Need Congress as Qatchdog, not Groundhog

Former Congressman and U.S. Attorney Bob Barr practices law in Atlanta. The article below originally appeared in The Atlanta Journal-Constitution

By Bob Barr

Groundhog Day took place a few days ago, reminding us that even as a nation priding itself on being the last and only superpower on the face of the planet, we still allow our attention to be captured by events of absolutely no real significance. Yet here we are, less than a week later, watching a spectacle on Capitol Hill, something called an oversight hearing — which, like Punxsutawney Phil, emerges briefly, then slides back, and life goes on as if it never happened.

The event Monday, which drew perhaps as many TV cameras and photographers as Punxsutawney Phil's cameo appearance, was a hearing by the Senate Judiciary Committee concerning recent revelations that the administration of President Bush has been, for more than four years, engaging in a program of electronic surveillance of reportedly many thousands of persons, including U.S. citizens, without court supervision — all in apparent violation of federal laws prohibiting such conduct.

The hearing got off to an almost comical start, when some Democrats questioned Chairman Arlen Specter (R- Pa.) as to whether he intended to place Attorney General Alberto Gonzales — the sole witness — under oath, as is the committee's custom. Specter rebuffed Democrat efforts to have the witness sworn, on the somewhat novel theory that Gonzales had assured the chairman he would not mind being placed under oath and that his testimony would be the same under oath as it would be not under oath. Thus, Specter apparently reasoned, why bother with the technical and demeaning step of having the attorney general raise his hand and swear to tell the truth. The White House reportedly had requested (demanded?) that the witness not be placed under oath.

The scenario thereafter played itself out along far-too-predictable lines. Gonzales answered those questions he wanted to answer, deferred others, and responded to many others based on what is becoming the administration's own "Fifth Amendment" privilege. The administration refuses to answer questions it doesn't want to answer on the grounds that to do so would endanger national security. This response was invoked time and again, even as to questions relating to what the law is or how it is interpreted by the president, the attorney general, the director of the National Security Agency (the vehicle by which this surveillance program appears to be carried out), or other administration officials.

Essentially, the nation's chief law enforcement officer believes that reciting the law will reveal to al-Qaida operatives top-secret information to which they would not otherwise be privy. Yet, the witness was allowed to invoke such defense to answering legitimate and relevant questions about the scope of the spying program, without penalty.

Another refrain invoked by Gonzales was that the president certainly doesn't have a blank check or unlimited power. Yet, the attorney general's actual responses to numerous questions posed by senators relating to the extent of the president's self-perceived power belied his recitations of limited power. Careful reading of the witness' responses to hypothetical or interpretive questions clearly demonstrated that the attorney general — who actually referred to the president as his "client" — is not willing to concede or admit to any limitations on President Bush's powers as commander in chief. And, of course, to complete the scenario, it is obvious that this president believes he can don the hat of commander in chief whenever he wants, or wear it all the time, at his sole discretion.

Even as the witness was refusing to answer questions, or cavalierly dismissing clear congressional intent in the drafting and passage of legislation such as the Foreign Intelligence Surveillance Act (which limits presidential authority to conduct warrantless electronic surveillance of U.S. citizens in this country), he assured the senators that the administration still believed itself bound by the Bill of Rights. Of course, when the Fourth Amendment (which still remains at least nominally a part of the Bill of Rights) is interpreted according to this administration's rules of interpretation, such assurances ring hollow.

Whether Congress finds its oversight backbone, and reasserts its proper role of ensuring the executive branch abides by rather than ignores the clear language and intent of federal law, remains to be seen. Unfortunately, thus far the leadership of the Congress, unlike even Punxsutawney Phil, appears scared of its own shadow.