Takeover, page 44
As the administration’s final year in power ticked away, there was little reason to believe that there were not more extraordinary facts that remained hidden from the public and Congress—but that would not stay buried forever.
4.
Still, the administration pressed forward with its broad push to expand executive secrecy. On August 15, 2007, a week after Bush signed the Protect America Act, the U.S. Court of Appeals for the Ninth Circuit in San Francisco heard arguments in one of the civil lawsuits over the warrantless wiretapping programs. A group of AT&T customers had filed a class-action lawsuit against the telecom, based in part on the testimony of a whistle-blower technician who had witnessed some of the taps being installed on AT&T circuits without court permission. The issue before the appeals court that day was not whether it was illegal for AT&T to have allowed the government to eavesdrop on its customers’ phone calls and e-mails without a warrant, but rather whether the lawsuit should simply be thrown out before such questions could be answered. The Bush-Cheney administration had asserted the State Secrets Privilege, asking a lower court judge to dismiss the case lest its adjudication reveal sensitive information pertaining to national security. The lawsuit had ground to a halt while the issue worked its way up the judicial system.
Two months later, while the San Francisco appeals court judges deliberated, the Supreme Court denied a petition to review a decision by the Court of Appeals for the Fourth Circuit in a similar case. The Richmond-based court had ruled that because of the State Secrets Privilege, a lawsuit by Khaled el-Masri, the German citizen who was kidnapped by the CIA and held in one of its secret interrogation prisons by mistake, had to be thrown out before Masri could get his day in court. The Supreme Court refusal to hear Masri’s appeal was another significant White House victory.
Such examples were piling up. A new study showed that the executive branch’s use of the State Secrets Privilege—which dated back to the 1953 Supreme Court fraud-tainted decision in the case of the scientists who died in a military plane crash—was growing exponentially in terms of both frequency and aggression. From 1953 to 1976, the government invoked the privilege in five cases, or 0.2 times a year. Between 1977 and 2001, presidents invoked it in fifty-nine cases, or 2.5 times a year. And in just the first six years of the Bush-Cheney administration, the executive branch had invoked the privilege thirty-nine times, or more than 6 times a year.18 As with signing statements, a previously rare tool of unchecked executive power was becoming routine, a ratcheting-forward that the Bush-Cheney administration had significantly accelerated. Surveying the results, one former CIA operations officer declared that if the trend continued, “it is questionable whether any constitutional complaint against the government involving classified information will ever be allowed to be adjudicated.”19
The intensifying use of the State Secrets Privilege was just one of the many ways in which the administration’s efforts to tighten the executive branch’s control of information was rolling on, in ways large and small. On August 21, 2007, for example, the Justice Department filed papers in court seeking to get a lawsuit over a certain Freedom of Information Act request dismissed. A watchdog group was seeking documents related to the disappearance of upwards of five million White House e-mails from 2003 to 2005, a mass deletion that potentially violated laws requiring official records to be preserved and that came to light as a result of the investigations into the CIA leak case and the U.S. attorney firings scandal. The administration had explained that the failure to archive the e-mails was an innocent mistake stemming from its switch from one e-mail system to another. Using FOIA, the watchdog group sought documents from the White House’s Office of Administration, which handles information technology support for the White House, that would verify that claim. Instead of complying with the request, the Bush-Cheney administration argued that the Office of Administration was not subject to the FOIA law because it had no authority independent of President Bush, and only executive agencies, not the president, were subject to the open-government law. Skeptics criticized this claim because the Office of Administration had processed sixty-five FOIA requests the previous year, and it was listed on the Justice Department’s Web site as being subject to FOIA requests. But the curtain was descending.20
Bush-Cheney officials found further ways to establish a new standard in the control of information. On October 23, 2007, during the outbreak of severe wildfires in Southern California, the Federal Emergency Management Agency held a news conference conducted entirely by government officials. During the briefing, which was broadcast live by cable news channels, the number two official at FEMA, Vice Admiral Harvey E. Johnson Jr., stood at a lectern and called on people who asked questions. The queries allowed Johnson to emphasize just how well the government’s response to the fires was going and how much better it was than to Hurricane Katrina. Neither Johnson nor those doing the asking noted that the questioners were government employees, not journalists. When the arrangement was disclosed a few days later, Johnson apologized. There was no evidence that anyone higher up in the Department of Homeland Security or the administration had condoned staging the briefing, but the incident recalled the administration’s unapologetic use of “video news releases”—the prepackaged TV news segments starring fake reporters who praised administration policies that were aired by local TV stations as regular news reports.21 The standard had been set, and the practices were trickling down through the executive branch.
The Pentagon also felt free to tighten its grip on the information Congress could receive. On December 11, 2007, the Senate Judiciary Committee held an oversight hearing on military commissions. One of the witnesses scheduled to appear was Air Force Colonel Morris Davis, who had been the chief prosecutor for the tribunals before resigning in October. In a Los Angeles Times article published the morning of the hearing, Davis said that he had resigned because the system had “become deeply politicized” by Bush-Cheney officials—notably Pentagon general counsel Jim Haynes—and appeared to be “rigged” against the accused.22 But Davis didn’t show up at the hearing to explain his concerns to lawmakers in greater detail—the Defense Department had ordered him not to testify.
