A White House Wrapped in Secrecy

By Dan Froomkin
Special to washingtonpost.com
Thursday, June 28, 2007; 1:22 PM

The White House's assertion of executive privilege this morning in rejecting subpoenas for documents and testimony related to last year's firings of U.S. attorneys shows that President Bush may be more concerned about keeping his staff's deliberations secret than he is about creating the appearance that he has something to hide.

Dragging things out has already emerged as the White House's strategy of choice with this investigation. Today's move, while sparking a genuine constitutional showdown, also suggests it will be a long, drawn-out showdown.

Actually, the greater and more immediate threat to the White House and its culture of secrecy may come from a different set of subpoenas: The ones issued by the Senate Judiciary Committee yesterday demanding documents related to the administration's warrantless wiretapping program.

In their letters to Congress regarding the U.S. attorney subpoenas, White House and Justice Department lawyers this morning took an expansive view of a privilege that many scholars say is actually quite limited. (Here's the letter from White House Counsel Fred Fielding; here's the supporting letter from Solicitor General Paul D. Clement.)

But Fielding also made his case based in part on the material being requested: "The doctrine of executive privilege exists, at least in part, to protect such communications from compelled disclosure to Congress, especially where, as here, the president's interests in maintaining confidentiality far outweigh Congress's interests in obtaining deliberative White House communications," Fielding wrote.

Making that latter argument in response to yesterday's warrantless wiretapping subpoenas will be vastly harder.

There is no way that yesterday's request can be dismissed as a partisan fishing expedition. The subpoenas were approved by members of both parties. They call for basic information about the legal reasoning behind an important government program that appears to violate federal law. They request information that is necessary for the committee to assess the administration's requests to rewrite the applicable laws. And they properly ask for some explanation of why the president blocked an inquiry by the Justice Department's own ethics office.

For six years, the White House has simply waved off pesky questions from the media and Congress. And it is the wiretapping subpoenas, more even than the U.S. attorney subpoenas, that may bring that period to an end.

Today's News

Terence Hunt writes for the Associated Press: "The White House, moving toward a constitutional showdown with Congress, asserted executive privilege Thursday and rejected lawmakers' demands for documents that could shed light on the firings of federal prosecutors.

"President Bush's attorney told Congress the White House would not turn over subpoenaed documents for former presidential counsel Harriet Miers and former political director Sara Taylor.

"'With respect, it is with much regret that we are forced down this unfortunate path which we sought to avoid by finding grounds for mutual accommodation,' White House counsel Fred Fielding said in a letter to the chairmen of the House and Senate Judiciary Committees. 'We had hoped this matter could conclude with your committees receiving information in lieu of having to invoke executive privilege. Instead, we are at this conclusion.'

"Thursday was the deadline for surrendering the documents. The White House also made clear that Miers and Taylor would not testify next month, as directed by the subpoenas, which were issued June 13. The stalemate could end up with House and Senate contempt citations and a battle in federal court over separation of powers."

House Judiciary Committee Chairman John Conyers released this statement today: "The president's response to our subpoena shows an appalling disregard for the right of the people to know what is going on in their government. The executive privilege assertion is unprecedented in its breadth and scope. . . . The charges alleged in this investigation are serious - including obstruction of justice and misleading Congress -- and the White House should be as committed to this investigation as the Congress. At this point, I see only one choice in moving forward, and that is to enforce the rule of law set forth in these subpoenas."

The letter from the Justice Department, interestingly enough, appears to confirm that there was more White House involvement in the decision to fire the U.S. attorneys than has previously been acknowledged by the administration.

Clement noted that the department's Office of Legal Counsel reviewed the documents that would have been responsive to the subpoena. He wrote that "internal White House communications about the possible dismissal and replacement of U.S. Attorneys . . . discuss the wisdom of such a proposal, specific U.S. Attorneys who could be removed, potential replacement candidates, and possible responses to congressional and media inquiries about the dismissals."

And an interesting note: Clement signed his opinion in his capacity as "Solicitor General and Acting Attorney General." Evidently every one above him has been recused from the matter. (Correction: An earlier version of this column stated that Fielding had made a mistake in calling Clement the "Acting Attorney General." In fact, Clement is the Acting Attorney General in this matter.)

The Beginning of the End?

Senator Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, yesterday announced the issuance of subpoenas to the White House and Justice Department relating to the authorization and legal justification for the administration's warrantless wiretapping program.

