The Right Coast

February 13, 2006
Subpoena showdown?
By Tom Smith

I am baffled as to why Orin Kerr, over at VC, thinks that the (Supreme?) court(s) would uphold a subpoena by the Senate or House to force members of the Executive Branch to come and spill their guts about the NSA program. For one thing, U.S. v. Nixon appears to say (albeit perhaps in dicta) that national security is a very good reason for asserting executive privilege. Moreover, everybody in Washington knows that signals intelligence is the most secret of the secret stuff, and if the Executive says that national security demands that this program be kept secret, I really doubt the Court is going to want to second guess it. Furthermore, look at what is happening here. This very secret program gets outed in the press. A somewhat half-hearted furor ensues, mostly in the left-liberal press and commentariat. Yet it doesn't take an Hercule Poirot to figure out that one of the most likely sources of this story was the Senate itself. So, the Court is going to order the Executive to hand over more secret stuff to the Senate, which there is good reason to think is already leaking the stuff to the press, for reasons that look at least partly if not mostly political? Talk about soiling the judicial ermine. The compelling purpose for which the Senate needs this information is what -- are some Senate staffers planning to write a book or something? Add to this that if the Senate plays hardball, the DOJ can get some subpoenas of its own issued, in the investigation of who leaked to Mr. Risen at the NY Times. Do our brave Senators really want Risen sitting in jail, while they wonder how long he will keep his mouth shut? Finally, take a look at the Supreme Court. Are there really five justices there who would vote to support the release of this information, especially when the political question doctrine or something similar waits there as an alternative, when the Executive tells them that the NSA program is one of the few things standing between the country and the mad bombers? I think it is far more likely that they will say, this is for Congress and the Executive to work out among themselves. And they would be right.