The Commons is a weblog for concerned citizens of southeast Iowa and their friends around the world. It was created to encourage grassroots networking and to share information and ideas which have either been suppressed or drowned out in the mainstream media.

"But if the cause be not good, the king himself hath a heavy reckoning to make, when all those legs and arms and heads, chopped off in battle, shall join together at the latter day and cry all 'We died at such a place;' some swearing, some crying for a surgeon, some upon their wives left poor behind them, some upon the debts they owe, some upon their children rawly left. I am afeard there are few die well that die in a battle; for how can they charitably dispose of any thing, when blood is their argument? Now, if these men do not die well, it will be a black matter for the king that led them to it; whom to disobey were against all proportion of subjection." (Henry V, Act V, Scene 4)

Saturday, March 24, 2007

Robert Kuttner - Gonzales should be impeached

Gonzales should be impeached

THE HOUSE of Representatives should begin impeachment proceedings against Attorney General Alberto Gonzales.

Gonzales, the nation's highest legal officer, has been point man for serial assaults against the rule of law, most recently in the crude attempt to politicize criminal prosecutions. Obstruction of a prosecution is a felony, even when committed by the attorney general.

The firings of US attorneys had multiple political motives, all contrary to longstanding practice. In some cases, Republican politicians and the White House were angry that prosecutors were not going after Democrats with sufficient zeal. In other cases, they wanted the prosecutors to lighten up on Republicans. In still others, exemplary prosecutors were shoved aside to make room for rising Republican politicians being groomed for higher office.

It's hard to imagine a more direct assault on the impartiality of the law or the professionalism of the criminal justice system. There are several other reasons to remove Gonzales, all involving his cavalier contempt for courts and liberties of citizens, most recently in the FBI's more than 3,000 cases of illegal snooping on Americans.

Why impeachment? In our system of checks and balances, the Senate confirms members of the Cabinet, but impeachment for cause is the only way to remove them. The White House, by refusing to cooperate, has now left Congress no other recourse.

Instead of responding to lawful subpoenas, President Bush has invited congressional leaders to meet informally with Karl Rove and other officials involved in the prosecutor firings, with no sworn testimony and no transcript. Rove narrowly escaped a perjury indictment in the Cheney/Libby/Wilson affair. You might think these people had something to hide.

After the administration refused to cooperate, Republican Senator Arlen Specter inadvertently gave the best rationale for impeachment. Referring to the White House invocation of executive privilege, Specter warned, "If there is to be a confrontation, it's going to take two years or more to get it resolved in court."

Exactly so. By contrast, an impeachment inquiry could be completed in a matter of months. The White House, knowing the stakes, would find it much harder to stonewall. And Gonzales might well be asked to resign rather than exposing the administration to more possible evidence of illegality.

In refusing to cooperate, Bush puffed himself up to the swaggering truculence that has worn so thin, declaring, "We will not cooperate with a partisan fishing expedition." But this investigation is hardly partisan, since several Republican senators and congressmen have called for Gonzales to resign. And if there were ever a legitimate subject of full congressional investigation, tampering with criminal investigations on political grounds is surely one.

As for fishing expeditions, compared with what? The Whitewater investigation ended with no charges related to the original investigation and veered instead into sexual exposé -- which had what connection with Whitewater? Now there was a partisan fishing expedition.

But can the House impeach the attorney general? The Constitution is clear that Congress may impeach "all civil officers of the United States." In our history, the House has impeached two presidents, and just one member of the Cabinet, William Belknap, secretary of war under president Ulysses S. Grant.

Belknap had profited from kickbacks by military contractors. The House began impeachment proceedings, documented the charges, and just before the articles were formally voted, on March 2, 1876, Belknap resigned. But the House voted impeachment anyway. The reason, as House Judiciary Chairman J. Proctor Knott explained to the Senate, "was that his infamy might be rendered conspicuous, historic, eternal, in order to prevent the occurrence of like offenses in the future."

A fine discussion of the Belknap precedent was written last December on the legal website, by, of all people, President Nixon's former legal counsel John Dean. (Astoundingly, the best lawyer the Bush White House can find for advice on stonewalling is another Watergate veteran, Fred Fielding.)

And speaking of Nixon, there's another reason to impeach Gonzales. Though the assaults on the Constitution by Bush and Cheney surely rise to impeachable offenses, the Democratic leadership has been loath to use the impeachment process. The fear is that partisan polarization, so close to the end of Bush's term, would overshadow the issues.

But now, the offenses of a Cabinet member criticized by both parties, and the stonewalling by the White House, have given ample justification. It's time for an impeachment, not just to oust Gonzales, but as a salutary warning to his superiors.

Robert Kuttner is co-editor of The American Prospect and a fellow at Demos. His column appears regularly in the Globe.

Frank Rich - When Will Fredo Get Whacked?

When Will Fredo Get Whacked?

PRESIDENT BUSH wants to keep everything that happens in his White House secret, but when it comes to his own emotions, he’s as transparent as a teenager on MySpace.

On Monday morning he observed the Iraq war’s fourth anniversary with a sullen stay-the-course peroration so perfunctory he seemed to sleepwalk through its smorgasbord of recycled half-truths (Iraqi leaders are “beginning to meet the benchmarks”) and boilerplate (“There will be good days, and there will be bad days”). But at a press conference the next day to defend his attorney general, the president was back in the saddle, guns blazing, Mr. Bring ’Em On reborn. He vowed to vanquish his Democratic antagonists much as he once, so very long ago, pledged to make short work of insurgents in Iraq.

The Jekyll-and-Hyde contrast between these two performances couldn’t be a more dramatic indicator of Mr. Bush’s priorities in his presidency’s endgame. His passion for protecting his power and his courtiers far exceeds his passion for protecting the troops he’s pouring into Iraq’s civil war. But why go to the mat for Alberto Gonzales? Even Bush loyalists have rarely shown respect for this crony whom the president saddled with the nickname Fredo; they revolted when Mr. Bush flirted with appointing him to the Supreme Court and shun him now. The attorney general’s alleged infraction — misrepresenting a Justice Department purge of eight United States attorneys, all political appointees, for political reasons — seems an easy-to-settle kerfuffle next to his infamous 2002 memo dismissing the Geneva Conventions’ strictures on torture as “quaint” and “obsolete.”

That’s why the president’s wild overreaction is revealing. So far his truculence has been largely attributed to his slavish loyalty to his White House supplicants, his ideological belief in unilateral executive-branch power and, as always, his need to shield the Machiavellian machinations of Karl Rove (who installed a protégé in place of one of the fired attorneys). But the fierceness of Mr. Bush’s response — to the ludicrous extreme of forbidding transcripts of Congressional questioning of White House personnel — indicates there is far more fire to go with all the Beltway smoke.

Mr. Gonzales may be a nonentity, but he’s a nonentity like Zelig. He’s been present at every dubious legal crossroads in Mr. Bush’s career. That conjoined history began in 1996, when Mr. Bush, then governor of Texas, was summoned for jury duty in Austin. To popular acclaim, he announced he was glad to lend his “average guy” perspective to a drunken driving trial. But there was one hitch. On the juror questionnaire, he left blank a required section asking, “Have you ever been accused, or a complainant, or a witness in a criminal case?”

A likely explanation for that omission, unknown to the public at the time, was that Mr. Bush had been charged with disorderly conduct in 1968 and drunken driving in 1976. Enter Mr. Gonzales. As the story is told in “The President’s Counselor,” a nonpartisan biography by the Texas journalist Bill Minutaglio, Mr. Gonzales met with the judge presiding over the trial in his chambers (a meeting Mr. Gonzales would years later claim to have “no recollection” of requesting) and saved his client from jury duty. Mr. Minutaglio likens the scene to “The Godfather” — casting Mr. Gonzales not as the feckless Fredo, however, but as the “discreet ‘fixer’ attorney,” Robert Duvall’s Tom Hagen.

Mr. Gonzales’s career has been laced with such narrow escapes for both him and Mr. Bush. As a partner at the Houston law firm of Vinson & Elkins, Mr. Gonzales had worked for Enron until 1994. After Enron imploded in 2001, reporters wanted to know whether Ken Lay’s pals in the Bush hierarchy had received a heads up about the company’s pending demise before its unfortunate shareholders were left holding the bag. The White House said that Mr. Gonzales had been out of the Enron loop “to the best of his recollection.” This month Murray Waas of The National Journal uncovered a more recent close shave: Just as Justice Department investigators were about to examine “documents that might have shed light on Gonzales’s role” in the administration’s extralegal domestic wiretapping program last year, Mr. Bush shut down the investigation.

It was Mr. Gonzales as well who threw up roadblocks when the 9/11 Commission sought documents and testimony from the White House about the fateful summer of 2001. Less widely known is Mr. Gonzales’s curious behavior in the C.I.A. leak case while he was still White House counsel. When the Justice Department officially notified him on the evening of Sept. 29, 2003, that it was opening an investigation into the outing of Valerie Wilson, he immediately informed Andrew Card, Mr. Bush’s chief of staff. But Mr. Gonzales waited another 12 hours to officially notify the president and inform White House employees to preserve all materials relevant to the investigation. As Chuck Schumer said after this maneuver became known, “Every good prosecutor knows that any delay could give a culprit time to destroy the evidence.”

