Subpoenas Sent to White House on Wiretapping - International Injustice/Law

Subpoenas Sent to White House on Wiretapping
by James Risen via rialator - New York Times Wednesday, Jun 27 2007, 11:27am
international / injustice/law / other press

The move put Senate Democrats squarely on a course they had until now avoided, setting the stage for a showdown with the Bush administration over one of the most contentious issues arising from the White House’s campaign against terrorism.

Senator Patrick J. Leahy, the Vermont Democrat who is chairman of the committee, said the subpoenas seek documents that could shed light on the administration’s legal justification for the wiretapping and on disputes within the government over its legality.

In addition, the panel is seeking materials on related issues, including the relationship between the Bush administration and several unidentified telecommunications companies that aided the N.S.A. eavesdropping program.

The panel’s action was the most aggressive move yet by lawmakers to investigate the wiretapping program since the Democrats gained control of Congress this year.

Mr. Leahy said Wednesday at a news conference that the committee had issued the subpoenas because the administration had followed a “consistent pattern of evasion and misdirection” in dealing with Congressional efforts to scrutinize the program.

“It’s unacceptable,” Mr. Leahy said. “It is stonewalling of the worst kind.”

The White House, the vice president’s office and the Justice Department declined Wednesday to say how they would respond to the subpoenas.

“We’re aware of the committee’s action and will respond appropriately,” said Tony Fratto, White House deputy press secretary.

“It’s unfortunate that Congressional Democrats continue to choose the route of confrontation,” Mr. Fratto added.

A spokeswoman for Mr. Cheney said his office would respond later, while a Justice Department spokesman said, “The department will continue to work closely with the Congress as they exercise their oversight functions, and we will review this matter in the spirit of that longstanding relationship.”

Under the domestic eavesdropping program, the N.S.A. did not obtain warrants before listening in on phone calls and reading e-mail messages to and from Americans and others in the United States who the agency believes may be linked to Al Qaeda. Only international communications — those into and out of the country — were monitored, according to administration officials.

The Senate panel’s action comes after dramatic testimony last month by James B. Comey, former deputy attorney general, who described a March 2004 confrontation at the hospital bedside of John Ashcroft, then attorney general, between Justice Department officials and White House aides over the legality of the wiretapping program.

Before Mr. Comey’s testimony, the White House had largely been able to fend off aggressive oversight of the N.S.A. wiretapping since it was first disclosed in December 2005. The Republican-controlled Congress held hearings last year, and even considered legislative proposals to curb the scope of the eavesdropping. But Mr. Cheney repeatedly pressured Republican Congressional leaders to pull back.

When the Democrats won the 2006 midterm elections, many observers predicted that the N.S.A. program — which a federal judge declared unconstitutional — would be one of the first Bush administration operations to undergo new scrutiny. But in January, the administration announced that it was placing the program under the legal framework of the Foreign Intelligence Surveillance Act, a move it had previously refused to consider.

The Democrats have largely focused on objections to the Iraq war in their first months in power, and have appeared reluctant to take aggressive steps to challenge policies on harsh interrogation practices, secret Central Intelligence Agency prisons and domestic wiretapping for fear of being labeled soft on terrorism.

For instance, at a confirmation hearing on June 19 for John A. Rizzo as general counsel of the C.I.A., no member of the Senate Intelligence Committee directly challenged the agency’s secret detention or harsh interrogation practices.

Mr. Rizzo successfully dodged tougher questions by saying he preferred to answer them in closed session. The Senate Intelligence Committee has conducted closed-door oversight of the wiretapping, but it has not been as aggressive as the Judiciary Committee in publicly challenging the administration over it.

But Mr. Comey’s testimony has given Democrats an opening to argue that they are focusing on the legal issues of the program, rather than on the merits of monitoring the phone calls of terrorist suspects.

“The Comey testimony moved this front and center,” said Senator Charles E. Schumer, the New York Democrat who is a member of the Judiciary Committee. “Alarm bells went off. His testimony made it clear that there had been an effort to circumvent the law.”

The Senate panel has been asking the administration for documents related to the program since Mr. Comey testified. But the White House had not responded to a letter from Mr. Leahy and Senator Arlen Specter of Pennsylvania, the ranking Republican on the panel. As a result, the panel voted 13 to 3 last Thursday to authorize Mr. Leahy to issue the subpoenas, with three Republicans voting in favor of issuing them. Separately, the House Judiciary Committee has also threatened to issue subpoenas for the same documents.

