The Senate Judiciary Committee, acting under bipartisan authorization, yesterday subpoenaed the White House, the Justice Department and Vice President Dick Cheney for records on the administration’s controversial warrantless surveillance program.
The subpoenas significantly expand the Democrats’ already sprawling investigation of the Bush administration’s national-security and law enforcement policies. Yet the White House has signaled it may resist the latest summonses, and today’s deadline for an earlier subpoena in the U.S. attorneys inquiry appears likely to pass without a deal.
“Frankly, I’m frustrated, because I’ve never known an administration so willing to operate outside the law, even against the law,” Sen. Patrick Leahy (D-Vt.), chairman of the Judiciary panel, told reporters.
The subpoenas seek documents relating to the National Security Agency’s warrantless eavesdropping, which began in 2001 and continued until last January, when President Bush ordered cooperation with the secret court that approves foreign-intelligence wiretaps on U.S. soil. But the administration has reserved the right to act without a court order and has proposed legislation that would codify elements of the program.
The deadline for subpoena compliance is July 18.
The Judiciary and Intelligence committees have held oversight hearings on the surveillance program. But the subpoenas were effectively fast-tracked after James Comey, former deputy attorney general, shocked senators last month by revealing that Justice officials rebelled en masse against the eavesdropping program in 2004.
Senate Judiciary members authorized the subpoenas last week on a 13-3 vote, with ranking member Arlen Specter (R-Pa.), Sen. Chuck Grassley (R-Iowa) and Sen. Orrin Hatch (R-Utah) backing Leahy. The chairman urged the White House that it should not view the investigation as driven by partisanship.
One of the subpoenas is personally addressed to Cheney’s chief of staff, David Addington, who this week tangled with Democrats over the vice president’s arguments that he belongs to neither the executive nor legislative branch.
“The vice president doesn’t know what branch of government he’s in, the president doesn’t know what the Constitution is, and the people don’t know what the heck is going on,” Sen. Charles Schumer (D-N.Y.) said.
Under questioning last year from Schumer about Comey’s resistance to the wiretap program, Attorney General Alberto Gonzales told senators that “there has not been any serious disagreement about the program that the president has confirmed.” That response has raised Democratic hackles, and both Leahy and Schumer promised to provide Gonzales with detailed queries in advance of his next Senate testimony next month. July 26 is the target date for Gonzales to appear, Leahy said.
“After a year and a half of stonewalling by the administration, the Judiciary Committee is finally taking appropriate action by issuing subpoenas,” Sen. Russ Feingold (D-Wis.) said in a statement.
A member of the Intelligence panel, Feingold echoed the sentiment of other Democrats on that committee, avowing that the new surveillance legislation sought by the administration will not be considered until lawmakers receive sufficient information on past wiretapping operations.
Yet early signs pointed to an executive-privilege clash with the White House, which has shown no signs of complying with today’s deadline for a June 13 subpoena seeking documents on the U.S. attorney firings scandal. The White House did not return a call for comment on today’s deadline, and media reports yesterday quoted a presidential spokesman defending the surveillance program as lawful.
“The Judiciary Committee was very patient for a long time, tried to work with the White House and the Department of Justice, and just ran out of patience,” Carl Tobias, a professor at the University of Richmond Law School, said.
As for today’s U.S. attorneys subpoena deadline, Tobias said, the lack of public negotiation on compliance might be part of an effort to ratchet up pressure on the White House rather than move to a quick citation for contempt of Congress.
A spokeswoman for the House Judiciary Committee, which also has prosecutors’ subpoenas expiring today, said no substantive negotiations with White House Counsel Fred Fielding have occurred.
Chairman John Conyers Jr. (D-Mich.) “expects that the White House will respect the rule of law as reflected in the subpoena and comply with it,” the spokeswoman said. “Of course the chairman would also cooperate with a realistic proposal to negotiate.”
Leahy declined to commit to a contempt citation for the White House if it did not comply with the pending subpoenas, although several House Democrats have openly discussed it. “We have a very closely divided Senate, as you know, which make it more difficult,” he said. But he vowed to “move at the appropriate time” with a contempt notice.
Leahy also said he would sound an alarm with the Justice Department about Brett Kavanaugh, the newly confirmed D.C. appeals court judge. Several Judiciary Democrats, led by Senate Majority Whip Dick Durbin (Ill.), believe he misled the panel during hearings last year when he told senators he was not involved in shaping detainee policy while serving at the White House. The Washington Post contradicted that statement this week.
“We don’t believe he was bring truthful with us,” Leahy said.
