By Dan Froomkin
Special to washingtonpost.com
Thursday, August 2, 2007 1:24 PM
The presidential aide who acts with such impunity now has the ultimate protection: absolute immunity from congressional oversight, at least in the judgment of White House Counsel Fred Fielding.
White House political mastermind Karl Rove had been subpoenaed to testify this morning before the Senate Judiciary Committee as part of the investigation into last year's still-unexplained firings of nine U.S. attorneys.
No one actually expected Rove to show up. But Fielding's assertion of executive privilege yesterday to block his testimony was nevertheless surprising in its breadth.
From Fielding's letter to Judiciary Committee Chairman Patrick Leahy: "Based upon the advice of the Department of Justice, the President . . . has requested that I advise and inform you that Mr. Rove, as an immediate presidential advisor, is immune from compelled congressional testimony about matters that arose during his tenure and that relate to his official duties in that capacity. Accordingly, Mr. Rove is not required to appear in response to the Judiciary Committee subpoena to testify about such matters, and he has been directed not to appear."
In support of his position, Fielding attached a letter from principal deputy attorney general Steven G. Bradbury, who bases his argument for Rove's immunity on a Nixon-era memo by then-assistant attorney general William H. Rehnquist. Rehnquist wrote in 1971: "The President and his immediate advisers -- that is, those who customarily meet with the President on a regular or frequent basis -- should be deemed absolutely immune from testimonial compulsion by a congressional committee. They not only may not be examined with respect to their official duties, but they may not even be compelled to appear before a congressional committee."
The Clinton Justice Department cited the same Rehnquist memo in 1999 when then-White House counsel Beth Nolan was subpoenaed by a House committee investigating President Clinton's grant of clemency to 16 members of a Puerto Rican terrorist group.
But as Nolan herself testified on the Hill this spring: "Recognizing the absence of judicial precedent for this position, however, the Attorney General appropriately also considered the balance of executive and legislative interests in the particular matter to conclude that my testimony was protected from congressional compulsion under the particular circumstances of that request. I subsequently testified before that same committee with respect to other pardons, after the President waived any privileges he might have asserted with respect to such testimony, just as he had done on prior occasions."
Nolan explained: "We have little case law illuminating the contours of executive privilege, but what we do have makes one thing absolutely clear: the President's constitutional authority to assert executive privilege is not absolute, but is instead to be balanced against the legitimate needs of the coordinate branches of government in undertaking their constitutionally assigned responsibilities. The seminal Supreme Court case on executive privilege is, of course, United States v. Nixon, [a 1974 decision] in which the Court held that a privilege is a qualified one that may be outweighed by countervailing needs."
Leahy responded to Fielding's letter with the following statement: "Why is the White House working so hard to hide Karl Rove's involvement? Karl Rove, who is now refusing to comply with Senate subpoenas, spoke publicly in speeches about these firings when the scandal first broke, but is suddenly unable to talk it about when he is under oath? Mr. Rove has given reasons for the firings that have now been shown to be inaccurate after-the-fact fabrications. Yet, he now refuses to tell this Committee the truth about his role in targeting well-respected U.S. Attorneys for firing and in seeking to cover up his role and that of his staff in the scandal.
"It is a shame that this White House continues to act as if it is above the law. That is wrong. The subpoenas authorized by this Committee in connection with its investigation into the mass firings of U.S. Attorneys and the corrosion of federal law enforcement by White House political influence deserve respect and compliance."
James Risen writes in the New York Times: "Attorney General Alberto R. Gonzales offered a narrowly drawn defense of his recent Congressional testimony on Wednesday, saying he had been truthful in denying that there had been serious disagreements within the Bush administration about the National Security Agency's program of wiretapping without warrants."
From Gonzales's letter: "I am deeply concerned with suggestions that my testimony was misleading, and am determined to address any such impression. . . .
"I recognize that the use of the term 'Terrorist Surveillance Program' and my shorthand reference to the 'program' publicly 'described by the President' may have created confusion, particularly for those who are knowledgeable about the NSA activities authorized in the presidential order described by the [director of National Intelligence], and who may be accustomed to thinking of them or referring to them together as a single NSA 'program.'"
So the more you knew, the more "confused" you might have been? Moreover, Gonzales may have introduced yet another point of potential "confusion" in his letter by making a distinction between "intense deliberation" and "serious disagreement."
In February 2006, Gonzales testified at a Senate Judiciary Committee hearing that "there has not been any serious disagreement about the program that the president has confirmed."
Some Democrats are accusing Gonzales of perjury in light of former deputy attorney general James Comey's recent testimony about a broad-based rebellion in 2004 by top Justice Department officials against aspects of the NSA program. Gonzales now argues that Comey's objections were about "other intelligence activities" -- i.e., ones that are still secret.
