whatever he wants to do. They have not changed their position that the president's Article II powers trump any ability by Congress to regulate the collection of foreign intelligence.'"

Still the Fourth Branch?

From Leahy's remarks yesterday: "Incidentally, in the administration's response today, they claimed the Office of the Vice President is not part of the Executive Office of the President. So it's some kind of fourth branch of government.

"Well, that's wrong. Both the United States Code says it is part of the president -- oh, incidentally, at least this morning, as I left Vermont, I checked the White House Web site. And even their own Web site, this morning, at least, says that the Executive Office -- that the vice president is part of the Executive Office of the President."