Members of Congress continued to complain about these and other secrecy moves, and in December it passed a long-discussed bill, the “Openness Promotes Effectiveness in Our National Government Act,” or OPEN Government Act. The bill sought to improve the government’s response time to Freedom of Information Act requests and extended fee waivers for the media to bloggers. But the act did not contain the single most important provision that had been proposed: a law that would roll back former attorney general John Ashcroft’s decision to impose a rule of automatically denying FOIA requests whenever there was a technical reason for doing so, even if there was no foreseeable harm in granting them. The original House version of the bill had contained a provision reestablishing a presumption that government records should be released unless there is a good reason for keeping them secret, but Democrats agreed to delete the language at the insistence of the White House and Republicans. “I think preservation of the Ashcroft policy is the right policy to adopt in the current environment,” said Representative Tom Davis, Republican of Virginia, noting the deletion with approval during the final debate.23
When the OPEN Government Act reached Bush’s desk, its backers in Congress declared victory in their push to reverse the wave of secrecy that had descended across the federal government. But in a telling indicator that the final version was relatively toothless, Bush signed the bill without complaint.
5.
The Democrats could, however, point to one significant consequence of their return to power in Congress. On August 26, 2007, Attorney General Alberto Gonzales sent President Bush a brief letter of resignation, noting that as always, “I remain by your side.”24 Gonzales, who as White House counsel and attorney general had put no obstacle in the path of the Bush-Cheney presidential power project, had been hounded all year by lawmakers of both parties. He was revealed in 2007 to have repeatedly misled both Congress and the public about such matters as the U.S. attorney firings, the warrantless surveillance program, and whether there had been any instances of Patriot Act powers being abused. Now, having absorbed much of the blows the Democratic Congress had thrown at the administration during its first nine months in power, Gonzales fell on his sword.
In his place, Bush nominated as the next attorney general a retired district court judge named Michael Mukasey. He was the judge who had initially overseen the case of Jose Padilla, the U.S. citizen arrested on U.S. soil whom Bush claimed the power to imprison without charges as an enemy combatant. Mukasey had ruled that Bush’s wartime powers included a right to indefinitely imprison a U.S. citizen in executive detention. Yet Mukasey had also proved willing to say no to the administration in a related matter: whether Padilla could be forbidden from having access to a lawyer.25 (The fight had become moot when Padilla was transferred to a military brig outside of Mukasey’s jurisdiction.)
Democrats, initially euphoric at the prospect of anyone as attorney general who was not Gonzales, greeted Mukasey’s nomination warmly—especially after Mukasey assured them that he rejected legal theories that presidents have the constitutional power to bypass antitorture statutes, and after he vowed to keep the Justice Department free from political influence. But the honeymoon ended quickly when Mukasey, during his confirmation hearings on October 17 and 18, 2007, refused to say whether waterboarding is illegal torture. He also said that he believed the president’s inherent power as commander in chief allows him, in some circumstances, to monitor phone calls and e-mail on U.S. soil without a warrant, despite the 1978 warrant law. And Mukasey said that in some circumstances he would refuse to let a U.S. attorney prosecute a White House official for contempt of Congress if the official defied a subpoena on the president’s orders. The Senate confirmed Mukasey, with some Democrats saying that the Justice Department needed a leader and Mukasey was probably a better choice from their point of view than whomever Bush would select if they rejected him. But it was far from clear that the nation’s new top law-enforcement officer would oversee a Justice Department whose legal opinions were likely to be markedly different from his predecessor’s.26
In mid-November, the Pentagon general counsel, Jim Haynes, made another attempt to subject the Judge Advocates General corps to political control—and it was the administration’s boldest move yet. Haynes proposed a new regulation, requiring the assent of the military’s politically appointed general counsels before any JAG officer could be promoted to a higher rank. Retired JAGs erupted, saying the proposal eliminated the JAG corps as an internal check and balance on presidential power by undermining the uniformed lawyers’ freedom to object if they believed the president had given the military an illegal order or had adopted an illegal policy. Retired Major General Thomas Romig, the Army’s top JAG from 2001 to 2005, called the proposal an attempt “to control the military JAGs” by sending a message that if they want to be promoted, they should be “team players” who “bow to their political masters on legal advice.” It “would certainly have a chilling effect on the JAGs’ advice to commanders,” Romig said. “The implication is clear: without [the administration’s] approval the officer will not be promoted.”27
The JAGs had continued to be a thorn in the administration legal team’s side in the months leading up to Haynes’s proposal. Back in July 2007, Bush had issued an executive order outlining new rules for CIA interrogations in the war on terrorism. Drafted by Bradbury, the order said that to comply with the Geneva Conventions, CIA interrogators may not use “willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual.” As an example, it listed “sexual or sexually indecent acts undertaken for the purpose of humiliation.” The order initially attracted little controversy, but the JAGs studied it closely and became alarmed. They were convinced that it was written with a subtle loophole allowing interrogators to violate the Geneva Conventions.
