A Power He Didn't Really Like

By Dan Froomkin
Special for washingtonpost.com
Wednesday, March 26, 2008; 11:31 AM

Was there ever an executive power that President Bush wasn't eager to take for a spin? The answer may be yes -- the one the Supreme Court denied him yesterday.

After all, in the case in question, Bush was asserting his right to use a World Court opinion to beat his beloved Texas into obliging a Mexican rapist and murderer on death row. Given Bush's longstanding hostility to international institutions and his energetic support of the death penalty, you got the distinct impression his heart wasn't in it.

Robert Barnes writes in The Washington Post: "The Supreme Court yesterday issued a broad ruling limiting presidential power and the reach of international treaties, saying neither President Bush nor the World Court has the authority to order a Texas court to reopen a death penalty case involving a foreign national.

"The justices held 6 to 3 that judgments of the International Court of Justice, as the court is formally known, are not binding on U.S. courts and that Bush's 2005 executive order that courts in Texas comply anyway does not change that."

As David G. Savage writes in the Los Angeles Times, Bush's intervention three years ago was "a surprise move."

It also split his Cabinet. Peter Baker writes in The Washington Post: "Bush's decision to issue the order to Texas came after a vigorous internal debate shortly after the beginning of his second term. . . . Bush had appointed his White House counsel, Alberto R. Gonzales, as attorney general and his national security adviser, Condoleezza Rice, as secretary of state, and the two quickly found themselves on opposite sides of the case. . . .

"A series of phone calls and meetings between Rice and Gonzales and their aides produced a compromise -- Bush would issue the order to Texas but withdraw the United States from the particular protocol of the convention at issue to keep such circumstances from happening again. 'It was a tough decision for the president,' the official said. 'This was his home state.'"

Mark Sherman writes for the Associated Press: "The president was in the unusual position of siding with Medellin, a Mexican citizen whom police prevented from consulting with Mexican diplomats, as provided by international treaty.

"An international court ruled in 2004 that the convictions of Medellin and 50 other Mexicans on death row around the United States violated the 1963 Vienna Convention, which provides that people arrested abroad should have access to their home country's consular officials. The International Court of Justice, also known as the world court, said the Mexican prisoners should have new court hearings to determine whether the violation affected their cases.

"Bush, who oversaw 152 executions as Texas governor, disagreed with the decision. But he said it must be carried out by state courts because the United States had agreed to abide by the world court's rulings in such cases. The administration argued that the president's declaration is reason enough for Texas to grant Medellin a new hearing."

Linda Greenhouse writes in the New York Times that the Supreme Court, "in a majority opinion by Chief Justice John G. Roberts Jr., concluded that the treaty at issue, the Vienna Convention on Consular Relations, was not 'self-executing' -- that is, that it did not automatically become binding domestic law upon its ratification in 1969. Consequently, only the president and Congress working together to enact further legislation, and not the president alone, could make the treaty enforceable against the states, the court said.

"'The president has an array of political and diplomatic means available to enforce international obligations,' Chief Justice Roberts said, 'but unilaterally converting a non-self-executing treaty into a self-executing one is not among them.' He added, 'It should not be surprising that our Constitution does not contemplate vesting such power in the executive alone.'"

Savage writes in the LA Times: "At the White House, Press Secretary Dana Perino said the decision was a defeat, but on a narrow issue. 'We're disappointed with the decision, but we're going to accept it, and we're going to be reviewing it in regards to the impacts that it may have,' she said."

And as Savage notes, it was liberals who were most upset about the ruling -- for undercutting an international treaty.

"'The most disturbing aspect of this case is that Chief Justice Roberts is signaling that the United States can simply ignore its obligations under international treaties,' said Kathryn Kolbert, president of People for the American Way. 'It's a ruling that will further erode our standing in the world.'"

Another Test Upcoming

A more significant test of Bush's executive overreach is coming up -- when the court rules on a case that was argued yesterday.

Joan Biskupic writes in USA Today: "A Justice Department lawyer on Tuesday urged the Supreme Court to limit the legal rights of Americans abroad and rule that two men held by the U.S. military in Iraq cannot challenge their detention in a U.S. court. . . .

"The men's cases, being heard together, are the latest in a series of post-9/11 disputes before the high court testing detainees' rights to be heard by a federal judge. In prior cases, a majority of the justices have rejected the Bush administration's attempts to keep detainees of the U.S. military out of regular civilian courts."