Now that 12-hour delay has been matched by the 18-day gap in the Justice Department e-mails turned over to Congress in the dispute over the attorney purge. And we’re being told by Tony Snow that Mr. Bush has “no recollection” of hearing anything about the firings. But even these literal echoes of Watergate cannot obliterate the contours of the story this White House wants to hide.

Do not be distracted by the apples and oranges among the fired attorneys. Perhaps a couple of their forced resignations were routine. But in other instances, incriminating evidence coalesces around a familiar administration motive: its desperate desire to cover up the corruption that soiled what was supposed to be this White House’s greatest asset, its protection of the nation’s security. This was the motive that drove the White House to vilify Joseph Wilson when he challenged fraudulent prewar intelligence about Saddam’s W.M.D. The e-mails in the attorney flap released so far suggest that this same motive may have driven the Justice Department to try mounting a similar strike at Patrick Fitzgerald, the United States attorney charged with investigating the Wilson leak.

In March 2005, while preparing for the firings, Mr. Gonzales’s now-jettisoned chief of staff, D. Kyle Sampson, produced a chart rating all 93 United States attorneys nationwide. Mr. Fitzgerald, widely admired as one of the nation’s best prosecutors (most famously of terrorists), was somehow slapped with the designation “not distinguished.” Two others given that same rating were fired. You have to wonder if Mr. Fitzgerald was spared because someone in a high place belatedly calculated the political firestorm that would engulf the White House had this prosecutor been part of a Saturday night massacre in the middle of the Wilson inquiry.

Another canned attorney to track because of her scrutiny of Bush administration national security scandals is Carol Lam. She was fired from her post in San Diego after her successful prosecution of Representative Duke Cunningham, the California Republican who took $2.4 million in bribes from defense contractors. Mr. Rove has publicly suggested that Ms. Lam got the ax because “she would not commit resources to prosecute immigration offenses.” That’s false. Last August an assistant attorney general praised her for doubling her immigration prosecutions; last week USA Today crunched the statistics and found that she ranked seventh among her 93 peers in successful prosecutions for 2006, with immigration violations accounting for the largest single crime category prosecuted during her tenure.

To see what Mr. Rove might be trying to cover up, look instead at what Ms. Lam was up to in May, just as the Justice Department e-mails indicate she was being earmarked for removal. Building on the Cunningham case, she was closing in on Dusty Foggo, the C.I.A.’s No. 3 official and the director of its daily operations. Mr. Foggo had been installed in this high intelligence position by Mr. Bush’s handpicked successor to George Tenet as C.I.A. director, Porter Goss.

Ms. Lam’s pursuit sped Mr. Foggo’s abrupt resignation; Mr. Goss was out too after serving less than two years. Nine months later — just as Ms. Lam stepped down from her job in February — Mr. Foggo and a defense contractor who raised more than $100,000 for the 2004 Bush-Cheney campaign were indicted by a grand jury on 11 counts of conspiracy and money laundering in what The Washington Post called “one of the first criminal cases to reach into the C.I.A.’s clandestine operations in Europe and the Middle East.” Because the allegations include the compromising of classified information that remains classified, we don’t know the full extent of the damage to an agency and a nation at war.

Not yet anyway. “I’m not going to resign,” Mr. Gonzales asserted last week as he played the minority card, rounding up Hispanic supporters to cheer his protestations of innocence. “I’m going to stay focused on protecting our kids.” Actually, he’s going to stay focused on protecting the president. Once he can no longer be useful in that role, it’s a sure thing that like Scooter before him, Fredo will be tossed overboard.

N.Y. Police Spied Broadly Before G.O.P. Convention

N.Y. Police Spied Broadly Before G.O.P. Convention

For at least a year before the 2004 Republican National Convention, teams of undercover New York City police officers traveled to cities across the country, Canada and Europe to conduct covert observations of people who planned to protest at the convention, according to police records and interviews.

From Albuquerque to Montreal, San Francisco to Miami, undercover New York police officers attended meetings of political groups, posing as sympathizers or fellow activists, the records show.

They made friends, shared meals, swapped e-mail messages and then filed daily reports with the department’s Intelligence Division. Other investigators mined Internet sites and chat rooms.

From these operations, run by the department’s “R.N.C. Intelligence Squad,” the police identified a handful of groups and individuals who expressed interest in creating havoc during the convention, as well as some who used Web sites to urge or predict violence.

But potential troublemakers were hardly the only ones to end up in the files. In hundreds of reports stamped “N.Y.P.D. Secret,” the Intelligence Division chronicled the views and plans of people who had no apparent intention of breaking the law, the records show.

These included members of street theater companies, church groups and antiwar organizations, as well as environmentalists and people opposed to the death penalty, globalization and other government policies. Three New York City elected officials were cited in the reports.

In at least some cases, intelligence on what appeared to be lawful activity was shared with police departments in other cities. A police report on an organization of artists called Bands Against Bush noted that the group was planning concerts on Oct. 11, 2003, in New York, Washington, Seattle, San Francisco and Boston. Between musical sets, the report said, there would be political speeches and videos.

“Activists are showing a well-organized network made up of anti-Bush sentiment; the mixing of music and political rhetoric indicates sophisticated organizing skills with a specific agenda,” said the report, dated Oct. 9, 2003. “Police departments in above listed areas have been contacted regarding this event.”

Police records indicate that in addition to sharing information with other police departments, New York undercover officers were active themselves in at least 15 places outside New York — including California, Connecticut, Florida, Georgia, Illinois, Massachusetts, Michigan, Montreal, New Hampshire, New Mexico, Oregon, Tennessee, Texas and Washington, D.C. — and in Europe.

The operation was mounted in 2003 after the Police Department, invoking the fresh horrors of the World Trade Center attack and the prospect of future terrorism, won greater authority from a federal judge to investigate political organizations for criminal activity.

To date, as the boundaries of the department’s expanded powers continue to be debated, police officials have provided only glimpses of its intelligence-gathering.

Now, the broad outlines of the preconvention operations are emerging from records in federal lawsuits that were brought over mass arrests made during the convention, and in greater detail from still-secret reports reviewed by The New York Times. These include a sample of raw intelligence documents and of summary digests of observations from both the field and the department’s cyberintelligence unit.

Paul J. Browne, the chief spokesman for the Police Department, confirmed that the operation had been wide-ranging, and said it had been an essential part of the preparations for the huge crowds that came to the city during the convention.

“Detectives collected information both in-state and out-of-state to learn in advance what was coming our way,” Mr. Browne said. When the detectives went out of town, he said, the department usually alerted the local authorities by telephone or in person.

Under a United States Supreme Court ruling, undercover surveillance of political groups is generally legal, but the police in New York — like those in many other big cities — have operated under special limits as a result of class-action lawsuits filed over police monitoring of civil rights and antiwar groups during the 1960s. The limits in New York are known as the Handschu guidelines, after the lead plaintiff, Barbara Handschu.

“All our activities were legal and were subject in advance to Handschu review,” Mr. Browne said.

Before monitoring political activity, the police must have “some indication of unlawful activity on the part of the individual or organization to be investigated,” United States District Court Judge Charles S. Haight Jr. said in a ruling last month.

Christopher Dunn, the associate legal director of the New York Civil Liberties Union, which represents seven of the 1,806 people arrested during the convention, said the Police Department stepped beyond the law in its covert surveillance program.

“The police have no authority to spy on lawful political activity, and this wide-ranging N.Y.P.D. program was wrong and illegal,” Mr. Dunn said. “In the coming weeks, the city will be required to disclose to us many more details about its preconvention surveillance of groups and activists, and many will be shocked by the breadth of the Police Department’s political surveillance operation.”

The Police Department said those complaints were overblown.

On Wednesday, lawyers for the plaintiffs in the convention lawsuits are scheduled to begin depositions of David Cohen, the deputy police commissioner for intelligence. Mr. Cohen, a former senior official at the Central Intelligence Agency, was “central to the N.Y.P.D.’s efforts to collect intelligence information prior to the R.N.C.,” Gerald C. Smith, an assistant corporation counsel with the city Law Department, said in a federal court filing.

Balancing Safety and Surveillance

For nearly four decades, the city, civil liberties lawyers and the Police Department have fought in federal court over how to balance public safety, free speech and the penetrating but potentially disruptive force of police surveillance.

After the Sept. 11 attacks, Raymond W. Kelly, who became police commissioner in January 2002, “took the position that the N.Y.P.D. could no longer rely on the federal government alone, and that the department had to build an intelligence capacity worthy of the name,” Mr. Browne said.

Mr. Cohen contended that surveillance of domestic political activities was essential to fighting terrorism. “Given the range of activities that may be engaged in by the members of a sleeper cell in the long period of preparation for an act of terror, the entire resources of the N.Y.P.D. must be available to conduct investigations into political activity and intelligence-related issues,” Mr. Cohen wrote in an affidavit dated Sept. 12, 2002.

