Battered Congress Syndrome

By Dan Froomkin
Special to washingtonpost.com
Tuesday, June 24, 2008; 11:31 AM

President Bush doesn't hesitate to kick Congress around, but Congress just can't bring itself to kick back.

During oral arguments yesterday about whether a federal judge should enforce congressional subpoenas against a belligerent White House, representatives of the judicial and executive branches both noted that Congress hasn't exercised its full constitutional powers.

As Del Quentin Weber writes in The Washington Post, District Court Judge John D. Bates suggested that "the House could take other actions to compel the testimony. For example, the judge said, the House could order [White House Counsel Harriet] Miers's arrest and detention in a cell in the Capitol until she agreed to testify. Such actions were fairly common in the 19th century."

And Susan Crabtree writes for the Hill that Carl Nichols, the principal deputy associate attorney general, "argued that Congress could have decided to withhold Justice Department appropriations or refused to pass judicial nominations."

But the Democratic-controlled Congress, of course, hasn't done either of those things. Members instead chose to solicit help from the judicial branch -- the constitutional equivalent of running to Mommy. And not surprisingly, this didn't make Mommy very happy.

Neil A. Lewis writes in the New York Times that Bates, "who participated in spirited arguments with both sides for nearly three hours, summed up the court's predicament, saying, 'Whether I rule for the executive branch or I rule for the legislative branch, I'm going to disrupt the balance.'

"The case, with its fundamental issues of the separation of powers and the extent to which the executive branch may withhold information, involves efforts by Democrats on the committee to investigate whether the White House exercised improper political influence in the firing of several federal prosecutors. The House has voted to hold in contempt Harriet E. Miers, the former White House counsel, and Joshua C. Bolten, the White House chief of staff, who have refused to provide documents and testimony about the dismissals of the United States attorneys."

Overall, however, Bates expressed healthy skepticism about the White House's unprecedented claim of absolute immunity from oversight.

James Rowley writes for Bloomberg that Bates "repeatedly challenged an administration lawyer to cite legal justification for the refusal of former White House Counsel Harriet Miers and Chief of Staff Joshua Bolten to obey subpoenas to appear before the House Judiciary Committee. . . .

"'There is no case that supports the absolute immunity proposition that you have before the court,' Bates told Carl Nichols, the principal deputy associate attorney general. Cases cited by the government 'seem to support something less than an absolute immunity,' the judge said. . . .

"Irvin B. Nathan, the House's general counsel, argued that Miers was required to at least appear before the committee and invoke Bush's executive-privilege claim on a question-by-question basis. That would give the committee -- and possibly the courts - - the ability to weigh the panel's need for information against Bush's confidentiality claims, he said.

"'No man is a judge of his own privilege,' Nathan told Bates."

But Rowley notes that Bates also "questioned whether the court 'should jump into' the fight between Congress and Bush as the president's term is nearing its end. In six months, 'the subpoena will expire' and 'there will be a new president and a new Congress,' Bates said."

FISA Watch

I wrote in Friday's column about the latest greatest congressional cave-in. The House approved a warrantless surveillance bill that would broadly extend Bush's powers and essentially guarantee immunity against civil lawsuits to the telecommunications companies that participated in Bush's program. The new law would prohibit federal judges from addressing the merits of these suits, effectively telling them to simply make sure each company received a permission slip from the president.

The Philadelphia Inquirer editorial board writes: "The cover-up is nearly complete. With congressional approval, the Bush administration's warrantless eavesdropping on Americans' overseas phone calls and e-mail for nearly six years will be spared the third-degree treatment by any judge or jury.

"At the same time, Bush or his successor would have virtual free rein to continue the massive antiterror surveillance sweeps of communications to and from this country.

"Whatever the risk from another terror attack, Americans' privacy would be the assured casualty from these antiterror tactics."

Executive Power Watch

James Risen writes in the New York Times: "President Bush's drive for the greatest expansion in executive power since the Nixon era is slowly grinding to a halt after years of challenges by the courts, Congress, and now, the political calendar. Yet that hardly means that he has been pushed all the way back to Sept. 10, 2001.

"The United States Supreme Court recently ruled against Mr. Bush, saying that detainees at Guantánamo Bay can contest their detention in court. But Congress has allowed some key administration tactics in the war on terror to continue, including the use of some harsh interrogation techniques by the Central Intelligence Agency and broad authority to wiretap Americans.

