(updated below -- w/transcript)
As I detailed yesterday, the House Judiciary Committee held an FBI oversight hearing yesterday and several of its members, including Rep. Jerry Nadler of New York, questioned FBI Director Robert Mueller about the glaring holes in the FBI's anthrax case against Bruce Ivins. While some of the questions that were posed were good ones, virtually no answers were forthcoming from Mueller, a process that -- yet again -- made a mockery out of the Congress and its duty of oversight. That process repeated itself today when Mueller testified before the Senate Judiciary Committee.
After the House hearing, I spoke with Rep. Nadler regarding the Director's testimony, the reasons that Congress has been generally so passive and worthless in its oversight duties and what, if anything, the Democrats planned to do or could do to rectify this and restore some checks and balances over the Executive Branch. We also discussed how these issues would likely play out depending on which party occupies the White House after 2008.
The discussion was roughly 12 minutes (he was pressed for time), and a transcript will be posted shortly (it's now here). The interview can be heard by clicking PLAY on the recorder below.
The way in which Congress has allowed itself to be ignored and rendered powerless, and specifically the way in which its oversight instruments are routinely ignored without consequence, will have repercussions far beyond the Bush administration. That behavior is institutionalizing the idea that political officials in general can simply immunize themselves from investigation and all other checks, and that nothing will be done even in response to serious wrongdoing and illegality.
As KagroX notes today, the announcement yesterday by Gov. Sarah Palin that she and her top-level employees will now simply ignore subpoenas and other requests for information as part of the bipartisan "Troopergate" investigation being conducted by the Alaska State Senate -- an investigation with which she previously vowed to cooperate fully -- is a prime example of, as Kagro put it, Palin's "doing the full Cheney": "government is no longer about law. It's about physics. Subpoena? Well, I'm not going unless you can actually drag me in there." Palin has exhibited as clearly as can be that she will follow in these lawless footsteps. One can blame the political officials who stonewall investigations of this sort and ignore legal process, but ultimately -- as I discuss with Rep. Nadler -- the real blame lies with the Congress for failing to defend its institutional prerogatives and compel adherence to the law.
Finally, on a related note, today is Constitution Day, and the ACLU -- following up on its new campaign to try to inject these issues into the presidential campaign -- is hosting an online symposium on the Constitution on its "Blog of Rights" blog. Sen. Russ Feingold has a contribution here, and I've written a piece on free speech and assembly rights in the context of what took place at the political conventions in Denver and St. Paul this year, which can be found here.
UDPATE: The transcript of the discussion with Rep. Nadler is here.
This interview can be heard by clicking PLAY on the recorder below.
Glenn Greenwald: My guest today is Congressman Jerry Nadler, the Democrat from New York who, among other things, is a member of the House Judiciary Committee, which today held an oversight hearing at which FBI Director Robert Mueller testified. Thanks very much for joining me today.
Jerrold Nadler: You're quite welcome.
GG: I wanted to begin by asking you: each member of the committee that asked questions was assigned five minutes, and you used your five minutes to ask questions about the anthrax case that the FBI says is now closed in light of the fact that they found what they say is the sole perpetrator. Why did you think it was important to question Director Mueller about the anthrax investigation?
JN: Well, first of all, I'm always somewhat dubious, somewhat suspicious when a crime is pinned on someone who has conveniently just died. Especially a crime like this, with a serious situation. Second of all, there are conflicting reports from different government agencies as to the competence, of Ivins' ability to have done what he's alleged to have done. One agency - I forget which is which - one agency says, well, it was finally homed to silica, which is an anti-adhesive, or whatever, makes it much more deadly, but he had neither the equipment nor the experience to be able to do that.
JN: Another agency says, no, it's just silica that can be absorbed from the background. But the fact is, that's easily ascertained. That's why I wanted to know what is that percentage. That percentage will tell us whether something really stinks in Denmark.
GG: Well, let me ask you that, because that issue about whether the anthrax spores were coated with silica, or whether, as the FBI now claims, it was naturally absorbed in the air, is something that those of us who have been writing about anthrax - I interviewed Senator Grassley, Congressman Holt - all of them talking about it as a key issue, as well as the other line of inquiry that you pursued with Director Mueller, which is, how was it that these other institutions that do high level anthrax research, that could have produced spores like this, such at Battelle and the Dugway Proving Ground, how were they eliminated?
You asked those questions in several different ways - what was your reaction, your view of the response that you got?
JN: Well, my reaction was, he didn't give me an answer. He didn't give me an answer, nor did I expect him to. But I do expect that - the first question was very specific: give me that percentage. He can't fudge that.
GG: Why do you think.... That's what I'm asking, though - he was there, knowing that that was one of the purposes of this hearing --
JN: I couldn't --
GG: ...expect him to have an answer?
JN: Well, he should have had the answer, but listen, they do anything they can to avoid answering every question. I asked him a very specific question, he will either come back with an answer, within a reasonable time period, and the answer will be 0.05 or 0.75 or whatever, and we'll find that out.
GG: Right. Let me ask you about that, though, because the chairman of the committee, Congressman Conyers, began by complaining that what happens is the committee asks questions of the FBI over and over and over and over, and doesn't actually get any answers. You have hearings like this; they show up not able to answer the questions --
JN: That happens all the time.
GG: Right, so, what recourse do you have if, as I suspect is the case, you actually don't get answers promptly from Director Mueller as to the questions you've asked?
