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Holding the Government Accountable
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Analysis

The Coming Showdown Over Executive Privilege

None too pleased about AT&T, Verizon and BellSouth doing the National Security Agency's (NSA) bidding, Arlen Specter says he's going to haul the three telecom companies before the Judiciary Committee for some pointed questions. Deja vu; in 1976, the now-deceased Rep. Bella Abzug did the same thing with three telegraph companies for their similar handmaiden-to-NSA roles. Looking back to those events, we can't help but wonder if there's more history that will repeat itself—will the Bush Administration try, as the Ford Administration did, to extend executive privilege to private industry.

After the Church Committee revealed the existence of NSA's Project SHAMROCK, Abzug, the chair of the House Committee on Government Operations Subcommittee on Government Information and Individual Rights, wanted to go deeper. Abzug promptly subpoenaed not just current and former Federal Bureau of Investigation (FBI) and NSA officials involved in SHAMROCK, but also the CEOs of Western Union, ITT and RCA Global.

The Ford White House responded by ordering, on the grounds of executive privilege, the FBI and NSA employees to remain silent before Abzug. But Ford also went one amazing step further: "For the first time in history," James Bamford wrote in The Puzzle Palace, "the concept of executive privilege was extended to a private corporation." Attorney General Edward Levi actually asked Western Union's president not to comply with Abzug's subpeona as a means of "honor[ing] this invocation of executive privilege." He later making a similar request of RCA.

While the FBI and NSA officials did as ordered by Levi and then-Defense Secretary Donald Rumsfeld, Western Union and RCA didn't, with both companies's executives testifying and furnishing the Abzug Subcommittee with documents. (Apparently acknowledging their failure, Ford officials refrained from trying to muzzle ITT, which also cooperated with the committee.)

Though memorably chronicled in The Puzzle Palace, the executive privilege-to-Western-Union matter is one that has been rarely recalled in discussions of dubious NSA activities of a more recent vintage. It was, however, the first thing a longtime career intelligence officer I spoke with last year referenced in the immediate wake of the New York Times story. In the days defined by investigative committees, commissions, and initial legislative remedies, the officer had occasion to be present at some high-level meetings between intelligence and political types. There were some meetings, he said, that were particularly memorable because of the vehement opposition voiced by two men who were intractably hostile to the notion that executive privilege did not allow for things like surveillance without oversight and gagging civil servants and CEOs before Congress.

"Their great fear was that oversight and procedures and legislation would fatally undermine the presidency by neutering executive privilege," he recalled. "I don't know where all of this will ultimately go, but I don't think this Administration would be at all unhappy for hearings that have NSA and telecom [company] guys subpeoaned, which they'd regard as an opportunity for a showdown over executive privilege." He added that while the FBI and NSA officials who didn't cooperate with Abzug were recommended for contempt of Congress citations, they were never actually cited, as Congress decided not to focus of accounting for past sins, but rather look constructively forward by creating the Foreign Intelligence Surveillance Act (FISA). "I had no love for Abzug," he said, "but if all this happens again, it will be interesting to see if anyone chairing a committee today is as willing to challenge executive privilege with Congressional prerogative."