However, we oppose the current effort in the House to hastily dismantle one of our Intelligence Community’s counterterrorism tools. This blunt approach is not the product of an informed, open, or deliberative process. We urge the House to reject the Amash Amendment, and instead move forward with an approach that appropriately takes into account the need for a reasoned review of what tools can best secure the nation.In what way was the NSA's blanket acquisition1 of everyday Americans' telephony metadata the product of an "informed, open, or deliberative process"?
Congress has not had the opportunity to review these so-called "counterterrorism tools", but Congress absolutely has the authority to do so under its enumerated powers. Let's start with appropriation, since that's what the Amash amendment addresses. If Congress cannot determine whether the executive branch is complying with the law -- and that includes the Constitution, the highest law of the United States -- then Congress may jolly well withhold funding until its concerns are satisfied, because of Article One, Section Nine:
No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of Receipts and Expenditures of all public Money shall be published from time to time.That says law, not executive order. Both the executive and legislative branches seem to have forgotten this over the last decade or so, but just as an army marches on its stomach, the executive branch marches on appropriations authorized by Congress. Apparently the White House has been reminded of this fact now, since this is quite possibly the first time the Press Office has been moved to remark on a floor amendment during either Obama administration.
I have to wonder why none of Senator Ron Wyden's many attempts to determine the scope of interception under the FISA Amendments Act prompted a White House call for a "reasoned review of what tools can best secure the nation"2. All the concerns that the "recent unauthorized disclosures" have dragged into the spotlight were already there -- it's just a lot harder for the NSA to deny them now.
Which brings me to the other relevant Congressional power, one which our last Democratic President became all too familiar with, from Article One, Section Two, Clause Five:
The House of Representatives shall choose their Speaker and other Officers, and shall have the sole Power of Impeachment.This power applies to "the President, Vice President, and all civil officers of the United States" -- which very much includes Director of National Intelligence James R. Clapper.
What this comes down to is that the White House now has a game of chicken to play. It is a game that is perhaps best illustrated by the story of the last time it was played, a time now known to legend as the Watergate Affair.
It began with a break-in3 at the headquarters of the Democratic National Committee in the Watergate Hotel. The criminal and media investigations of the event -- with help from an anonymous leaker who eventually turned out to have been the Deputy Director of the FBI at the time -- turned up evidence of shady financial dealings and even shadier political spying and sabotage. Then one of the Watergate burglary defendants threw his handlers under the bus, which led one of those handlers, John Dean, to throw Nixon under the bus. Nixon fought the investigation like hell, refusing to answer a subpoena for audiotapes made in the Oval Office which ultimately implicated him in the obstruction of justice. He took it all the way to the Supreme Court, he lost, and as the whole conspiracy came undone, he resigned before the House took its full vote on impeachment.
Edward Snowden has conveniently skipped us past all the dull bits before Congress figures out that it has a job to do. There's evidence of wrongdoing on the table, and he's already said there's much more where that came from. Snowden's not a stupid man; he's not going to release documents indiscriminately, but neither is he going to run out of them any time soon.
There are other variables to consider. There may be other current or former three-letter-agency employees or contractors out there, weighing whether to go public with evidence they have. And if Congress appoints a special prosecutor to investigate Clapper or anyone who came up in Clapper's testimony, that's a whole different kind of pressure -- the kind that, as the Watergate investigation showed, tends to lead to people metaphorically4 ending up beneath public transit.
So what the administration has to consider is how long it can keep its foot on the pedal before it collides head-on with Congress versus how long Snowden's willing to wait before ... injecting nitrous into the fuel mixture, I guess, in this weirdly vehicular extended metaphor. They'd like us to think that they're putting the brakes on, with this call for "debate" and "discuss[ing] critical issues with the American people and the Congress", when really they know that Congress has just floored it. They're telling Congress to swerve.
What's the administration worried that a thorough Congressional investigation might reveal?
After all, if the executive branch has done nothing wrong, it ought to have nothing to hide, isn't that how the argument usually goes?
1Since that's the term that the NSA seems to prefer to use where a layperson would use "collect" -- seeing as how they've redefined "collect" to mean "actually looked at" so that they can claim before Congress they haven't been "collecting" the telephony metadata of Americans not under investigation -- I'll just go with that, so that there's no ambiguity.
2I have a few thoughts on that.
3The White House Press Office referred to it as a "third-rate burglary attempt."
4Yes, Secret Service, METAPHORICALLY. AND ONLY METAPHORICALLY.