An interesting Newsweek article on Congressional reaction to the NSA domestic surveillance progam has the following fascinating passage:
The Senate intelligence committee is likely to vote to open an investigation into the NSA’s wiretapping program, according to senior congressional aides who declined to be identified discussing sensitive matters. The chairman of the committee, Sen. Pat Roberts of Kansas, will probably follow the White House line and try to keep a lid on the hearings. But three Republicans—Chuck Hagel of Nebraska, Olympia Snowe of Maine and Mike DeWine of Ohio—are expected to join with the Democrats on the committee to vote to demand more information about the secret eavesdropping program from the White House and intelligence agencies.
The White House is likely to be defiant. Cheney’s chief aide and counsel, David Addington, has advised his bosses that even if the intelligence committee votes to subpoena secret documents from the executive branch, the demand will not be upheld by the courts. Cheney’s attitude seems to be: bring it on.
If this story is accurate, Addington’s prediction seems misguided to me. The Bush Administration’s more aggressive claims of Article II authority are not going anywhere in the courts, and efforts to keep Congress away by invoking executive privilege will be met with equal skepticism. If Congress wants the documents and the Bush Administration refuses to produce them, expect the courts to resolve the disagreement more or less like this.
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