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Wednesday, October 12, 2005 |
The Imperial Presidency. Oy. Harold Meyerson reports that Andy Card is confirming some of my worst fears on Harriet Miers:
As White House chief-of-staff, [Card] found the most intriguing article, he said, to be Article II, which established the presidency and the executive branch. Miers, he continued, understood Article II as well, and would defend it "when challenged by those given the power to challenge it by Article I [i.e., the Congress] and Article III [i.e., the courts]." [sigma]
At minimum, he suggested that Miers would be the staunchest proponent of executive power over that of the other two branches that the Court had seen in a very long time. It's worth unpacking this statement, because it's much more significant than one might think at first glance. Neil Kinkopf, a former lawyer in the Clinton administration's Office of Legal Counsel, wrote a Legal Affairs article a while back noting that Republican administrations for decades have adhered to this "exclusivity" view of the executive branch[~]the view that the Constitution divides executive and congressional power into separate spheres, and one cannot encroach on the other. The view appeared in 1989, when then-Assistant Attorney General William Barr wrote a memo to all federal agencies saying: "Only by consistently and forcefully resisting[sigma] congressional incursions can Executive Branch prerogatives be preserved." And it came up in the torture memos written in 2002 by Jay Bybee and John Yoo, arguing that the executive has sole control over the military, and as such, Congress cannot stop the president from ordering torture or other coercive interrogation methods.
At least in modern times, the Supreme Court has generally dismissed this "exclusivity" view, with important results. In 1952, the Court barred Harry Truman from seizing steel mills under strike, on the view that the Constitution "enjoins upon its branches separateness but interdependence." In 1974, the Court rejected Nixon's claim of executive privilege to withhold Watergate tapes. In 1988 the Court upheld a congressional law creating an "independent counsel" to investigate and prosecute government wrongdoing, on the theory that Congress may regulate the executive branch. The constitutional theory outlined by Card[~]and, apparently, Harriet Miers[~]would, apparently, reject this reasoning.
Does it matter? Yes, and not just because such a view would prevent Congress from banning torture. In his Legal Affairs article, Kinkopf noted that in 1988 Congress required the Department of Health and Human Services to mail every household an educational pamphlet on AIDS. The Reagan administration didn't like the pamphlet and refused to mail it, and the Reagan OLC argued that Congress was encroaching on the president's exclusive right to administer the DHHS. Congress ordered the mailing regardless, but a Court filled with Miers-esque judges might have sided with Reagan. In 1989 the first Bush administration tried to use the "exclusivity" view before the Court to strike down a law authorizing whistleblowers to bring lawsuits on behalf of the federal government against fraudulent contractors. And so on. A judge sympathetic to the "imperial presidency" view is a very bad thing, and seems to me like a much bigger deal than Miers' supposed lack of qualifications. [MoJo Blog]
2:13:02 PM 
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Director Of Censored Intelligence
John Prados
October 12, 2005
John Prados is a senior fellow of the National Security Archive in Washington, DC, and author of Hoodwinked: The Documents that Reveal How Bush Sold Us a War (The New Press).
Two recent developments at the CIA make it clear that America[base ']s premier intelligence-gathering agency is a mess. The first, CIA director Porter Goss' refusal to implement the disciplinary recommendations contained in the agency's inspector general 9/11 performance review, will no doubt attract far more attention.
But the second development is equally significant. That is the release, with no public fanfare at all, of a version of the CIA's internal inquiry into prewar Iraq intelligence. Conducted by a panel under former CIA Deputy Director Richard Kerr, the Iraq inquiry was supposed to get to the bottom of the hype on the now-notorious claims that Saddam Hussein possessed weapons of mass destruction. Both of these events says a great deal about political power, self-censorship and the Bush administration's determined effort to evade accountability for either the 9/11 attacks or its premeditated war against Iraq.
Inspector Generally Ignored
Way back in December 2002, the joint congressional committee investigating 9/11 requested that the CIA's inspector general make his own review and look into the specific roles of individuals, thus going beyond the congressional inquiry's institutional focus. The 9/11 Commission adopted the same focus and made the same request. The House and Senate intelligence committees also petitioned for the report to be released. The CIA inspector general, John L. Helgerson, subsequently spent 17 months exploring every nook and cranny of the agency[base ']s performance prior to 9/11, completing the report in June 2004. The study fell into the pile in the interregnum between the resignation of George J. Tenet and appointment of Porter J. Goss as agency director in late September.
