Playing Constitutional Chicken

By Dan Froomkin
Special to washingtonpost.com
Tuesday, March 11, 2008; 12:25 PM

Trying to avoid setting a new precedent for legislative toothlessness, the House yesterday filed a civil suit against the Bush White House, requesting that a federal judge enforce subpoenas seeking information about the controversial firings of U.S. attorneys.

In the latest chapter of what has turned into a fairly momentous Constitutional standoff, it will be up to the judicial branch to determine whether the legislative branch can exercise any meaningful oversight over the White House -- or whether the White House can simply opt out at will.

Historically, such clashes between the legislative and executive branches often have been resolved through negotiation and accomodation. But not with this White House. President Bush a year ago made one, conspicuously absurd, offer to make his aides available for interviews: Proposing that they talk to a small number of Congressional investigators in a one-shot, closed-door session without transcript or oath. Since then, he hasn't budged.

Former White House counsel Harriet E. Miers didn't show up when she was summoned to appear before the House Judiciary Committee last summer. White House Chief of Staff Joshua B. Bolten refused to turn over subpoenaed documents. And, after the House voted to hold them in contempt, Bush's attorney general, Michael Mukasey, refused to refer the citations to a federal grand jury -- saying he couldn't do so, because Bolten and Miers were following his own department's legal advice.

Richard B. Schmitt writes in the Los Angeles Times: "The House on Monday launched what could be a landmark attack against the Bush administration, claiming in a federal lawsuit that the White House abused the protections of executive privilege to shield itself from legitimate oversight.

"The suit, filed in federal court in Washington, seeks to force the White House to turn over documents and provide testimony shedding light on the role of executive-branch officials in the controversial dismissals of nine U.S. attorneys in 2006."

William Branigin writes in The Washington Post: "The committee's action marked the first time in U.S. history that either chamber of Congress has sued the Executive Branch to enforce a subpoena, according to a spokesman for the House Judiciary Committee. . . .

"White House spokeswoman Dana Perino accused the committee of engaging in 'partisan theater.'

"She told reporters, 'The confidentiality that the president receives from his senior advisers and the constitutional principle of separation of powers must be protected from overreaching, and we are confident that the courts will agree with us.'"

Neil A. Lewis writes in the New York Times: "Prof. Orin S. Kerr, a constitutional scholar at George Washington University, said the case would raise fresh issues.

"The Supreme Court first formally recognized the notion of executive privilege in 1974, but the court also said it could be overcome in some circumstances like a criminal investigation.

"There has been no ruling about whether such a privilege outweighs a request by Congress for White House information to perform its oversight of the executive branch. In the handful of cases since then, the White House has reached compromises with Congress or others."

Here's the press release from the Judiciary Committee: "'We will not allow the administration to steamroll Congress,' [Rep. John Conyers Jr. (D-Mich.), the Judiciary Committee chairman] said. 'Under our system of checks and balances, Congress provides oversight of the executive branch to make sure that government power is not abused. The administration's extreme claims to be immune from the oversight process are at odds with our constitutional principles on which this country was founded, and I am confident the federal courts will agree.' . . .

"The Judiciary Committee, as plaintiff, is asking the court to find the following:

"(1) Ms. Miers is not 'immune' from the obligation to appear before the committee in response to a duly authorized, issued and served committee subpoena;

"(2) Ms. Miers and Mr. Bolten must produce privilege logs identifying all documents withheld on grounds of executive privilege;

"(3) Executive privilege does not cover documents not involving the president or undertaken directly in preparation for advising the president or whose contents are widely-known, previously released or previously the subject of extensive, authorized testimony, and that Ms. Miers's and Mr. Bolten's claims of executive privilege are, in any event, overcome by the committee's compelling need for the subpoenaed testimony and documents.

"(4) that Ms. Miers is required to appear before the committee to respond to questions put to her pertinent to the investigation and to invoke executive privilege only if and when appropriate;

"(5) that Ms. Miers and Mr. Bolten are required to provide, as required by the subpoenas, a detailed privilege log, identifying by author, recipient, date and subject matter those documents responsive to the subpoena that have been withheld on executive privilege grounds;

"(6) that Ms. Miers and Mr. Bolten are required to produce all non-privileged documents responsive to the subpoenas."