"As a result, the next president will inherit powers much expanded since the 2001 attacks on New York and Washington."

Addington's a Bear

The man who knows the White House's deepest, darkest secrets is coming to Capitol Hill on Thursday to testify at a House Judiciary Committee hearing on the administration's interrogation policies.

Yes, David S. Addington -- Vice President Cheney's chief of staff, lead loyalist and deputy puppet-master -- is actually going to take questions in public. See my September 5 column for more about how Addington has been at the center of pretty much all the Bush administration's assertions of unfettered executive power in wartime.

Over at Slate, I write about how important it is that the Judiciary Committee not blow its big chance to get some important information out of Addington. My suggestion -- given how tough a nut Addington will be to crack -- is for committee Democrats not to fire random, glancing shots in five-minute round-robins, but to collectively cede their time to one or two members, ideally former prosecutors, to subject Addington to a sustained and well-planned examination. I even have a few suggested lines on inquiry.

Bush on Trial

There was a pretrial hearing before a military commission at Guantanamo Bay last week for Mohammad Jawad, a minor when he was captured in Afghanistan after allegedly throwing a hand grenade that wounded two U.S. soldiers and their Afghan interpreter. Jawad's military defense lawyer, Maj. David Frakt, argued that charges should be dismissed because Jawad was tortured -- subjected to 14 consecutive days of sleep deprivation.

Then, in his closing argument, Frakt delivered a scathing indictment against the president of the United States.

Here, via the ACLU, is the text of Frakt's extraordinary closing argument. Some excerpts:

"On Feb 7, 2002, President Bush issued an order. The order stated, in pertinent part 'I accept the legal conclusion of the Department of Justice and determine that Common Article 3 of Geneva does not apply to either al Qaeda or Taliban detainees.'

"'I determine that the Taliban detainees do not qualify as prisoners of war . . . al Qaeda detainees also do not qualify as prisoners of war.'

"'Our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. . . . As a matter of policy the United States Armed Forces shall continue to treat detainees humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.'

"With these fateful and ill-advised words, President Bush, our Commander-in-Chief, perhaps unwittingly, perhaps not, started the U.S. down a slippery slope, a path that quickly descended, stopping briefly in the dark, Machiavellian world of 'the ends justify the means,' before plummeting further into the bleak underworld of barbarism and cruelty, of 'anything goes,' of torture. It was a path that led inexorably to the events that brings us here today, the pointless and sadistic treatment of Mohammad Jawad, a suicidal teenager.

"President Bush's words were important, and deserve special attention. For those of us in the military who have faithfully attended our annual Law of Armed Conflict training, or in my case, have given the training many times, the Geneva Conventions and humane treatment were synonymous, they were one and the same. The Geneva Conventions represented the baseline, they embodied the determination of the world to make war a more humane enterprise, to prevent a descent into wholesale barbarity, as had occurred during the Second World War. But now we were being told that humane meant something else, something less, than the Geneva Conventions. And we were being told that we could act inconsistently with the Geneva Conventions, when military necessity demanded it. Those of us who were familiar with the Geneva Conventions, whose job it was to know them, were puzzled and deeply troubled by the President's order and had serious forebodings about the implications of such a decision. We understood that there were no gaps in Geneva, there were was no one who fell outside their protection, that Common Article 3 applied to everyone.

"But the civilian political appointees of this administration intentionally cut out the real experts on the law of armed conflict, the uniformed military lawyers, the JAGs, were out of the loop, for fear that their devotion to the Geneva Conventions might pose an obstacle to their intended course of action. The State Department, led by Colin Powell, tried to raise a red flag, but to no avail. Instead, the administration chose to rely on the infamous torture memos by John Yoo, Robert Delahunty and Jay Bybee. These secret memos attempted to redefine torture for the purpose of providing legal cover for administration officials who approved the use of patently unlawful tactics. These legal opinions, now disgraced, disavowed, and relegated to the scrapheap of history where they belong, laid the groundwork for the wholesale and systematic abuse of detainees which ultimately ensnared my client, Mohammad Jawad.

"I'm sure that all of these people, the President included, thought they were doing what was best. But what sometimes appears to be in the interests of America at first glance, upon further reflection reveals itself not to be. . . .

