Takeover, page 22
“This is a case about the separation of powers,” began Ted Olson, the U.S. solicitor general. Olson, the former head of the Office of Legal Counsel for the Reagan administration, had been the plaintiff in the landmark 1988 Supreme Court ruling that rejected the Unitary Executive Theory. Now he asserted that presidents have an absolute right to seek confidential advice from outsiders. Neither Congress nor the courts, Olson argued, could force presidents to disclose information in court cases, as the district judge wanted to do in the energy task force dispute—not even very limited information necessary to establish whether there was a basis for letting the lawsuit proceed or dismissing it, a process called discovery.
“We are submitting that the discovery itself violates the Constitution,” Olson said.
Justice Ruth Bader Ginsburg, the liberal jurist appointed by President Clinton in 1993, was startled by the sweep of the claim. If the presidency were simply immune from discovery, it would dramatically limit the ability of courts to review any civil lawsuit.
“All discovery?”
she asked. “Yes,” Olson replied.17
Throughout the questioning, a majority of the justices appeared to be sympathetic to the administration’s general constitutional concerns about a need to solicit candid advice. But they also seemed uncomfortable about siding with the White House on the technical legal issues at hand.18
On June 24, 2004, Farrell was down in South Florida, investigating a potential case involving the government’s immigration policies, when he got a call on his cell phone. The court had issued its ruling. It appeared at first glance, he was told by his colleagues, to be a “punt”—they had neither ordered Cheney to turn over the papers nor dismissed the case. Instead, by a 7–2 vote, the Supreme Court simply ordered the appeals court to take a second look at its decision that Cheney had to show the district judge his energy task force records. Most of the national media similarly portrayed the ruling as a deflating nonevent, since it ensured that a final decision about the energy task force papers would not be made until after the fall’s presidential election.
But it was not a mere punt. Lurking in the dry prose of the court’s majority opinion were instructions to the appeals court for how they should go about taking that second look at the case. Next time, Justice Anthony Kennedy wrote, the appeals court—as well as all other district and appeals courts around the country that encountered a similar case—must use a legal standard that would be much more tilted toward the president’s claim that documents should be kept secret, even from a judge. Courts must afford “presidential confidentiality the greatest protection consistent with the fair administration of justice,” he wrote, lest the executive branch be distracted by too many lawsuits.19
At least one commentator—Shannen Coffin, a former Justice Department official who had worked on the Cheney case at earlier stages—immediately recognized that this decision was not a punt, but instead a “major victory” for presidential power. Writing on the conservative National Review website, he said that, thanks to “the vice president’s resolute assertion that he and the president should have the right to receive in confidence the advice necessary to the performance of their duties,” the White House had already won an expansion of its power to keep things secret—regardless of what happened when the appeals court reconsidered the energy case.20
“It is a decision that will be cited by many a president to come—Democrat and Republican,” wrote Coffin approvingly.
In 2005, after Scooter Libby was indicted for perjury and resigned, Cheney made Addington his chief of staff, while letting him keep his old duties as counsel. But the workload became too much, so Cheney and Addington cast about for another lawyer who shared their eye for leveraging the law to expand presidential power.
They hired Coffin.
4.
One month after the Supreme Court heard oral arguments in the Cheney energy task force papers case, on May 13, 2004, Ashcroft took a dramatic step in an unrelated lawsuit involving an FBI whistle-blower he wanted to silence.
The case involved a translator named Sibel Edmonds, whom the FBI had hired on a contract basis shortly after the 9/11 attacks. In the spring of 2002, Edmonds had alleged that a colleague in her office had passed FBI information on to a Turkish spy group with ties to terrorism. According to a later inspector general report, Edmonds’s allegations had merit, but, rather than getting to the bottom of her suspicions, her supervisor fired her for being disruptive. Shortly after Edmonds was let go, the Senate Judiciary Committee began to look into her allegations, and the FBI provided Congress with unclassified briefings and documents about Edmonds’s work. Later, however, Edmonds filed a whistle-blower lawsuit against the Justice Department, alleging that she was improperly fired in retaliation for embarrassing her employer.
Urging a judge to dismiss the case, Ashcroft invoked the State Secrets Privilege, saying that the lawsuit could not go forward without discussion of Edmonds’s work, and that such discussion could reveal information that might endanger national security. To bolster his argument, Ashcroft declared that he was retroactively classifying as top secret information related to the case that had previously been available to Congress. Then Ashcroft asked a judge to dismiss the lawsuit. After Ashcroft issued his order, two senators who had written letters to the Justice Department critical of its handling of Edmonds’s allegations had no choice but to remove the letters from their website.
The gambit worked. A judge dismissed the case without giving Edmonds a day in court, accepting Ashcroft’s invocation of the State Secrets Privilege. Edmonds was also barred from testifying about problems in the government’s counterterrorism translation program in a class-action lawsuit by family members of victims of 9/11.