In February 2003, the Police Department, with Mayor Michael R. Bloomberg’s support, was given broad new authority by Judge Haight to conduct such monitoring. However, a senior police official must still determine that there is some indication of illegal activity before an inquiry is begun.

An investigation by the Intelligence Division led to the arrest — coincidentally, three days before the convention — of a man who spoke about bombing the Herald Square subway station. In another initiative, detectives were stationed in Europe and the Middle East to quickly funnel information back to New York.

When the city was designated in February 2003 as the site of the 2004 Republican National Convention, the department had security worries — in particular about the possibility of a truck bomb attack near Madison Square Garden, where events would be held — and logistical concerns about managing huge crowds, Mr. Browne said.

“We also prepared to contend with a relatively small group of self-described anarchists who vowed to prevent delegates from participating in the convention or otherwise disrupt the convention by various means, including vandalism,” Mr. Browne said. “Our goal was to safeguard delegates, demonstrators and the general public alike during the convention.”

In its preparations, the department applied the intelligence resources that had just been strengthened for fighting terrorism to an entirely different task: collecting information on people participating in political protests.

In the records reviewed by The Times, some of the police intelligence concerned people and groups bent on causing trouble, but the bulk of the reports covered the plans and views of people with no obvious intention of breaking the law.

By searching the Internet, police investigators identified groups that were making plans for demonstrations. Files were created on their political causes, the criminal records, if any, of the people involved and any plans for civil disobedience or disruptive tactics.

From the field, undercover officers filed daily accounts of their observations on forms known as DD5s that called for descriptions of the gatherings, the leaders and participants, and the groups’ plans.

Inside the police Intelligence Division, daily reports from both the field and the Web were summarized in bullet format. These digests — marked “Secret” — were circulated weekly under the heading “Key Findings.”

Perceived Threats

On Jan. 6, 2004, the intelligence digest noted that an antigentrification group in Montreal claimed responsibility for hoax bombs that had been planted at construction sites of luxury condominiums, stating that the purpose was to draw attention to the homeless. The group was linked to a band of anarchist-communists whose leader had visited New York, according to the report.

Other digests noted a planned campaign of “electronic civil disobedience” to jam fax machines and hack into Web sites. Participants at a conference were said to have discussed getting inside delegates’ hotels by making hair salon appointments or dinner reservations. At the same conference, people were reported to have discussed disabling charter buses and trying to confuse delegates by switching subway directional signs, or by sealing off stations with crime-scene tape.

A Syracuse peace group intended to block intersections, a report stated. Other reports mentioned past demonstrations where various groups used nails and ball bearings as weapons and threw balloons filled with urine or other foul liquids.

The police also kept track of Richard Picariello, a man who had been convicted in 1978 of politically motivated bombings in Massachusetts, Mr. Browne said.

At the other end of the threat spectrum was Joshua Kinberg, a graduate student at Parsons School of Design and the subject of four pages of intelligence reports. For his master’s thesis project, Mr. Kinberg devised a “wireless bicycle” equipped with cellphone, laptop and spray tubes that could squirt messages received over the Internet onto the sidewalk or street.

The messages were printed in water-soluble chalk, a tactic meant to avoid a criminal mischief charge for using paint, an intelligence report noted. Mr. Kinberg’s bicycle was “capable of transferring activist-based messages on streets and sidewalks,” according to a report on July 22, 2004.

“This bicycle, having been built for the sole purpose of protesting during the R.N.C., is capable of spraying anti-R.N.C.-type messages on surrounding streets and sidewalks, also supplying the rider with a quick vehicle of escape,” the report said. Mr. Kinberg, then 25, was arrested during a television interview with Ron Reagan for MSNBC’s “Hardball” program during the convention. He was released a day later, but his equipment was held more than a year.

Mr. Kinberg said Friday that after his arrest detectives with the terrorism task force asked if he knew of any plans for violence. “I’m an artist,” he said. “I know other artists, who make T-shirts and signs.”

He added: “There’s no reason I should have been placed on any kind of surveillance status. It affected me, my ability to exercise free speech, and the ability of thousands of people who were sending in messages for the bike to exercise their free speech.”

New Faces in Their Midst

A vast majority of several hundred reports reviewed by The Times, including field reports and the digests, described groups that gave no obvious sign of wrongdoing. The intelligence noted that one group, the “Man- and Woman-in-Black Bloc,” planned to protest outside a party at Sotheby’s for Tennessee’s Republican delegates with Johnny Cash’s career as its theme.

The satirical performance troupe Billionaires for Bush, which specializes in lampooning the Bush administration, was described in an intelligence digest on Jan. 23, 2004. “Billionaires for Bush is an activist group forged as a mockery of the current president and political policies,” the report said. “Preliminary intelligence indicates that this group is raising funds for expansion and support of anti-R.N.C. activist organizations.”

Marco Ceglie, who performs as Monet Oliver dePlace in Billionaires for Bush, said he had suspected that the group was under surveillance by federal agents — not necessarily police officers — during weekly meetings in a downtown loft and at events around the country in the summer of 2004.

“It was a running joke that some of the new faces were 25- to 32-year-old males asking, ‘First name, last name?’ ” Mr. Ceglie said. “Some people didn’t care; it bothered me and a couple of other leaders, but we didn’t want to make a big stink because we didn’t want to look paranoid. We applied to the F.B.I. under the Freedom of Information Act to see if there’s a file, but the answer came back that ‘we cannot confirm or deny.’ ”

The Billionaires try to avoid provoking arrests, Mr. Ceglie said.

Others — who openly planned civil disobedience and expected to be arrested — said they assumed they were under surveillance, but had nothing to hide. “Some of the groups were very concerned about infiltration,” said Ed Hedemann of the War Resisters League, a pacifist organization founded in 1923. “We weren’t. We had open meetings.”

“If the police want to infiltrate and waste their time — well, it’s a waste of taxpayer money,” Mr. Hedemann said.

The war resisters announced plans for a “die-in” at Madison Square Garden. They were arrested two minutes after they began a silent march from the World Trade Center site. The charges were dismissed.

The sponsors of an event planned for Jan. 15, 2004, in honor of the Rev. Dr. Martin Luther King Jr.’s birthday were listed in one of the reports, which noted that it was a protest against “the R.N.C., the war in Iraq and the Bush administration.” It mentioned that three members of the City Council at the time, Charles Barron, Bill Perkins and Larry B. Seabrook, “have endorsed this event.”

The report said others supporting it were the New York City AIDS Housing Network, the Arab Muslim American Foundation, Activists for the Liberation of Palestine, Queers for Peace and Justice and the 1199 Bread and Roses Cultural Project.

Many of the 1,806 people arrested during the convention were held for up to two days on minor offenses normally handled with a summons; the city Law Department said the preconvention intelligence justified detaining them all for fingerprinting.

Mr. Browne said that 18 months of preparation by the police had allowed hundreds of thousands of people to demonstrate while also ensuring that the Republican delegates were able to hold their convention with relatively few disruptions.

“We attributed the successful policing of the convention to a host of N.Y.P.D. activities leading up to the R.N.C., including 18 months of intensive planning,” he said. “It was a great success, and despite provocations, such as demonstrators throwing faux feces in the faces of police officers, the N.Y.P.D. showed professionalism and restraint.”

Executive Branch Secedes from the Union

Executive Branch Secedes from the Union

Sat Mar 24, 2007 at 10:11:28 AM CDT

When Tony Snow made the rounds of talk shows this week, some might have been surprised at his message.

Snow to CNN: "There's another principle, which is Congress doesn't have the legislative -- I mean oversight authority over the White House."

Snow to NBC: "Congress doesn't have any legitimate oversight and responsibilities to the White House."

Snow to NBC: "First, the White House is under no compulsion to do anything. The legislative branch doesn't have oversight."

Snow to ABC: "The executive branch is under no compulsion to testify to Congress, because Congress in fact doesn't have oversight ability."

Just in case you missed it the first time, Snow repeated himself to make sure the public gets the message: the White House has declared itself, a law unto itself, beholding to no other authority. This goes quite a bit beyond the already massive expansions of "executive privilege" previously claimed by this administration.

Congress has the enumerated authority under the constitution to pass laws, to raise a military, to declare war, and to impeach and remove members of the executive branch. Does the word "oversight" appear? It doesn't, but it's so clearly implied in the powers designated to Congress that there's been really little doubt of this power since 1787. The Supreme Court has agreed with Congress' role in overseeing the White House on any number of occasions. After all, how can Congress have impeachment authority over the executive if any investigation can be stonewalled by an uncooperative administration? The judicial equivalent would be making a defendant the judge at his own trial.

Under the Snow interpretation, the executive could get away with anything. Anything at all. Absolutely anything. Like Tony, I wanted to repeat so you would be sure I meant what I said. A lack of congressional oversight would not just place the White House above the law, but completely beyond it.

Though it may have passed as just another incidence of Snow being trotted forth to distribute the day's right wing talking points, what was said on Friday should not go without notice. This is the single more amazing declaration in an administration that has already produced more extraordinary claims than the fountain at Lourdes.

