Some Good Cheney News, for a Change

Lost in all the news about the VP’s unfortunate ND was the critically revealing statement he made this past week about the NSA brouhaha in an interview on (what else?) the NewsHour with Jim Lehrer.

“Jim, again let me emphasize here, when we briefed the chairman and ranking members of the committee on this program which we’ve done at least a dozen times, I presided over most of those briefings, there was no great concern expressed that somehow we needed to come get additional legislative authority. In fact, the program has operated for four years, Congress has been informed, a few members of Congress, informed throughout that period of time, and everything was fine until there was publicity in The New York Times. Somebody leaked the program to The New York Times, then there was public disclosure of it, and at that point now we’ve had some members head for the hill, so to speak, and forget perhaps that they were in the briefings and fully informed of the program.

…I think a lot of people decided after it became public that they wanted to take a different position than they had in private. This process of briefing just a few members of Congress is well established, Jim. I’ve been involved one way or another in the intelligence operations of our government going back 30 years to the Ford administration, or when I was on the Intelligence Committee myself in the ’80s, or when I was secretary of defense in the early ’90s. The practice of the president deciding to brief only a few members of Congress on really sensitive programs is well established. We’ve operated that way now for a very long time, and this program was treated in that fashion. It’s important we preserve that capability.”

Okay, why is this a critically revealing statement? Because it shows what’s really driving this “issue” at a practical political level in Washington — that is, grandstanding (bear in mind, the members of Congress he mentions included the ranking Democrat members of the relevant Intelligence committees).

Cheney’s statement also reiterates what the ultimate legal outcome of this “issue” will be — that is, precisely NOTHING.

I said so here a while back. AND THERE’S A RELEVANT OPINION FROM AT LEAST ONE COURT THAT HAS ESSENTIALLY SAID SO AS WELL. Hat tip to Volokh:

Those who believe the President has inherent Article II authority to conduct foreign intelligence monitoring in violation of FISA often rely for authority on United States v. Truong, 629 F.2d 908 (4th Cir. 1980). … [In footnote 4 of the case] the Fourth Circuit explained why the Court didn’t impose a Fourth Amendment requirement on limited foreign intelligence monitoring even after Congress had passed FISA. Here is the explanation for the Court’s deference:

“While [FISA] suggests that it is possible for the executive branch to conduct at least some types of foreign intelligence surveillance while being subject to a warrant requirement, the complexity of the statute also suggests that the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion, should be left to the intricate balancing performed in the course of the legislative process by Congress and the President. The elaborate structure of the statute demonstrates that the political branches need great flexibility to reach the compromises and formulate the standards which will govern foreign intelligence surveillance.”

Got that? Dovetails nicely with Cheney’s description of what’s been going on, doesn’t it? There have been dozens and dozens of national-security-related Executive Branch actions that Congress has been content to gloss over, just so long as the Congressional doyens have been kept reasonably well-informed. This is not new. It’s a long-established part of the legislative process, known to all within the Beltway, and certainly to the Fourth Circuit.

Bonus points for those who can point out which rule of statutory construction the Fourth Circuit’s using in the excerpt above.

The closest parallel to a “real-world” situation I can think of would be when a court’s faced with two businesses fighting over the terms of a contract. One argues that a clause means this, the other says it means that. Among other things, the court can look at the actual course of dealing between the parties, figuring that the way the businesses really felt about the clause (as opposed to what they may be saying in court) can be determined by looking at their actions under the contract. 

What’s been the actual course of dealing here? The Dems seem to have been adequately informed about the Administration’s actions, and didn’t complain a whole hell of a lot about it over the last few years except to issue a couple of token CYA letters. But when the NYT, followed by the Kos Krowd, forced the issue into the open, the tail wagged the dog and the Dems had to start screaming.

Sigh. I wonder when the lefties will start reaizing that their benighted House and Senate leaders knew all about the horrid “domestic spying” program, for a long time, but did nothing. When they do (if they haven’t already) Kos, et al. will say that either:

a) Kennedy & Co. are so institutionalized that they are Bush shills, or

b) they’re so politically incompetent they let this “winning” issue pass them by. (For an example of b, see the recent front-page NYT article bemoaning “missed opportunities….”)

Of course the answer’s really

c), Kennedy & Co. are cunning old pols who knew right away that this issue was a nonstarter, but are now trapped into making a bunch of politically damaging noise about nothing. And the Bushies aren’t going to let this issue vanish any time soon — they’re grinning like Cheshire cats at this point.

Whichever way, the Dems’ base is going to get louder and angrier as a result of this issue, driving their leadership further left, and if this remains a campaign “issue” this Fall, methinks the 2006 elections are going to surprise a lot of folks.

It seems that at least one other person thinks so, too.

 

Brings a cat-like smile to my face….