"The Feb 7, 2002, order of President Bush invited the rule of law to be circumvented. Even though the President paid lip service to humane treatment, by stating that detainees were not legally entitled to be treated humanely, and by his qualification of 'to the extent appropriate and consistent with military necessity' the implication was clear -- it was only policy to be humane, not a legal requirement, and there would be no legal consequences to those who didn't treat detainees humanely, if there was some military justification for it. Of course, during a 'global war,' it is possible to rationalize almost anything under the general rubric of military necessity. After all, if there is even a slight possibility that some military advantage might be gained by some course of action, don't we owe it to our troops to do it? If there is even a minute chance that some sliver of intelligence might be gleaned about an impending terrorist attack, don't we owe it to the American people to do everything in our power to extract it? The obvious answer to most of those working in detainee operations at Guantanamo and elsewhere was 'Yes.' . . .

"America is a nation founded on a reverence for the rule of law. We should never forget that when we take an oath to enlist or be commissioned as an officer in the United States Armed Forces, we do not swear to defend the United States, we swear 'to support and defend the Constitution of the United States against all enemies, foreign and domestic.' The Oath of Office for the President contains similar words: 'I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.' Tragically, under the undeniably heavy pressure to defend Americans from terrorist attack, some of our military and civilian leaders lost sight of their obligation to defend the Constitution as well. . . .

"After six and a half years, we now know the truth about the detainees at Guantanamo: some of them are terrorists, some of them are foot soldiers, and some of them were just innocent people, caught in the wrong place at the wrong time. But the detainees at Guantanamo have one thing in common -- with each other, and with us -- they are all human beings, and they are all worthy of humane treatment. . . .

"February 7, 2002. America lost a little of its greatness that day. We lost our position as the world's leading defender of human rights, as the champion of justice and fairness and the rule of law. But it is a testament to the continuing greatness of this nation, that I, a lowly Air Force Reserve Major, can stand here before you today, with the world watching, without fear of retribution, retaliation or reprisal, and speak truth to power. I can call a spade a spade, and I can call torture, torture.

"Today, Your Honor, you have an opportunity to restore a bit of America's lost luster, to bring back some small measure of the greatness that was lost on Feb 7, 2002, to set us back on a path that leads to an America which once again stands at the forefront of the community of nations in the arena of human rights.

"Sadly, this military commission has no power to do anything to the enablers of torture such as John Yoo, Jay Bybee, Robert Delahunty, Alberto Gonzales, Douglas Feith, David Addington, William Haynes, Vice President Cheney and Donald Rumsfeld, for the jurisdiction of military commissions is strictly and carefully limited to foreign war criminals, not the home-grown variety. All you can do is to try to send a message, a clear and unmistakable message that the U.S. really doesn't torture, and when we do, we own up to it, and we try to make it right."

Detainee Watch

Josh White and Del Quentin Wilber write in The Washington Post: "A federal appeals court in Washington has invalidated the Bush administration's finding that a detainee held for more than six years in the Guantanamo Bay military prison in Cuba is an 'enemy combatant,' and has ordered the government to release him, transfer him or offer him a new hearing."

William Glaberson writes in the New York Times: "The court's decision was a new setback for the Bush administration, which has suffered a string of judicial defeats on Guantánamo policy."

Iraqi Benchmark Watch

James Glanz writes in the New York Times: "Beyond the declines in overall violence in Iraq, several crucial measures the Bush administration uses to demonstrate economic, political and security progress are either incorrect or far more mixed than the administration has acknowledged, according to a report released Monday by the Government Accountability Office.

"Over all, the report says, the American plan for a stable Iraq lacks a strategic framework that meshes with the administration's goals, is falling out of touch with the realities on the ground and contains serious flaws in its operational guidelines. . . .

"Administration figures, according to the report, broadly overstate gains in some categories, including the readiness of the Iraqi Army, electricity production and how much money Iraq is spending on its reconstruction.

"And the security gains themselves rest in large part not on broad-scale advances in political and social reconciliation and a functioning Iraqi government, but on a few specific advances that remain fragile, the report says. The relatively calm period rests mostly on the American troop increase, a shaky cease-fire declared by militias loyal to the Shiite cleric Moktada al-Sadr, and an American-led program to pay former insurgents to help keep the peace, the report says."