Here's the actual complaint, in which the committee states that "the uncompleted investigation . . . has uncovered substantial evidence to support allegations [that the administration] injected partisan considerations into the forced resignations and retentions of U.S. Attorneys."

Here Comes the Judge

The case will be heard by Judge John D. Bates-- which doesn't bode particularly well for the plaintiffs. He was appointed to the bench by Bush in 2001. In February 2006, he was appointed by Chief Justice Roberts to serve as a judge of the United States Foreign Intelligence Surveillance Court -- a placement generally reserved for reliable conservatives.

Last year, he dismissed a lawsuit filed by former CIA officer Valerie Plame and her husband against Vice President Cheney and other top officials over the Bush administration's disclosure of Plame's name and covert status to the media. He wrote in his opinion that, while the suit raised "important questions relating to the propriety of actions taken by our highest government officials," the defendants were immune from liability because their actions came as a part of their official job duties.

In December, Bates refused to release documents related to the National Security Agency's warrantless wiretapping program. He wrote that "enhanced public scrutiny could provide an additional safeguard against mistakes, overreaching and abuse" but concluded that such benefits did not outweigh the potential damage of disclosure, which he called "real and significant, and, quite frankly, beyond debate."

Nevertheless, Schmitt writes in the LA Times: "Legal observers say that Bates, a former section chief in the U.S. attorney's office in Washington, is a conservative and thoughtful judge who may sympathize with Congress' dilemma.

"'He might be willing to get past the threshold issues . . . because he's sophisticated, and because he knows that in telling the U.S. attorney for D.C. not to proceed with a criminal contempt, Bush left no other choice,' said Charles Tiefer, a professor at the University of Baltimore law school and a former House general counsel.

"House lawyers said that they would seek an expedited hearing to have the case heard as soon as possible. Bates could rule in the late spring or summer."

Whatever decision Bates reaches, however, will almost certainly be appealed to a higher court -- meaning that resolution might not come until the final days of Bush's presidency, or maybe even later.

Speaking of Bush's Lawyers

The Washington Post editorial board writes: "Since its creation in the early 20th century, the Justice Department's Office of Legal Counsel has been considered the legal conscience of the executive branch, rendering judgments to presidents and executive agencies about what the law allows. . . .

"Unfortunately, during the Bush administration, the OLC has become known as a partisan enabler of legally and ethically questionable presidential policies, including those involving the use of torture. The OLC's decisions have eroded the legitimacy of the office and given legal cover to behavior that most Americans -- and most lawyers -- regard as improper. . . .

"The Justice Department and congressional overseers need to take further steps to ensure that the OLC performs properly in the future. Most important, the OLC should publicly release more of its opinions, as was routinely done during Janet Reno's tenure as attorney general during the 1990s. Too many Bush OLC memos remain secret, with only a handful of administration officials being privy to their conclusions. Congress has the right to know how laws are being interpreted -- or whether they're even being enforced."

Torture Watch

The New York Times editorial board writes: "President Bush used his radio address on Saturday to try to scare Americans into believing they have to sacrifice their rights and their values to combat terrorism. . . .

"This is not the first time that Mr. Bush has misled Americans on intelligence-gathering and antiterrorism operations, and it may not be the last. It will be up to the next president to restore the rule of law."

The Los Angeles Times editorial board writes: "In a shameful Saturday radio address justifying his veto, Bush argued that CIA interrogators can't be confined to techniques allowed by the Army Field Manual 'because the manual is publicly available and easily accessible on the Internet.' So, of course, are the Geneva Convention and the Detainee Treatment Act, which prohibit 'cruel, inhuman, or degrading treatment or punishment.' By the president's logic, acceptance of the humanitarian standards included in those documents also deprives the United States of the element of surprise."

And here are a few more excerpts from Washington Monthly's special torture issue: No More.

Jack Cloonan, who worked as a special agent for the FBI's Osama bin Laden unit from 1996 to 2002, writes; "We gave our word to every detainee that no harm would come to him or his family. This invariably stunned them, and they would feel more obligated to cooperate. Also, because all information led to more information, detainees were astonished to find out how much we already knew about them--their networks, their families, their histories. Some seemed relieved to reveal their secrets. When they broke, the transformations were remarkable. Their bodies would go limp. Many would weep. Most would ask to pray. These were men undergoing profound emotional and spiritual turmoil--the result of going from a belief that their destiny was to fight and kill people like us to a decision that they should cooperate with the enemy. . . .

