Approaching the Midnight Hour

By Dan Froomkin
Special to washingtonpost.com
Thursday, November 20, 2008; 1:14 PM

In May, White House Chief of Staff Josh Bolten issued a memo announcing that, as far as last-minute regulations were concerned, the Bush Administration would take the high road.

Agency heads were instructed to "resist the historical tendency of administrations to increase regulatory activity in their final months." Bolten set a June 1 deadline for proposing new regulations, and ordered that none be issued after November 1, except in "extraordinary circumstances."

But Bolten's deadlines came and went without anyone paying much notice, and the real deadline is now upon us. Rules published by tomorrow go into effect before President-elect Obama takes office, making them much more difficult to reverse.

As a result, the low road is bumper-to-bumper today.

Stephen Power, Elizabeth Williamson and Christopher Conkey write in the Wall Street Journal: "The Bush administration in the past week has adopted several hot-button regulatory changes long sought by business groups, drawing criticism from congressional Democrats.

"The changes include new rules that open the way for commercial development of oil shale on federal land, allow truckers to drive for longer periods, and add certain restrictions on employee time off under the Family and Medical Leave Act."

Dina Cappiello writes for the Associated Press: "A rule eliminating the mandatory, independent advice of government scientists in decisions about whether dams, highways and other projects are likely to harm [endangered] species looked likely to meet the deadline, leaving the only chance for a quick reversal to Congress."

How much of a rush were Bush officials in? As Cappiello notes: "[L]ast month, the head of the endangered species program corralled 15 experts in Washington to sort through 200,000 comments in 32 hours."

Joaquin Sapien writes for ProPublica: "Whether it's relaxing pollution-control standards for power plants or allowing loaded weapons into national parks, the Bush administration is scrambling to approve or change as many federal rules as it can before it hands off power to President-elect Barack Obama. This surge of 'midnight regulations' presents a thorny question for the next administration: What can it do to void rules it thinks should be undone? . . .

"John Podesta, a leading member of the transition team, has said Obama will use his 'executive authority without waiting for congressional action' to reverse many of Bush's policies.

"But that authority has its limits.

"While executive orders and rules that are not yet in effect can swiftly be reversed or altered by Obama's appointees or his own executive orders, rules that go into effect before he takes office will be extremely difficult to undo. Rescinding a rule would require the new administration to re-start the rule-making process, which can take years and prompt legal challenges. Another strategy that has been talked about lately -- getting Congress to disapprove the rules through the Congressional Review Act -- carries political risks and has been used only once before. . . .

"Bush's midnight regulations also could be challenged by public interest groups, who are already considering legal actions to get some of them overturned. If the Obama administration agrees with the group's position, it could promise the court to develop a new rule that both parties can agree on. But that would open up the possibility of further legal challenges from third parties, such as utility companies or other industry interests, which could assert that the Obama administration and the group were participating in a 'collusion of interests' without adequately considering the impact on industry."

ProPublica offers a rundown of 20 rules and regulations that the Bush administration is pushing through the rulemaking process in its waning days, and a guide to ferreting out midnight regulations yourself.

Gregg Carlstrom blogged for the Federal Times yesterday: "Sure enough, there are more than a dozen new rules in today's Federal Register, including at least two proposed rules (which agencies were supposed to stop creating by July 1). A few examples:

" * A final rule from the EPA sets limits on a pesticide called ipconazole used by agricultural companies; . . .

" * A final Commerce Department rule allows fishermen to use 'trawl gear' to catch halibut in Alaska; environmental groups say this is an extremely damaging method of fishing."

Matt Madia blogs for OMB Watch about the proposed rules on the length of time truck drivers can work. According to Public Citizen President Joan Claybrook, a long-time auto safety advocate, the rule "is practically identical to two rules that the U.S. Court of Appeals for the District of Columbia struck down last year and in 2004 after Public Citizen challenged the regulations. . . . Under the rule, drivers may continue to log a physically and mentally demanding 77 hours behind the wheel in a seven-day period, take a mere 34 hours off, then hit the road to do it all over."

Madia wrote on Monday about the Interior Department rule "that will open almost 2 million acres of land in Western states to oil shale development. Environmentalists say oil shale development, which involves extracting liquid oil from solid rock by heating it, increases greenhouse gas emissions and requires intensive water use."

The American Association for Justice is keeping an eye out for 21 possible regulations that have yet to be finalized "that could prove devastating to consumers' safety and their right to hold corporations accountable for producing dangerous products."

And Rosa Brooks writes in her Los Angeles Times opinion column: "You knew that W & Co. wouldn't go gently into that good night, didn't you? . . .