The report notes that "In January 2007, the President announced The New Way Forward to stem violence in Iraq and enable the Iraqi government to foster national reconciliation. This new strategy established goals and objectives to achieve over 12 to 18 months, or by July 2008."

The plan, as Glanz writes, included "achievements like enacting a law to regulate Iraq's oil industry and handing all of Iraq's provinces over to Iraqi control, the report says. As of this week, only 9 of 18 provinces had been handed over, according to the report, and the crucial oil law remains to be enacted.

"In other cases, what appeared to be promising political developments have faltered. Although the Iraqi Parliament enacted a law reforming the heavy-handed purge from government of former members of the Baath Party, no members have yet been named to the commission created to carry out the law.

"Still more important, the report asserts, the administration's plan is not a strategy at all, but more a series of operational prescriptions scattered among various documents reviewed by the accountability office."

Karen DeYoung writes in The Washington Post: "The report, after a bleak GAO assessment last summer, cited little improvement in the ability of the Iraqi security forces to act independently of the U.S. military. . . . The report also judged that key Iraqi ministries spent less of their allocated budgets last year than in previous years, and said that oil and electricity production had repeatedly not met U.S. targets."

Opinion Watch

David Brooks writes in the New York Times that the results of the surge are a vindication for Bush and Cheney and what had been perceived as character flaws: "Every personal trait that led Bush to make a hash of the first years of the war led him to make a successful decision when it came to this crucial call.

"Bush is a stubborn man. Well, without that stubbornness, that unwillingness to accept defeat on his watch, he never would have bucked the opposition to the surge.

"Bush is an outrageously self-confident man. Well, without that self-confidence he never would have overruled his generals. . . .

"Bush is also a secretive man who listens too much to Dick Cheney. Well, the uncomfortable fact is that Cheney played an essential role in promoting the surge. Many of the people who are dubbed bad guys actually got this one right."

Derrick Z. Jackson writes in his Boston Globe opinion column: "It took five years, the deaths of 4,100 US soldiers, and the wounding of 30,000 more to make Iraq safe for Exxon. . . .

"[W]hile the American taxpayer is being turned inside out by the war, and while families bury the brave, the corporate colonialists get all the resources."

Iran Watch

H.D.S. Greenway writes in his Boston Globe opinion column: "Is the Bush White House talking itself into attacking Iran as its moral duty to save the world from Iran? Condoleezza Rice's State Department is hoping for a diplomatic solution, and Robert Gates, at Defense, is not the attack dog that his predecessor, Donald Rumsfeld, was. For the moment they seem to have Bush's ear. But although our supernationalist vice president, Dick Cheney, may not wield the influence he did in Bush's first term, he retains his unshakable belief in the use of force. And Bush retains his messianic streak."

In Bush's Wake

The Associated Press report: "Nearly 40,000 travelers will remember U.S. President George W. Bush's stopover in London. Their flights were canceled or delayed at Heathrow Airport to accommodate him, according to British Airways."

David Millward writes in the Telegraph: "Handling the President's airborne entourage of two Boeing 747s, one Boeing 757 and four helicopters led to the closure of one runway for brief periods during a rehearsal and also when Mr Bush arrived and left last weekend. . . .

"The decision to use one of the world's busiest airports for the American president's airborne entourage rather than a military airfield was condemned by Willie Walsh, British Airways chief executive. . . .

"'The disruption we experienced over four days during the last week was something out of the ordinary - and also completely unnecessary,' he told BA staff in the company newspaper."

Homage Watch

Marisa Lagos writes in the San Francisco Chronicle about the efforts of the Presidential Memorial Commission of San Francisco to rename the "Oceanside Water Pollution Control Plant" the "George W. Bush Sewage Plant."

"[T]he handful of friends who dreamed this up over beers one night say they have already collected 8,500 signatures in support of the plan - 1,300 more than the minimum needed to put the question to city voters in November. . . .

"Organizers of the petition drive believe the measure will pass, noting that 2006's Proposition J calling for the impeachment of Bush and Vice President Dick Cheney passed with 58 percent of the vote.

"The biggest opposition in this Democratic stronghold, McConnell said, is people who oppose naming anything after the 43rd president."

Cartoon Watch

David Horsey on the bill collectors, Bill Mitchell on Bush's timeline and Justin Bilicki on reducing harmful emissions.

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