The Edmonds incident would not be the last in which the Bush-Cheney administration made aggressive use of the State Secrets Privilege to shut down awkward court cases. The administration repeatedly invoked the doctrine to declare that momentous questions about its use of executive power simply could not be adjudicated, in cases from lawsuits involving detainee abuse by the CIA to its warrantless domestic-surveillance programs.
This use of the State Secrets Privilege essentially established the president and his department heads as the sole arbiters of which matters could receive judicial review. Yet nothing in the Constitution itself gives the executive branch the right to dispose of lawsuits by uttering the magic words “state secrets.” Indeed, the first time the Supreme Court recognized such a privilege had been just fifty years earlier, at the beginning of the Cold War and amid the first real stirrings of the “imperial presidency.” And a closer look at that precedent, U.S. v. Reynolds, shows that it was based on a lie that allowed the executive branch to cover up its own mistakes.
The Reynolds case arose after three civilian scientists working on guided-missile research were killed in the crash of a B-29 bomber in Georgia in 1948. Their widows sued the government, seeking compensation and access to the crash investigation report. A federal district judge said the government had to turn over the report, but the Truman administration refused. The administration said that discussion of the crash report would endanger national security by revealing important details about the classified research the scientists had been working on. The judge said he might be willing to dismiss the case, but he first wanted to see the crash report himself—secretly, in his chambers—in order to make sure the government was telling the truth.
Instead of complying, the Truman administration appealed the district judge’s order, repeating its arguments that showing the report to anyone would endanger state secrets. Amid the fears of the early Cold War, this new claim of an expansive presidential power found a receptive audience. In 1953, without looking at the report, the Supreme Court upheld the claim on the grounds that there was a “reasonable danger that the accident investigation report would contain references to the secret electronic equipment.” And, over the next five decades, presidents would invoke the Reynolds precedent to get rid of more than sixty uncomfortable lawsuits, with judges rejecting the State Secrets Privilege just five times.21
But something extraordinary happened in the year 2000. Judith Palya Loether, the daughter of one of the scientists who had been killed in the 1948 plane crash, was surfing the Internet for information about the accident. She had been seven weeks old when her father, Albert Palya, died, and she had always wondered about the mysterious circumstances around his death. An AltaVista Internet search led her to a website selling recently declassified military documents—including the long-withheld crash report. After paying a small fee by check, she got the report mailed to her home. When she opened it, she was astonished. There was nothing in the crash report about top-secret electronics. Instead, the accident report contained only incriminating evidence that the air force mechanics had neglected to install heat-deflector shields required by regulations to keep the engines from overheating. The engines had caught fire, causing the crash; several servicemen had bailed out and survived the crash, but one told an investigator that the civilians had not been briefed about how to escape the airplane—another violation of regulations.22
“As I discovered more and more about it, I got more and more angry,” Loether told a reporter. “It didn’t have to do with state secrets; it had to do with embarrassment and negligence. You can’t look at that accident report and not be overwhelmed by the amount of negligence involved.”23
The central case on which the State Secrets Privilege rests, then, was a fraud. The Truman administration had lied to the courts and gotten away with it. In the process, it had won a precedent that significantly expanded presidential power to keep information from the courts and from the public, one that the Bush-Cheney administration would later wield with unusual vigor.
Loether tracked down Susan and Cathy Brauner, the daughters of another of the dead civilian scientists, and shared her findings. In the winter of 2002, after Loether made a trip to the crash site in Waycross, Georgia, Loether asked the Brauner sisters to join her in trying to sue the government to reopen the Reynolds case and make the facts known. They were still looking for an attorney when Susan Brauner heard a radio report about a court case being fought by one of the widows of the 9/11 victims. The widow had sued the airlines and was fighting to get documents about the airport security system in Boston, where two of the four hijacked flights had taken off. But the government refused to give the widow the documents or even to show the documents to a judge, citing the Reynolds case.24 Incensed, the daughters of the dead scientists doubled their efforts to challenge the old precedent. Loether found Patricia Reynolds Herring, the still-living widow who was the named plaintiff in the original suit, and together the women filed their lawsuit, hoping the government would correct the mistake now that it had come to light. “I even had fantasies that President Bush would call me and apologize,” Loether said.25
That didn’t happen. Recognizing the danger to a key tool of presidential power, the Bush-Cheney administration’s legal team fought hard against Loether to protect the Reynolds precedent, arguing that too much time had passed to alter the old ruling. A federal district judge dismissed the case, and then a federal appeals court panel upheld the dismissal. One of the appeals court judges who refused to disturb the State Secrets Privilege precedent was Samuel Alito Jr., whom Bush would soon elevate to the Supreme Court.26
5.