For the last forty years, there has been only a single Republican administration. That may seem an odd idea. After all, at least a couple of Republicans have been elected over that period -- and a couple more have found their way to the White House through other means. No matter the name on the Oval Office door, the philosophy promoted by the White House has remained. This the Imperial Presidency of Richard M. Nixon, now brought to inglorious summer by the (adopted) son of Crawford. It was under Nixon that the philosophy of a supreme executive was gestated. It was under Nixon that the men who populate the current administration were taught their love for tyranny over justice. From Watergate, to Iran-Contra, to Iraq, Nixon's heirs have worked to chisel away the rule of law. With Snow's blunt declaration of independence, any remaining illusion that the executive branch continues to act as part of the government is removed. If this interpretation holds, if the congress can not exert authority over the executive, then we are a democracy in name only.

In a high school history book, the fall of the Roman Republic is usually dated to the point were Julius Caesar, in defiance of Senate "micromanagement," ordered his legions across the Rubicon to end effective representative oversight. However, at the time, the Romans didn't see it that way. They continued to call themselves a republic for years. Decades. Long after Caesar, they kept up the hollow pretense of a senate, marching in each day to pass laws that the executive of their day did not follow, and direct armies that moved only at the emperor's command.

The Bush administration is waist deep in the Rubicon. The only question now is whether we will drive them back to the bank, or admit that we are only play-acting at democracy.

Friday, March 23, 2007

Blogs can top the presses

Blogs can top the presses

Talking Points Memo drove the U.S. attorrneys story, proof that Web writers with input from devoted readers can reshape journalism.
By Terry McDermott, Times Staff Writer
March 17, 2007

Post masters

New York — IN a third-floor Flower District walkup with bare wooden floors, plain white walls and an excitable toy poodle named Simon, six guys dressed mainly in T-shirts and jeans sit all day in front of computer screens at desks arranged around the oblong room's perimeter, pecking away at their keyboards and, bit by bit, at the media establishment.

The world headquarters of TPM Media is pretty much like any small newsroom, anywhere, except for the shirts. And the dog. And the quiet. Most newsrooms are notably noisy places, full of shrill phones and quacking reporters. Here there is mainly quiet, except for the clacking keyboards.

It's 20 or so blocks up town to the heart of the media establishment, the Midtown towers that house the big newspaper, magazine and book publishers. And yet it was here in a neighborhood of bodegas and floral wholesalers that, over the last two months, one of the biggest news stories in the country — the Bush administration's firing of a group of U.S. attorneys — was pieced together by the reporters of the blog Talking Points Memo.

The bloggers used the usual tools of good journalists everywhere — determination, insight, ingenuity — plus a powerful new force that was not available to reporters until blogging came along: the ability to communicate almost instantaneously with readers via the Internet and to deputize those readers as editorial researchers, in effect multiplying the reporting power by an order of magnitude.

In December, Josh Marshall, who owns and runs TPM , posted a short item linking to a news report in the Arkansas Democrat-Gazette about the firing of the U.S. attorney for that state. Marshall later followed up, adding that several U.S. attorneys were apparently being replaced and asked his 100,000 or so daily readers to write in if they knew anything about U.S. attorneys being fired in their areas.

For the two months that followed, Talking Points Memo and one of its sister sites, TPM Muckraker, accumulated evidence from around the country on who the axed prosecutors were, and why politics might be behind the firings. The cause was taken up among Democrats in Congress. One senior Justice Department official has resigned, and Atty. Gen. Alberto R. Gonzales is now in the media crosshairs.

This isn't the first time Marshall and Talking Points have led coverage on national issues. In 2002, the site was the first to devote more than just passing mention to then-Senate Majority Leader Trent Lott's claim that the country would have been better off had the segregationist 1948 presidential campaign of Sen. Strom Thurmond succeeded. The subsequent furor cost Lott his leadership position.

Similarly, the TPM sites were leaders in chronicling the various scandals associated with Republican lobbyist Jack Abramoff.

All of this from an enterprise whose annual budget probably wouldn't cover the janitorial costs incurred by a metropolitan daily newspaper.

"Hundreds of people out there send clips and other tips," Marshall said. "There is some real information out there, some real expertise. If you're not in politics and you know something, you're not going to call David Broder. With the blog, you develop an intimacy with people. Some of it is perceived, but some of it is real."

Marshall's use of his readers to gather information takes advantage of the interactivity that is at the heart of the Internet revolution. The amount of discourse between writers and readers on the Web makes traditional journalists look like hermetic monks.

Duncan Black, an economist who writes as Atrios on his website, Eschaton, receives hundreds of comments for almost anything he posts. Thursday morning, he posted a short note saying he would not be writing much that day as he was going to be traveling. Within the hour, 492 people posted comments on that. A political reporter at a metropolitan daily might not get that much reader response in a year.

"With Abramoff, I was getting a lot more tips than I could handle," Marshall said. "I thought if I hire two people, pay them, marry them with these tips, what could we do then?"

That led to the creation of TPM Muckraker, which has two full-time, salaried reporter-bloggers and is where many of the stories on the U.S. attorneys were originally published.

In much of its work, TPM exhibits a clearly identified political agenda. In this, it is no different from dozens of other blogs across the political spectrum. It distinguishes itself by mixing liberal opinion with original reporting by its own staff and actively seeking information from its readers.

This was most apparent in 2004-05 when Marshall turned the site's focus to President Bush's proposed privatization of Social Security. Marshall asked readers to survey their own members of Congress on the issue. This distributed reporting helped TPM compile rosters of where every member of Congress stood on the proposal, something no newspaper attempted. By making apparent the lack of enthusiasm for the plan, TPM helped kill it.

The Social Security campaign was straightforward political activism, with strict advocacy for a well-defined position.

"For me, that was sort of a little beyond my comfort zone," Marshall said. "But the underlying issue seemed important enough to do it. There are still a lot of lines I don't cross because of, for lack of a better word, the kind of institution we are. We do opinion journalism, we're not campaign adjuncts."

BLOGGING has famously unleashed the opinions of multitudes. There are, by very rough count, 60 million bloggers around the world today. Some projections have that number nearly doubling again this year. Depending on which side of a vitriolic divide you fall — that is, whether you think this is good or bad — this represents either the end of civilization or the rise of true democracy.

There are blogs for baseball teams, for fast food, for God and for Satan; there are lots of blogs on politics and Hollywood and at least one that deals exclusively with pharmaceutical industry research. There are hundreds of blogs on Iraq and more than you would imagine in Mongolia.

Though the numbers and breadth of blogging are indeed astonishing, it's not at all clear what the numbers mean, if they mean anything at all. Much of what constitutes the phenomenon of blogging is apt to be inconsequential for the simple but powerful fact that nobody reads most of them. That is, aside from their authors, literally nobody.

Most of these blogs are the creations of individuals who have a passion to write, usually about a single subject, that subject often being themselves. Some of them are truly horrible and, thankfully, short-lived. The passion burns out.

Others, though, are remarkably good. There are sports blogs devoted to single teams that are far more acute in their analysis than mainstream media (MSM) covering the same sport. This is particularly true in baseball, where statistically driven analysis has been adopted wholesale in the blogosphere while the MSM has been slow to recognize its value.

The blogs that have captured the most attention are those that devote themselves mainly to politics and public affairs. These are almost always run by partisans of one side or the other. In that, they are nearly the opposite of the sort of coverage presented in traditional media, whose coverage at least attempts to be neutral on questions of policy.

This neutrality is a favorite target of bloggers who say that mainstream journalism objectivity disguises hidden biases of the form, if not the writer. The bloggers contend that these biases can render neutrality into bland, even neutered reporting that rewards those intent on manipulating it.

Many critiques from both sides of the blogging-MSM divide are accurate, if sometimes misplaced. The chief criticisms of blogging from defenders of the MSM are, one, the pajama charge — that is, bloggers are not professional journalists and don't do much reporting (thus the image of them sitting at home in their pajamas) — and, two, the incivility charge, that many bloggers use impolite language.

Most bloggers, in fact, are not journalists and do little if any reporting. But most bloggers don't claim to be journalists. They're bloggers. The incivility charge is true too. Many bloggers use bad language, but so occasionally does the New Yorker, and no one accuses it of lacking manners.

"I'm familiar with the critique," Marshall said. "I don't feel it has a great deal to do with us, what we are doing. There's a ton of stuff out there, and a lot of it is screechy and angry and undisciplined. I don't have a problem with it, but it's not stuff I'm particularly interested in reading.

"It's totally in the tradition of political pamphleteering. … Individually, I think some of it isn't necessarily that pretty, but I think the whole thing altogether is a great thing."

Neither side in the blog-MSM debate seems to have great appreciation for what the other brings to the party. Simply put, while mainstream media does the heavy lifting of careful, day-to-day and occasional in-depth reporting, bloggers have revivified political commentary, mainly through their exuberance.

IF the traditional media see their roles as delivering lectures on the news of the day, blogs are more of a backyard conversation, friendlier, more convivial. Bloggers publish in variable lengths at uncertain and unscheduled times. Blogs tend to be informal, cheap to produce, free to consume, fast, heavily referential, self-referential and vain because of it; profane, accident-prone yet self-correcting.

