Friday, June 11, 2010
A congressional staffer wrote to Chief Justice Rehnquist soon after October 2001 to ask him to review the Bush administration's warrantless wiretapping program, according to an eye-popping report in the NYT. But more: The staffer sent the letter through Rehnquist's daughter, who at the time was serving as the Inspector General of the Department of Homeland Security. (One of the staffer's contacts at the NSA was a high-school acquiatance of the IG, thus giving the staffer an in.)
So here's a Hill staffer, on the House Intelligence Committee, who sent a request through the Inspector General at an administrative agency (by way of an acquiatance at the NSA, which the staffer's Committee oversees) to the Chief Justice asking for review of a secret administration program. This raises just a dizzying number of separation-of-powers problems--to say nothing of ethical problems--worthy of the most diabolical law school exam (whatever one thinks about the underlying wiretapping program).
Start with the exploitation by the Hill staffer of her acquiatance at an administrative agency her Committee oversees. Then consider a letter from a Hill staffer directed through an agency IG, who happens to be the daughter of the Chief Justice, complaining about a secret wiretapping program involving the NSA and other agencies. Next consider a letter from a Hill staffer to the Chief Justice, the head of the Article III courts, complaining about a secret administration program that may become--and since has become--the subject of any number of federal suits against the government.
And here's the most surprising part: The Chief Justice couldn't have done anything about it, anyway. The Supreme Court has interpreted the cases and controversies requirement of Article III to prohibit advisory opinions--opinions by the federal courts that advise another branch on the constitutionality of a proposed action--let alone an advisory opinion, or other action, by a single justice.
According to the article, there's no indication that the Chief Justice ever received or responded to the letter.
Here's the final act:
In what the employees saw as retaliation, the F.B.I. in 2007 raised the homes of Ms. Roark and the three workers whose complaints started the investigation into the security agency. None have been charged with a crime.