Whittington's disease

It really is Dick Cheney's world, we're just living in it.

The agreement, hashed out in weeks of negotiations between Vice President Dick Cheney and Republicans critical of the program, dashes Democratic hopes of starting a full committee investigation because the proposal won the support of Senators Chuck Hagel of Nebraska and Olympia J. Snowe of Maine. The two, both Republicans, had threatened to support a fuller inquiry if the White House did not disclose more about the program to Congress.

"We are reasserting Congressional responsibility and oversight," Ms. Snowe said.

The proposed legislation would create a seven-member "terrorist surveillance subcommittee" and require the administration to give it full access to the details of the program's operations.

Ms. Snowe said the panel would start work on Wednesday, and called it "the beginning, not the end of the process."

"We have to get the facts in order to weigh in," she said. "We will do more if we learn there is more to do."

The agreement would reinforce the authority of the Foreign Intelligence Surveillance Court, which was created in 1978 to issue special warrants for spying but was sidestepped by the administration. The measure would require the administration to seek a warrant from the court whenever possible.

If the administration elects not to do so after 45 days, the attorney general must certify that the surveillance is necessary to protect the country and explain to the subcommittee why the administration has not sought a warrant. The attorney general would be required to give an update to the subcommittee every 45 days.

Democrats called the deal an abdication of the special bipartisan committee's role as a watchdog, saying the Republicans had in effect blessed the program before learning how it worked or what it entailed.

"The committee is, to put it bluntly, basically under the control of the White House," said Senator John D. Rockefeller IV, the West Virginia Democrat who is vice chairman of the panel.

"Whenever possible." Or, as Dick Cheney likes to mutter out of the side of his mouth, "Never."

Snowe and Hegel, those independent Republican "mavericks" we hear so much about, seem to have taken a page from Harry Whittington.

Writes Glenn Greenwald,

What the legislation does, on its face, is replace FISA judges with Republican Senators in approving the government's eavesdropping activities. Whereas the country agreed to a framework 30 years ago which allowed the government to eavesdrop on Americans only if the Government persuaded a FISA judge that such eavesdropping was warranted, this proposed legislation eliminates that requirement and allows warrantless eavesdropping as long as 4 Republican Senators agree with the White House that such actions are warranted.

But there is a far bigger and more important problem. Congress already enacted legislation regulating the Government's eavesdropping activities. They called that law FISA. The Administration has been violating that law because they believe they have the power to do so, because they think that Congress has no power to regulate or limit the President's eavesdropping activities. Since the White House still believes it has this power, isn't passing another law facially moronic, given that the Administration has already said that they are free to violate whatever Congressional laws they want which purport to regulate eavesdropping?

And, just by the way, there is also another law passed by Congress more than 50 years ago called the National Security Act of 1947, which already requires the Administration to brief the full House and Senate Intelligence Committee on all NSA activities, a law the Administration also plainly violated.

The Administration has told Congress to its face that it has the power to ignore Congressional laws with regard to eavesdropping and that it is free to defy Congressional law mandating briefings on these types of intelligence activities. So, Congress' response is to pass another law to replace the one the White House violated, and to require some more briefing. Isn't that too absurd even for the Congress? At the very least, would it be possible for the media to explain to the public what has happened here?

I'm not holding my breath on that last question. While the Times' played the story on the front page this morning, Pincus's story in the Post was relegated to A3. Apparently, the Posts's editors don't feel that erasing a key part of The Bill of Rights, the abdication of oversight responsibility by an entire branch of government, and the executive branch's open violation of the law are worthy of a page one mention.