But he also writes in yesterday's letter: "That is not to say that the legal issues raised by the Terrorist Surveillance Program were insubstantial; it was an extraordinary activity that presented novel and difficult issues and was, as I understand, the subject of intense deliberations within the Department."
Can you have "intense deliberation" without "serious disagreement"? I can't.
Here is Leahy's response to the Gonzales letter: "The Attorney General's legalistic explanation of his misleading testimony under oath before the Senate Judiciary Committee last week is not what one should expect from the top law enforcement officer of the United States. It is time for full candor to enforce the law and promote justice, rather than word parsing."
Roger Simon reports in the Politico that Leahy, in an interview, had this to say about Gonzales: "I don't trust him. He gives me the impression that he is someone to whom telling the truth does not come naturally.
"Those of us who have been prosecutors are particularly concerned with him because his activities undermine law enforcement. If law enforcement is not impartial, the whole system breaks down. And the attorney general makes law enforcement appear political."
Simon writes: "Leahy has given Gonzales to the end of this week to amend those statements he has made under oath to the Judiciary Committee that are in conflict with the testimony of others, a standard procedure the committee allows for all witnesses.
"If Gonzales refuses, however, the outcome will not be standard procedure.
"'If he stands behind the answers he gave, I find him not believable and will ask the inspector general to investigate,' Leahy said."
Leahy also noted: "History will not be kind to the arrogance and indifference to law shown by this White House."Why He's Still There
Peter Grier writes in the Christian Science Monitor: "Seldom have a cabinet official and a Congress been so at odds. After months of bickering over fired US attorneys, congressional subpoenas, and secret eavesdropping, embattled Attorney General Alberto Gonzales now has few supporters left on Capitol Hill, even among his fellow Republicans. . . .
"But it remains unlikely that lawmakers alone will oust the attorney general from office. By all accounts Gonzales retains the support of the person who could fire him in a stroke: President Bush."
Massimo Calabresi writes in Time with "four reasons why Bush can't afford to let Gonzales go:
"1. Gonzales is all that stands between the White House and special prosecutors. As dicey as things are for Bush right now, his advisers know that they could get much worse. . . .
"2. A post-Gonzales DOJ would be in the hands of a nonpartisan, tough prosecutor, not a political hand. Newly appointed Deputy Attorney General Craig Morford is in line to take over until a new Attorney General could be confirmed. . . .
"3. If Gonzales goes, the White House fears that other losses will follow. . . . Republicans are loath to hand Democrats some high-profile casualties to use in the 2008 campaign. Stonewalling, they believe, is their best way to avoid another election focused on corruption issues. . . .
"4. Nobody at the White House wants the legal bills and headaches that come with being a target of investigations. In backing Gonzales, Bush is influenced by advisers whose future depends on the survival of their political bodyguard."
Sidney Blumenthal is even more blunt in his Salon opinion column: "If Attorney General Alberto Gonzales were miraculously to tell the truth, or if he were to resign or be removed, the secret government of the past six years would be unlocked. . . .
"Gonzales is a unique figure of disrepute in the history of the Justice Department, a cipher, enabler and useful idiot who was nonetheless indispensable in the rise of his patron and whose survival is elemental to that of the administration."FISA Watch
Ellen Nakashima and Spencer S. Hsu write in The Washington Post: "Congressional Democrats outlined a temporary plan yesterday that would expand the government's authority to conduct electronic surveillance of overseas communications in search of terrorists.
"The proposal, according to House and Senate Democrats, would permit a secret court to issue broad orders approving eavesdropping of communications involving suspects overseas and other people, who may be in the United States. To issue an order, the court would not need to identify a particular target overseas, but it would have to determine that those being targeted are 'likely,' in fact, overseas.
"If a foreign target's communications to a person inside the United States reaches a 'significant' number, then an court order based on probable cause would be required. It is unclear how 'significant' would be defined.
"Under a sunset provision, the authority would have to be revisited in six months. . . .
"Caroline Fredrickson, director of the American Civil Liberties Union's Washington legislative office, contended that Democrats are 'capitulating to the politics of fear.'"
What's the problem all of a sudden? It's complicated. But apparently this stems from the Bush administration's decision in January to put the program under the supervision of the FISA court. At least one judge didn't like what he saw.
Michael Isikoff and Mark Hosenball write for Newsweek: "A secret ruling by a federal judge has restricted the U.S. intelligence community's surveillance of suspected terrorists overseas and prompted the Bush administration's current push for 'emergency' legislation to expand its wiretapping powers, according to a leading congressman and a legal source who has been briefed on the matter."
Richard Willing writes in USA Today: "Rapid growth in cellphone use in South Asia and the Middle East has spurred a battle in Congress over whether foreign communications of suspected terrorists can be intercepted by intelligence agencies without court order. . . .
