Tom DeLay Briefed on Warrantless Surveillance in March ’04Here’s something that comes to us via very-alert DailyKos diarist drational. The day after Alberto Gonzales and Andrew Card ran to John Ashcroft’s hospital room to have him overrule acting attorney general James Comey’s determination that the administration’s warrantless surveillance program was illegal, the White House gave a briefing on the super-secret program to none other than Tom DeLay.
Practically no members of Congress knew about the surveillance. The White House typically limited Congressional notification about the program to the bipartisan political leadership of the House and Senate and the heads of the Congressional intelligence committees — the so-called Gang of Eight. DeLay, then the top House Republican, has no intelligence experience, and just the day before, at the White House, House Speaker Dennis Hastert received a briefing about the program, making DeLay’s presence the next day redundant. The second-ranking House Democrat in 2004, then-whip Steny Hoyer of Maryland, didn’t receive a similar briefing.
“It sounds like a political decision on the part of the White House, rather than one driven by legal imperatives or Congressional norms,” says Steven Aftergood, an intelligence expert with the Federation of American Scientists. “The obvious speculation is that they judged that they had a political fight on their hands and wanted to enlist him on their side.”
One possibility is that the White House feared that news of the hospital visit would leak out, prompting reporters to learn about the legally controversial surveillance program. A related possibility is that the White House specifically feared that the Democrats on the Gang of Eight, informed in some vague sense about Comey’s objections to the surveillance, might have begun to raise private objections; leak themselves; or use other issues as a proxy fight against the secret program. In either case, it would make sense to bring The Hammer, who in March, 2004 was still powerful, on board to protect the White House.
There’s no legal or Congressional requirement that only the Gang of Eight need to be briefed on such top-secret intelligence programs — in fact, insufficient Congressional oversight was a main objection to the Terrorist Surveillance Program when Bush unveiled it in 2005. The trouble here is “it looks like a selective choice to brief political allies rather than a representative cross-section of congressional leaders,” says Aftergood. Still, given that legal scholars consider the warrantless surveillance efforts to be constitutionally dubious, “it’s probably the least offensive thing they’ve done regarding this program,” he adds.
Bonus fun fact: the only other non-Gang-of-Eight members of Congress briefed on the warrantless surveillance were the heads of the Senate Defense Appropriations Subcommittee, on December 4, 2001. That’s right, Democrat Daniel Inouye and… Republican Ted Stevens.
Update: This post originally misstated that Inouye and Stevens were, in 2001, the top Democrat and Republican on the Senate Appropriations Committee, when in fact they helmed the defense appropriations subcommittee. Thanks to reader GB for pointing out my error, which I regret.