Among lawyers, “for the purpose” language is often used to mean that a person must specifically intend to do something, such as causing humiliation, in order to violate a statute. The JAGs said Bush’s wording appeared to make it legal for interrogators to undertake that same abusive action if they had some other motive, such as gaining information—a loophole that John Yoo’s August 2002 memo had cited as one way to bypass an antitorture law. The JAGs met with congressional leaders in private to express their concerns.28 Not long afterward, the UCLA Law Review had published an article coauthored by John Yoo that was sharply critical of the JAGs’ record of unwillingness to endorse the legality of the administration’s treatment of wartime detainees. Yoo had called for some kind of “corrective measures” that would “punish” JAGs who undermine the president’s policy preferences.29
Yoo’s law review article did not specifically discuss injecting political appointees into the JAG promotions process, and Yoo said that he did not know anything about the new Pentagon proposal. But several retired JAGs said they thought the proposed change to JAG promotions was an attempt by the Bush administration to turn Yoo’s idea into a reality. Retired Rear Admiral Donald Guter, the Navy’s top JAG from 2000 to 2002, said the rule would “politicize” the JAG corps all the way “down into the bowels” of its lowest ranks—a charge that resonated with the controversy over the firings of U.S. attorneys who had either prosecuted Republicans aggressively or failed to prosecute Democrats aggressively.
The proposal ignited a storm of controversy, both inside the Pentagon and among retired JAGs. In the end, Haynes backed down. Speaking on Haynes’s behalf, Pentagon press secretary Geoff Morrell said that Haynes had just wanted to improve the “quality control” over who got promoted. But he also said that Haynes was not giving up. “In light of the feedback that [Haynes] received, he thought that it was wiser to try a different approach,” Morrell said.30
But not all negative feedback resulted in such quick reversals. On November 26, 2007, the White House announced plans to forge a long-term agreement with the Iraqi government that could commit the U.S. military to defending Iraq’s security.31 Bush and Iraqi prime minister Nouri Al Maliki issued a joint statement saying they intended to complete the agreement before the end of 2008, when a United Nations Security Council mandate would expire and a new legal framework for the continued presence of U.S. troops in Iraq would be necessary. But the “long-term relationship of cooperation and friendship” they outlined went far beyond an ordinary status-of-forces agreement. Bush and Maliki declared that they would create a range of ties between the two nations, including the United States providing ongoing “security assurances and commitments” to Iraq to deter any foreign invasion or internal terrorism by “outlaw groups.”
Supporters said the plan would normalize relations with Iraq. Critics worried that the pact might make it more difficult for Bush’s successor to withdraw from Iraq; although a future president could scrap the agreement, reneging would create major diplomatic problems by showing that the United States does not always live up to its obligations. But whatever the policy merits, the plan had tremendous implications for executive power: General Douglas Lute, Bush’s deputy national security adviser for Iraq and Afghanistan, told reporters during the briefing that Bush did not intend to submit the deal to lawmakers. “We don’t anticipate now that these negotiations will lead to the status of a formal treaty which would then bring us to formal negotiations or formal inputs from the Congress,” Lute said. If the administration were to follow through on that threat, it would mark the first time in history that a president would commit the interests of the United States in such a sweeping way without congressional permission. By contrast, after World War II, when the United States gave security commitments to Japan, South Korea, the Philippines, Australia, New Zealand, and NATO members, Presidents Truman and Eisenhower designated the agreements as treaties requiring the Senate’s consent. In 1985, when President Reagan guaranteed that the U.S. military would defend the Marshall Islands and Micronesia if they were attacked, he submitted the compacts for a vote by both chambers of Congress.
“There is literally no question that this is unprecedented,” said Oona Hathaway, a Yale Law School professor. “The country has never entered into this kind of commitment without Congress being involved, period.” Senate Foreign Relations Committee Chairman Joe Biden, Democrat of Delaware, sent Bush a letter telling him that “as a matter of constitutional law, and based on over 200 years of practice,” Bush could not commit the U.S. military to protecting Iraq’s security without congressional consent. “A commitment that the United States will act to assist Iraq, potentially through the use of our armed forces in the event of an attack on Iraq, could effectively commit the nation to engage in hostilities,” Biden wrote. “Such a commitment cannot be made by the executive branch alone under our Constitution.” And at a January 2008 House hearing on the proposed pact, Representative Dana Rohrabacher, Republican of California, accused the Bush administration of “arrogance” and warned that if the agreement included any guarantees to Iraq, Congress must sign off. “We are here to fulfill the constitutional role established by the founding fathers,” Rohrabacher said, adding, “It is not all in the hands of the president and his appointees. We play a major role.”