"Let me be clear on one crucial point: it is the terrorists whom we won over with humane methods in the 1990s who continue to provide the most reliable intelligence we have in the fight against al-Qaeda. And it is the testimony of terrorists we tortured after 9/11 who have provided the most unreliable information, such as stories about a close connection between al-Qaeda and Saddam Hussein."

Indeed, Rand Beers writes about Ibn al-Shaykh al-Libi and the fruits of torture: "Al-Libi, an al-Qaeda operative, was interrogated by both the United States and Egypt, and -- as was publicly reported -- tortured by Egyptian authorities. During these sessions, he claimed that Iraq had trained members of al-Qaeda to use chemical and biological weapons.

"Al-Libi's testimony was used by the Bush administration to substantiate its allegations that Iraq was prepared to provide al-Qaeda with weapons of mass destruction. Coupled with the claim that Iraq was on the verge of acquiring nuclear weapons, the administration stated that when Iraq possessed nuclear capabilities, al-Qaeda would as well. Of all of the pieces of intelligence assembled in the lead-up to war, this one was the most chilling: the prospect of weapons of mass destruction, including nuclear weapons, under Osama bin Laden's control. And so we went to war to prevent this nightmare from occurring."

Al-Libi later recanted his confession. "He said that he had invented the information because he was afraid of being further abused by his interrogators."

Wesley K. Clark writes: "The honor of the American man-at-arms is one of our most potent weapons. It is enshrined in the Geneva Conventions. It encourages our enemies to surrender to us on the battlefield. It protects any of our own soldiers who may have been captured. It encourages noncombatants and civilians to trust us and cooperate willingly. And it does not countenance the abuse of captives in our care. . . .

"Today, in the struggle to finish off the extremists plotting against us, it won't be torture and fear that win the day for America. Far from it. Nations that torture end up despised and defeated. No, to win we'll have to live up to the values we profess, the belief in human rights, equal justice, fair trials, and the rule of law. These ideals are potent weapons. They will give us allies, friends, information, and security--but only if we live them."

Backbone Sighting

Siobhan Gorman writes in the Wall Street Journal (subscription required): "Defying White House demands to pass a surveillance measure to expand domestic spy powers and provide legal immunity for companies that assisted the government with warrantless eavesdropping, House Democrats are drafting a new proposal that refuses to grant immunity. It would also create a commission to evaluate the warrantless spy effort dubbed the Terrorist Surveillance Program.

"By resisting White House pressure to accept the immunity provision, the proposal virtually ensures that the heated debate over how to revise domestic surveillance laws will continue past this week, as lawmakers prepare to depart Friday for a two-week recess. A temporary measure to expand spy powers expired Feb. 16."

This Just In

Warren P. Strobel writes for McClatchy Newspapers: "An exhaustive review of more than 600,000 Iraqi documents that were captured after the 2003 U.S. invasion has found no evidence that Saddam Hussein's regime had any operational links with Osama bin Laden's al Qaida terrorist network.

"The Pentagon-sponsored study, scheduled for release later this week, did confirm that Saddam's regime provided some support to other terrorist groups, particularly in the Middle East, U.S. officials told McClatchy. However, his security services were directed primarily against Iraqi exiles, Shiite Muslims, Kurds and others he considered enemies of his regime. . . .

"President Bush and his aides used Saddam's alleged relationship with al Qaida, along with Iraq's supposed weapons of mass destruction, as arguments for invading Iraq after the September 11, 2001, terrorist attacks.

"Then-Defense Secretary Donald H. Rumsfeld claimed in September 2002 that the United States had 'bulletproof' evidence of cooperation between the radical Islamist terror group and Saddam's secular dictatorship.

"Then-Secretary of State Colin Powell cited multiple linkages between Saddam and al Qaida in a watershed February 2003 speech to the United Nations Security Council to build international support for the invasion. Almost every one of the examples Powell cited turned out to be based on bogus or misinterpreted intelligence."

This Just In, II

Alistair Lyon writes for Reuters: "Five years on, Iran can thank the United States for unwittingly aiding its drive for regional power by ousting Saddam Hussein, one of Tehran's deadliest foes.

"The U.S. military had already defeated Afghanistan's Taliban after the September 11 attacks on U.S. cities in 2001 -- with the unintended consequence of wiping out another of Iran's enemies and tilting the local balance of forces in Tehran's favor.

