Administration -- Bush's Executive Privilege

June 24, 2008

by Faiz Shakir, Amanda Terkel, Satyam Khanna, Matt Corley, Ali Frick, Benjamin Armbruster, and Brad Johnson

ADMINISTRATION

Bush's Executive Privilege

As the Bush era winds down, the President is asserting executive privilege to impede congressional oversight of his administration. With a contempt of Congress vote looming by Rep. Henry Waxman's (D-CA) House Oversight and Government Reform Committee, President Bush asserted executive privilege last Friday morning, blocking the committee's subpoenas for documents relating to the Environmental Protection Agency's (EPA) decision to reject California's efforts to reduce greenhouse gas emissions and to override scientific recommendations on ozone standards. Waxman found Bush's action on Friday "extraordinary," especially since EPA Administrator Stephen Johnson "has repeatedly insisted he reached his decisions on California's petition and the new ozone standard on his own." In a separate case, lawyers for Congress tried yesterday to convince a federal judge to take the "unprecedented step" and compel the administration to obey subpoenas related to the U.S. Attorneys scandal -- the first lawsuit ever "filed by either chamber of Congress seeking to force the executive branch to comply with a subpoena." Bush had cited executive privilege to prevent former White House counsel Harriet Miers from testifying and White House Chief of Staff Joshua Bolten from turning over documents. As with President Nixon's attempts to block the Watergate investigation and President Reagan's efforts to hide the EPA dioxin scandal, Bush appears to be using his assertion of executive privilege as a tool to cover up his administration's illegal actions.

'ABOVE THE LAW': Bush's assertion of executive privilege on Friday put a halt to the contempt vote that Waxman's committee had scheduled for Johnson and White House Office of Management and Budget (OMB) regulatory administrator Susan Dudley. Despite the White House's complaint that such a vote represented a "sudden, significant escalation," Waxman was investigating the EPA's decisions for months. His committee's investigations have revealed that Johnson's decision to reject California's waiver petition was made only after discussions with the White House. Similarly, the Washington Post reported that Bush personally intervened in a between Dudley's office and the EPA, prompting the EPA to reject scientific recommendations for smog standards. What is being withheld is Bush's legal justification for his actions -- important because the Clean Air Act strictly defines permissible considerations for air quality standards and waivers. The documents withheld from Congress include 1,956 OMB documents regarding Bush's ozone decision, 25 EPA documents on the California waiver, and 71 more that are being turned over with the "identities of the meeting participants" redacted. On May 20, Johnson and Dudley appeared before the committee without the subpoenaed documents and refused to answer questions about Bush's involvement. At the hearing, Waxman sharply criticized Bush's role, saying, "The president does not have absolute power, and he is not above the law."

WHAT'S NEXT: Following Bush's executive privilege claim, Waxman declared that he would "talk with my colleagues on both sides about this new development and consider all our options before deciding how we should proceed." Rep. Dennis Kucinich (D-OH) said the "committee should approve a contempt resolution immediately," and "reiterated his call to impeach the president" to hold the administration accountable. The courts are reluctant to get involved, as Judge John D. Bates said in Monday's hearing on congressional subpoeanas: "Whether I rule for the executive branch or I rule for the legislative branch, I'm going to disrupt the balance." The House counsel asked the court to "order Miers to testify and allow her to invoke executive privilege only on a question-by-question basis" and for Bolten "to provide a log of White House documents and to explain why each was being withheld." Lawyers for the administration argued top advisers deserve "absolute immunity" and Congress should use political tools instead of the courts, such as "withholding funds for the Justice Department or stalling presidential appointments." When asked in March if Congress would continue the U.S. attorneys investigation if it continues into the next administration, House Speaker Nancy Pelosi (D-CA) said, "Absolutely. ... [W]e might as well just shred the Constitution and forget about taking the oath of office if we’re just going to do it for a Republican President and not a Democratic President."

