Let the oversight begin.

By scribe, Section Diaries
Posted on Tue Jan 02, 2007 at 01:51:22 PM EST
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I'll keep this diary short. I've been pointed to a fascinating law review article (published 2002), dealing with the ways Congress can extract information from a reluctant executive branch. Like most law review articles, it's long and has lots and lots of footnotes. But, as a guide to the methodologies and devices available to Congress to forcibly extract information from a reluctant executive, I haven't seen a better primer.

Here's the outline of the article:

I. CONSTITUTIONAL PRINCIPLES IN CONFLICT
II. THE APPROPRIATIONS POWER

A. Funding Treaties

B. By Treaty or Statute?
III. THE IMPEACHMENT POWER

A. Early Precedents

B. Contemporary Examples
IV. THE APPOINTMENT POWER

A. Kleindienst Nomination

B. Rehnquist for Chief Justice

C. Senate "Holds"
V. CONGRESSIONAL SUBPOENAS

A. Immunity

B. The Ashland Case

C. DOJ Opinion: Seizing Suspects Abroad

D. DOJ Documents: The Inslaw Affair

E. Whitewater Notes

F. Presidential Pardons
VI. THE CONTEMPT POWER

A. Actions from 1975 to 1981

B. James Watt

C. Gorsuch Contempt

D. Contempt Move Against Quinn

E. Contempt Action Against Reno
VII. HOUSE RESOLUTIONS OF INQUIRY
VIII. THE "SEVEN MEMBER RULE"

A. Origin of the Statute

B. The Waxman Request

C. District Court Decision

D. Request for Reconsideration

E. Briefs for the Ninth Circuit
IX. THE GAO INVESTIGATIONS

A. Statutory Authorities

B. Problems of Access

C. The GAO-Cheney Face-off
X. TESTIMONY BY WHITE HOUSE OFFICIALS

A. Watergate Precedents

B. Other Accommodations

C. Tom Ridge
CONCLUSION
FOOTNOTES

Take some time and a cuppa whatever and read, carefully. That way, once the requests for information start being rejected, you can follow the action.

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Let the oversight begin. | 4 comments (4 topical)

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RE: follow the action. (none / 0) (#1)
by Edger on Tue Jan 02, 2007 at 03:07:42 PM EST

I hear Henry Waxman is a pretty good lawyer...

Game on. (none / 0) (#2)
by scribe on Tue Jan 02, 2007 at 08:58:05 PM EST

The DoJ just refused to provide to Leahy two documents on the government's torture policy. Leahy promises to bring this up to his Committee at the Judiciary Committee's first meeting.

But DoJ says "we're still open to working with you", so long as confidential deliberations of the Executive Branch aren't implicated.

Which means, of course, they'll give up exactly nothing.

: Showdown time (none / 0) (#4)
by Edger on Wed Jan 03, 2007 at 11:46:23 AM EST

Project On Government Oversight:
The Executive branch is wrong to argue that Congress can't see classified information. To start, there seems to be an assumption that disclosure to Congress is the same as public disclosure. That is why acting Assistant Attorney General James H. Clinger said, in his denial to Senator Leahy, that, "Al Qaeda seeks information on our interrogation techniques -- their methods and their limits -- and trains its operatives to resist them." Now there may be information that the American government or most of of the public may not want Al Qaeda or other terrorists to know. However, neither the public or terrorists will know this information unless it is declassified or leaked. Many have noted that much more leaking comes from the Executive branch rather than Congress. Senator Richard Shelby (R-Alabama) stated in 1998, "As CIA Director Tenet told this [Senate Intelligence] Committee last week, Congress has a better record at keeping secrets than does the executive branch, which he said, quote, leaks like a sieve, end of quote." (see page 45 of this pdf)
...
And Congress has never used its own rules to declassify documents on its own, but has relied on the Executive to declassify documents when it believes the public should see them.
...
Documents can remain classified and kept from the public, yet still be shared with Congress for purposes of oversight. Congress, by and large, has been good at keeping secrets and its Members, Senators and cleared staffers have the authority to receive them.
*emphasis mine

Being a layman and not a lawyer (none / 0) (#3)
by Edger on Wed Jan 03, 2007 at 07:22:15 AM EST

it's hard for me to judge, but John Dean has written for FindLaw a good guide to what powers Congress has and does not have re: oversight, and what they can do in the face of recalcitrance from the Bush administration and executive branch departments:

What Should Congressional Democrats Do, When the Bush Administration Stonewalls Their Efforts To Undertake Oversight?:

The fact that a president's actions are undertaken pursuant to his Constitutional authority, such as that granted by the Commander-in-Chief clause or the "Take Care" clause, does not preclude Congress from examining that activity. There is almost no area of presidential activity into which Congress has not previously made inquiry. Thus, Bush and Cheney are going to be hard-pressed to justify any refusal to cooperate with the Democratic Congress.
...
Often, Congress folds when the president invokes executive privilege, for there is no real judicial remedy (as noted above, courts tend to punt, citing the "political question" doctrine). However, a determined Congress - or committee thereof - can prevail over a recalcitrant president (or vice president) if its members are determined and persistent.
Thus, if the 110th Congress, controlled by the Democrats, fails to get the information it needs -- and the public wants -- about the workings of the Bush/Cheney presidency, it will not be because it does not have the tools with which to obtain that information. Rather, it will be because it lacks the will to use those tools.
...
When Congress plays hardball, it gets the information it wants from the president. The Congressional Reference Service (CRS) has prepared a complete manual on oversight, which they updated recently. In the manual, CRS has laid out all Congress needs to know to crack any stonewall Bush and Cheney may erect to block their oversight efforts.
Lou Fisher, one of the authors of the CRS manual, catalogued a number of the methods available to Congress in his essay: "Congressional Access To Information: Using Legislative Will And Leverage."*

* the same Lou Fisher article you linked to above, scribe - you keep good company!