How did Goss handle the Helgerson report? As chairman of the House intelligence committee, Porter Goss had been among those requesting the study. As CIA director, however, Goss displayed much less interest in it, treating at it as a draft document, refusing to forward the report to the committees. All this after Goss swore under oath his commitment to accountability, openness to congressional oversight, and assertion that "I will be a working stiff taking directions." The House committee, at least, sent the CIA a letter demanding the document be provided to Congress. At the time, Goss was criticized for an action that kept a negative report from the public just before the 2004 election, but he argued the individuals named in the report had not had the opportunity to respond to it, and Goss held it back from the committee.
After nearly a year of stalling, Goss finally released the report to Congress last month. He refuses to release the report to the public. Although Goss insists the report unveiled no mysteries, the indications are otherwise.
The Helgerson report is variously said to implicate a dozen CIA officers or up to 20. All agree those named include agency counterterrorism chief J. Cofer Black, Deputy Director for Operations James L. Pavitt, and top boss George Tenet. All those mentioned responded to the criticisms in the report[~]Tenet's denunciation is said to extend to 20 pages[~]and changes were made in the IG report as a consequence. By then, it was August 2005. Goss gave the report to Congress but waited another six weeks[~]and spurned appeals from both congressional intelligence committees[~]to reject making it public, or indeed taking any action against the individuals named by the inspector general. In a statement on October 5, Director Goss declared that "after great consideration" he would take no personnel actions. One reason for this lack of accountability is that Goss cannot proceed further without convening personnel review boards that would be required to adjudicate the IG claims and the individuals[base '] responses. Clearly, this administration wants no further formal investigations.
The spin game around the Helgerson report would be amusing were it not infuriating. Goss made out the study as just another routine post-mortem. "This report unveiled no mysteries," Goss declared, and the 20 systemic problems it identified were already being addressed "through a series of reforms identified by our own workforce." That was not surprising since the "systemic" problems were largely the same ones identified already in the investigations by the joint congressional panel and the 9/11 Commission.
But Inspector General Helgerson had specifically been tasked to pursue individual accountability. By rejecting action there, Porter Goss is effectively deep-sixing the entire report, which undoubtedly contains new data on the Bush administration's pre-9/11 counterterrorism policy.
How does Goss get away with it? Presumably, Director Goss tossed the Helgerson report into the circular file out of a desire to protect CIA agents. An advocate of risk-taking by the clandestine services, at the beginning of his watch Goss promised to support spooks caught out on a limb when the going gets rough. Clearly this is what he thinks he is doing. But he leaves the public with the distinct impression the CIA is covering up for the Bush administration. Nor is the public offered any evidence to support the CIA's claims that it went to extraordinary lengths to neutralize Al Qaeda before 9/11. Instead, the denial of this report to the public gives the impression that the CIA has the same approach to accountability as the military with its interrogations at Abu Ghraib and Guantanamo.
A Crack In Cheney's Firewall
The other example of CIA secrecy and obfuscation is the new study on prewar intelligence about Iraq. Although the study appears at first glance to shield the Bush administration from claims it manipulated intelligence to fit its policy on Iraq, it doesn[base ']t fully succeed. Released in the CIA journal Studies In Intelligence , the review was completed in July 2004 under the direction of former CIA deputy director Richard J. Kerr. It purports to offer an overall assessment of U.S. intelligence performance. There is much in here on data collection, how requirements are set for data collection, and the techniques for drawing conclusions, but that[base ']s not what should interest most Americans. The Kerr report's commentary on the politicization of intelligence, a criticism it rejects, is the key content. Kerr notes that the case is less one of a pre-fabricated policy seeking out only useful intelligence judgments than it is of "policy deliberations deferring to the [Intelligence] Community in an area where classified information and technical analysis were seen as giving [intelligence] unique expertise."