RARE 'PRIVILEGE': The invocation of executive privilege, needed to protect presidential confidentiality to preserve separation of powers, is relatively rare. Nixon and Reagan claimed it in three cases; Ford, Carter, and George H. W. Bush each once. President Clinton invoked executive privilege repeatedly during the investigations of the White House during his second term. Friday's assertion of executive privilege marks Bush's fourth case. Bush invoked the privilege in the U.S. Attorneys scandal to prevent Josh Bolten from turning over documents, and to protect Harriet Miers, Sara Taylor, Karl Rove, and Scott Jennings from being forced to testify. This February, the House voted to hold Miers and Bolten in contempt of Congress. Attorney General Michael Mukasey, however, declined to investigate the issue, spurring the civil lawsuit. In May 2004, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the documents were not covered by executive privilege. Although the administration has resisted turning over documents relating to several other cases, such as the Pat Tillman and Energy Task Force investigations, executive privilege was not explicitly asserted. Instead, the White House has used what the Reporters Committee for the Freedom of the Press dubbed "quasi-executive privilege," invoking phrases like "Executive Branch confidentiality interests" and the "constitutional duties of the Executive Branch."

IRAQ -- GAO REPORT SAYS BUSH ADMINISTRATION OVERSTATES PROGRESS IN IRAQ: A report released yesterday by the Government Accountability Office (GAO) criticized the Bush administration's lack of planning for post-surge Iraq, and said that "several crucial measures the Bush administration uses to demonstrate economic, political and security progress are either incorrect or far more mixed than the administration has acknowledged." While the GAO agreed with the administration's assessment that violence has decreased in recent months, it notes that "many other goals Bush outlined a year and a half ago in the 'New Way Forward' strategy remain unmet." The report pointed to laws passed by the Iraqi parliament that have not been implemented and oil and electricity production in Iraq that has not met U.S. targets. The GAO also said that "the American plan for a stable Iraq lacks a strategic framework that meshes with the administration's goals, is falling out of touch with the realities on the ground and contains serious flaws in its operational guidelines." The Pentagon, State Department, and Treasury Department all objected to the report.

ADMINISTRATION -- WHITE HOUSE BLOCKS ARMY'S EFFORT TO INCREASE OVERSIGHT OF DEFENSE CONTRACTORS: Last fall, a blue-ribbon panel examining waste and fraud in defense contracts for Iraq recommended adding five active-duty generals to oversee purchasing and monitor contractor performance. Now that the Army is trying to implement the change, the White House's Office of Management and Budget has shot down the effort, giving no reason for rejecting the Army's proposal. The additional generals would add a mere $1.2 million a year in personnel costs. By contrast, a Defense Contract Audit Agency found $4.9 billion "in overpricing and waste" in Iraq contracts since 2003, a figure that doesn't include an additional $5.1 billion in "expenses charged without documentation." In other words, the White House is blocking a reform that would cost only .012 percent of the $10 billion already lost to contract waste. Last year, President Bush opposed legislation that would limit no-bid contracts and increase congressional oversight of the most lucrative contracts. Despite his opposition, the House passed the bill with 347 votes, and the Senate approved it unanimously.

JUSTICE -- APPEALS COURT REJECTS DETAINEE'S 'ENEMY COMBATANT' DESIGNATION: Last Friday, the U.S. Court of Appeals for the District of Columbia ruled that the U.S. military improperly labeled Huzaifa Parhat, an ethnic Uighur Chinese national, an "enemy combatant" and ordered that he be released, transferred, or granted a new hearing. Parhat, a former fruit peddler who claims to have fled oppression in his native China, was captured in Afghanistan in 2001 and held in detention for six years, despite the fact officials recommended releasing him in 2003 and a tribunal found no evidence that Parhat was a member of a radical group known as the East Turkistan Islamic Movement. While Parhat maintains that he was never "against the United States," one of his lawyers suggested that U.S. officials "hadn't released him in part to avoid harming diplomatic relations with China," where many Uighurs are actively seeking autonomy and have clashed with Chinese government forces. The ruling, which marks the first successful appeal of a Guantanamo detainee's status as an enemy combatant, is the latest in a series of legal setbacks for the Bush administration's detention program.

An Iraqi city council member opened fire on U.S. forces outside Baghdad on Monday, killing two soldiers and wounding three others. "The U.S. forces returned fire, killing the city council member, according to two Interior Ministry officials."

