By Bernard Weiner, The Crisis Papers
In foreign policy, the CheneyBush Administration is criticized widely abroad for acting like an arrogant bully, threatening and often meting out rough treatment to get what it wants. Its violent behavior in Iraq is a good case in point, leading to tens of thousands of U.S. dead and wounded and hundreds of thousands of Iraqi civilians killed.
But it’s not just in foreign matters that such outrageous, in-your-face behavior obtains. And the best example of this can be found in two separate, but interrelated, cases that came into view this past week.
The one with the most political and constitutional significance involves Dick Cheney and Karl Rove and Scooter Libby — and by extension the POTUS Himself — asserting for the first time in public, through their attorneys, that they are immune from prosecution because they are above the law.
Libby recently was found guilty of perjury and obstruction of justice in the Plame criminal case. He and Cheney and Rove are being civily sued by Joseph Wilson and his wife Valerie Plame for their having outed her as a covert CIA agent and thus endangering her (and her contacts) and ruining her career. The response by the defense legal team to the judge hearing the case, as reported by the Washington Post:
“The lawyers said any conversations Cheney and the officials had about Plame with one another or with reporters were part of their normal duties because they were discussing foreign policy and engaging in an appropriate ‘policy dispute.’ Cheney’s attorney went further, arguing that Cheney is legally akin to the president because of his unique government role and has absolute immunity from any lawsuit.
U.S. District Judge John D. Bates wanted to make sure he heard them claim what he thought he heard them claim, so he explicitly inquired: “So you’re arguing there is nothing — absolutely nothing — these officials could have said to reporters that would have been beyond the scope of their employment,” whether the statements were true or false?
“That’s true, Your Honor…,” said Jeffrey S. Bucholtz, deputy assistant attorney general for the Justice Department’s civil division.
Richard Nixon had asserted much the same claim of absolute authority about his actions in the Watergate scandal, that when the President does something, it’s ipso facto not illegal, and can’t be illegal, since he’s the President.The U.S. Supreme Court at that time made clear that nobody, not the President and not his associates and aides, are outside the reach of the law. In addition, a conservative-led federal appeals court years later ruled that President Bill Clinton could be civily sued by Paula Jones while he was in office.
But in 2007, there’s a new, more “conservative” Supreme Court, which may explain why the CheneyBushRove forces are pushing the issue of absolute presidential authority to the point of a Constitutional Crisis. They figure with Roberts and Alito on the court, they should be able to get a 5-4 decision granting the “commander-in-chief” carte blanche in “wartime.”
What war, you ask? Why the Bush-proclaimed permanent “Global War on Terror,” that’s what war. Since that war is one being waged against a tactic, it’ll never end and Bush is thus free to do whatever he wishes to do for the duration of his term.
THE ASHCROFT HOSPITAL SCENE
The scene shifts to another location on a separate matter, but with the same arrogant, intimidating approach so prevalent in the Bush White House for the past six years.
The public learned in gripping testimony last week by James Comey, former Deputy Attorney General, that in 2004 he was informed that Attorney General Ashcroft’s wife — who was by her husband’s bedside in the ICU after his emergency gall-bladder surgery — had agitatedly called the DOJ for help. She’d been alerted (Comey said he believes the call came from Bush) that two White House officials — then-White House Counsel Alberto Gonzales and then-chief-of-staff Andrew Card — were on their way to the hospital that minute to see the Attorney General on an important matter. Because her medicated husband was still groggy and disoriented, she had restricted any calls and visitors, but that didn’t seem to matter to the White House.
With sirens blaring and lights flashing, Comey and his security detail made it to George Washington Hospital and raced up the stairs. Their aim was to get to the ICU room before Gonzales and Card arrived to get Ashcroft to sign a document re-authorizing a domestic-spying operation that the DOJ had adjudged to be unconstitutional.
Ashcroft and Comey had discussed this domestic-spying program before the A.G. went into the hospital, and both had decided, as did the DOJ’s legal team, that they would not, and in all conscience could not, sign the required document attesting to the program’s legality. Comey, as Ashcroft’s deputy, was named Acting Attorney General while the A.G. was in the hospital, and the White House had been so informed.
When Gonzales and Card entered the ICU room, carrying a document, they didn’t want to talk to Comey. (Comey had the reputation as somewhat independent. Comey was the DOJ official who appointed Patrick Fitzgerald, another straight-arrow, to prosecute the Plame case.) Instead, Gonzales and Card spoke to Ashcroft about the need for him to approve the top-secret surveillance program — it needed to be re-authorized every 45 days, and the deadline was the next day — and they wanted him to sign the paper.
THE DRAMATIC TENSION IN THAT ROOM
Ashcroft gathered enough strength to push himself up off his pillow, denounced their behavior, and informed them that, in any case, Comey was the Acting Attorney General. In the infighting that followed over the next few days, FBI Director Robert Mueller stood with Ashcroft and Comey, with Cheney on the side of Gonzales and Card.
The tension in that ICU room must have been positively electric. “Comey was so concerned that the White House officials would resort to thuggish behavior he [had] called FBI Director Robert Mueller and had Mueller instruct the FBI agents present in Ashcroft’s room ‘not to allow me to be removed from the room under any circumstances’.”