To say that traditional media were slow to appreciate the power of this form is to belabor the obvious. Even bloggers were slow to appreciate the import of what they were doing. The phenomenon appeared in its embryonic form in the mid-1990s. The term "blog," a mash-up of "Web log," was coined in 1997. By 1999, blogging software was widely available, and free, and the first political blogs appeared.

By that time, Marshall, a 38-year-old who has a PhD from Brown University in American colonial history, had become a freelance journalist, selling pieces mainly to small opinion journals. He wrote his first blog post in November 2000, commenting on the role of GOP lawyer Theodore Olson in Florida's Bush-Gore recount.

"It just seemed natural. I liked the informality of the writing. The freedom of it appealed to me," Marshall said. "It just looked like fun. I saw it as a loss leader for my journalism."

Once he started, however, he never stopped. He continued to freelance, but gradually moved more and more of his attention to the blog, living in near poverty as a result. When he needed money to do something for the blog, he asked his readers for it. Remarkably, they gave it to him.

His economic turning point came in 2003 when he received a phone call from a man named Henry Copeland, who had an idea for selling advertising on blogs. Copeland saw a way to aggregate blogs and broker advertising to them. Essentially, he created a remote back office and a revenue stream for the mainly sole proprietors who blogged.

"He had the concept of Blogads, which turned out to be the funding mechanism for what I was doing. Within six months it was supporting me," Marshall said.

It wasn't until Copeland came along that anyone seriously contemplated making a career as a blogger. Since then, advertising has grown to such an extent that dozens of blogs are now profitable enterprises. They are also major sources of information for thousands of readers.

Copeland said the relatively small world of left-of-center political blogs now receives an estimated 160 million page views a month, in the same ballpark as some major newspapers and far more than any opinion magazine.

This professionalization of the blogosphere has been abetted by mainstream media's increasing practice of hiring independent bloggers or deploying staffers to blog duty. No one in the blogosphere seems particularly worried about the competition.

Copeland, for one, doubts that the MSM will be able to stem the blogging tide, or even swim very far in it.

"We're big believers that the Internet's rule is 'the outside is the new inside.' That means that bloggers, with low overheads and nimble structures, can outmaneuver everyone else….

"A newspaper is a boat, a highly evolved mechanism designed and built to float in water. Blogs are bikes, built to cruise in another environment. Now, you can pull a bunch of planking off a boat and add wheels and pedals, but that won't make it as light and maneuverable as a bike.",1,4753365.story?coll=la-headlines-frontpage&ctrack=1&cset=true

Fewer pledge allegiance to the GOP

Fewer pledge allegiance to the GOP

A poll says 35% of those surveyed identify with Republicans. Public attitudes seem to be drifting toward Democrats' values.
By Janet Hook
Times Staff Writer

March 23, 2007

WASHINGTON — Public allegiance to the Republican Party has plunged during George W. Bush's presidency, as attitudes have edged away from some of the conservative values that fueled GOP political victories, a major survey has found.

The survey, by the nonpartisan Pew Research Center for the People & the Press, found a "dramatic shift" in political party identification since 2002, when Republicans and Democrats were at rough parity. Now, 50% of those surveyed identified with or leaned toward Democrats, whereas 35% aligned with Republicans.

What's more, the survey found, public attitudes are drifting toward Democrats' values: Support for government aid to the disadvantaged has grown since the mid-1990s, skepticism about the use of military force has increased and support for traditional family values has decreased.

The findings suggest that the challenges for the GOP reach beyond the unpopularity of the war in Iraq and Bush.

"Iraq has played a large part; the pushback on the Republican Party has to do with Bush, but there are other things going on here that Republicans will have to contend with," said Andrew Kohut, director of the Pew Center. "There is a difference in the landscape."

A key question is whether the trends signal a broad and lasting change in the balance of power between the national parties or a mood swing that will pass or moderate. It remains to be seen whether Democrats can capitalize on Republican weaknesses and achieve durable political dominance.

"This is the beginning of a Democratic opportunity," said Illinois Rep. Rahm Emanuel, chairman of the House Democratic Caucus. "The question is whether we blow it or not."

Whit Ayres, a Republican pollster, said he believed the Pew poll exaggerated his party's problems and that the situation would improve as attention shifted to choosing the GOP's 2008 presidential nominee.

At that point, "we will have a far more level playing field than we have today," Ayres said.

But other Republicans fear the poll signals a clear end to an era of GOP successes that began with President Reagan's election in 1980, saw the party take control of Capitol Hill in 1994 and helped elect Bush twice.

"There are cycles in history where one party or one movement ascends for a while and then it sows the seeds of its own self-destruction," said Bruce Bartlett, a conservative analyst and author of the 2006 book "Impostor: How George W. Bush Bankrupted America and Betrayed the Reagan Legacy."

Bartlett added, "It's clear we have come to an end of a Republican conservative era."

The Pew poll measured the views of 2,007 adults from Dec. 12 through Jan. 9. It has a margin of error of plus or minus 2.5 percentage points.

The current gap between Republican and Democratic identification — which Pew measured by counting people who said they leaned toward a party as well as those with firm allegiances — is the widest since the group began collecting data on party allegiance in 1990.

As recently as 2002, the two parties were tied, with each drawing support from 43% of those surveyed. But Democrats have gained an advantage over Republicans almost every year since.

Kohut said the spread between the parties mostly reflected the defection of independents from the GOP more than a more favorable assessment of the Democrats.

The survey found that the proportion of those expressing a positive view of Democrats has declined since January 2001 — when Bush took office — by 6 percentage points, to 54%. But the public's regard for Republicans has cratered during the Bush years, with the proportion holding a favorable view of the GOP dropping 15 points, to 41%.

Although Republicans rode to political power calling for smaller government, support for government action to help the disadvantaged has risen since the GOP took control of Congress in 1994. At that point, a Pew survey found that 57% said the government had a responsibility to take care of people who could not take care of themselves; now, 69% said they believed that.

On the other hand, support for Bush's signature issue — a strong, proactive military posture — has waned since 2002, when 62% said that the best way to ensure peace was through military strength. In the recent poll, 49% said they believed that.

On social issues, the survey found that support for some key conservative positions was on the decline. For instance, those who said they supported "old fashioned values about family and marriage" dipped from 84% in 1994 to 76% in the recent survey. Support for allowing school boards to have the right to fire homosexual teachers has dropped from 39% in 1994 to 28%.,0,195804.story?coll=la-home-headlines

John Dean - Why Bush Refuses to Allow Karl Rove and Harriet Miers to Testify Before Congress

New Developments in the U.S. Attorney Controversy:

Why Bush Refuses to Allow Karl Rove and Harriet Miers to Testify Before Congress, and What Role New White House Counsel Fred Fielding May Play

Friday, Mar. 23, 2007

At the outset of this column -- which discusses Bush's new White House Counsel, Fred Fielding -- I must acknowledge that I am the person who first hired, and brought Fielding into the government. He served as my deputy in the Nixon White House, and was untouched by Watergate, because I shielded all my staff from that unpleasant business. Fred is an able lawyer, and now finds himself in the hot seat, with President Bush seemingly looking for a fight with Congress. (But that's what makes the job interesting.)

One further disclosure: I have never been an advocate of executive privilege, except as it might relate to the most sensitive national security information. To the contrary, you show me a White House aide who does not want his conversations and advice to the president revealed, and I will show you someone who should not be talking with or advising a president.

Of course, I do not know what is transpiring behind closed doors at the White House right now. But I do believe there is more occurring than meets the eye with respect to the potential confrontation developing between the Democratic Congress and the Bush White House. On the surface, the clash appears rather simple: Congress wants information, and Bush does want to provide it if it means breaching the sanctity of the realm in which he receives advice from his aides privately. But this surface conflict, as I will explain, does not get to the bottom of this developing dust-up.

In truth, much more is at stake here for both the Congress and the White House than this bare description of the conflict would indicate. These issues strike at the heart of what post-Watergate conservative Republicans seek to create: an all-powerful presidency. Thus, for the same reason that Vice President Cheney went to extreme lengths to block Congress from getting information about the work of his National Energy Task Force, as I discussed in prior columns such as this one, I expect President Bush to take what will appear to be a similar irrational posture. For both Bush and Cheney, virtually any limit on presidential power is too great.

And this conflict, in the end, is all about presidential power. Moreover, underlying the Administration's defense of unchecked power, is a term that has not been heard since Justice Alito's confirmation hearings: "the unitary executive theory." Once, conservatives rejected a strong presidency. Today, however, the opposite is the case, and the unitary executive theory is central to their argument.

Clashing institutions make good news copy. But understanding why two co-equal branches of our government each have such strong feelings about their need to prevail in this conflict, may help to get to the heart of the matter.

The Contemporary Conservative Vision of Executive Power: A Strong Presidency

In a piece last year for The New Republic's July issue, legal journalist Jeffery Rosen summed up George W. Bush's outlook on the presidency: "One of the defining principles of the Bush administration has been a belief in unfettered executive power. Indeed, President Bush has taken the principle to such unprecedented extremes that an ironic reversal has taken place: A conservative ideology that had always been devoted to limiting government power has been transformed into the largest expansion of executive power since FDR."