This might have been the case if the CIA and other agencies had developed their judgments unfettered by Bush administration officials, but the report itself notes the wide variety of contacts and the constant push for data-demands that were "numerous and intense." The Kerr report tries to finesse the issue by noting that in major crises "serious pressure from policymakers almost always accompanies serious issues." That is certainly true but it does not excuse the CIA from caving to the pressure, or Richard Cheney, Scooter Libby, Condi Rice, Robert Joseph, Donald Rumsfeld, Douglas Feith and others from making the kinds of demands they did in the way they made them. The Kerr report argues that pressures were more "nuanced" because intelligence judgments on Iraqi WMD were in accord with policy preferences. But, significantly, the Kerr panel could not bring itself to fully exonerate Bush officials despite the sensitivity it knew attached to this issue. Rather, the report ultimately punted: "Whether or not this climate contributed to the problem of . . . analytic performance . . . remains an open question."
Still, the Kerr report for the first time breaks the wall of denial: admitting the effects of pressure are an open question concedes that pressures existed. Boltonization is real. That is a most important development. Nevertheless, self-censorship remains at work here[~]the Kerr group could not bring itself to express a clear conclusion. That too says something about readiness to speak truth to power, and the level of candor that watchdogs and the American public should expect from their intelligence community.
12:39:37 PM
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Heads in the sand.. “A newly released report published by the CIA rebukes the Bush administration for not paying enough attention to prewar intelligence that predicted the factional rivalries now threatening to split Iraq,” USA Today reports.
[Think Progress]
12:36:42 PM
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Jane Hamsher: Judith Miller Had More Than One Source (Duh). CNN is reporting that in Judy Miller's testimony today before Patrick Fitzgerald's Grand Jury she revealed she had more than one source.
How CNN would know I have no idea (if true it must be some sort of lawyer or FBI leak) but it means one of two things:
1) Miller bold-faced lied in her press conference about the fact that the scope of her deal with Fitzgerald was limited to testimony about Libby alone: Once I got a personal, voluntary waiver, my lawyer, Mr. Bennett, approached the special counsel to see if my grand jury testimony could be limited to the communications with the source from whom I had received that personal and voluntary waiver. The special counsel agreed to this and that was very important to me. Since her attorneys Bob Bennett and Floyd Abrams both said in interviews that her testimony was limited to the entire Plame affair (meaning it excluded testimony about the Niger uranium matter, which Fitzgerald's original subpoena sought), this may well be true.
2) Fitzgerald busted Judy in a lie before the Grand Jury, and all deals are now off.
Neither possibility offers a particularly flattering portrait of the Gadfly Girl.
When Judy stood on the courthouse steps and preened about how she'd stuck it to Fitzgerald and only had to testify about Libby, there was a collective heart sink in the blogosphere that her "other sources" (John Bolton?) were going to skate.
Sphincters in DC must be all a-puckered today. [The Huffington Post | Full Blog Feed]
12:34:51 PM
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Marty Kaplan: Sweet Schadenfreude. This suspense may giving me the heebie-jeebies, but it's really killing the media.
No one knows who'll be indicted by Patrick Fitzgerald, but you have to think there's more than smoke there. Though the Harriet Miers story could play out in any of a dozen ways, all of them are delicious. Frist, Delay, Blunt, Ney and the rest of Jack Abramoff's butt-boys could actually be in their last throes, and we're not talking Cheney-like wishful thinking here. It's really possible that right now, before our eyes, unfolding in slow motion, is a sordid, jaw-dropping story that connects everything from Bolton to Dobson, Gannon Guckert to Hannity O'Reilly, Florida in 2000 to Ohio in 2004, Enron to Halliburton, lies about the Texas Air National Guard to lies about WMDs. Twenty minutes ago, to hear the media tell it, Rove & Co were geniuses, presiding over a generational shift to the right. Now, they're lawyering themselves to the gills, and beltway speculation centers on whether the GOP could lose both the House and the Senate in 2006. Yesterday, you had to be some tinfoil hat-wearing Michael Moore type to connect the dots; tomorrow, conceivably, exposing the grand conspiracy will be a recipe for a Pulitzer.