"Before Bush's inauguration, Clinton staffers allegedly removed all the Ws from White House keyboards. In a new twist, the Bush administration appears to be trying to leave a lot of hidden Ws behind. . . .

"Obama has an ambitious agenda, but housecleaning will come first. Keep asking for change -- but it may take a while for Obama to sweep all those little Ws out the door."

Change is Coming

All this comes amid clear indications that Obama intends to take a strikingly different approach.

Elizabeth Williamson, Melanie Trottman and Stephen Power write in the Wall Street Journal: "President-elect Barack Obama is signaling by a combination of words and deeds that his administration will toughen regulations at federal agencies that oversee consumer products, environmental policy and workplace safety.

"Mr. Obama has named a number of people to his transition teams for regulatory agencies who favor a firmer government hand in overseeing industry behavior. In addition, Mr. Obama has indicated in a series of pre-election letters to a big federal employee union that he intends to take a more pro-union approach on labor questions than his predecessor, and give agencies such as the Environmental Protection Agency more money."

Victory in Iraq?

I've written before about how the Bush administration's attempt to lock in its Iraq policies with a status-of-forces agreement backfired, and instead led Iraqis to demand a withdrawal timetable.

Now, in trying to spin the agreement as a success, the White House is declaring victory in Iraq.

"We believe that the conditions are such now that we are able to celebrate the victory that we've had so far," White House Press Secretary Dana Perino announced at yesterday's press briefing.

But victory is a dangerous thing to claim in Iraq. Remember "Mission Accomplished"? Even Gen. David H. Petraeus, head of the U.S. Central Command, won't use the word -- and for good reason.

There's no doubt the security situation in Iraq has improved dramatically since the beginning of the year. But what's not at all clear is whether this is a remission -- or just an intermission. If victory is a secular, democratic and pro-Western Iraq, then despite a little movement around the edges, there's not very much to celebrate.

Mary Beth Sheridan writes in The Washington Post: "With violence down sharply this year, the U.S. military is broadening its efforts to reconcile Sunnis and Shiites, reintegrate former insurgents into society and repair the rift between residents and their government.

"But as American forces begin to withdraw, some Iraqis question the long-term impact of the pacification campaign. Iraq has no history of democracy, and the government that has come to power since the 2003 U.S.-led invasion is sharply divided along sectarian lines.

"'The idea or identity of this is American, not Iraqi,' Kassim Daoud, a former Iraqi national security minister, said of the U.S. efforts. Although the Iraqi government has declared its support for reconciliation, he said, 'it hasn't got a real program or a map.'"

One way to look at the situation in Iraq is this: Maybe things will fall apart when the U.S. troops leave; or maybe the Iraqis will make peace with each other. But in either case, our continued presence is simply postponing things, not actually making them better.

Ben Armbruster writes for ThinkProgress: "The firm redeployment deadline is less a declaration of victory and more a reflection of Iraqis' long-held dissatisfaction with the occupation."

Spencer Ackerman blogs for the Washington Independent: "Just months ago, setting a date for withdrawal was abject capitulation. Today it's victory! I don't believe I really have to comment on why this is so painfully stupid. I'd rather start inflating balloons for V-I Day. When do you think the statues of Bush go up in Baghdad's Firdous Square?

The Boston Globe editorial board writes: "While the Bush administration is spinning the agreement as an endorsement of a continued US presence in Iraq and as the upshot of a successful policy toward that country, the ways in which Iraqi leaders were brought around to approving the measure belie much of the wishful thinking. . . .

"[W]hat President Bush has wrought in Iraq is utterly different from what he promised. Iraq today is ruled by Iranian proteges and allies. It is deeply divided along ethnic and sectarian lines. It has some of the trappings of a democracy, but they are draped over factions and clans that show no genuine inclination to share power.

"Bush failed to achieve his aim of enabling Iraq to become unified, stable, and democratic. If Obama is to prevent Iraqis from descending into civil war after US forces leave, he will have to do so with political and diplomatic prowess, not shock and awe."

Meanwhile, Nancy A. Youssef writes for McClatchy Newspapers: "Although the Pentagon officially has welcomed the new accord on a U.S. troop withdrawal from Iraq, senior military officials are privately criticizing President Bush for giving Iraq more control over U.S. military operations for the next three years than the U.S. had ever contemplated.

"Officials said U.S. negotiators had failed to understand how the two countries' political timetables would force the U.S. to make major concessions that relinquish much of the control over U.S. forces in Iraq. They said President Bush gave in to Iraqi demands to avoid leaving the decisions to his successor, Barack Obama.