"Sen. Kit Bond of Missouri, the top Republican on the Senate Intelligence Committee . . . [says] it's difficult for eavesdroppers to separate foreign and domestic calls because of the fiber-optic technology on which call data is routed through the USA."
Blogger Digby marvels at the Democratic rush to capitulate, and writes: "What are they afraid of, that the Bush administration will blame them if a terrorist attack occurs and they didn't approve another blank check? Guess what? It wouldn't matter if the Democrats named Bush king with the power to draw and quarter hippies and Muslims on the White House lawn, they will still blame the Democrats if there is another terrorist attack."Clinton v. Cheney
Greg Sargent writes for TPM Cafe: "Escalating her battle with the White House over the Pentagon's contingency Iraq withdrawal planning, Hillary Clinton has written a sharply worded letter directly to Vice President Dick Cheney, demanding that the administration clarify its position as to whether her ongoing request for info about such planning is aiding enemy propaganda."
In his Tuesday interview with CNN's Larry King, Cheney came to the defense of undersecretary of defense Eric S. Edelman, who accused Clinton of reinforcing enemy propaganda by requesting a briefing on withdrawal plans from Iraq. Cheney said he thought Edelman wrote "a good letter" and said that "we don't get into the business of sharing operational plans -- we never have -- with the Congress."
Sargent quotes from Clinton's letter: "Your contention that I asked to reveal operational plans is a misrepresentation. In fact, as a result of my inquiry, the Pentagon will be briefing the Senate Armed Services Committee tomorrow on this topic, without fear that operational security will be imperiled."
And, she writes: "I am writing to President Bush asking that he set the record straight about the Administration's position regarding the role of Congress in oversight of the war."Iraq Watch
Ben Feller writes for the Associated Press with the news the White House wanted out yesterday: "President Bush prodded Iraqi Prime Minister Nouri al-Maliki on Wednesday to unite rival factions in a country stung by an announcement that the largest Sunni Arab bloc intends to pull out of the government....
"Bush and al-Maliki spoke in a secure video conference, part of a regular series of conversations on the war and Iraq's struggling democracy.
"'The president emphasized that the Iraqi people and the American people need to see action -- not just words -- but need to see action on the political front,' said White House press secretary Tony Snow. 'The prime minister agreed.'"
But wait: Does that sound familiar? Flash back to Bush's Jan. 10 speech to the nation announcing the surge: "I've made it clear to the Prime Minister and Iraq's other leaders that America's commitment is not open-ended. If the Iraqi government does not follow through on its promises, it will lose the support of the American people -- and it will lose the support of the Iraqi people. Now is the time to act. The Prime Minister understands this."Cheney Redux
Philadelphia Inquirer blogger Dick Polman provides an annotated transcript of Cheney's CNN interview. Jon Stewart, in a segment titled "I now pronounce you Dick and Larry," calls special attention to Cheney's lopsided grin after being asked if he plans to attack Iran. "For what reason?" Cheney answers, looking very pleased with himself.Op-Ed Redux
Here's more news about that Michael E. O'Hanlon and Kenneth M. Pollack New York Times op-ed the White House is hawking so aggressively.
George Packer blogs for the New Yorker: "I talked to Pollack yesterday. In answer to some of the questions I raised: he spoke with very few Iraqis and could independently confirm very little of what he heard from American officials. . . . The improvements in security, he said, are 'relative,' which is a heavy qualification, given the extreme violence of 2006 and early 2007. And it's far from clear that progress anywhere is sustainable. Everywhere he went, the line Pollack heard was that the central government in Baghdad is broken and the only solutions that can work are local ones.
"It was a step back from the almost definitive tone of 'A War We Just Might Win' (a bad headline, and not the authors'). That tone was misplaced, and it is already being used by an Administration that has always thought tactically and will grasp any shred of support, regardless of the facts, to win the short-term argument."Tillman Watch
Glenn Kessler writes in The Washington Post: "Former defense secretary Donald H. Rumsfeld, making his first appearance on Capitol Hill since President Bush relieved him last year, denied yesterday that he or top generals tried to cover up the 'friendly fire' death of former football star and Army Ranger Pat Tillman in Afghanistan three years ago. . . .
"'I know that I would not engage in a coverup,' Rumsfeld told the House Committee on Oversight and Government Reform. Flanked by three current and retired generals, he said: 'I know that no one in the White House suggested such a thing to me. I know that the gentlemen sitting next to me are men of enormous integrity and would not participate in something like that.'"
Dana Milbank notes in The Washington Post that it was a display of missing memories: "No fewer than 82 times during the three-hour hearing, Rumsfeld and his former military colleagues were heard to utter 'I can't recall,' 'I don't remember,' 'I don't know' or a variation of these."