JN: Well, we can subpoena the information. We can enforce the information subpoena through a contempt proceeding, and this can go past the current administration, if it has to.
GG: Is that something you intend to do if you don't get answers?
JN: Absolutely. Absolutely. I think it is very important because this administration obviously has held Congress in contempt. And has obviously tried to arrogate all powers to itself in a very monarchical fashion. We have to decrease, we have to get the separation of powers back again in many ways, but we have to decrease the power of the presidency to override and ignore Congress. And there are a lot of things we have to do now.
They've got the whole country tied up in knots. On the one hand, they do something illegal, like warrantless wiretapping. I write a letter to Gonzales two years ago, and it finally, it first comes out, this is a violation of the criminal statute. It's clear, it's prima facie admission of a criminal conspiracy to violate the statute between you and the president, you have a decree every 45 days. You must appoint a special prosecutor to look into this. And of course, they just ignore it. I write a letter to Mukasey, same thing, just ignore it. We have got, when we get a new president, and a new attorney general, we've got to insist that this kind of thing be prosecuted.
GG: Right, well...
JN: We've got to insist that...
GG: But Congress - and you're right, if there's a Republican administration, it's unlikely that that will happen, and --
JN: That's right.
GG: Right, so Congress --
JN: And if there's a Democratic administration, they will be a lot of pressure on the president to say, Mr. President, look forward, not backward, be a uniter, not a divider, and we're going to have to resist that pressure and put a lot of pressure on the administration to say: No, you can't let go of all these arrogations of power.
Now, we're also going to have to have a lot of legislation obviously that, some of which we've introduced but going nowhere this year: the State Secrets bill, the Signing Power bill, the NSL bill, the Military Commissions bill, the Habeas Corpus Restoration bill - all these things we've got to pass next year.
GG: Right. Now, obviously you want the administration, whoever the next administration is, to either prosecute these crimes and/or be more I guess respectful of Congress's oversight responsibilities, and yet Congress has its own abilities, its own instruments to enforce its oversight responsibilities, some of which you've identified. Is part of the reason why the administration has been so contemptuous of it...
JN: Well, I'm...
GG: is because you haven't been - you, the institution - haven't been very diligent about enforcing--
JN: Well, I think the institution has been very reluctant and very slow-moving in this. And I agree with that. But we're finally doing it. And in terms of pursuing the subpoenas and the contempt citations against Bolton and Miers and some other people now - we've got to keep doing this.
GG: What is the status of that, because at the end of July you won that big decision from Judge Bates saying that --
JN: And then the Court of Appeals --
GG: -- so where are we?
JN: The Court of Appeals issued a temporary stay of that decision, that, whether they should issue a longer stay or not is up for a hearing in the Court of Appeals today.
GG: A hearing today. Okay, last question, because I know you're very pressed for time, which is this: when I talked to Congressman Holt a few weeks ago, he said that he would favor the creation of an independent commission, like the 9/11 Commission endowed with real subpoena power to investigate the anthrax case, and subject all of the FBI's investigation--
JN: I would favor that too, but their subpoena power would be no more enforceable than our subpoena power. I mean, if the administration chooses to procrastinate. I think there ought to be an independent commission. I think to explore the issue, we're going to have to re-establish some form of the old special prosecutor statute, that went out after Ken Starr, because you can't let an administration control the prosecutions.
JN: And we're going to have to re-establish some sort of, I think.... I am drafting now a constitutional amendment, which will not pass in time for this president, but we're looking long term, to limit the president's pardon power.
GG: So that he can't pardon members of his own administration, or for crimes which--?
JN: Well, I would say, yes, but what it would say was, that a president, number one can't pardon anybody except for a crime of they were already convicted. Can't stop an investigation.
JN: The pardon is supposed to be tempered justice with mercy - get the justice first. Then we'll look at mercy. You can't pardon--
GG: Ahead of time.
JN: Yeah, and you can't issue a pardon that says that anybody that may have been implicated in illegal wire-tapping between January 1st 2001 and January 1st 2007 is hereby pardoned.
GG: Right. Because then you prevent any information from being disclosed, in addition--
JN: That's exactly right. So, number one, you can't pardon anybody except after conviction. Number two, I would say you can't pardon anybody in your own administration, for anything connected with an action of that administration.
GG: Right. Okay, well, last question...
JN: Number three, which...
GG: I'm sorry. Go ahead.
JN: Number three, which I'm thinking of, but I'm not sure I want to do yet, is that no president can issue a pardon in the last six months of his administration.
GG: Because then there's no political ramifications. That's interesting.
GG: Last question - I know I said that before, but I promise this time it will be -- it's really quick - one of the thing Congressman Conyers said today was look, we each have five minutes, and it's very hard to get anything done, and I was a litigator for a long time, and I know you need more than five minutes to meaningfully question the witness. Can't that rule be changed so that, member who are particularly expert --
JN: I wish it could. Yeah, the rule could, I think it's a Rule of the House. And in some committees, by general consensus, they don't really enforce it. The Foreign Affairs Committee, they don't. In our committee the Republicans insist on enforcement - I think when we were in the minority we insisted on it too.
But I think we ought to reexamine that. There ought to be a procedure so that maybe before you get to the five minutes, the Committee Counsel or the chairman or somebody can do half an hour or twenty minutes or something first.
GG: Right. Well, I appreciate your questions today during the hearing, and I appreciate your taking the time to talk to me about them today. Thanks very much.
JN: You're quite welcome.
[Transcript courtesy of Thames Valley Transcribe]