"At times, 'President Bush wanted this deal more than the Iraqis did,' said a senior administration official who closely monitored the negotiations."

And Grenville Byford writes for Newsweek: "Everyone knows it is foolish to give someone power without responsibility. It is even more foolish, however, to accept responsibility without power--and that is just what the Bush administration has done with the new Status of Forces agreement with Iraq."


Qassim Abdul-Zahra reports for the Associated Press from Baghdad: "As opposition lawmakers shouted and pounded their desks in protest, Iraq's parliament on Thursday resumed deliberating a proposed security agreement with the United States that would allow American forces to stay there three more years. . . .

"Lawmakers loyal to Shiite leader Muqtada al-Sadr sought to disrupt Thursday's reading as they did the previous day, when they scuffled with security guards after one of them aggressively approached the bench while a lawmaker from the ruling Shiite coalition was reading the text aloud. . . .

"Prime Minister Nouri al-Maliki . . . assured Iraqis that the timeline for the withdrawal of U.S. forces under the agreement -- out of Iraqi cities by June 30, 2009, and the entire country by the end of 2011 -- is not negotiable and could even be moved up."

Back in D.C., in the meantime, Ross Colvin writes for Reuters: "The U.S. government is refusing to make public the security pact it has signed with Iraq, even though it has already been published in full in an Iraqi newspaper, a congressional hearing was told on Wednesday."

Here's an unofficial translation.

Illegal to Start With?

Richard Norton-Taylor writes in the Guardian: "One of Britain's most authoritative judicial figures last night delivered a blistering attack on the invasion of Iraq, describing it as a serious violation of international law, and accusing Britain and the US of acting like a 'world vigilante'."

Abuse Watch

The American Civil Liberties Union has released newly-obtained Department of Defense documents that it says provide further evidence that prisoner abuse in U.S. detention facilities in Iraq was systemic.

Rollback Watch

James Oliphant write in the Los Angeles Times: "Civil liberties groups and others have compiled a wish list of sorts, seeking the repudiation of controversial tactics such as domestic surveillance, extended detention, 'enhanced' interrogation and 'extraordinary rendition.'"

Spencer Ackerman writes for the Washington Independent: "Buoyed by high expectations for the first year of Barack Obama's administration, an informal coalition of progressive national-security and civil-liberties experts are urging the president-elect to redefine the war on terrorism. . . .

"[M]any of their proposals for Obama go beyond merely rolling back President George W. Bush's policies -- withdrawing from Iraq, shuttering the Guantanamo Bay detention complex, abolishing torture -- to offer new areas of emphasis, like stabilizing Afghanistan, an Arab-Israeli peace and a re-envisioned balance between security and liberty."

Pardon Watch

Democratic Senator Russ Feingold writes for Salon: "At the end of his term . . . this president should think twice before issuing pardons that call his judgment, and the integrity of the rule of law, into question.

"If President Bush were to pardon key individuals involved in the misdeeds of his administration, from warrantless wiretapping to torture to the firing of U.S. attorneys for political reasons, the courts would be unable to address criminality, or pass judgment on the legality of some of the president's worst abuses. Issuing such pardons now would be particularly egregious, since voters just issued such a strong condemnation of the Bush administration at the ballot box. There is nothing to prevent President Bush from using the pardon in such a short-sighted and self-serving manner -- except, perhaps, public pressure that may itself be a window on the judgment of history. Everyone who can exert that pressure, from members of Congress to the press and the public, should express their views on whether it would be appropriate for President Bush to use his pardon power in this way. . . .

"The current president, who has shown such disrespect for the rule of law during his term, will have a chance to show to all of us, and to history, whether he respects it enough not to short-circuit the judicial process after he leaves office."

ProPublica's Dafna Linzer rates potential high-profile pardonees' chances from zero to four 'Get of Jail Free' cards. Former Cheney aide Scooter Libby and former junk-bond king Michael Milken are atop her list.

Finger-Pointing Time

Who will save the automakers? Or rather: Who will be blamed if they go under?

Bill Vlasic and David M. Herszenhorn write in the New York Times that Senate Democrats yesterday put forth a "plan to provide $25 billion in aid from the $700 billion financial bailout program. The Republicans objected, effectively killing the plan.

"Senator Christopher S. Bond, Republican of Missouri, then requested that the Senate consider a compromise measure that would speed access to $25 billion in federally subsidized loans that have been signed into law by President Bush."

Lori Montgomery and Kendra Marr write in The Washington Post: "That proposal, which was endorsed by the White House, calls for modifying a loan program created to help the automakers develop advanced technologies and retool factories to produce more fuel-efficient vehicles. . . .