Specifically, Leahy is seeking: "documents related to the authorization and reauthorization of the program or programs; the legal analysis or opinions about the surveillance; orders, decisions, or opinions of the Foreign Intelligence Surveillance Court (FISC) concerning the surveillance; agreements between the Executive Branch and telecommunications or other companies regarding liability for assisting with or participating in the surveillance; and documents concerning the shutting down of an investigation of the Department of Justice's Office of Professional Responsibility (OPR) relating to the surveillance."

Here is the letter and subpoena Leahy sent Fielding yesterday.

"Over the past 18 months, this Committee has made no fewer than nine formal requests to the Department of Justice and to the White House, seeking information and documents about the authorization of and legal justification for this program. All requests have been rebuffed. Our attempts to obtain information through testimony of Administration witnesses have been met with a consistent pattern of evasion and misdirection," Leahy wrote.

"All indications are that the legal analysis supporting this program of warrantless surveillance, and perhaps the program itself, has changed more than once since its inception; it could very well change again. For the Congress to legislate effectively in this area it must have full information about the Executive Branch's interpretations of FISA and how those interpretations have affected its enforcement of the Act.

"The Administration's FISA proposal also contains provisions that would bring to an end lawsuits concerning participation of telecommunications carriers and other companies in this program of warrantless surveillance. This Committee cannot responsibly consider those provisions without knowing what government officials and the companies understood to be the legal basis for that participation at the time it occurred. . . .

"The testimony of former Deputy Attorney General James Comey before this Committee raises serious questions about the Administration's commitment to the rule of law. He testified that only the prospect of a mass resignation of virtually every senior officer in the Department of Justice caused the President to address serious Justice Department concerns about legality of the program. This came after the program had already been operating for more than two years. Later, when Attorney General Alberto Gonzales was asked during testimony before this Committee whether senior Justice Department officials expressed reservations about the warrantless surveillance program, the Attorney General responded 'I do not believe that these DOJ officials . . . had concerns about this program.' That response, at the very least, calls into question the Attorney General's candor with this Committee. . . .

"Finally, when the Department of Justice's own Office of Professional Responsibility (OPR) began an internal investigation into the role of Department of Justice attorneys in the authorization and oversight of the warrantless surveillance program, the Department of Justice and the White House denied the investigators the clearances they needed, thereby shutting the investigation down. The head of OPR has noted that in its 31-year history OPR has never before been prevented from pursuing an investigation. This action, too, raises questions about the Administration's motives and behavior.

"There is no legitimate argument for withholding the requested materials from this Committee."

Due to the Comey rebellion, the program was changed after two years, and in January it was brought under the auspices of the surveillance court. But, Leahy writes: "This Committee would be abdicating its responsibility if it failed to examine Executive Branch actions simply because we are told they have stopped. We have been given no assurance that these activities, or similar ones, will not resume based on the same or similar legal arguments. This Committee must conduct oversight to consider whether it wishes to act, through legislation or otherwise, to prevent such recurrence."

For more on Bush's blocking of the internal Justice Department investigation, see my July 19, 2006, column: Cover-Up Exposed? For more on the program being put under court supervision, see my Jan. 18 column, A Surrender or a Feint? For more on Comey's testimony, see my May 16 column, High Drama -- and High Crimes? The ACLU released a statement announcing: "This is the beginning of the end of this administration riding roughshod over our Constitution."

The Coverage

Charlie Savage writes in the Boston Globe that "only three of the nine Republicans on the committee voted against authorizing the subpoenas, which were approved by a 13-to-3 vote. The committee, under both Republican and Democratic leadership, has been seeking information about the program and questioning its legality since The New York Times revealed its existence in December 2005. . . .

"Congress gave administration officials until July 18 to comply with its demand for information. If the administration refuses , the committee and then full Senate would have to vote on whether to cite the officials for criminal contempt, which could lead to a lengthy battle over executive privilege and the constitutional separation of powers.

"Since 1975, according to the Congressional Research Service, 10 senior executive branch officials have been cited for contempt for failing to produce subpoenaed documents. In all 10 instances, however, the executive branch worked out a deal that satisfied Congress before any criminal proceedings were initiated."

Savage also notes: "A 1978 statute makes it a felony to conduct such surveillance without a warrant, but the president's legal team secretly asserted that his wartime powers include an unwritten right to bypass such laws at his own discretion. Cheney and his counsel, David Addington , were the leading proponents of the program and the controversial legal theory supporting it, former administration lawyers have said."

James Risen writes in the New York Times: "Before Mr. Comey's testimony, the White House had largely been able to fend off aggressive oversight of the N.S.A. wiretapping since it was first disclosed in December 2005. The Republican-controlled Congress held hearings last year, and even considered legislative proposals to curb the scope of the eavesdropping. But Mr. Cheney repeatedly pressured Republican Congressional leaders to pull back. . . .