Rosen reported that Bush's perspective is not "mere political opportunism--a cynical rationale devised after September 11 to allow the president to do whatever he likes in the war on terrorism." Rather, Rosen explained, Bush's actions stem from his embrace of the "unitary executive theory." (Of course, Bush may not himself have mastered the fine points of this theory, but it is clear he understands the core idea, and acts accordingly.)

Column continues below ↓

Bush's governing style is not surprising to those who took a close look at how he governed before he arrived in Washington. Indeed, the perceptive conservative commentator George Will saw it coming.

Will visited Governor Bush in Texas in 1999, and talked as well with the team Bush had assembled to work on his presidential campaign. "They are recasting conservatism by expunging the traditional conservative ambivalence about presidential power," Will reported at the time. "Hence the presence on the cluttered desk of chief speechwriter Mike Gerson of Terry Eastland's book, Energy in the Executive: The Case for the Strong Presidency. Eastland's title comes from Alexander Hamilton's Federalist Paper Number 70: 'Energy in the executive is a leading character in the definition of good government.'" Will then explained the theory that would turn out, later, to be Bush's bottom line: "Eastland's thesis is that 'the strong presidency is necessary to effect ends sought by most conservatives.'"

Strikingly, Will concluded his report with a savvy prediction: "A second Bush presidency would be more muscular than the first in exercising executive power." Will, obviously, made this prediction long before 9/11. His article and his take on the situation are thus excellent evidence that even in a hypothetical world without 9/11, we still would have seen additional executive power grabs from a second-term President Bush.

I raise Terry Eastland's book, in particular, because I have always believed it has been something of a bible for Bush II and his staff. The book is also directly related to the "unitary executive theory." Eastland draws his view of the presidency from the same source attorneys in the Reagan Administration Justice Department's Office of Legal Counsel did, when they came up with the phrase "unitary executive theory" to describe their effort to provide legal justification for the President's taking increasingly aggressive control of the executive branch. At that time, the clash was between the Executive and the independent regulatory agencies, but the principle was the same.

The source upon which both Eastland and those who coined the "unitary executive" theory relied, of course, was Hamilton's Federalists No. 70 -- as I will discuss further below.

What Exactly Is the Unitary Executive Theory? A Short Answer

Before the Alito confirmation hearings, Washington Post reporter Dana Milbank correctly described the "unitary executive theory" as an "obscure philosophy … that favors an extraordinarily powerful president." Milbank found an invocation of this philosophy in the notorious "torture memos."

For example, Milbank quoted a passage from one of the memos that was laced with conservative pipe-dream rhetoric: "The Framers understood the [Commander in Chief] clause as investing the president with the fullest range of power," the memo claimed, including power over "the conduct of warfare and the defense of the nation unless expressly assigned in the Constitution to Congress." Such power was given, the memo theorized, because "national security decisions require the unity in purpose and energy in action that characterize the presidency rather than Congress." (Conservative scholars, I have discovered, have a unique skill of channeling the thinking of the Founders in their writing.)

When the obscure philosophy surfaced during the Alito hearings, Writ guest columnist Jennifer Van Bergen assembled a brisk overview of its salient points. But for a quick and a bit more in-depth course in Unitary Executive Theory 101, I would suggest an analysis by Loyola Law School Professors Karl Manheim and Allan Ides.

Professors Manheim and Ides trace the origins, evolution, and current uses of the unitary executive theory. While it is beyond the scope of their analysis, they also, along the way, provide information useful to deconstruct and critically analyze this concocted effort at legal (and historical) legerdemain. This is not the place for me to unload on this hogwash theory, but I must pause to comment, at least, on its purported links to Alexander Hamilton's purported vision of "a unitary executive."

This was not remotely Hamilton's vision. Listen, for example, to what Morton Rosenberg says; he is a specialist in American Public Law at the non-partisan Congressional Reference Service of the Library of Congress, and he is described by many of those who know him as the smartest guy in the place. Rosenberg was one of the first to correct this loopy scholarship when it began appearing in the early 1980s.

Rosenberg places Hamilton in a realistic context, as he knocks down several shaky pillars upon which unitary executive theorists have tried to build: "The framers had no reason to envisage the management of an industrial nation as the essential function of the office [of the president.]," Rosenberg explains. "Whatever managerial insights Hamilton had were confined to commerce, banking, and monetary policy…. Nor did [the framers] conceive of the presidency as an institutionalized representation of popular will distinct from, let alone capable of opposition to, the will expressed by the legislature. Even Hamilton's most strenuous defenses of executive authority emphasized the president's role as the managerial agent for the legislature, not his popular independence in reflection of some other popular will."

Manheim and Ides explain that the essence of the unitary executive "theory" is "more about power than it is about law." And power, here, means presidential power: The "unitary executive" theory is a theoretical, legal, historical, and Constitutional hook conservatives have invented to expand presidential power.

These "unitarians" postulate, as Manheim and Ides note, "that the authority to enforce federal law and to implement federal policy rest exclusively in the Executive Branch and, most importantly, the ultimate prerogative over this executive function is vested solely and completely in the President, who sits atop the hierarchy of executive power and responsibility." This exclusivity, in the unitarians' view, precludes any but the most minimal role for Congress: Its role, they believe, is simply to decide whether to appropriate money; otherwise, it must butt out completely.

The Relationship of Unitary Executive Theory and Executive Privilege

Eastland's tutorial, set forth in his book, instructed President Bush and his staff to make a big deal out of protecting presidential prerogatives. So, too, does the unitary executive theory, which was developed at the same time that Reagan's Justice Department was doing what Presidents Ford and Carter had been too wary to do: revive Executive Privilege. Neither Ford nor Carter issued guidelines for the executive branch regarding the use of this privilege, for Nixon had given it such a bad name they dared not use it. But the Reagan Administration dared, and did.

Indeed, Reagan's Attorney General, William French Smith had the nerve to issue a memorandum opinion expressly relying on U.S. v Nixon -- the famous Nixon tapes case. In the language quoted by French, the Supreme Court concluded: "The expectation of a President to the confidentiality of his conversations and correspondence … has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution."

The point that French, elided, however, was that the Court had rejected Nixon's claim of an unqualified privilege, and directed that the tapes be produced for in camera inspection (that is, inspection that is secret even from the parties and their attorneys) by the relevant court.

Moreover, in explaining its holding, the Court reasoned as follows: "[W]hen the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection…."

Not only did this holding result in the rejection of an executive privilege claim, it is also quite vague, and it applies to a judicial, not a legislative subpoena. Nevertheless, Attorney General Smith drew upon it to opine, consistent with the philosophy of protecting presidential prerogatives, that "[t]he interest of Congress in obtaining information for oversight purposes is, I believe, considerably weaker than its interest when specific legislative proposals are in question."

Thus, Smith encouraged President Reagan (and presidents generally) to deny information to Congress when conducting oversight, except "in the most unusual circumstances."

Past Is Probably Not Prologue for Bush: The Gorsuch Fiasco

Interestingly, however, to the displeasure of many, Reagan's White House Counsel Fred Fielding -- now at the center of the current clash, as Bush's counsel -- did not protect the president's prerogatives as vigorously as Reagan's Attorney General would have preferred.

A leading scholar on Executive Privilege, Mark Rozell, reports that although "President Reagan invoked executive privilege on several occasions, he never fully exercised that power. When confronted by congressional demands for information, Reagan generally followed a pattern of initial resistance followed by accommodation of Congress's request. Reagan never made a concerted effort to defend his prerogative in this area. As a result, he further weakened a constitutional presidential power …."

How much of Reagan's reluctance to press the "executive privilege" issue derived from Fielding, Reagan himself, or other Reagan aides, is not known. Also, some of the criticism of Reagan's decision not to aggressively assert the privilege occurred largely after Fielding had left. For instance, Vice President Cheney later insisted that Reagan provided too much information to Congress during their Iran-Contra investigation.

Fielding was White House Counsel, however, during one of the more thrilling episodes involving executive privilege -- one that could parallel the current situation, with Congress calling for testimony by White House aide Karl Rove and former aide Harriet Miers. In explaining what happened back in 1982, I've drawn heavily on -- paraphrasing, greatly abbreviating, and then quoting -- Mark Rozell's report:

Two House committees issued subpoenas to EPA Administrator Anne Gorsuch, directing her to appear before Congress with certain documents. Gorsuch was prepared to turn over the documents, but the Justice Department urged President Reagan to assert executive privilege. When he did so, White House Counsel Fielding assured Gorsuch that "the administration would stand solidly behind this claim of executive privilege."

When Gorsuch invoked the privilege, both committees voted to hold her in contempt, and on December 16, 1982, the House of Representatives voted 259-105 to find her in contempt of Congress. Immediately following the House vote, however, the Justice Department filed civil suit against the House of Representatives. Then, rather than follow the language of the contempt statute, the U.S. Attorney for the District of Columbia -- obviously after being instructed by the Justice Department regarding this matter- refused to "bring the matter before the grand jury for their action" while the suit against the House was pending. (It was a delaying ploy.)