The wiretapping is just one of several legal issues on which Congress and the administration are squaring off. For example, the White House is under pressure to respond to subpoenas issued two weeks ago by the House and Senate Judiciary Committees for witnesses and documents related to the dismissal of federal prosecutors. Thursday is the deadline for the White House to turn over documents linked to Harriet E. Miers, the former White House counsel, and Sara M. Taylor, the former White House political director.

If the White House fails to produce the material, the House and Senate could begin a process leading to contempt resolutions to force compliance. Meanwhile, Mr. Cheney is in a separate standoff with Congress and the National Archives over his office’s refusal to follow an executive order concerning handling of classified documents.

Mr. Cheney declared that his office did not have to abide by the order that all executive branch offices provide data to the Archives about the amount of material they have classified. His office said that he is not a member of the executive branch, because he is president of the Senate.

David Johnston and Scott Shane contributed reporting.

© 2007 The New York Times Company

DUMMERSTON, Vt. — Dictatorships thrive on secrecy. The ability to operate free of public scrutiny, oversight and accountability is the cornerstone of a totalitarian state.

Such is the case with the Bush administration. Everything it has done over the past six years — from unauthorized wiretapping of Americans, to the suspension of habeas corpus, to the detention of prisoners is the legal limbo that is Guantanamo — has been cloaked in secrecy and shielded from public oversight in the name of national security.

So it was hardly shocking to hear President Bush and Vice President Cheney declare late last week that the offices of both men are exempt from independent oversight.

Cheney got all the attention last week when he said that the vice president is not actually part of the executive branch, and thus does not have to comply with any rules or orders applying to the executive branch. But his statement is not nearly as outrageous as what the president did when no one was watching.

In March 2003, Bush issued an executive order requiring all government agencies that are part of the executive branch submit to the Independent Security Oversight Office — which is part of the National Archives — to monitor the handling of classified materials.

Cheney's office filed the reports in 2001 and 2002. It stopped filing them in 2003. Not so coincidentally, that is about the time his office leaked the identity of undercover CIA operative Valerie Plame in order to intimidate her husband, Joseph Wilson, who was critical of the intelligence used to justify the U.S. invasion of Iraq.

According to the Los Angeles Times, Bush apparently hasn't had a problem with Cheney not filing the reports because, according to a White House spokesman, Bush's executive order wasn't meant to apply to either his office or Cheney's.

So, the two offices that have access to the most highly classified information in the federal government claim they are completely exempt from any independent monitoring on how that information is used.

Not only have both Bush and Cheney declined to cooperate with the Information Security Oversight Office, they have tried to eliminate it altogether. House Oversight and Government Reform Committee Chairman Henry Waxman, D-Calif., revealed that bit of information last week.

Even worse, who must the Information Security Oversight Office turn to in seeking resolution on the matter? The Justice Department, and Attorney General Alberto Gonzales. Any guesses on how he will rule in this dispute?

This whole affair is in keeping with the Bush administration's pattern of avoiding accountability for their actions. And the Plame leak shows that the White House cannot be trusted with sensitive information, because they have more than demonstrated a pattern of putting political considerations ahead of national security.

Bigger than that, however, is what might be called the Nixon Principle. This comes from what Richard Nixon said to David Frost in 1977 during their now infamous interviews: "When the president does it, that means it is not illegal."

Bush and Cheney have clearly operated under this principle. They don't see the need to follow rules, and thus set the example for everyone else. If the president and vice president can ignore executive orders and subpoenas from Congress, why should anyone else follow the rules?

Bush and Cheney are dead wrong in their interpretation of the law. They are subject to the same laws as any other member of the executive branch. But it's hard to get a band of lawless men to obey the Constitution, not when Congress and the courts will not effectively challenge them. And it's even hard to rein in a band of lawless men when the American people are still snoozing fitfully, unaware of the damage that has been done.

It's time to demand accountability and respect for the rule of law. Without it, this nation becomes nothing more than a land ruled by tin pot dictators.

Randolph T. Holhut has been a journalist in New England for more than 25 years. He edited "The George Seldes Reader" (Barricade Books).

