Thursday, July 17, 2008

This blogger, for one, would like to see the end of executive privilege

I feel like I'm the only one who's noticed - though, of course, I know it isn't true.

Once upon a time, the Founding Fathers got together and decided that we should have three branches of government. The idea was that if one branch of government got out of hand, or started to impose its agenda on the nation, or even began to act illegally, the other branches of government would reign it in. It's what veto power is about; it's what the Supreme Court is all about; it's what congressional approval is all about. America's particular system of checks and balances was a political innovation, and it's a system that is admired by much of the world. But . . . there's a big but.

The big but is George W. Bush. Bush has decided that instead of let the system of checks and balances do its job, he will instead attack our form of government and the benefits of a checks and balances system. Sure, he still uses the power of the veto; sure he still sends justices to the supreme court. But with two little words, he has nullified much of the Congress's ability to oversee the White House and keep his administration in check: executive privilege.

Now, you might say to yourself, "Yeah, but executive privilege is in the constitution, right?" No, executive privilege is not in the constitution. See this article. Now, the executive branch has historically argued that this privilege is part and parcel to the separation of powers, but not until 1974 was the concept of executive privilege confirmed by the Supreme Court - in United States vs. Nixon. Thanks, Richard Nixon, for just another one of your many rich contributions.

Since the Supreme Court's intent appears to have been to clarify and limit the concept of executive privilege, which had already been in use since Washington's time, I'm basically cool with that. And following Nixon's claims of executive privilege - ones that curiously resembled those now being made by George W., interestingly enough - nobody claimed it again until Clinton, so I'm cool with that too. But oh, our current president. Wikipedia shares with us the myriad instances in which George W. Bush has claimed executive privilege (this is long, so you may want to skim):

President George W. Bush first asserted executive privilege to deny disclosure of sought details regarding former Attorney General Janet Reno,[1] the scandal involving Federal Bureau of Investigation (FBI) misuse of organized-crime informants Whitey Bulger and Stephen Flemmi in Boston, and Justice Department deliberations about President Bill Clinton's fund-raising tactics, in December 2001.[6]

Bush invoked executive privilege "in substance" in refusing to disclose the details of Vice President Dick Cheney's meetings with energy executives, which was not appealed by the GAO. In a separate Supreme Court decision in 2004, however, Justice Anthony Kennedy noted "Executive privilege is an extraordinary assertion of power 'not to be lightly invoked.' United States v. Reynolds, 345 U.S. 1, 7 (1953).

Further, on June 28, 2007, Bush invoked executive privilege in response to congressional subpoenas requesting documents from former presidential counsel Harriet Miers and former political director Sara Taylor,[2] citing that:

The reason for these distinctions rests upon a bedrock presidential prerogative: for the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisors and between those advisors and others within and outside the Executive Branch.

On July 9, 2007, Bush again invoked executive privilege to block a congressional subpoena requiring the testimonies of Taylor and Miers. Furthermore,
White House Counsel Fred F. Fielding refused to comply with a deadline set by the chairman of the Senate Judiciary Committee to explain its privilege claim, prove that the president personally invoked it, and provide logs of which documents were being withheld. On July 25, 2007, the House Judiciary Committee voted to cite Miers and White House Chief of Staff Joshua Bolten for contempt of Congress.[8][9]

On July 13, less than a week after claiming executive privilege for Miers and Taylor, Counsel Fielding effectively claimed the privilege once again, this time in relation to documents related to the 2004 death of Army Ranger Pat Tillman. In a letter to the House Committee on Oversight and Government Reform, Fielding claimed certain papers relating to discussion of the friendly-fire shooting “implicate Executive Branch confidentiality interests” and would therefore not be turned over to the committee.[10]

