Cheney's Total Impunity

By Dan Froomkin
Special to washingtonpost.com
Tuesday, April 29, 2008; 1:20 PM

How far will Vice President Cheney go to shield himself and his office from public scrutiny?

Last spring, Cheney asserted that he wasn't subject to executive-branch rules about classified information because he wasn't actually part of the executive branch.

Now his office argues that he and his staff are completely immune from congressional oversight. That's right: Completely immune.

Cheney's latest claim came in a response to a House Judiciary Committee request for vice presidential chief of staff David S. Addington to testify about his central role in developing the administration's torture policies.

Cheney lawyer Kathryn L. Wheelbarger wrote back: "Congress lacks the constitutional power to regulate by a law what a Vice President communicates in the performance of the Vice President's official duties, or what a Vice President recommends that a President communicate in the President's performance of official duties, and therefore those matters are not within the Committee's power of inquiry."

As it happens, that was only one of three startling responses in Wheelbarger's letter.

She also wrote: "The Chief of Staff to the Vice President is an employee of the Vice President, and not the President, and therefore is not in a position to speak on behalf of the President."

Disregard, for a moment, the fact that Addington wasn't actually asked to speak on behalf of the president - but about his "unique information and perspective." Contrary to Wheelbarger's central assertion, Addington actually does work for the president. When he took over the job previously held by Scooter Libby -- who has since been convicted of perjury and obstruction of justice in the Valerie Plame CIA leak case -- Addington also inherited Libby's title as "assistant to the president." See, for instance, his official White House profile.

Cheney's office somehow managed to omit Addington from the White House staff list submitted to Congress. But Addington isn't on Cheney's public Senate payroll either.

Finally, Wheelbarger cites, "separate from any question of immunity from testimony," questions of privilege "protecting state secrets, attorney-client communications, deliberations, and communications among Presidents, Vice Presidents, and their advisers."

In a letter to Addington, Judiciary Committee Chairman John Conyers yesterday lamented Wheelbarger's "legalistic and argumentative response" and warned that if Addington refuses to appear voluntarily, he may be subpoenaed. (Conyers issued the same threat to former Attorney General John Ashcroft and former Justice Department lawyer John Yoo, both of whom also declined to appear voluntarily.)

The Conyers letter cites media reports that describe Addington as the driving force behind the administration's most controversial legal arguments. Among the citations: Jane Mayer in the New Yorker, Phillippe Sands in Vanity Fair, Barton Gellman and Jo Becker in the Washington Post and Chitra Ragavan in U.S. News.

And Conyers notes: "Vice Presidential staff have previously testified before Congress and I am aware of no authority -- and counsel's letter cites none -- for the proposition that such staff could be immune from testimony before Congress."

He also attempts to turn one of Cheney's arguments against him: "While the issue of the immunity of senior advisors to the President is currently under litigation, there has been no suggestion that such immunity, even if recognized, would reach to the Vice President's office, an entity that, as you well know, is constitutionally quite different from the Office of the President.

"As to privilege, such concerns are traditionally and appropriately raised in response to specific questions and not as a threshold reason to decline a Congressional Committee's invitation to appear."

And Conyers concludes: "Presumably, you believe that whatever actions you took were necessary and comported with the law; in such circumstances, I cannot imagine why you would decline to appear and set the record straight. The American people deserve no less."

The Coverage

Elana Schor writes for the Guardian: "The lawyer for US vice-president Dick Cheney claimed today that the Congress lacks any authority to examine his behaviour on the job. . . .

"Ruling out voluntary cooperation by Addington, Cheney lawyer Kathryn Wheelbarger said Cheney's conduct is 'not within the [congressional] committee's power of inquiry' . . . .

"The exception claimed by Cheney's office recalls his attempt last year to evade rules for classified documents by deeming the vice-president's office a hybrid branch of government - both executive and legislative. . . .