Dahlia Lithwick writes in Slate: "The Bush administration's main argument in this case is a simple one -- a variation of which you may remember from the golden days of lawlessness at Guantanamo: Sure, the military authority in Iraq might look like it's composed of U.S. soldiers, the prisons may appear to be U.S. military jails, the whole effort may seem to be led by the U.S. president, but really these 'enemy combatants' are not under U.S. jurisdiction. Why? Well, just as American troops are merely renting out Gitmo from the Cubans, the authorities that captured and held Omar and Munaf are actually just part of a U.N.-mandated international force."

Meanwhile, In Iraq

Sholnn Freeman and Sudarsan Raghavan write in The Washington Post: "Fierce gun battles erupted between Iraqi security forces and Shiite militias in Basra, Baghdad and other cities Tuesday as the government, backed by U.S. and British reconnaissance planes, launched an offensive aimed at breaking the power of politically backed gunmen.

"The fiercest fighting took place in Basra neighborhoods where Iraqi forces targeted members of Shiite cleric Moqtada al-Sadr's Mahdi Army, further risking the collapse of a cease-fire that Sadr declared last summer. His fighters' stand-down has been widely credited with helping curb violence throughout the country during the U.S. troop buildup known as the surge. . . .

"It was unclear why U.S. forces would take part in a broad armed challenge to Sadr and his thousands-strong militia on the eve of Petraeus's assessment, which the Bush administration has said would greatly influence its decision on whether to draw down troop levels."

Michael Kamber and James Glanz write in the New York Times: "Even before the crackdown on militias began on Tuesday, Pentagon statistics on the frequency of militia and insurgent attacks suggested that after major security gains last fall, the conflict had drifted into something of a stalemate. Over all, violence has remained fairly steady over the past several months, but the streets have become tense and much more dangerous again after a period of calm. . . .

"If the cease-fire were to unravel, there is little doubt about the mayhem that could be stirred up by Mr. Sadr, who forced the United States military to mount two bloody offensives against his fighters in 2004 as much of the country exploded in violence."

Cheney Watch

My column yesterday, Cheney's Unforgivable Egotism, focused on the vice president's assertion in an ABC interview that when it comes to the war in Iraq, it is Bush -- not the soldiers and Marines who fight and die, or their families -- who is bearing the biggest burden.

Borzou Daragahi, writing in the Los Angeles Times, points out yet another outrageous assertion from that same interview: "Vice President Dick Cheney charged in an interview released Tuesday that Iran is trying to develop weapons-grade uranium, though international inspectors and U.S. intelligence services have not found evidence of such an effort.

"'Obviously, they're also heavily involved in trying to develop nuclear weapons enrichment, the enrichment of uranium to weapons-grade levels,' Cheney said, according to a transcript released by the White House of an interview done Monday in Turkey with ABC's Martha Raddatz.

"Iran insists its nuclear program is for peaceful energy production, but the U.S. and other Western countries fear Tehran will eventually develop nuclear weapons. . . .

"The vice president's statement was the second time in a week that a White House official has made an allegation regarding Iran's nuclear program and its intentions that did not square with publicly known facts.

"President Bush said last week that Iran's leaders had 'declared' they were seeking nuclear weapons. Iran has always denied the charge, and the White House later backpedaled, calling the president's remarks 'shorthand.'"

For more on that, see my Friday column, Bush's Alternate Reality.

Opinion Watch

The Portsmouth (N.H.) Herald editorial board writes: "N.H. Army National Guard Spc. David Stelmat, 27, of Littleton was killed by a roadside bomb in Iraq on Saturday. The day before, Army Pvt. Tyler Smith, 22, of Bethel, Maine, also died in Iraq, likely the result of a mortar attack on his base near Baghdad."

Disputing Cheney's assertion that Bush "carries the biggest burden, obviously," for decisions that put military personnel in harm's way, the editorial concludes: "Bush's leadership burden might have more merit if he had actually led smartly and wisely. He didn't, and the 'biggest burden, obviously' has been paid by the families of the fallen soldiers such as Spc. Stelmat and Pvt. Smith."

Pardon Watch

With one notable exception, Bush has parceled out pardons and commutations in a pinched and miserly way. His record continues.

The Associated Press reports: "President Bush pardoned 15 people Tuesday and commuted the prison sentence of another. Bush has been stingy about handing out such reprieves. With about nine months left in his administration, he has granted 157 pardons. That's less than half as many as Presidents Clinton or Reagan issued during their time in office. . . .

"Most of those on Bush's most recent pardon list were convicted of white-collar or drug offenses."

Among the beneficiaries of Bush's largess:

"¿ George Francis Bauckham of Oak Ridge, N.J., who received five years probation in 1958 for the unlawfully detention or delay of the mail by a postal employee. . . .

