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The Other Kind Of Congressional Oversight

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Message Dan Fejes

Last year Kung Fu Monkey produced one of the great political analyses of our time in his essay on shamelessness. Among other points he wrote "[y]ou reveal a man's corrupt, or lying, or incompetent, and what does he do? He resigns....Public shame has up to now been the silver bullet of American political life." Unfortunately our current leaders appear immune to such pressure, and the brazenness may have leaked into the rank and file as well. It may in fact be another reason why Republicans are in such trouble this time around. Their policies are very unpopular, but consider the climate for scandals as well: Democrats - Mark Dann, Eliot Spitzer - resigned, while Republicans - Larry Craig, David Vitter, Vito Fossella - are all still proudly serving. Public opinion has turned against them and disaster looms for their party, but they stubbornly remain in office. People notice such things.

In the end such chutzpah is for voters of Idaho, Louisiana and New York to pass judgment on. All of us, though, should be concerned about the White House openly defying what should be a coequal branch of government. The most galling recent move was in its fight with the House Judiciary Committee. The HJC is trying to force the testimony of Harriet Miers and Josh Bolten; Congress wants a judge to compel it. Administration attorneys argue that such questions should not be resolved in court. They say Congress could force the President's hand with blocked appointments or withheld funding of Executive branch agencies, among other tactics. Conflicts have traditionally been resolved with just such give and take. The lawyers essentially said, "you dummies, don't waste your time pursuing this in court. You have all the tools you need and could have used them all along." And of course they are right. We now have the spectacle of the executive branch telling the legislative how it is supposed to work. Even more remarkably, Congress knows as much and used such tactics less than a year ago to get the Vice President to back down on one of his more outrageous claims.

Congress could also look into a new memorandum signed by the President that would replace the "Sensitive but Unclassified" information category with "Controlled Unclassified Information." It looks like another situation where Congress could demand some answers or threaten consequences in short order. The key change appears to be introducing the word "Controlled", because the Post quotes the National Archives and Records Administration as saying controlling information "may inform" its response to FOIA requests. Given the track record of the last few years I don't think there is any "may" about it, but we need to start thinking ahead, too. Changes being made now - even in a lame duck period when everyone is paying attention to election year politicking - can have profound effects long after the next President takes office. If this change goes through, the Archives could flatly refuse valid requests by a claim that the information needs to be controlled. It might not withstand court scrutiny, but that would take a long time to wind through the system. While it did so we would presumably have other refusals. And of course it might be upheld, which means that much less transparency from government. It would be much better to have it challenged by Congress before it ever gets the chance to start down that road.

The most disturbing abdication of responsibility was outlined in Radar Magazine by Christopher Ketcham. His 5,000 word investigation "The Last Roundup" describes a program centered around a previously-unknown government database called Main Core. Ostensibly created to facilitate government function in the event of a catastrophic attack, it now is a system swelled with details on over eight million Americans. As seems to be the pattern the administration prefers to have this questionably legal program quietly working in the background and not used in any way that might prompt a challenge. They understand that the longer they are able to assert new powers, the stronger their case will be if they ever need to defend it. Unless Congress gets involved we should expect this latest piece of our burgeoning surveillance state to become permanent. Bruce Fein, a former Reagan administration Justice Department official, says in the article, "[i]t's really up to Congress to put these things to rest, and Congress has not done so." And so we continue to wait for its concept of oversight to move from "an omission or error due to carelessness" to "watchful care."

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Dan Fejes lives in northeast Ohio.
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