Much as the mainstream media pretend to be disinterested, or even skeptical, the narrative they've spun until now has been fawning. They love power, and they love to be loved by the powerful. But Valerie, Terri, Cindy, Katrina and Harriet have finally forced the chattering class to unstrap its kneepads and radically rewrite the story. No one knows how this will all end. But the possibility that the potentates and pundits they've slobbered over these past five years will turn out to be perp-walkers and propagandists has forced the media machine to wake up and smell Karl's Kool-Aid. Their revisionism will be effortless; they'll retroactively have seen this coming all along. Old conventional wisdom: Oval Office blowjobs means the century of the values voter. New conventional wisdom: Monica was a molehill. Throw the bums out.
It's still possible, of course, that the black hats will stay in the saddle. But however it turns out, at least the media no longer have to swallow the triumphalist narrative of inevitability these bozos have been peddling.
[The Huffington Post | Full Blog Feed]
12:26:43 PM
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HOLY SHIT. IS HE KIDDING?
Raise Taxes on Whom?. It's hard to know what the Bush administration plans to do with this:
President Bush's tax advisory commission indicated on Tuesday that it would not propose replacing the income tax with a national sales tax or a value-added tax, but would recommend limits in the popular tax deductions for mortgage interest and employer-provided health insurance.
Interesting. Depending on how that mortage-interest deduction gets phased out, a lot of home values could end up dropping as a result, on the theory that currently, many folks are already bidding up the price of homes until it roughly offsets the value of the deduction. Since the deduction would only be limited rather than eliminated, I'm guessing this would mainly affect the upper-middle-class. So basically, the Republicans would have to tell a lot of middle-class homeowners that they can expect a drop in the value of their homes, and that's just tough. To balance against this, the commission has recommended eliminating the Alternative Minimum Tax, which would give many of these[~]presumably upper-middle-class[~]homeowners a slight tax cut, depending on the details, but ultimately, the bulk of the AMT affects the highest income-earners, primarily.
People will see the value of their homes drop so that the rich can get yet another tax cut. And many of them will lose their employer-sponsored health insurance, since that deduction is getting hacked. In the past, the White House has screwed the poor in order to benefit the well-off; but screwing the upper middle class? Seems treacherous. Or maybe not: Kevin Drum once noted that this constituency is the easiest group for the Republicans to abandon when it comes to tax cut politics. Guess he was right.
Oh, and a flat tax is still under consideration. [MoJo Blog]
12:11:42 PM
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Bush Calls For Fuel Conservation, Rove Cruises to Work in Jaguar. Despite increasing evidence that a federal grand jury is zeroing in on him, Karl Rove is still living his life of luxury. New York Times' White House reporter Elisabeth Bumiller said on a recent radio program that, in attempting to keep with President Bush's call to limit non-essential travel and conserve gas, the White House is encouraging staffers to turn in their parking passes in return for free fare on the Washington Metro subway system. But guess who elected not to participate in the program:
CURWOOD: Now, you’ve been talking to some of the White House senior staffers about their habits, as I understand it, and I’m wondering what they’ve told you. What did Karl Rove, the White House Deputy Chief of Staff, tell you when you asked him
BUMILLER: Well, he didn’t actually respond. I asked him how he was conserving and he sent me an email back asking me how I was conserving.
Rove appears unwilling to give up his morning ride to work in his Jaguar.
Rove’s communiting habit is one of many mixed messages that the Bush administration is sending on conservation. NPR reports that at the same time the Department of Energy is asking Americans to conserve, it's also cutting funds for research on energy efficiency. And Bush, for his part, doesn’t seem to be doing much to limit non-essential travel.
[Think Progress]
7:19:08 AM
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Steve Cobble: New Poll: 50% Ready to Impeach. If the President & Vice-President lie, and lead our nation into a disastrous war, what's the remedy?
According to a new poll, just out, the American people say "impeachment".
That's good -- that's what the Constitution says, too.
50% of adult Americans agreed with this statement:
"If President Bush did not tell the truth about his reasons for going to war with Iraq, Congress should consider holding him accountable by impeaching him."
39% agree strongly.
72% of Democrats favor impeachment. 56% of Independents do, too.
Even 20% of Republicans (is the cult crumbling?).
The poll was conducted among 1,001 adults last week (10/3-6), by the respected, nonpartisan firm of Ipsos Public Affairs, and sponsored by www.AfterDowningStreet.org, where there are many more details.
Can you hear us now? [The Huffington Post | Full Blog Feed]
7:13:41 AM
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© Copyright 2005 Patricia Thurston.
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