A Very Private Investigation

There are two kinds of government investigations: investigations into ordinary citizens and investigations into the government itself.

In the former case, the government piles charge upon charge on the accused, hoping for either a conviction on at least one of these charges or a capitulation by the accused owing to the extraordinary expenses he is incurring in fighting off the government and its virtually unlimited pocketbook. Such is the determination of government prosecutors that they seldom fail to obtain a conviction or a plea bargain when going after a civilian, regardless of the defendant’s actual guilt or innocence (see Stewart, Martha). It never hurts that they have usually prepared the ground well by planting negative stories about their targets in the news media for months or years prior to bringing them before the courts.

When it comes to government investigations of government, on the other hand, the situation is much different. Few significant crimes are ever uncovered, even fewer significant government figures are charged with any crimes – although lower-level, disposable types like Spc. Charles Graner frequently serve as scapegoats – and everything is kept as hush-hush as possible, with prosecutors deflecting any questions with the standard "I cannot comment on an ongoing investigation" boilerplate. Frequently such investigations end up ignoring the major crimes and bringing to light only small, relatively inconsequential misdeeds (such as Kenneth Starr’s investigation of Whitewater, which only got us a stained dress and a public discussion of the meaning of is), or they just peter out after the public has long since lost interest in the original allegations. Then, on those rare occasions when a major player is on the losing end of an investigation, there’s always the presidential pardon to rescue him (see Nixon, Richard and Weinberger, Caspar).

The purpose of both types of investigations is to make the government look good. When going after civilians, it shows that the government is tough on crime and working hard to protect the little guy. When investigating itself, it ostensibly shows that the people in charge care about honesty and integrity in government. The real purpose, however, is to make sure that no real crimes are uncovered; that when real crimes do surface, they are seen to be the work of, as was said in the Abu Ghraib case, "a few bad apples," not the system as a whole; and that the people’s misplaced faith in government is restored.

When it first surfaced in the New York Times – which sat on the story for over a year and through a presidential election at the request of a president that every mainstream conservative pundit will assure you the Times loathes – that the National Security Agency was monitoring without court-obtained warrants the telephone conversations of Americans, in clear violation of the Fourth Amendment and the Foreign Intelligence Surveillance Act (which itself probably violates the Fourth Amendment as well), the Bush administration put forth various dubious legal rationales for this obvious threat to our liberties. There was the "unitary executive" theory, whereby Congress and the courts have no say whatsoever in how the executive branch conducts its affairs. To this is closely tied the "inherent authority" ploy, which argues that the president, as commander-in-chief of the military, can do pretty much anything he wants as long as he claims it is in the interest of national security. Considering that, for example, Article I, Section 8, of the Constitution grants Congress the power to "declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water" and, further, to "make Rules for the Government and Regulation of the land and naval Forces," it is as plain as the nose on Jimmy Durante’s face that the powers of the executive branch can be greatly restricted by the legislative branch. Then there was the trial balloon that the resolution Congress had passed in the days following 9/11, granting the president the authority to go after those who had perpetrated the attacks, somehow also gave him the authority to violate the Fourth Amendment and FISA, which came as a distinct surprise to many members of Congress who had voted for the resolution. Besides, this was all being done in the name of fighting terrorism, and who but an anti-American commie moonbat could object to that?

Eventually the Justice Department opened up two investigations related to the NSA spy program, one to get those dirty leakers who had dared violate the government’s privacy while it was violating ours, and another to "determine whether the department lawyers complied with their professional obligations in connection with that program," as department spokeswoman Tasia Scolinos described it. She was careful to note that the investigation would not touch on "the lawfulness of the NSA program." This investigation was being carried out by the department’s Office of Professional Responsibility, whose very existence indicates that Justice has a problem in that regard, and was clearly intended to make it appear that the government was taking its responsibilities to the people seriously.

Despite Ms. Scolinos’s protestations to the contrary, however, the Justice Department investigation must have been getting a little too close to the truth of the NSA program for the comfort of the administration. Within the same 24-hour news cycle in which we learned that the NSA program goes far beyond simply listening in on a limited number of phone conversations to monitoring nearly every telephone call in the country (except for those made by customers of Qwest, perhaps the lone hero in this whole story), we also learned that the Justice Department has ended its investigation into its own role in the program without discovering a thing.

Why did the government end its own investigation of itself? Because the NSA refused to grant security clearances to Justice Department lawyers! Without the security clearances, the lawyers can’t look at any of the NSA’s documents or policies, and so they can’t investigate to see if anything untoward is taking place. Got that? The government tries to investigate itself, but then it won’t give its own investigators clearance to do any actual investigation. This is right out of Duck Soup. Where are the Marx Brothers when you need them? At least Groucho could get in some amusing one-liners while feebly trying to convince the populace that the government really is here to help them.

Contrast this with the lengths to which the government will go to investigate and bring down people it doesn’t like, even to the point of killing them, as the incidents at Ruby Ridge and Waco demonstrate. They would never close an investigation into a private citizen simply because that citizen told them to mind their own business. In fact, they would only work that much harder to nab their quarry if they met resistance. Let one government department tell another department to take a hike, though, and it’s bye-bye, investigation.

Frankly, no one with an ounce of sense ever expected much to come of this investigation, if he even knew it was happening, or of any government self-investigation. The way in which it came to an abrupt end, however, is beyond ridicule. Then again, as the president has just assured us once more, the whole NSA program, even to the point of keeping track of every single call we make, is there to protect us from terrorism, and we have nothing to fear from it. Why would we even want to investigate, let alone put an end to, such a benevolent, harmless program? Like Winston Smith, we should all just learn to love Big Brother.

May 13, 2006

Michael Tennant [send him mail] is a software developer in Pittsburgh, Pennsylvania.

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