On January 7, 2005, USA Today published the results of an investigation it had conducted using the Freedom of Information Act. Documents provided to the newspaper by the Education Department showed that a political commentator, Armstrong Williams, had been paid $240,000 of taxpayer funds to promote President Bush’s controversial No Child Left Behind law on his nationally syndicated television and radio shows, and to urge colleagues to do the same. The contract required Williams to “regularly comment on NCLB during the course of his broadcasts” and to interview Education Secretary Rod Paige about the program. Williams, a former aide to Supreme Court justice Clarence Thomas and one of the most prominent black conservative columnists in the country, had not disclosed the payments as he regularly extolled the White House’s signature domestic policy during the run-up to the 2004 election.27
The disclosure of the secret payments to Williams prompted outrage in the media community as a violation of journalistic ethics. It also focused sharper attention on some of the Bush-Cheney administration’s most aggressive practices for controlling the flow of information to the public: fake news. The Williams deal was set up by a public relations firm that had contracts with other administration agencies to promote Bush administration policies. That same firm also produced “video news releases” that looked just like local TV news stories, complete with fake reporters interviewing administration officials and explaining administration programs in a very positive light. The government sent these videos to local television stations around the country. Local producers ended up broadcasting the professional-looking free content to fill airtime in their nightly newscasts—without alerting viewers that they were watching a government product.
Controversy over the video news releases first flared in the spring of 2004, when a prepackaged story praising the new Medicare drug benefit was widely disseminated. The story featured a hired narrator who ended the segment by saying, “In Washington, I’m Karen Ryan reporting.”28 Karen Ryan later showed up again, “reporting” in praise of the No Child Left Behind Act, just like Armstrong Williams.29 Some video news releases explained fairly innocuous programs, such as government-sponsored anti-bullying and anti-obesity campaigns, but others were nakedly geared toward putting a positive spin on core White House policies—featuring, for example, Iraqis who were happy that the U.S. military had deposed Saddam Hussein.
The video news releases prompted a new confrontation between the White House and the GAO—the nonpartisan congressional watchdog agency headed by Comptroller General David Walker, who had unsuccessfully sued Cheney over access to his secret energy task force records. In a series of reports to Congress, GAO auditors declared that the administration’s prepackaged news segments were illegal under multiple laws that banned the use of taxpayer dollars for covert propaganda.30
But the Bush-Cheney legal team offered its own interpretation of the laws Congress had written, absolving the government of any wrongdoing. In March 2005, the acting head of the Justice Department’s Office of Legal Counsel, a Bush-appointed lawyer named Steven Bradbury, would hold that while the video news releases might be “covert,” since the government misled viewers about the source of the news segments, they weren’t “propaganda,” because they supposedly merely explained programs and facts rather than expressing a political viewpoint.31 By statute, the Office of Legal Counsel’s interpretations of the law are binding interpretations for the executive branch, so Bradbury’s “advisory opinion” meant that there could be no prosecution of the officials who had signed off on the video news releases—and that the practice could continue.
But the GAO rejected the Bush-Cheney legal team’s interpretation, continuing to insist that the video news releases were illegal—and unethical to boot. The dispute would come to an end in May 2005, when Congress passed a new law, clarifying that its ban on spending federal money for “covert propaganda” extended to producing and distributing any news story that does not openly acknowledge the government’s role.32 But other efforts by the administration to control news coverage of its activities were just around the corner.
6.
On May 5, 2005, the FBI arrested an Iran analyst for the Pentagon named Lawrence Franklin, opening a major new front in the Bush-Cheney administration’s attempts to control the information received by the public.
A strong supporter of Israel, Franklin was accused of giving top-secret information about American policy toward Iran to two lobbyists with the American Israel Public Affairs Committee, a group that lobbies the U.S. government to support Israel. The AIPAC lobbyists, Steve Rosen and Keith Weissman, were in turn accused of relaying the information to the government of Israel and to members of the media. Three months later, a federal grand jury indicted Franklin, Rosen, and Weissman under a law called the Espionage Act of 1917.
Congress had enacted the law shortly after the United States entered World War I, a time of a great crackdown on civil liberties in America. The following year, Congress strengthened the law with the Sedition Act of 1918. The two acts allowed the administration of President Woodrow Wilson to censor newspapers that were not supportive of the war effort, and to arrest people who spoke out against military recruiting. Congress repealed most of the laws in 1921, but it left on the books a section from the Espionage Act that prohibited the transmission of national defense information to people not authorized to receive it.
Using the Espionage Act against Franklin was not particularly remarkable. He was a government official who had access to secret information and had given it to people who were not authorized to receive it. (Franklin pled guilty and was sentenced to twelve years in prison in January 2006.) But using the law to indict Rosen and Weissman, the lobbyists, was unprecedented. By indicting the outside recipients of the information, the administration was declaring that private citizens were under the same obligation as government officials to keep quiet about any classified secrets that happened to come into their possession.
One of the first to recognize the sweeping implications of the administration’s new legal strategy was the journalist Eli Lake. Writing in The New Republic, Lake observed that “if it’s illegal for Rosen and Weissman to seek and receive ‘classified information,’ then many investigative journalists are also criminals…. While most administrations have tried to crack down on leaks, they have almost always shied away from going after those who receive them—until now. At a time when a growing amount of information is being classified, the prosecution of Rosen and Weissman threatens to have a chilling effect—not on the ability of foreign agents to influence U.S. policy, but on the ability of the American public to understand it.”33