From Committee Chairman Henry Waxman's opening statement: "We have tried to find out what the White House knew about Corporal Tillman's death. We know that in the days following the initial report, at least 97 White House officials sent and received hundreds of e-mails about Corporal Tillman's death and how the White House and the president should respond. . . .
"There's nothing sinister about this, and there's nothing sinister in the e-mails we have received. Corporal Tillman is a national hero. It makes sense that White House officials would be paying attention.
"But what doesn't make sense is that weeks later, in the days before and after the Defense Department announced that Corporal Tillman was actually killed by our own forces, there are no e-mails from any of the 97 White House officials about how Corporal Tillman really died.
"The concealment of Corporal Tillman's fratricide caused millions of Americans to question the integrity of our government, yet no one will tell us when and how the White House learned the truth."
Waxman today announced that the White House has agreed to make senior officials available for interviews, with no preconditions for future actions.Bush and the Right-Wing Talk Show Hosts
Hugh Hewitt blogs: "President Bush invited ten talk hosts into the Oval Office for an hour of conversation today --Glenn Beck, Bill Bennett, Neal Boortz, Scott Hennon, Laura Ingraham, Lars Larson, Mark Levin, Michael Medved, Janet Parshall and me. This was an off-the-record conversation, and so I won't be quoting the president.
"I will say on today's show that I am confident about the course of the war and about the momentum in Iraq, as well of the president's absolute commitment to doing right by the troops and his concern for every lost and wounded soldier and their families."
Here's Glenn Beck ( video via Thinkprogress; transcript from CNN): "Although I agreed to not quote him directly, I can tell you this: President Bush is a man who personally feels the pain of every lost soldier. . . .
"He feels the pain of every wounded hero, every lonely, grieving parent this war has caused. He is a man who understands the heavy cost that we are paying. But who believes with every ounce of his being that we are in the fight for our very survival, a fight that's importance can only be judged fairly decades from now, and I believe a fight he is willing to be judged harshly for until that time comes, even if he's long dead.
"I can also tell you that he's -- frustrated is not exactly the right word -- frustrated -- hopeful, yet frustrated. He's frustrated that so many people are so myopic that they have lost sight of the forest through the trees. He's frustrated that so many powerful forces, forces that understand what is truly at stake and who our enemies really are, have lined up against the war on terror because it's politically expedient.
"But above all, I can tell you that the president has incredible passion and resolve. I have not seen this George W. Bush since he had a fire truck behind him and a bull horn in his hand. He was so clear-minded; he was focused. This is not the guy you see on television."Tony Snow and Cancer's Gift
"When our faith flags, [God] throws reminders in our way. Think of the prayer warriors in our midst. They change things, and those of us who have been on the receiving end of their petitions and intercessions know it," Snow writes.
"It is hard to describe, but there are times when suddenly the hairs on the back of your neck stand up, and you feel a surge of the Spirit. Somehow you just know: Others have chosen, when talking to the Author of all creation, to lift us up -- to speak of us!"Bush's Gift Bombs
AFP reports: "For a man rarely seen out of a sombre suit and tie, it could be seen as an inappropriate gift for Gordon Brown -- and even more so given the political sensitivities in Britain of the invasion of Iraq.
"But US President George W. Bush gave Brown a present of a fur-trimmed leather bomber -- or aviator -- jacket when the prime minister visited him at his Camp David retreat, north of Washington, Sunday and Monday.
"The brown jacket has a name tag with the prime minister's official title -- 'Rt Hon (Right Honourable) Gordon Brown' -- on the left breast and a Camp David badge with the presidential seal on the other."
Patrick Wintour writes in the Guardian: "Gordon Brown spent two days at the American presidential retreat of Camp David emphasising the importance of soft power. Judging by the gift he received from George Bush, however, the message has not quite got through."
Wintour speculates: "Mr Bush may have seen the present as a revenge for being forced to dress relatively formally at Camp David in order to meet the prime minister's desire for a businesslike session, as opposed to anything with a hint of relaxed intimacy."
(AFP reports that while Bush himself was casually dressed, according to aides the British leader did not divest himself of his suit, although he did take his tie off at breakfast.)
Andrew Grice writes for the Independent: "Downing Street refused to comment on Mr Brown's rather unexpected present last night, saying it never commented on gifts. His aides said they were 'not pleased' that the news had leaked out. . . .
"It is understood that Mr Brown gave Mr Bush a more conventional present - a book about Winston Churchill, the first British prime minister to visit Camp David."
The Daily Sun has a picture of the jacket, and a photo illustration of what Brown would look like wearing it.
The Evening Standard reports that "friends last night predicted he would 'not be seen dead' in a bomber jacket."