© 2007, Randolph T. Holhut

President Bush, in a constitutional showdown with Congress, claimed executive privilege Thursday and rejected demands for White House documents and testimony about the firing of U.S. attorneys.

His decision was denounced as "Nixonian stonewalling" by the chairman of the Senate Judiciary Committee.

Bush rejected subpoenas for documents from former presidential counsel Harriet Miers and former political director Sara Taylor. The White House made clear neither one would testify next month, as directed by the subpoenas.

Presidential counsel Fred Fielding said Bush had made a reasonable attempt at compromise but Congress forced the confrontation by issuing subpoenas. "With respect, it is with much regret that we are forced down this unfortunate path which we sought to avoid by finding grounds for mutual accommodation."

The assertion of executive privilege was the latest turn in increasingly hostile standoffs between the administration and the Democratic-controlled Congress over the Iraq war, executive power, the war on terror and Vice President Dick Cheney's authority. A day earlier, the Senate Judiciary Committee delivered subpoenas to the offices of Bush, Cheney, the national security adviser and the Justice Department about the administration's warrantless wiretapping program.

While weakened by the Iraq war and poor approval ratings in the polls, Bush has been adamant not to cede ground to Congress.

"Increasingly, the president and vice president feel they are above the law," said Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee.

Rep. John Conyers, D-Mich., chairman of the House Judiciary Committee, said Bush's assertion of executive privilege was "unprecedented in its breadth and scope" and displayed "an appalling disregard for the right of the people to know what is going on in their government."

White House press secretary Tony Snow weighed in with unusually sharp criticism of Congress. He accused Democrats of trying "to make life difficult for the White House. It also may explain why this is the least popular Congress in decades, because you do have what appears to be a strategy of destruction, rather than cooperation."

Over the years, Congress and the White House have avoided a full-blown court test about the constitutional balance of power and whether the president can refuse demands from Congress. Lawmakers could vote to cite witnesses for contempt and refer the matter to the local U.S. attorney to bring before a grand jury. Since 1975, 10 senior administration officials have been cited but the disputes were all resolved before getting to court.

Congressional committees sought the documents and testimony in their investigations of Attorney General Alberto Gonzales' stewardship of the Justice Department and the firing of eight federal attorneys over the winter. Democrats say the firings were an example of improper political influence. The White House contends that U.S. attorneys are political appointees who can be hired and fired for almost any reason.

In a letter to Leahy and Conyers, Fielding said Bush had "attempted to chart a course of cooperation" by releasing more than 8,500 pages of documents and sending Gonzales and other officials to Capitol Hill to testify.

The president also had offered to make Miers, Taylor, political strategist Karl Rove and their aides available to be interviewed by the Judiciary committees in closed-door sessions, without transcripts and not under oath. Leahy and Conyers rejected that proposal.

The Senate Judiciary Committee's senior Republican, Arlen Specter of Pennsylvania, said the House and Senate panels should accept Bush's original offer.

Impatient with the "lagging" pace of the investigation into the U.S. attorney firings, Specter said he asked Fielding during a phone call Wednesday night whether the president would agree to transcripts on the interviews. Fielding's answer: No.

"I think we ought to take what information we can get now and try to wrap this up," Specter told reporters. That wouldn't preclude Congress from reissuing subpoenas if lawmakers do not get enough answers, Specter said.

Fielding explained Bush's position on executive privilege this way: "For the president to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisers and between those advisers and others within and outside the Executive Branch."

This "bedrock presidential prerogative" exists, in part, to protect the president from being compelled to disclose such communications to Congress, Fielding argued.

In a slap at the committees, Fielding said, "There is no demonstration that the documents and information you seek by subpoena are critically important to any legislative initiatives that you may be pursuing or intending to pursue."

It was the second time in his administration that Bush has exerted executive privilege, said White House deputy press secretary Tony Fratto. The first instance was in December 2001, to rebuff Congress' demands for Clinton administration documents.

The most famous claim of executive privilege was in 1974, when President Nixon went to the Supreme Court to avoid surrendering White House tape recordings in the Watergate scandal. That was in a criminal investigation, not a demand from Congress. The court unanimously ordered Nixon to turn over the tapes.

© 2007 The Associated Press

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