"Two witnesses sought by Conyers, former US attorney general John Ashcroft and former US justice department lawyer John Yoo, claimed that their involvement in civil lawsuits related to harsh interrogations allows them to avoid appearing before Congress.

"In letters to attorneys representing Ashcroft and Yoo, Conyers shot down their arguments and indicated he would pursue subpoenas if their clients did not testify at his May 6 hearing.

"'I am aware of no basis for the remarkable claim that pending civil litigation somehow immunises an individual from testifying before Congress,' Conyers wrote."

Carrie Johnson writes in The Washington Post that the resistance to Conyers's requests "marks the latest skirmish in a lengthy battle over the scope of presidential authority and the administration's treatment of detainees. Under Attorney General Michael B. Mukasey and his predecessor, Alberto R. Gonzales, the Justice Department has refused to enforce congressional subpoenas for testimony."

Laurie Kellman writes for the Associated Press: "A previous dispute is being hashed out in federal court, with Conyers' committee suing White House Chief of Staff Josh Bolten and former presidential counsel Harriet Miers for refusing to comply with subpoenas on the firings of federal prosecutors. The White House maintains that their testimony is off-limits from congressional oversight under executive privilege.

"On torture policy, the administration appears no more willing to comply with Conyers' requests for testimony and information."

At one point in the dispute now in federal court, the White House made a similar assertion of complete immunity from oversight -- for former presidential adviser Karl Rove.

Don't Blame Me

At a press conference this morning, Bush tried to shift the blame for the tanking economy and higher gas prices onto the Democratic congress.

"Across our country, many Americans are understandably anxious about issues affecting their pocketbook, from gas and food prices to mortgage and tuition bills," Bush said. "They're looking to their elected leaders in Congress for action. Unfortunately, on many of these issues, all they're getting is delay."

Some 70 percent of Americans disapprove of the job Bush is doing handling the economy according to the latest Washington Post/ABC News poll. His refusal to acknowledge the severity of the situation is subjecting him to a new wave of accusations that he is disconnected from reality.

But Bush suggested it's not him who's out of touch: "These are tough times. People -- economists can argue over the terminology. And these are difficult times. And the American people know it and they want to know whether or not Congress knows it," he said.

Bush used the issue of high gas prices to argue in favor of one of his longtime priorities: Drilling for oil in the Arctic National Wildlife Refuge. "Somehow if you mention ANWR it means you don't care about the environment. Well, I'm hoping now people, when they say ANWR, it means you don't care about the gasoline prices that people are paying," he said.

A decision to drill, though, wouldn't directly effect prices for many years.

And to turn around the economy, he argued in favor of making the tax cuts permanent -- a move he said would "help the psychology of the country."

Congress is working on a second economic stimulus package, but Bush said the rebates that started going out this week -- and that many economists anticipate will have limited impact -- should be given a chance to work.

Responding to a softball question from Politico's Mike Allen -- about what issue he is most worried his successor will neglect -- Bush came out firing against the Democratic candidates. "I don't think John McCain is going to neglect the war on terror," he said of the Republican candidate, casting the Democrats as believing, by contrast, that "it's not worth it to confront the enemy."

He also solemnly said that he hopes that "whoever the president is understands that America is a force for good in the world."

There were no questions about Bush's role in his administration's torture policy -- but there was lots of joshing around with reporters.

More tomorrow.

Gitmo Watch

Josh White writes in The Washington Post: "The Defense Department's former chief prosecutor for terrorism cases appeared Monday at the controversial U.S. detention facility here to argue on behalf of a terrorism suspect that the military justice system has been corrupted by politics and inappropriate influence from senior Pentagon officials.

"Sitting just feet from the courtroom table where he had once planned to make cases against military detainees, Air Force Col. Morris Davis instead took the witness stand to declare under oath that he felt undue pressure to hurry cases along so that the Bush administration could claim before political elections that the system was working.