"When the Democrats won the 2006 midterm elections, many observers predicted that the N.S.A. program -- which a federal judge declared unconstitutional -- would be one of the first Bush administration operations to undergo new scrutiny. But in January, the administration announced that it was placing the program under the legal framework of the Foreign Intelligence Surveillance Act, a move it had previously refused to consider.

"The Democrats have largely focused on objections to the Iraq war in their first months in power, and have appeared reluctant to take aggressive steps to challenge policies on harsh interrogation practices, secret Central Intelligence Agency prisons and domestic wiretapping for fear of being labeled soft on terrorism.

"For instance, at a confirmation hearing on June 19 for John A. Rizzo as general counsel of the C.I.A., no member of the Senate Intelligence Committee directly challenged the agency's secret detention or harsh interrogation practices."

Michael A. Fletcher writes in The Washington Post: "The White House offered no word on whether it will turn over the documents by the July 18 deadline. 'We're aware of the committee's action, and will respond appropriately,' spokesman Tony Fratto said. 'It's unfortunate that congressional Democrats continue to choose the route of confrontation.'"

Evan Perez writes in the Wall Street Journal (subscription required): "The Senate Judiciary Committee's subpoena of records from the White House and Vice President Dick Cheney's office on the administration's warrantless wiretap program escalates tensions at a time when Republican support for the president already is weakening."

Andrew Ward writes in the Financial Times: "The probe is part of a growing range of congressional investigations against the Bush administration since the Democrats seized control of Capitol Hill in January, creating the impression of a White House under siege. . . .

"The bipartisan nature of the investigation reflects unease in both parties about the Bush administration's aggressive use of executive power and its heavy influence over the Justice Department."

Brett Kavanaugh Watch

Thomas Ferraro writes for Reuters: "Senate Judiciary Committee Chairman Patrick Leahy on Wednesday sought a federal investigation into whether a White House lawyer turned appeals court judge testified truthfully to Congress about the Bush administration's detention policies for enemy combatants.

"Leahy also asked that Judge Brett Kavanaugh be prosecuted if it is determined that he misled Congress about his involvement in drafting the policies in testimony at his Senate confirmation hearing in May 2006. . . .

"On Tuesday, Assistant Senate Democratic Leader Dick Durbin asked Kavanaugh to explain apparent discrepancies between his testimony and reports that he participated in a 2002 White House meeting about the detainee policies.

"Durbin and Leahy noted that Kavanaugh had testified: 'Senator, I did not -- I was not involved and am not involved in the questions about the rules governing detention of combatants.'"

Here is Leahy's letter to the Justice Department.

Bush on Islam

Here is the text of Bush's remarks at the rededication of the Islamic Center in Washington yesterday. Bush's goal was to empower moderate Muslims. But some of his words may have rubbed them the wrong way.

"We must help millions of Muslims as they rescue a proud and historic religion from murderers and beheaders who seek to soil the name of Islam," he said. Rescue? Rather than, say, protect? Imagine if a Muslim leader came to the National Cathedral and spoke of the need to help Christians rescue their religion from fanatics.

Michael A. Fletcher writes in The Washington Post: "President Bush announced plans yesterday to appoint an envoy to an organization of Islamic nations with the intention of improving the battered image of the United States in the Muslim world."

Bob Deans writes for the Cox News Service: "Fueled by the Iraq war and the perception that the United States acts without consulting others, anti-Americanism is on the rise across the Muslim world and much of Europe, while global confidence in President Bush has plummeted, a global poll released yesterday shows. . . .

"Of those surveyed, those who said they have a favorable view of the United States fell to 9 percent in Turkey, 21 percent in Egypt and 15 percent in Pakistan, all key players in US anti-terrorism strategy.

"'The US image in Muslim countries is just abysmal,' said Andrew Kohut, president of the Pew Research Center, a nonpartisan opinion survey organization in Washington."

Cheney Reaction

Reaction to The Post's four-part series on Vice President Cheney:

The Casper (Wyo.) Star Tribune editorial board writes: "Whatever happened to the Dick Cheney who represented Wyoming so effectively in the U.S. House for more than a decade? . . .

"Comedians used to make us laugh by suggesting Cheney, not Bush, was really running the show. But the joke isn't funny anymore. It seems Bush either turned over many duties to his vice president, or looked the other way when Cheney grabbed them. . . .

