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Oversight, Intel And The Rule Of Law: Avoiding The Santayana Curse

ACS blog has an important reminder for members of Congress regarding their duty of oversight. Between potential obstruction by the CIA with destruction of interrogation tapes and the Bush Administration’s penchant for secrecy even with members of Congress on a host of issues including FISA, we should be mindful of lessons learned:

…This well known Kabuki dance between Congress and the Executive branch over the intersection between oversight and criminal law enforcement has played out hundreds of times since the beginning of the Republic, in our lifetimes most notably in Watergate and Iran-Contra. There is an equally insidious way in which these shared investigative powers collide—and that is in the way in which the Executive seeks to control and intimidate Congressional oversight by reliance on the classification system and the veiled, and sometimes direct, threat of prosecution of members of Congress for disclosing classified information in the course of performing their oversight responsibilities….

The Rockefeller episode illustrates how too often legislators are cowed into acquiescence or timid supplications with respect to issues involving classified documents or matters by an aggressive or threatening Executive branch. Of course, over 30 year ago in a case eerily reminiscent of the current controversies, the Supreme Court laid to rest the notion that legislators could be questioned by the Executive branch for doing their job. Every member of Congress needs to read the Gravel decision to appreciate the broad constitutional protection they have been afforded by the Framers to inquire into the Executive’s administration of our national security apparatus.

Unfortunately, the article doesn’t fully address the tension between the intelligence laws put in place to protect state secrets and the public’s right to know when such secrets violate the law and directly contradict what they are being told by elected officials.

There are historical and legal precedents in place precisely because the Founders and the leaders who have followed them did stand up when necessary to challenge other branches of government on separation of powers grounds. (You can learn more about the Gravel case here — and yes, it is the same Mike Gravel running for president.) A read through the Doolittle Report from 1954 and the Church Committee Report outline a number of the issues already tackled that we are again facing in this context. And in reading this, by comparison current leadership seems woefully lacking.

Oversight on any of these issues is the key to unravelling the mess. But it will require challenging the fundamental positions of authoritarian absolutism that have been set in place — and to get there, we will have to see both leadership and a willingness to stand up and fight coming from Congress and the Courts. And the Bush Administration must be called on every odious attempt to duck accountability for their actions, illegal or otherwise.

If we are to avoid repeating the failures of history, we must first learn the most important lesson of all: leaders stand up when the fight is the hardest of all.

Craig Unger lays out a compelling history of the neocon underpinnings that have birthed these myriad failed policies in his Fall Of The House Of Bush. During the Book Salon last Saturday, I thought this comment was particularly on point as to motivation:

In the book, I trace Cheney’s view of the imperial presidency back to Watergate which he saw as a liberal plot to curtail the powers of the executive branch. I write at some length about Cheney and Rumsfeld in the administration of Gerald Ford, and their machinations to redress these grievances. You also see the neocons hard at work during this period, distorting intel through Team B, and undermining the CIA. All of which prefigures the neocon machinations and Cheney’s in the Bush administration. I think understanding all this is essential to figuring out what the next president will face.

To unearth the root causes and to supplant them in governmental institutions wherein they have been seeded like so much neocon authoritarian chaff among the bureaucracy and the Hill staffers will take real leadership and a commitment to better government and the rule of law. It will also take a commitment to the truth, and not swallowing the spin whole — both by political leaders and by the media which covers them.

The question is, who will those leaders be? I agree with Jane that FISA would be a good place to start. More on this in Part II

(YouTube of Billy Joel’s "We Didn’t Start The Fire.")

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com