"His testimony in a small, windowless room -- as a witness for Salim Ahmed Hamdan, an alleged driver for Osama bin Laden -- offered a harsh insider's critique of how senior political officials have allegedly influenced the system created to try suspected terrorists outside existing military and civilian courts. . . .

"Davis also decried as unethical a decision by top military officials to allow the use of evidence obtained by coercive interrogation techniques. He said Air Force Brig. Gen. Thomas W. Hartmann, the legal adviser to the top military official overseeing the commissions process, was improperly willing to use evidence derived from waterboarding, a form of simulated drowning."

Secret Law Gets a Hearing

The Senate Judiciary Committee's Subcommittee on the Constitution will hold a hearing tomorrow on "Secret Law and the Threat to Democratic and Accountable Government."

Secrecy expert Steven Aftergood, who is also one of the witnesses, writes in his blog: "'It's been nearly forty years since Professor Kenneth Davis stated in his seminal treatise on administrative law that "Secret law is an abomination",' according to a Committee announcement.

"'The upcoming hearing will examine the extent to which this abomination is gradually becoming a common state of affairs, and its effect on our democracy.'"

Bush's Middle East Trip

Matt Spetalnick writes for Reuters: "President George W. Bush will try to bolster the faltering Israeli-Palestinian peace process on a May 13-18 trip to the Middle East, but the White House said on Monday he is 'under no illusions' of a quick breakthrough.

"It will be Bush's second visit to Israel and neighboring Arab states since hosting a conference in Annapolis, Maryland, in November where Israeli and Palestinian leaders pledged to try to reach a peace deal before he leaves office in January 2009.

"Negotiations between the two sides have since bogged down, deepening skepticism about the chances that Bush will succeed in the quest for Middle East peace after so many of his predecessors failed.

"White House spokeswoman Dana Perino insisted that Israeli and Palestinian leaders remain committed to the peace effort but acknowledged that 'more needs to be done.' . . .

"'But we're under no illusions that things are going to happen immediately,' she added. 'There's a lot of deep-seated history that has to be addressed if they're going to define a state by the end of the year.'"

Olivier Knox notes for AFP that Bush "has no plans for a joint peace summit with Israeli and Palestinian leaders."

Iran Drumbeat Watch

Tina Susman writes in the Los Angeles Times that the Iraqi government "says it agrees with the United States that Iran has continued to supply weapons to anti-government militants in southern Iraq," but "seems eager to send a message to the Bush administration to back off threats of military action and allow Baghdad to pursue diplomatic solutions more quietly with Tehran."

Susman writes that Sadiq Rikabi, an advisor to Iraqi Prime Minister Nouri Maliki, "indicated Monday that using the media as the conduit for airing differences with Iran was reminiscent of the propaganda methods of Hussein, and something the current leadership preferred to avoid.

"'We avoid using propaganda against this country or that country,' he said. 'We're trying to give a new face to Iraq.' . . .

"His comments followed the latest and most inflammatory salvo in months to come out of the Pentagon, which says rockets such as those launched into the Green Zone are coming from Shiite militias receiving training, weapons or other aid from Iran. On Friday, the chairman of the Joint Chiefs of Staff, Navy Adm. Michael G. Mullen, cited an 'increasingly lethal and malign influence' of the Iranian government.

"Mullen did not give specifics, and it is unclear what prompted the harsh allegations."

Hannah Allam, Jonathan S. Landay and Warren P. Strobel write for McClatchy Newspapers: "One of the most powerful men in Iraq isn't an Iraqi government official, a militia leader, a senior cleric or a top U.S. military commander or diplomat,

"He's an Iranian general, and at times he's more influential than all of them.

"Brig. Gen. Qassem Suleimani commands the Iranian Islamic Revolutionary Guard Corps' Quds Force, an elite paramilitary and espionage organization whose mission is to expand Iran's influence in the Middle East.