On August 1, 2007, Bush invoked the privilege for the fourth time in little over a month, this time rejecting a subpoena for Karl Rove. The subpoena would have required the President's Senior Advisor to testify before the Senate Judiciary Committee in a probe over fired federal prosecutors. In a letter to Senate Judiciary Chairman Patrick Leahy, Fielding claimed that "Mr. Rove, as an immediate presidential advisor, is immune from compelled congressional testimony about matters that arose during his tenure and that relate to his official duties in that capacity...."[11]

Leahy claimed that President Bush was not involved with the employment terminations of U.S. attorneys. Furthermore, he asserted that the president's executive privilege claims protecting Josh Bolten, and Karl Rove are illegal. The Senator demanded that Bolten, Rove, Sara Taylor, and J. Scott Jennings comply "immediately" with their subpoenas, presumably to await a further review of these matters. This development paved the way for a Senate panel vote on whether to advance the citations to the full Senate. "It is obvious that the reasons given for these firings were contrived as part of a cover up and that the stonewalling by the White House is part and parcel of that same effort," Leahy concluded about these incidents. [12] [13] [14] [15]

Sadly, the Wikipedia article is incomplete. In late June, the Bush administration claimed executive privilege in a congressional investigation of whether the EPA's decision to refuse California the right to set its own emissions standards (WHY???) was political rather than scientific. And yesterday, the Bush administration claimed executive privilege again, in an invocation that many are calling creative or novel, and Representative Henry Waxman is calling "ludicrous." I'm in Waxman's camp.

I think it's easy to see the ways in which George W. Bush's version of executive privilege erodes the balance of power rather than supports it. Not to mention the ways in which it assaults the rights of the American people. I mean, we have a right to find out if our president is a criminal, right? If our vice president is a criminal? If both of them are criminals, and whether they've employed criminals, liars, and/or cheats in the positions below them? And yet, as long as these ludicrous claims of executive privilege hold up, we can't possibly know, because virtually no investigations can go forward.

I know it's late in the game, and I know Congress doesn't want to spend its time on a long legal battle against the White House. But for the sake of all of us, I wish they would take this to court. Not so that George W. Bush's power can be reined in for these last few short months of his presidency. Not at all. Rather, take it to court so that in the future, we'll have a stronger definition of executive privilege, and never again will a sitting president be permitted to hold the country and its people hostage to his whim.

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Blogger Anne G G said...

This post is so messy . . . I hope to come back and revise it and make it more coherent when I have more time. But not enough people seem to be talking about this issue, and congress, frankly, seems to be rolling over and taking it. Let's get moving, folks.

5:43 AM  
Blogger brd said...

I think that with all the war stuff going on, some issues like this one have been ignored. But I'm with you. It seems high time that the Supreme Court be brought into the discussion.

7:35 PM  
Blogger Anne G G said...

Oh, DS has certainly commented . . . I couldn't find the right commentary the other day or I would have posted it, but I believe he did draw some pretty clear connections between Nixon and Bush on this issue.

And, though I don't think some of these lesser issues are as important as the war, I do think they are related. It's all got to do with the same mindset - giving one's self permission to act unilaterally and to stave off accountability as long and hard as possible through smoke and mirrors, rather than operating in an environment of transparency, dialogue, and accountability. I mean, I don't really care if the president ordered the firings of US Attorneys - except that if he did it to disempower those who would stand up to members of his party, then he did it to strengthen his own position and that of his cohorts - which by extension strengthens his ability to intimidate and to act unilaterally.

It all seems to be a by-product of the neo-conservative position: just as the United States has the right to take unilateral action in the world to aggressively promote democracy, Bush has the right to take unilateral action in the country to promote his own version of what government should be. It's all done in search of a greater good, but it's the greater good only as Bush perceives it, without input from anybody else.

6:00 AM  
Blogger brd said...

This usurped privilege, perhaps it begins in search of a greater good. It ends in a deteriorated evil and it becomes defined, not by good at all, but only by power. It shrivels into a Javert but worse, because at least Javert did not except himself from his conservative conditions of justice. These leaders, apply a monolithic concept of justice to all but themselves.

12:40 PM  

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