Overzealousness Hits Home for Congress

It's nice to see Congressional leaders all agog now that their own house was searched in the dead of night by officials of the executive branch. But where have those folks been for the past half year while revelation after revelation of overzealous surveillance against the rest of us has surfaced? I understand why it wouldn't be okay for the FBI to search the office of a member of Congress even under a valid warrant signed by a judge. But why isn't it similarly unacceptable, then, for the NSA to compile records of our telephone calls without a warrant or even any sort of post-hoc public explanation?

House Speaker Dennis Hastert (R-Ill.) this morning demanded that FBI return the documents it seized from the work space of Rep. William Jefferson (D-La) over the weekend. That isn't going to happen without a court order-- stand by, Supreme Court-- but it ought to tell you something about the level of outrage that a loyal partisan like Hastert even would go through with the demand. Outrage, sure, but hopefully not surprise. Surely, the Administration's brazen foray into the legislative sphere is no surprise to anyone in Washington who has paid attention to how the White House and Justice Department have gone about their business since the terror attacks of 9/11.

In case after case, on issue after issue, the executive branch has stretched for more power at the expense of its co-equal branches of government. To the courts, the Administration has said: "back off, don't mix in, trust us, and let us handle the war on terror." To legislators and the fourth estate, the Administration has said: "we don't have to share with you our national security policies so we don't intend to. And if you find out about them anyway you had better keep things quiet or we are going to find ways to prosecute you." The raid on Jefferson's office is simply a natural and logical extension of this super-zealous approach to legal posturing.

It is still way too early to determine how Officegate is going to play out. My sense tells me that the search warrant would be upheld upon review and that "historical precedent"-- the argument by Hastert and others that no member of Congress' office can be searched by the executive branch because no such office ever has been searched by the executive branch-- is a tautology of a sort that judges typically don't like. So if Congressional leaders don't like what's just happened they have no one to blame but themselves. Having sat idly by while the Administration flexed its legal muscle, beyond constitutional recognition in some cases, they are hardly in a position to legitimately whine now that the wolf has come to their own door.

By  |  May 24, 2006; 3:00 PM ET
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This is just bizarre. The legal argument against the search is astonishingly weak. If one wants to draw parallels to the executive branch's claim in the WOT--fine. But the parallel, if there is one, is that Congress is taking a maximalist view of their own perogatives, despite their not being much support for that position.

Posted by: Thomas | May 24, 2006 07:04 PM

I've noticed the same thing you did, Mr. Cohen, that these same Congresspeople have been completely silent when it came to all the illegal surveillance. Now, here's another irony - the search of their offices was conducted in the accepted legal manner that any of our offices or homes would have been searche. There was a search warrant, which was 83 pages long to clearly explain why it was necessary to perform this search in such a sensitive location. A judge read and approved the warrant. Here's an online copy of the warrant, in case anyone's interested:


Now contrast that with the NSA surveillance program(s). That's "program(s)" because the NSA isn't telling us what they're doing (just that whatever it is, it's completely legal (Gosh, why didn't they just say so!)). Every query about the nature of these programs, and any attempts to halt the illegal detentions at Gitmo and elsewhere have been met by a resounding yawn by the same folks who are now up in arms about their offices being searched.

I just hope they raid Hastert's office next. Looks like I might get my wish:


Posted by: Cujo359 | May 25, 2006 02:49 AM

I think it is ironic that Congress get ruffled over an intrusion into their privacy when they seem utterly indifferent to protecting mine. How can Hayden be sailing toward confirmation? Does he have something on every one of them? No doubt there will be a closed door briefing and the story will die. Personally, I don't think that's good enough. It is past time for the American public to be briefed.

Posted by: Sara B. | May 25, 2006 08:21 AM

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