"There is still time for Cheney to mend his image before he leaves office in January 2009. But he needs to stop acting as though his decisions mustn't be questioned, and accept that he has made mistakes. No matter how many times Cheney insists Saddam Hussein was responsible for 9/11, it won't change the fact that he wasn't. Too many people regret the Iraq war for anyone to buy Cheney's argument that opponents want to abet terrorism. That's offensive and insults Cheney's own intelligence."

David S. Broder writes in his Washington Post opinion column that "when presidential candidate George W. Bush chose Dick Cheney as his running mate, I applauded the choice," thinking that Cheney would give Bush candid advice. "Boy, was I wrong."

Instead, Cheney turned into "a vice president who used the broad authority given him by a complaisant chief executive to bend the decision-making process to his own ends and purposes. . . .

"It was not illegal, and it was not unconstitutional, but it could not have happened unless the president permitted it and enabled it. And ultimately the president is responsible for what has become, in very large respect, the resulting wreckage of foreign policy, national security policy, budget policy, energy policy and environmental policy under Cheney's direction and on Cheney's watch."

Bruce Fein writes in Slate: "The House judiciary committee should commence an impeachment inquiry. As Alexander Hamilton advised in the Federalist Papers, an impeachable offense is a political crime against the nation. Cheney's multiple crimes against the Constitution clearly qualify."

Matthew Daly writes for the Associated Press: "West Coast Democrats called for a hearing Wednesday into the role Vice President Dick Cheney may have played in the 2002 die-off of about 70,000 salmon near the California-Oregon border."

And a commenter called Helpless Dancer writes at Firedoglake: "The thing that strikes me about the WashPost series is that Cheney was constructing Bush's bubble from the very get go. He has managed to prevent anybody from one on one access to Bush without his approval. Nobody talked to Bush without his approval or his presence. His heavy handed presence managed to kill every effort to inject reality into the decision making process through intimidation. Just think about him staring at Bush from behind the bushes at that presser."

Cheney's Admission

Jim Rutenberg writes in the New York Times: "The White House has dropped the argument that Vice President Dick Cheney's dual role as president of the Senate meant that he could deny access to national archivists who oversee the handling of classified data in the executive branch.

"Mr. Cheney's office had said that his dual role meant that he was technically not part of the executive branch.

"In interviews over the last two days, officials have said that while the vice president does, in fact, have the right of refusal, it is for the very opposite reason: He is not required to cooperate with National Archives officials seeking the data because he is a member of the executive branch, with power vested in him by the president. . . .

"Officials in the West Wing privately expressed frustration with the fallout from the vice-presidential position -- which Mr. Cheney's representatives first publicly asserted last year in The Chicago Tribune -- especially, they said, because it was an argument he did not have to make."

The Value of Exercise

CBS News anchor Hannah Storm did the play-by-play at the White House T-Ball game yesterday, getting her an exclusive interview with Bush. (Well, two, really.)

Storm: "Before the game, I had a chance to speak to the president not about politics or the war, but about his love of baseball and his efforts to get Americans to be more active."

Bush: "Yeah, I'm a baseball supporter, but I'm also an exercise guy. I believe strongly in exercise. . . . "

Storm: "I know you're a big believer in this battle against obesity. . . . "

Bush: "I think the government can do a couple things. One, set examples. I exercise a lot. I exercise a lot because, you know, it's good for my mind and good for my soul. But I hope I set a good example, that -- to others -- that exercise is good for you. . . . I love exercise."

Storm: "You've got a big job, you're a fairly busy guy. A lot of adults complain they're so busy they don't have time to exercise."

Bush: "I don't buy that. I don't buy it. I think you set priorities in life. And if exercise is one of your priorities, you'll figure out a time to do it. . . . "

Storm: "Are you a person that looks back on your life philosophically? Are you that way about age?"

Bush: "Not really. I'm amazed at how young I feel."

After the game, Bush took Storm and her three daughters for a tour of the Oval Office. "He's, like, answering their questions," Storm explained.

And the daughter's questions turned out to be almost as tough as the mother's: "How many floors are there in the White House?" "Is being president fun?"

Doonesbury Poll

The Doonesbury Straw Poll asks: "What should we call Cheney's branch of government?"

Late Night Humor

Jon Stewart, in his new regular feature, "You Don't Know Dick," reports: "While the White House and Capitol appear crystal-clear on Google Earth, the Naval Observatory, the vice president's official residence, appears only as an obscured mass of pixels."

Cartoon Watch

Tom Toles, Tony Auth, Dwane Powell and Walt Handelsman on the CIA's "family jewels."

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