The House requested that the federal district court dismiss the civil lawsuit, which the court did. The court also encouraged the two branches "to settle their differences without further judicial involvement" and warned that "[i]f these two co-equal branches maintain their present adversarial positions, the Judicial Branch will be required to resolve the dispute by determining the validity of the Administrator's claim of executive privilege."

Two weeks later, the Administration made a deal with one of the congressional committees, agreeing to a limited disclosure of the requested information. Again, EPA administrator Gorsuch pushed for full disclosure, but the White House disagreed. Meanwhile, the other congressional committee would not agree to a limited release and continued to press for full disclosure, advising the White House that the investigations would continue until the documents were provided.

Having had enough, Gorsuch resigned her position as head of EPA when the White House finally agreed to release its documents Congress wanted. Following the contempt statute, the U.S. attorney presented a contempt citation to a grand jury, which unanimously declined to indict Gorsuch.

Rozell concludes, "Although the administration initially had taken a strong stand on executive privilege, it backed down in the face of mounting political pressure. The decision to compromise did not settle the executive privilege controversy. The House Committee on the Judiciary further investigated the Justice Department role in the controversy and concluded that the department had misused executive privilege by advocating the withholding of documents that had not been thoroughly reviewed. T bghe committee also alleged that the department withheld documents to cover up wrongdoing at EPA. The administration's compromise served as a temporary political expedient which eventually allowed Congress to examine previously withheld documents and draw broader conclusions about the exercise of executive privilege. Reagan may have won a temporary reprieve from political pressures, but he had lost ground in his effort to re-establish the viability of the doctrine of executive privilege."

It Seems Likely Bush, with Fielding, Will Go to the Wall on Executive Privilege

This time, it is my belief that Bush -- unlike Reagan before him -- will not blink. He will not let Fielding strike a deal, as Fielding did for Reagan. Rather, Bush feels that he has his manhood on the line. He knows what his conservative constituency wants: a strong president who protects his prerogatives. He believes in the unitary executive theory of protecting those prerogatives, and of strengthening the presidency by defying Congress.

In short, all those who have wanted to see Karl Rove in jail may get their wish, for he will not cave in, either -- and may well be prosecuted for contempt, as Gorsuch was not. Bush's greatest problem here, however, is Harriett Miers. It is dubious he can exert any privilege over a former White House Counsel; I doubt she is ready to go to prison for him; and all who know her say if she is under oath, she will not lie. That could be a problem.

John W. Dean, a FindLaw columnist, is a former counsel to the president.

My National Security Letter Gag Order

Washington Post Op-Ed

My National Security Letter Gag Order

Friday, March 23, 2007; A17

It is the policy of The Washington Post not to publish anonymous pieces. In this case, an exception has been made because the author -- who would have preferred to be named -- is legally prohibited from disclosing his or her identity in connection with receipt of a national security letter. The Post confirmed the legitimacy of this submission by verifying it with the author's attorney and by reviewing publicly available court documents.

The Justice Department's inspector general revealed on March 9 that the FBI has been systematically abusing one of the most controversial provisions of the USA Patriot Act: the expanded power to issue "national security letters." It no doubt surprised most Americans to learn that between 2003 and 2005 the FBI issued more than 140,000 specific demands under this provision -- demands issued without a showing of probable cause or prior judicial approval -- to obtain potentially sensitive information about U.S. citizens and residents. It did not, however, come as any surprise to me.

Three years ago, I received a national security letter (NSL) in my capacity as the president of a small Internet access and consulting business. The letter ordered me to provide sensitive information about one of my clients. There was no indication that a judge had reviewed or approved the letter, and it turned out that none had. The letter came with a gag provision that prohibited me from telling anyone, including my client, that the FBI was seeking this information. Based on the context of the demand -- a context that the FBI still won't let me discuss publicly -- I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled.

Rather than turn over the information, I contacted lawyers at the American Civil Liberties Union, and in April 2004 I filed a lawsuit challenging the constitutionality of the NSL power. I never released the information the FBI sought, and last November the FBI decided that it no longer needs the information anyway. But the FBI still hasn't abandoned the gag order that prevents me from disclosing my experience and concerns with the law or the national security letter that was served on my company. In fact, the government will return to court in the next few weeks to defend the gag orders that are imposed on recipients of these letters.

Living under the gag order has been stressful and surreal. Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case -- including the mere fact that I received an NSL -- from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been. I hide any papers related to the case in a place where she will not look. When clients and friends ask me whether I am the one challenging the constitutionality of the NSL statute, I have no choice but to look them in the eye and lie.

I resent being conscripted as a secret informer for the government and being made to mislead those who are close to me, especially because I have doubts about the legitimacy of the underlying investigation.

The inspector general's report makes clear that NSL gag orders have had even more pernicious effects. Without the gag orders issued on recipients of the letters, it is doubtful that the FBI would have been able to abuse the NSL power the way that it did. Some recipients would have spoken out about perceived abuses, and the FBI's actions would have been subject to some degree of public scrutiny. To be sure, not all recipients would have spoken out; the inspector general's report suggests that large telecom companies have been all too willing to share sensitive data with the agency -- in at least one case, a telecom company gave the FBI even more information than it asked for. But some recipients would have called attention to abuses, and some abuse would have been deterred.

I found it particularly difficult to be silent about my concerns while Congress was debating the reauthorization of the Patriot Act in 2005 and early 2006. If I hadn't been under a gag order, I would have contacted members of Congress to discuss my experiences and to advocate changes in the law. The inspector general's report confirms that Congress lacked a complete picture of the problem during a critical time: Even though the NSL statute requires the director of the FBI to fully inform members of the House and Senate about all requests issued under the statute, the FBI significantly underrepresented the number of NSL requests in 2003, 2004 and 2005, according to the report.

I recognize that there may sometimes be a need for secrecy in certain national security investigations. But I've now been under a broad gag order for three years, and other NSL recipients have been silenced for even longer. At some point -- a point we passed long ago -- the secrecy itself becomes a threat to our democracy. In the wake of the recent revelations, I believe more strongly than ever that the secrecy surrounding the government's use of the national security letters power is unwarranted and dangerous. I hope that Congress will at last recognize the same thing.

Wednesday, March 21, 2007

Why Conservatives Can't Govern

Why Conservatives Can't Govern
By Robert L. Borosage

Monday 19 March 2007

Donald Rumsfeld has been axed. Tom DeLay cut and ran. "Scooter" Libby stands convicted. Michael "you're doing a heck of a job" Brown was tossed. Newt Gingrich disgraced himself. And now the clueless Attorney General, Alberto Gonzales, is surely the next to go.

Why this confederacy of dunces? The conservative National Review cover asks plaintively, "Can't Anyone Here Play this Game?" Time Magazine puts conservative icon Ronald Reagan on its cover, a tear rolling down his face, reporting on "How the Right Went Wrong." But it's not incompetence or corruption-although both abound-that fostered the misrule of this conservative administration. And Reagan would feel not dismayed, but right at home with the follies and crimes. Remember: Reagan's attorney general, Edwin Meese, was disgraced. His national security advisor copped a plea. Oliver North stood convicted. His defense secretary, Caspar Weinberger, would have been indicted for perjury and obstruction of justice if George Bush the first hadn't issued a preemptive pardon.

What is it about conservative administrations that lead them into disgrace and indictment? Incompetence isn't at the core of these scandals-ideology is.

Conservative presidents-from Nixon to Reagan to Bush-believe in the imperial presidency. They assume that in the area of the national security, the president operates above the law, or as Nixon put it, "When the president does it, that means that it is not illegal." They operate routinely behind the shield of secrecy and executive privilege, with utter disdain for the law. So Reagan spurned the Congress when it cut off funds for his loony covert war on tiny Nicaragua. And Bush trampled the laws to set up the torture camps in Abu Ghraib, Guantánamo and elsewhere. Each would seek to keep their lawlessness secret; and that would foster lies, obstruction of justice and ultimately disgrace.

Second, conservatives are acutely aware that they represent a minority, not a majority, position in America. From Nixon to Lee Atwater to Karl Rove, they play politics and exploit America's divides with back-alley brass knuckles-from Reagan's welfare queen to Bush's impugning the patriotism of Georgia Senator Max Cleland, a Vietnam War hero who literally sacrificed his limbs in the service of his country. They excel in the politics of personal destruction, as Democratic presidential candidates Michael Dukakis and John Kerry discovered. And in the grand tradition of the establishment in American politics, they are relentless in seeking to suppress the vote, particularly of the poor and minorities who would vote against them in large numbers.

Gonzales' imbroglio is a direct expression of this. At its core is the run-up to the 2006 elections with the Republicans under siege for the most corrupt Congress ever. The White House and Republican politicians grew exercised at Republican prosecutors who they considered too lax in exposing potential Democratic corruption, too avid in pursuing Republican crimes or too slow in prosecuting reports of "voter fraud," the GOP code for using investigations to disrupt minority registration and get out the vote programs, and to intimidate wary black and Latino voters. Justice was ranking U.S. attorneys based on whether they were "loyal Bushies."