"¿ Marvin Robert Foster of Boca Raton, Fla., who was sentenced to a year of probation in 1968 for making a false statement in connection with a Federal Housing Administration loan. . . .

"Bush also commuted the sentence of Patricia Beckford of Portsmouth, Va., who since 1992 has been serving a 23-year prison sentence for conspiracy to distribute more than 50 grams of crack cocaine. Bush left intact a five-year term of probation."

What a Good Sport

James Gerstenzang writes in the Los Angeles Times: "If you can hit, drive or pedal better than anyone else, you've probably been invited to the White House and had your photo taken with President Bush. To football players, race-car drivers and Lance Armstrong, add this: anglers.

"On Tuesday, Bush's Oval Office champions were two bass-fishing tournament winners. With Alton Jones, who won $500,000, on one side and Judy Wong, who won $60,000, on the other, the president sought the right words to sum up their achievements.

"'I thought it was important to welcome these champs here to the White House so that -- you know, to encourage people to fish. There's nothing better than fishing,' said Bush, a sometime-fisherman who stocks a pond on his land near Crawford, Texas.

"Presidents have regularly invited sports icons to the White House, in a tradition that dates at least to the 1920s, when the Washington Senators were a winning baseball team and Calvin Coolidge was president.

"But as fan in chief, George W. Bush has reached beyond collegiate and professional athletes in football, baseball and basketball to include those who have triumphed on land (cross country), in the water (water polo) and in the air (gymnastics)."

Fundraising Watch

The Associated Press reports: "President Bush joined an old partner to raise serious campaign cash for Senate Republicans.

"The president headlined a private fundraiser Tuesday night at the home of Fred and Marlene Malek in the wealthy Washington suburb of McLean, Va. The dinner was raising $2 million for the National Republican Senatorial Committee, the campaign arm of the Senate GOP."

E-Mail Watch

Remember all those missing White House e-mails?

The White House on Friday tried to persuade a federal magistrate that it would be fruitless to undertake the court's proposed e-mail recovery plan. (See Pete Yost's report for the Associated Press.) Among other things, the White House argued that old computer hard drives have been destroyed, and that pulling data off the ones that remain would be expensive and time consuming.

The National Security Archive, which is suing the White House, demanding that it take steps to preserve and restore missing White House e-mails, responded yesterday. Via the emptywheel blog, here is the archive's reply and an affidavit from forensic technologist Al Lakhani. Lakhani describes why the White House's emergency backup tapes may not help recover all the missing e-mails. And he disputes the assertion that copying from hard drives would be costly and burdensome.

Correspondents' Dinner Watch

Amy Argetsinger and Roxanne Roberts write in The Washington Post: "With just a month left before the White House Correspondents' dinner and all the surrounding merriment/mayhem, the competition to hype celeb guests is on! Capitol File magazine has snagged late-night comedian Craig Ferguson as "host" of its after-party at the Newseum; when the editors heard Ferguson would be performing at the April 26 dinner, they put him on the cover of the upcoming issue."

We Have a Winner

Katherine S. Mangan writes for the Chronicle of Higher Education: "A medical illustrator from Dallas who spends his days drawing body parts and molecular structures has won The Chronicle's George W. Bush Presidential Library design contest.

"Lewis E. Calver, an associate professor and chair of biomedical communications at the University of Texas Southwestern Medical Center, beat out 120 other contestants, taking about 30 percent of the online vote with his beautifully drawn and carefully thought-out ' Hole in the Ground' design. . . .

"It shows a White House facade propped up on stilts to catch the attention of Bush stalwarts as they drive down the highway adjacent to SMU's campus. 'I liked the idea of a false fa¿ade showing the White House so people who still believe in his presidency can at least have some kind of inspiration, even if it's false inspiration,' Mr. Calver says.

"The design also features a reflecting pool. 'When people look down, they will see reflections of themselves and be reminded that the ones who voted for him were ultimately responsible,' he says. . . .

"For all of its biting commentary, Mr. Calver's design . . . wasn't as hostile as some of the entries submitted to The Chronicle. Several designs were based on toilet or bunker motifs and one of the 18 finalists was a 12-story underground building shaped like a missile with a lounge where visitors would be able to listen in on any U.S. phone call."

Live Online

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Cartoon Watch

Lee Judge, Mike Luckovich and Matt Davies on milestones; Ed Stein on the surge.

Tony Auth and Ben Sargent on Cheney's "So?"; Ann Telnaes and Scott Bateman animations take on Cheney's view of the burdens of war.

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