(When White House Press Secretary Tony Snow was asked the other day about the mob-style tactics in that hospital room, trying to lean on a very sick man to get what they wanted, Snow said, apparently with a straight face: Snow — who may have been speaking metaphorically when he got the operation wrong — would say no more about the incident. And Bush would not answer reporters’ questions about whether he sent his heavies to Ashcroft’s room in the ICU.)
CARD ORDERS COMEY TO WHITE HOUSE
After Gonzales and Card left the hospital, having obtained no DOJ signature on the document, Card called Comey and angrily ordered him to come to the White House later that evening for a meeting. Comey told Card that based on the behavior of White House officials that afternoon in the hospital room, there was no way he would meet with Card without an outside witness being present. He chose Solicitor General Theodore Olson as his witness.
The White House meeting solved nothing. The DOJ officials would not agree to authorize a domestic-spying program they had determined to be illegal.
What did Bush do? According to Comey, “The program was reauthorized without us and without a signature from the Department of Justice attesting as to its legality.”
Ashcroft, Comey, and Mueller threatened to resign in protest unless Bush changed his policy. Perhaps because of the threat of another scandal going public just before the November 2004 election, Bush said he would back off and make adjustments to the program to meet the DOJ objections. But, to this day it’s not clear what changes, if any, he might have made in the program.
BUT WHICH DOMESTIC SPYING PROGRAM?
One reason virtually nobody is sure what Bush did is that it’s still unclear what domestic spying operation was being discussed by Gonzales and then by Comey.
On the surface, the program would seem to be the NSA’s domestic spying program that Bush&Co. took out of the hands of the legally-constituted FISA authorities, the super-secret court that has jurisdiction in okaying wiretaps on U.S. citizens suspected of ties with terrorists. This is the domestic-spying program that received all the publicity when the New York Times finally made it public in 2005 — notably, after the presidential election.
But if one pays careful attention to Gonzales’ February 6, 2006 testimony to the Senate Judiciary Committee, one is led to wonder if Ashcroft, Comey and Mueller were adamant about the admitted-to NSA spy operation or about another, still undisclosed domestic-spying program.
In that testimony, when questioned by senators as to the NSA domestic-spying operations, Gonzales continually used the phrase “the program which I’m testifying about today.” In a later written clarification, he said: “I did not and could not address . . . any other classified intelligence activities.” Using the administration’s term for the recently disclosed operation, he continued, “I was confining my remarks to the Terrorist Surveillance Program as described by the President, the legality of which was the subject” of that day’s hearing.
The clear implicaton in Gonzales’ carefully-parsed language is that there were other domestic spying programs in place that Bush had not described.
THE “MYSTERY” SPYING OPERATION
Ashcroft, Comey and Mueller all were conservative-Republicans who had supported virtually every one of Bush’s numerous violations of civil liberties, but in this case they were willing to take the ultimate step of putting their necks on the block by resigning and going public. So you can bet that program was something major and truly outrageous. It could well have been the NSA program, but, if not, there are at least two other possibilities:
1. The “Total Information Awareness” program, involving massive data-mining of millions of Americans’ phone calls and e-mails, had been defunded by Congress when the legislators found out about it. Could the TIA, or something very much like it, have been made operational, perhaps under another name, and that this was what Bush&Co. wanted to legalize in some fashion?
2. Could there be a domestic surveillance operation that enabled Bush&Co. to spy on political opponents to Bush policy — Democratic leaders, anti-war activists, etc. — that had no cover of law and needed a legal fig-leaf?
At the very least, Comey, Ashcroft and Mueller should be invited soon to testify before the Senate Judiciary Committee and explain what the hell the Bush Administration was doing that was so legally suspect that the three top men in the Department of Justice were willing to go public with their resignations in opposition to the policy.
So far as I know, Ashcroft has not been questioned under oath about his tenure as A.G., and it’s long past time that he be asked pointed questions about that period, and especially about these episodes. And certainly it’s time for Gonzales to be grilled again under oath about this, and other matters involving the legality and advisability of his behavior as White House Counsel and Attorney General. Lift up those rocks and the American public will have the opportunity to see a whole lot of bad.
Salon’s Glenn Greenwald sums up the situation accurately: “What James Comey described on Tuesday is the behavior of a government completely unmoored from any constraints of law, operating only by the rules of thuggery, intimidation, and pure lawlessness. Even for the most establishment-defending organs, there are now indisputably clear facts suggesting that the scope and breadth and brazenness of the lawbreaking here is far beyond even what was known previously, and it occurred at the highest levels of the Bush administration. We are so plainly beyond the point of no return with this criminality. It is now inescapably evident even for those who struggled for so long to avoid acknowledging it.”
Even the Washington Post, normally friendly in its editorials to CheneyBush spin, came down hard on the Administration, speaking of a “lawlessness so shocking that it would have been unbelievable coming from a less reputable source.” But, sad to say, this incident, and the CheneyBush Administration’s conduct in Iraq and in its domestic spying, does in fact represent the mob currently residing in the White House. Impeachment ASAP is a necessity to save our country. #
Bernard Weiner, Ph.D., has taught government & international relations at various universities in California and Washington, was a writer-editor with the San Francisco Chronicle for nearly twenty years, and currently is co-editor of The Crisis Papers (www.crisispapers.org). To comment: firstname.lastname@example.org .
First published by The Crisis Papers and Democratic Underground 5/22/07.
Copyright 2007 by Bernard Weiner.