The axing of David C. Iglesias, the U.S. attorney in New Mexico, is the archetype. With New Mexico up for grabs, Iglesias was being pressured directly and shamelessly by Republican Sen. Pete Domenici and Mickey Barnett, the attorney representing the Bush campaign in New Mexico to hustle up indictments on alleged incidents of voter fraud. (Iglesias found no evidence of any program designed to influence an election.) Vulnerable Rep. Heather Wilson lobbied him to bring indictments against state Democratic officials before the election to help make the point that when it comes to corruption, everyone does it. When Iglesias refused to respond, he was targeted despite glowing performance reviews. The firings took place as an object lesson for U.S .attorneys headed into the donnybrook that will be the 2008 election. As Iglesias put it , "main Justice was up to its eyeballs in partisan political maneuvers."

Gonzales will surely be the next administration official to fall on his sword. Republican legislators are already questioning his ability to serve the president effectively. We'll see more stories about White House mismanagement and incompetence. But don't be misled. Bush and Rove know how to play this game. They play by their rules, the rules that conservative administrations have followed since Nixon. And that's the real lesson. The phrase "conservative misrule" is a redundancy. The two words mean exactly the same thing.


Robert L. Borosage is co-director of the Campaign For America's Future.

NY Times Editorial - What People Really Need


What People Really Need

In nasty and bumbling comments made at the White House yesterday, President Bush declared that “people just need to hear the truth” about the firing of eight United States attorneys. That’s right. Unfortunately, the deal Mr. Bush offered Congress to make White House officials available for “interviews” did not come close to meeting that standard.

Mr. Bush’s proposal was a formula for hiding the truth, and for protecting the president and his staff from a legitimate inquiry by Congress. Mr. Bush’s idea of openness involved sending White House officials to Congress to answer questions in private, without taking any oath, making a transcript or allowing any follow-up appearances. The people, in other words, would be kept in the dark.

The Democratic leaders were right to reject the offer, despite Mr. Bush’s threat to turn this dispute into a full-blown constitutional confrontation.

Congress has the right and the duty to fully investigate the firings, which may have been illegal, and Justice Department officials’ statements to Congress, which may have been untrue. It needs to question Karl Rove, Mr. Bush’s chief political adviser, Harriet Miers, the former White House counsel, and other top officials.

It is hard to imagine what, besides evading responsibility, the White House had in mind. Why would anyone refuse to take an oath on a matter like this, unless he were not fully committed to telling the truth? And why would Congress accept that idea, especially in an investigation that has already been marked by repeated false and misleading statements from administration officials?

The White House notes that making misrepresentations to Congress is illegal, even if no oath is taken. But that seems to be where the lack of a transcript comes in. It would be hard to prove what Mr. Rove and others said if no official record existed.

The White House also put an unacceptable condition on the documents it would make available, by excluding e-mail messages within the White House. Mr. Bush’s overall strategy seems clear: to stop Congress from learning what went on within the White House, which may well be where the key decisions to fire the attorneys were made.

The White House argued that presidential advisers rarely testify before Congress, but that is simply not true. Many of President Clinton’s high-ranking advisers, including his White House counsels and deputy chief of staff, testified about Whitewater, allegations of campaign finance abuses and other matters.

The Bush administration is trying to hide behind the doctrine of “executive privilege.” That term does not appear in the Constitution; the best Mr. Bush could do yesterday was a stammering reference to the separate branches of government. When presidents have tried to invoke this privilege, the courts have been skeptical. President Richard Nixon tried to withhold the Watergate tapes, but a unanimous Supreme Court ruled against him.

It is no great surprise that top officials of this administration believe they do not need to testify before Congress. This is an administration that has shown over and over that it does not believe that the laws apply to it, and that it does not respect its co-equal branches of government. Congress should subpoena Mr. Rove and the others, and question them under oath, in public. If Congress has more questions, they should be recalled.

That would not be “partisanship,” as Mr. Bush wants Americans to believe. It would be Congress doing its job by holding the president and his team accountable — a rare thing in the last six years.

Glenn Greenwald - Congressional Republicans suddenly discover the need for oversight

Congressional Republicans suddenly discover the need for oversight

The House Judiciary Committee yesterday held a hearing concerning the FBI's illegal use of NSLs to spy on Americans. The Inspector General who revealed (at least some of) the abuses, Glenn Fine, along with the FBI's General Counsel, Valerie Caproni, testified.

The Washington Post reported that these revelations "evoked heated criticism of the bureau from Republicans and Democrats alike." The Associated Press said that "Republicans and Democrats sternly warned the FBI on Tuesday that it could lose its broad power to collect telephone, e-mail and financial records to hunt terrorists after revelations of widespread abuses of the authority detailed in a recent internal investigation."

Both articles included a series of quotes from Republican Congressmen expressing very, very righteous anger and betrayal over the fact that the FBI has been abusing all of the unchecked powers which Congressional Republicans gave to them. From AP:

If the FBI doesn't move swiftly to correct the mistakes and problems revealed last week in Fine's 130-page report, "you probably won't have NSL authority," said Rep. Dan Lungren, R-Calif., a supporter of the power, referring to the data requests by their initials.

"From the attorney general on down, you should be ashamed of yourself," said Rep. Darrell Issa, R-Calif. "We stretched to try to give you the tools necessary to make America safe, and it is very, very clear that you've abused that trust."

If Congress revokes some of the expansive law enforcement powers it granted in the wake of the Sept. 11 attacks, Issa said, "America may be less safe, but the Constitution will be more secure, and it will be because of your failure to deal with this in a serious fashion." . . .

"The problem is enforcement of the law, not the law itself," said Rep. Lamar Smith of Texas, the panel's senior GOP member. "We need to be vigilant to make sure these problems are fixed."

And from the Post:
[Fine's] account evoked heated criticism of the bureau from Republicans and Democrats alike, including a comment from Rep. Dan Lungren (R-Calif.) that it "sounds like a report about a first- or second-grade class" . . . .

Rep. F. James Sensenbrenner Jr. (R-Wis.) expressed surprise at how widespread the use of national security letters had become, asking: "Do we have that many potential terrorists running around the country? If so, I'm really worried." He said the inspector general's report shows that "the FBI has had a gross overreach," and added that its officials "can't get away with this and expect to maintain public support for the tools that they need to combat terrorism."

Of course, this sudden discovery of the need for oversight was prompted only by highly public revelations of abuse. And the reason why all of this happened -- and this is but a tiny fraction of the lawbreaking and abuse going on -- is because Congressional Republicans spent the last six years purposely allowing the Executive branch to accumulate unlimited amounts of unchecked power, while they blocked every attempt (most of which were lame and half-hearted) by Congressional Democrats to exert oversight over how these powers were used.

Thus, the very same Congressional Republican caucus now pretending to be so shocked and upset over these abuses were the ones who spent the last six years enabling these very abuses. They vested these powers and then completely abdicated their responsibilities to exercise oversight.

And it was not mere abdication of their responsibilities of which they are guilty, but worse still, all-out attacks on those who warned of the dangers of allowing the Executive to exercise unchecked surveillance and other powers over Americans. Just look at the quotes from these Republican Congressmen -- "Do we have that many potential terrorists running around the country? If so, I'm really worried"; "America may be less safe, but the Constitution will be more secure" -- which are rather similar to the arguments made over the last six years by opponents of unchecked executive power.

Over the last six years, people who voiced these objections were repeatedly accused -- by Congressional Republicans and their party -- of being advocates of Terrorist Rights and being Allies of Al Qaeda as a result of those objections. Yet these are the same objections which Congressional Republicans -- now that the FBI's abuses have become inescapably clear -- are voicing in order to transform themselves from Guilty Parties into shocked and disappointed victims.

These are the same people who defended the President's right to eavesdrop on the telephone conversations of Americans in secret and with no oversight even though the law made that a felony, and then voted to legalize that unchecked eavesdropping. They did not want to investigate any reports of illegal behavior on the part of the administration with regard to a whole slew of abuses.

They blocked every effort to impose some minimal checks on those powers or to investigate them in any way. And from signing statements to indefinite detentions of Americans, they obediently embraced every radical assertion of unchecked presidential power (and kudos to The Oregonian for taking note of the obvious connection that "President Bush [in his signing statement] rejected some of these reporting requirments in a signing statement last year. His opposition may have influenced FBI thinking").

All of the available evidence suggests that this one-day theatrical outburst of Concern for Oversight will be fleeting and inconsequential. Already, as Bernhard notes, the FBI is instituting what appear to be procedures which would be even more susceptible to abuse, whereby they can obtain records from telecoms orally, unaccompanied by any documentary requests. And, despite the new "agreement" to eavesdrop within the parameters of the FISA court, the resulting abuses from the Congressional Republicans' defense of secret, oversight-less eavesdropping are (just by the way) still almost certainly ongoing (h/t Kevin Hayden).

It is hardly news that most Beltway politicians are bereft of any sense of responsibility for their actions or consistency of any kind. Still, even with that understanding at the forefront of one's mind, it is difficult to witness the revolting spectacle of Congressional Republicans of all people pretending to be angry over executive abuses of unchecked surveillance power and flamboyantly masquerading around as aggressive watchdogs over the rights of Americans. Even for our political culture, that is really a bit much.