According to a new Department of Justice (DOJ) Inspector's General report to be released today, high-ranking political appointees, beginning under former attorney general John Ashcroft, moved to "exert more control" more over the DOJ's prestigious hiring program. They reportedly tried to stock it with "young conservatives in a five-year-long attempt to reshape the department's ranks."

After voting against Sen. Jim Webb's (D-VA) GI Bill, Sen. John Cornyn (R-TX) now "has the gall to try and take credit for its passage." Brandon Friedman of VoteVets.org writes, "It is an admirable attempt at spin, however. Either way, the troops know Cornyn is a flip-flopper who supports them when it's politically expedient."

A military attaché has told investigators that that the U.S. ambassador to Albania "helped cover up the illegal Chinese origins of ammunition that a Pentagon contractor bought to supply Afghan security forces." The ambassador endorsed a plan to repackage the ammunition "to disguise its origins" and then ship it from Albania to Afghanistan for a Miami Beach arms-dealing company.

"For almost two years former Homeland Security Secretary Tom Ridge failed to register a nearly half-million-dollar lobbying contract that he had with the government of Albania." Ridge, who just registered earlier this month, said he "didn't think it was [necessary] to register," even though federal law requires "agents to register with the DOJ within 10 days of signing a contract with a foreign government."

The flights of nearly 40,000 travelers were canceled or delayed at Heathrow Airport to accommodate President Bush during his stopover in London on June 15 and 16. British Airways chief executive Willie Walsh criticized the disruption, stating, "The decision to allow President Bush and his fleet of aircraft to fly into Heathrow rather than a military base was one all of Heathrow's users could have done without."

During his congressional testimony yesterday, NASA climatologist Dr. James Hansen urged the United States to phase out coal plants. Warning that "we've passed the tipping point" regarding global warming, Hansen advised, "I think the most important near-term thing is to say let's have a moratorium on coal."

In an effort to "communicate directly with students, dissidents and others without endorsing the government," the Bush administration "is considering setting up a diplomatic outpost in Iran in what would mark a dramatic official U.S. return to the country nearly 30 years after the American embassy was overrun and the two nations severed relations."

And finally: Pearl Jam's Eddie Vedder was in DC yesterday for a concert, during which he "went on a tear" about, among other topics, conservatives' "proposed plan to lift the ban on offshore drilling" and "the 'corporate' mentality of the Bush administration." There was reportedly "some muffled booing," including from attendee House Minority Leader John Boehner's (R-OH) spokesman Brian Kennedy, who nevertheless said it was a "great show."

"President Bush on Monday nominated a top logistics officer to be the first female four-star general in U.S. history, tapping Lt. Gen. Ann E. Dunwoody to head the command responsible for supplying the Army with all its equipment."

ARIZONA: "State Senate appeared to reach a bipartisan budget deal Monday evening that would close a $1.9 billion shortfall in fiscal 2009 and avert any sort of state shutdown."

TEXAS: "Supreme Court decision paving the way for a 670-mile federal fence along the U.S.-Mexico border drew swift criticism from environmentalists, who promised to make another legal stand in Texas."

ALASKA: Alaska's poorest families in the "most remote towns and villages are expected to spend more than 40 cents out of every dollar they make on power and heat in the coming year."

THINK PROGRESS: Iraq war architect Doug Feith defends Condoleezza Rice's pre-war "mushroom cloud" claim on Iraq: It was neither a "gaffe" nor a "lie."

WONK ROOM: Bush administration's restrictive requirements in its global AIDS initiative cost lives.

ATTACKERMAN: Spencer Ackerman's blog is joining the FireDogLake community.

PANDAGON: The New York Times's Maureen Dowd defends her sexist columns about Sen. Hillary Clinton (D-NY) by saying she also wrote sexist columns about men.

"There's not going to be a short-term response [to high gas prices]. And it would be irresponsible for anybody to suggest there would be."
-- White House Press Secretary Dana Perino, 6/23/08

VERSUS

"[Expanded oil drilling] will reduce gasoline prices in the short term."
-- House Minority Leader John Boehner (R-OH) and Minority Whip Roy Blunt (R-MO), 5/12/08

Think Progress

Bush's Executive Privilege

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