Sideshow Jay

The perfect example of why the President has consolidated monarchical power in his office is the pathetic, spineless, worthless work of Jay Rockefeller, Jane Harman, and others. Really, is there anything less appealing in these people than the response that they were sworn to secrecy? Via Balkinization:

No, not the Office of Legal Counsel. The intelligence oversight apparatus. Yes, a large part of the problem is the particular Democrats who happen to be among the "Gang of Eight" and "Gang of Four." (To get a good sense of why the Senate Intelligence Committee will not get to the bottom of the latest scandal, just take a look at this lackluster performance by Jay Rockefeller yesterday on Face the Nation.) But even if we had the very best Dems on the Committee, there would still be virtually nothing they could do to address possible unlawful, or even just unwise, conduct by the intelligence agencies. (But cf. this post by Michael Froomkin on the Speech and Debate Clause.)

The pattern is by now very familiar. Whenever the Administration begins to do something of dubious legality, it:

1. sends to Congress messengers who the Intel committees trust -- solemn, serious, professionals, often uniformed military officers

2. to inform a very select, small number of legislators of the conduct -- legislators who have developed close and trusted relationships with the intel officials briefing them and who are, quite understandably, loathe to undermine such relationships, which do, after all, facilitate trust, access, and oversight itself

3. and to provide such briefings after the conduct has commenced

4. in a highly classified setting

5. putting the conduct in its best possible light -- in particular, making sure to insist that it has prevented terrorist attacks

6. while assuring the legislators that it has been vetted by the lawyers and is legal

7. without showing the legislators the legal analysis supporting the conduct

8. without disclosing the legal arguments that cut the other way

9. without informing the legislators of any policy-based or legal dissent within the executive branch

10. while warning the legislators that they may not legally breathe a word of it to anyone -- certainly not to staff, or their fellow legislators, nor to experts outside Congress who might be able to better assess the legality and efficacy of the conduct

11. and while insisting that the legislators cannot second-guess the need for classification and secrecy, even in cases -- such as with respect to OLC opinions concerning what techniques are lawful and which are not, and with respect to conduct that has been revealed to the enemy already -- where there is no legitimate justification for the classification.

The reaction from the Intel Commmittees is, alas, predictable: Muted, furtive and internal (i.e., entirely ineffective) protest, at best. More often than not, acquiescence and encouragement.

And to think I was raised to respect these learned and devoted public servants. Good lord. (the link to Rockefeller on FTN)