"But . . . House Speaker Nancy Pelosi (D-Calif.) has ruled out changes to the existing loan program. Several companies have already applied for the funds, and Democrats fear the car companies might back away from their commitment to build cleaner cars if the program's terms are changed. . . .

"With the impasse unbroken, Congress is on the verge of leaving the possible collapse of the domestic auto industry in the hands of the departing Bush administration. Senate Majority Leader Harry M. Reid (D-Nev.) yesterday urged Treasury Secretary Henry M. Paulson Jr. to use his vast authority over the rescue money to help the car companies on his own initiative. . . .

"White House officials retorted that congressional inaction would be to blame for any disruption of the auto industry over the holidays.

"'If Congress leaves for a two-month vacation without having addressed this important issue, and especially if the Senate leaves without Senator Reid even allowing a vote on this [Republican] amendment, then the Congress will bear responsibility for anything that happens in the next couple of months during their long vacation,' White House press secretary Dana Perino said yesterday."

Fiscal Conservative?

Dan Eggen writes in The Washington Post: "After pledging more than $1 trillion to rescue financial markets, President Bush has sought a return to his fiscal conservative roots in recent weeks by opposing additional government interventions and extolling the benefits of free markets.

"The White House, joined by Republicans on Capitol Hill, has derailed a second economic stimulus plan, fought a Democratic proposal to spend $25 billion to bolster Detroit automakers and continues to press for approval of a trio of stalled trade deals. Bush also persuaded foreign leaders to commit to free-trade principles during a global economic summit in Washington last weekend and will attempt the same at a meeting of Pacific Rim nations in Peru this weekend.

"The moves follow weeks of complaints from fiscal conservatives that Bush and other Republicans strayed from their principles with a $700 billion rescue plan and other steps aimed at staving off a Wall Street collapse. . . .

"Bush's critics argue that he is merely attempting to bolster his conservative bona fides during his final months in office. J. Bradford DeLong, a former Clinton administration official who teaches economics at the University of California at Berkeley, said the Bush White House 'has never been that clear on what its economic priorities or policies are.'"

Obama White House Watch

Michael A. Fletcher writes for The Washington Post: "President-elect Barack Obama continued assembling his White House team today, naming Lisa Brown, a former counsel to Vice President Gore, staff secretary and tapping his former Senate legislative director, Christopher P. Lu, to be Cabinet secretary. . . .

"As staff secretary, Brown will serve as the final filter for the crush of documents, from speeches to executive orders, that goes before the president. Lu, meanwhile, will be responsible for ensuring that Obama administration initiatives are coordinated across the federal government."

Obama also "made official two other selections that had previously surfaced: David Axelrod, the chief strategist of his presidential campaign, will serve as a senior adviser to Obama, while Gregory B. Craig, a highly regarded litigator who directed President Clinton's impeachment defense, has been appointed White House counsel."

Ceci Connolly writes in The Washington Post: "Thomas A. Daschle, a former Senate majority leader and a confidant of President-elect Barack Obama, will be nominated as secretary of the Department of Health and Human Services and will take on a broader role as the administration's health policy chief, said several sources close to the transition process."

Spencer S. Hsu writes in The Washington Post: "Arizona Gov. Janet Napolitano (D), whose handling of immigration issues brought her accolades from fellow governors, is President-elect Barack Obama's choice to serve as secretary of homeland security, Democratic sources said late Wednesday."

The Long Goodbye

Mark Knoller writes for CBS News that "it seems President Bush is accepting the ever-nearing end of his term in good spirits. . . .

"When we see Mr. Bush at the increasingly-few public events on his daily schedule, he appears upbeat and even good humored."

Cheney Watch

Christopher Sherman writes for the Associated Press: "A Texas judge has set a Friday arraignment for Vice President Dick Cheney, former U.S. Attorney General Alberto Gonzales and others named in indictments accusing them of responsibility for prisoner abuse in a federal detention center.

"Cheney, Gonzales and the others will not be arrested, and do not need to appear in person at the arraignment, Presiding Judge Manuel Banales said.

"In the latest bizarre development in the case, the lame-duck prosecutor who won the indictments was a no-show in court Wednesday. The judge ordered Texas Rangers to go to Willacy County District Attorney Juan Guerra's house, check on his well-being and order him to court on Friday."

Late Night Humor

Jon Stewart on the Cheney-Gonzales indictment: "We can do that? And we're just thinking of it now?"

Cartoon Watch

Don Wright on a long two months.

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