Joel Brenner and Vito Potenza, the two men wilting under Addington's wrath, had driven 26 miles from Fort Meade, the NSA's eavesdropping headquarters in Maryland. They were conducting a review of their agency's two-year-old special surveillance operation. They already knew the really secret stuff: The NSA and other services had been unleashed to turn their machinery inward, collecting signals intelligence inside the United States. What the two men didn't know was why the Bush administration believed the program was legal.
It was an awkward question. Potenza, the NSA's acting general counsel, and Brenner, its inspector general, were supposed to be the ones who kept their agency on the straight and narrow. That's what Cheney and their boss, Lt. Gen. Michael V. Hayden, told doubters among the very few people who knew what was going on. Cheney, who chaired briefings for select members of Congress, said repeatedly that the NSA's top law and ethics officers -- career public servants -- approved and supervised the surveillance program.
That was not exactly true, not without one of those silent asterisks that secretly flip a sentence on its tail. Every 45 days, after Justice Department review, Bush renewed his military order for warrantless eavesdropping. Brenner and Potenza told Hayden that the agency was entitled to rely on those orders. The United States was at war with al-Qaeda, intelligence-gathering is inherent in war, and the Constitution appoints the president commander in chief.
But they had not been asked to give their own written assessments of the legality of domestic espionage. They based their answer in part on the attorney general's certification of the "form and legality" of the president's orders. Yet neither man had been allowed to see the program's codeword-classified legal analyses, which were prepared by John C. Yoo, Addington's close ally in the Justice Department's Office of Legal Counsel. Now they wanted to read Yoo's opinions for themselves.
"This is none of your business!" Addington exploded.
(Emphasis supplied.) In case anyone cared, Cheney and Hayden were committing the felony of lying to Congress.
Unfortunately, Congress has never seen fit to care. It is fun to get all hot and bothered about an Executive violating the Constitution as a matter of course. The problem is we had and have a Congress that does not seem to care at all.
Let me be blunt - while it is true that the Bush Administration is clearly the worst in history and the most blatant violator of laws and the separation of powers we have seen, when the Congress abdicates its responsibilities to uphold its Constitutional duties, the question is raised - who is worse - the Congress or the Executive Branch? I call it a tie.
By Big Tent Democrat, speaking for me only