"'The removal of these two regimes without powerful successor states benefited Iran greatly . . . and opened elbow room for Iran to spread its influence,' said Vali Nasr, senior fellow at the Washington-based Council on Foreign Relations.

"Iran cannot entirely rule out U.S. military action to destroy its nuclear sites, and its oil-reliant economy may prove vulnerable a few years hence, but for now it is riding high. . . .

"Windfall oil revenues have further fuelled the Islamic Republic's heady sense of power under its combative president, Mahmoud Ahmadinejad, who has defied Western-led efforts to contain Tehran's nuclear aspirations through U.N. sanctions.

"'Every 24 hours we are earning $270 million . . . in hard currency -- a magic amount,' said Iranian economist Saeed Leylaz. 'Iran can transfer its petrodollars to buy loyalty internally and strategic partnerships externally.'"

Iraq Watch

Eugene Robinson writes in his Washington Post opinion column: "Has anyone noticed that Iraq, supposedly transformed into an oasis of peace and tranquility by George W. Bush's troop surge, is growing less peaceful and tranquil by the day? . . .

"When the Bush administration celebrates a 60 percent reduction in overall violence in Iraq, it's easy to forget that this is compared with June 2007, when the sectarian civil war was raging and bombings with scores of victims were a regular occurrence. The surge managed only to reduce the level of violence from apocalyptic to agonizing -- and now even those gains seem to be slipping."

Cheney to the Mideast

As I noted yesterday, Cheney leaves on Sunday for a trip to the Middle East.

Bush said yesterday that Cheney would "reassure people that the United States is committed to a vision of peace in the Middle East."

But Cheney doesn't usually do reassurance. So what's he really up to?

John D. McKinnon writes in the Wall Street Journal (subscription required): "Administration officials suggested that Mr. Cheney, with his no-nonsense style, will be pressing for speedier progress on peace talks. He also will be seeking to advance the broader U.S. vision of security in the region, anchored in a peaceful and democratic Iraq."

Or could it be all about the oil? Brian Knowlton writes in the International Herald Tribune: "Cheney, who leaves Sunday, will meet with King Abdullah in Saudi Arabia, the world's biggest oil producer and the de facto leader of OPEC."

And yet, as Knowlton notes: "At a time when some OPEC producers are skeptical of the U.S. role in Iraq and the region and others, like Venezuela, are frankly hostile, it was unclear what enticements Cheney might have to offer."

Me, I'd try real hard to find out what Cheney tells the Israelis about Iran.

Cheney and McCain

Cheney spoke last night at a Georgia State Republican Party fundraiser. And yes, it was almost entirely a rehash of his standard chicken-dinner speech, including that hoariest of opening shticks: "A welcome like that is almost enough to make me want to run for office again. (Laughter.) Almost, I said."

In 21 minutes and 3,000 words, he mentioned presumptive Republican presidential nominee John McCain only once. And then only in passing.

Is Cheney entirely on board the McCain bandwagon? Sure doesn't sound like it.

Live Online

I'll be Live Online tomorrow at a special time: Noon ET. Come join the conversation.

And advanced notice: I'll be off on Thursday and Friday.

Late Night Humor

Jay Leno, via U.S. News: "God bless him, President Bush says we are not in a recession. By we, he means himself and the board of Halliburton."

And Leno again: "Here is a . . . wonderful story. Last week, Frank Buckles, the oldest living American World War I veteran, 107 years old," visited "the White House and met with President Bush. Yeah. The sad part: After the meeting, Bush sent him to Iraq."

Cartoon Watch

Tony Auth on Bush's torture legacy; Tom Toles on economic torture; Tom Tomorrow on the cost of the war; David Horsey on oil profits; Ann Telnaes and Ben Sargent on Bush and McCain; and Jim Morin on Bush stalling for time.

Post a Comment

Comments that include profanity or personal attacks or other inappropriate comments or material will be removed from the site. Additionally, entries that are unsigned or contain "signatures" by someone other than the actual author will be removed. Finally, we will take steps to block users who violate any of our posting standards, terms of use or privacy policies or any other policies governing this site. Please review the full rules governing commentaries and discussions. You are fully responsible for the content that you post.

© 2008 Washingtonpost.Newsweek Interactive