Secret government?

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In 2006, House Judiciary Democrats inquired when the Justice Department initially concluded the Authorization to Use Military Force (AUMF) against international terrorism empowered the National Security Agency (NSA) to conduct warrantless electronic surveillance against U.S. citizens in contravention of the Foreign Intelligence Surveillance Act of 1978 (FISA).

President Bush had earlier publicly explained that the NSA's warrantless spying had commenced in October 2001 in the wake of the September 11, 2001, attacks; and the department had previously volunteered that the AUMF was its primary legal rationale. The question pertained to exposing circumventions of FISA by executive officials, which could ultimately lead to impeachment. The statute makes FISA the "exclusive" means of gathering foreign intelligence by targeting American citizens on American soil, and punishes intentional violations.

The department, however, obstructed the inquiry with the Orwellian retort: "The Department has reviewed the legality of the Terrorist Surveillance Program on multiple occasions. We cannot discuss the operational details or history of the Terrorist Surveillance Program." In other words, the department was absurdly insisting that disclosing the date the publicly known AUMF legal theory was embraced to justify the publicly known NSA's spying would alert al Qaeda to otherwise secret intelligence sources or methods.

Though irrelevant to al Qaeda's planned abominations, the date was directly relevant to whether executive branch officials had at some point intentionally flouted FISA. Aping the Justice Department, Central Intelligence Director Gen. Michael Hayden refused to disclose whether the NSA ever applied for a FISA warrant to justify a pen register at his confirmation hearing on the grounds that a "yes" or "no" answer would reveal a state secret. These executive branch nondisclosures tell an ominous constitutional tale.

Secret government has been a signature of President Bush. Popular government without popular information or the means of acquiring, however, is a prologue to a farce or a tragedy, or both, to borrow from James Madison.

The congressional power to investigate and expose executive branch maladministration or lawlessness is a mainstay of the rule of law, democratic discourse and political accountability. Yet Mr. Bush has systematically frustrated congressional oversight by flagrantly ill-founded invocations of so-called "executive privilege," i.e., the claimed power of the president to conceal from Congress professed national security secrets or presidential communications or internal executive branch deliberations in order to encourage candid advice.

In Nixon v. United States (1974), the Supreme Court recognized a qualified constitutional privilege for confidential presidential communications. The court subordinated the privilege, nevertheless, to the needs of criminal justice, including grand jury investigations or federal prosecutions. Thus, President Nixon was compelled to turn over confidential presidential tapes and documents relevant to prosecuting the Watergate cover-up.

The Supreme Court in a series of Teapot Dome cases has upheld the power of Congress to investigate suspected criminal wrongdoing by the executive branch as part of legitimate oversight. The court has never insinuated that congressional oversight advances a less compelling public interest than does a grand jury investigation. Indeed, the two seem indistinguishable when Congress investigates potential criminal misconduct which could lead to impeachment by the House, conviction by the Senate and removal from office.

In sum, Congress is clearly entitled to confidential executive branch communications to expose or sanction executive branch criminality. Yet Mr. Bush persists in balking.

Endeavoring to mislead or obstruct Congress is a federal crime. Attorney General Alberto Gonzales has denied to Congress the existence of nontrivial dissent within the Bush administration over the legality of the NSA's warrantless spying in contravention of FISA. Former Deputy Attorney General James Comey has testified to the contrary, i.e., that the department was at odds with Vice President Dick Cheney over its legality.

Mr. Gonzales has also conceded the department's legal reasoning was "a dynamic, rather than a static process," another indication of internal wrangling.

At a June 7, 2007, oversight hearing by the House Judiciary Subcommittee on the Constitution, however, the department's assistant attorney general for the Office of Legal Counsel, Stephen Bradbury, repeatedly refused to address internal legal deliberations concerning NSA spying, which could discredit Mr. Gonzales' previous assertion of consensus and expose him to prosecution for intentionally misleading Congress. The department's deliberations are also directly relevant to investigating criminal violations of FISA.

Some committee members challenged the silence, but nothing was done to compel disclosure -- no threats of voting contempt of Congress, of slashing Justice Department appropriations, or of initiating litigation. Such effeteness has left Congress and the American people generally clueless as to the scope and legality of a massive unchecked spying program that invades privacy and dampens dissent. As chronicled by the Church Committee hearings of three decades ago that occasioned FISA, the history of secret government is a history of abuses and wrongdoing to gain political advantage.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group. He is also chairman of the American Freedom Agenda, an organization devoted to restoring checks and balances and protections against government abuses.