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Thursday, June 08, 2006

Cheney, Specter tangle over Judiciary Committee phone company subpoena bid
Joshua Pantesco at 3:41 PM ET

[JURIST] Vice President Dick Cheney Thursday met accusations from Senate Judiciary Chairman Arlen Specter (R-PA) that he had interfered with Specter's proposal to have his committee subpoena three phone companies accused of allegedly providing records to the National Security Administration by saying [letter, PDF] that he often makes contact with senators regarding upcoming committee actions, and that the Bush administration was concerned that the Committee intended to compel the phone companies to release classified information. Specter complained of the Vice President's actions in a letter [PDF] Wednesday. He dropped his push for the subpoenas [JURIST report] after learning of a deal with the Bush administration brokered by Committee member Orrin Hatch (R-UT) without Specter's knowledge that would put White House support behind Specter's other NSA bill in exchange for not issuing the subpoenas.

In his letter, Specter said:

I was surprised, to say the least, that you sought to influence, really determine, the action of the Committee without calling me first, or at least calling me at some point. This was especially perplexing since we both attended the Republican Senators caucus lunch yesterday...

It has been my hope that there could be an accommodation between Congress's Article I authority on oversight and the President's constitutional authority under Article II. There is no doubt that the NSA program violates the Foreign Intelligence Surveillance Act which sets forth the exclusive procedure for domestic wiretaps which requires the approval of the FISA court. It may be that the President has inherent authority under Article II to trump that statute but the President does not have a blank check and the determination on whether the President has such Article II power calls for a balancing test which requires knowing what the surveillance program constitutes.

If an accommodation cannot be reached with the Administration, the Judiciary Committee will consider confronting the issue with subpoenas and enforcement of that compulsory process if it appears that a majority vote will be forthcoming. The Committee would obviously have a much easier time making our case for enforcement of subpoenas against the telephone companies which do not have the plea of executive privilege.
Specter also cited other examples of presidential encroachment on Congress's Article 1 authority, including presidential signing statements "where the President seeks to cherry-pick which parts of the statute he will follow"; the recent FBI search of Congressman Jefferson's office; and consistent DOJ statements suggesting that journalists can be criminally prosecuted for protecting sources under obscure statutes [JURIST reports]. The New York Times has more.

Verizon and BellSouth [JURIST, AP reports] have denied the USA Today report accusing them of turning customer phone records over to the NSA [JURIST report], while AT&T has refused to comment. Reuters has more.





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