"As Tehran's point man on Iraq, he funnels military and financial support to various Iraqi factions, frustrating U.S. attempts to build a pro-Western democracy on the rubble of Saddam Hussein's dictatorship.

"According to Iraqi and American officials, Suleimani has ensured the elections of pro-Iranian politicians, met frequently with senior Iraqi leaders and backed Shiite elements in the Iraqi security forces that are accused of torturing and killing minority Sunni Muslims. . . .

"Suleimani's role in Iraq illustrates how President Bush's decision to topple Saddam has enabled Shiite, Persian Iran to extend its influence in Iraq, frustrating U.S, aims there, alarming America's Sunni Arab allies in the Persian Gulf and prompting new Israeli fears about Iran's ambitions."

Yochi J. Dreazen writes in the Wall Street Journal (subscription required): "Senior U.S. officials in Baghdad received back-channel messages from Iran condemning the recent bloodshed in the Iraqi city of Basra and denying that Tehran was responsible, according to people familiar with the matter.

"The messages, which haven't been publicly disclosed, come amid rising tensions between Washington and Tehran and debate about Iran's intentions in Baghdad. Many U.S. officials have accused Iran of fomenting violence in Iraq and have begun describing Iran as the biggest threat to Iraq's long-term stability. Iranian officials deny the claims and accuse the U.S. of fabricating a threat to justify the military occupation of Iraq. . . .

"A senior military commander said the conciliatory tone of the communications was hard to square with indications that Iran's support for Shiite militants inside Iraq has been increasing, leading to a sharp rise in violence there. . . .

"Still, U.S. officials acknowledged that Iran helped broker the truce that eventually ended the fighting in Basra."

Dinner Redux

See my column yesterday about the White House Correspondents' Association Dinner: Party of the Damned. I'm still depressed.

David Corn blogs for Mother Jones about his "vision of the future": "[I]t's decades from now, and historians and others are trying to understand what happened in the first years of the 21st century. That was when the United States government initiated a foolhardy war on the basis of fear and hyped-up threats. It was also a period when the people in charge did not take one of their last chances to deal with the real danger of global warming. And, of course, it was during those years that American leaders hocked the nation to China and the nation's global financial standing diminished. And these historians are asking, 'What the hell went on.'

"Well, look at this old tape, one says, it just might explain. And they huddle over a holographic view-screen and watch as George W. Bush, the president during those years, is conducting the U.S. Marine Corps Band at the 2008 correspondents' dinner. He's mugging for the crowd, as he proceeds. The audience of journalists is laughing.

"And when the song is over, Bush (and the band) receives rousing cheers and a standing ovation from the crowd.

"'Hmmmm,' says one of the historians, 'very interesting.' 'How many dead American soldiers and dead Iraqis were there by this point?' asks another. . . . 'Why were they clapping with him?' asks one."

And here, via the Crooks and Liars blog, is MSNBC's Chris Matthews: "[I]t is one thing to gather for events like this in Washington. It's another one to laugh and applaud and be charmed when the president puts on a little show. It's harmless stuff, except that the people yucking it up in that scene are the people who are professionally committed to calling it when the people in power get it wrong."

Visitor Log Watch

The Seattle Post-Intelligencer editorial board writes: "Well, well. It looks like what's good for the Democrats is not so good for the Republicans. Remember how President Clinton's opponents used the White House's visitor logs to learn about a bunch of stuff Clinton would much rather have kept on the down-low (a list of donors, Monica Lewinsky's visits, fundraisers, etc.)?

"Now, the Bush administration is seeking to keep the visitor logs under wraps, even as a federal appeals court seems to question the legitimacy of the argument. . . .

"Gosh. What, specifically, is the Bush administration trying to hide? . . .

"We hope that the courts ultimately see that citizen groups have a right to know who is glad-handing the president and why."

Live Online

I'll be Live Online tomorrow at 1 p.m. ET. Come join the conversation.

Cartoon Watch

Matt Bors on how Bush gets away with it.

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