Condi Rice and the Great Bush Power Grab

It's hard to tell whether the White House is simply playing a kind of shell game, but it's clear that a larger agenda beyond even covering up its failures to protect the nation from terrorist attacks is at play in the refusal to let National Security Adviser Condoleeza Rice testify under oath before the commission investigating the Sept. 11 attacks.

Closer examination, in fact, reveals that the agenda at work is an unprecedented expansion of presidential powers, so that it becomes in effect unanswerable to any power other than the voters every four years.

Rice herself was rolling in the obfuscation this weekend on CBS' 60 Minutes when she explained why she just couldn't testify before the 9/11 commission:

"Nothing would be better, from my point of view, than to be able to testify. I would really like to do that. But there is an important principle involved here: It is a long-standing principle that sitting national security advisers do not testify before the Congress."

As Atrios points out, there are multiple problems with this explanation, not the least of which is that the 9/11 commission is not specifically a creature of the Congress -- it was created as an independent body with key members named by the president himself. The traditional understanding of executive privilege is that it extends only to congressional inquiries.

Executive privilege, in fact, deals only in situations in which presidential advisers are compelled to testify before Congress. Of course, national security advisers have in fact testified before Congress on multiple occasions -- but they rarely are compelled to do so.

In other words, Rice is not only arguing against being compelled to testify. She is arguing that any kind of appearance, compelled or otherwise, before the commission might endanger the executive privileges of the president. She's making the preposterous claim that the White House must refuse an invitation to appear -- even though, in her words, they would like to testify [yeh, right] -- because doing so would undermine its power to resist subpoenas at a later date.

What is clearly happening in the Rice case is that Bush administration is seeking to expand the principles of executive privilege to the point where it simply has no accountability to anyone other than the voters. It marks, in other words, a radical rearrangement of the constitutional separation of powers. This is not a new agenda -- and in fact, it has been one of the consistent operating principles of this administration since the day it took power.

In a way, it marks the revenge of the Nixonites -- because at its core, it is a campaign to overturn the Watergate-era precedents and subsequent reforms that placed certain executive-branch functions under the potential purview of the Congress.

The core of these is the Supreme Court's ruling in United States v. Nixon, which first established the limits of executive privilege:

However, neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the court. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.

As it happens, none other than Bush's Solicitor General, Ted Olson, played a central role in the subsequent struggles in the early 1980s between Congress and the Reagan administration over the ramifications of this ruling. As I mentioned recently (and detailed in a 2001 Salon piece), Olson was so eager to test the issue of executive privilege that he forced EPA administrator Anne Burford to assert it over documents which, it later emerged, were not covered by the law.

Olson also filed a civil lawsuit that was promptly dismissed by a federal judge, as recounted in this 1998 article about executive privilege (in the context of Bill Clinton's attempts to assert it):

In a case known as United States v. The House of Representatives of the United States, the Reagan administration sought in 1982 to clarify and bolster the doctrine of executive privilege in light of a congressional subpoena of environmental policy documents.

U.S. District Court Judge John Lewis Smith Jr. would have none of it. The case, he concluded, demanded a political accommodation rather than a new body of case law: "Courts have a duty to avoid unnecessarily deciding constitutional issues."

Olson, in the course of congressional testimony that attempted to nail down the nature of his fatally flawed advice to President Reagan, was so egregiously evasive that he shortly thereafter became the subject of an independent counsel's investigation of him for possible perjury. The counsel later exercised real prosecutorial restraint when she decided that, though Olson's testimony was "misleading and disingenuous," it did not rise to the level of criminally prosecutable perjury. (Olson's cohort Kenneth Starr, of course, was never accused of such restraint later in his dealings with Bill Clinton.) It also helped that the IC's investigation had been sharply limited by the narrow referral from Olson's superior (and Federalist Society colleague) Edwin Meese.

What was most noteworthy about the investigation, however, was that Olson sued to stop it, arguing that the independent-counsel statute itself was unconstitutional. The case -- known as Morrison v. Olson -- made it all the way to the Supreme Court (with some help from Olson's Federalist Society comrade, Laurence Silberman,), where it was handed an ignominious 8-1 defeat.

However, the lone dissenter was Antonin Scalia -- and his dissent clearly reflects the core thinking of the current administration's views regarding executive privilege, resurrecting even Olson's old arguments in the 1982 civil lawsuit. Scalia essentially argues from an absolutist view of the separation-of-powers doctrine, giving the executive branch unimpeded purview over its realm.

Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what is at issue is its own exemption from the burdens of certain laws. … No more so than that this Court should have the exclusive power to pronounce the final decision on justiciable cases and controversies, even those pertaining to the constitutionality of a statute reducing the salaries of the Justices.

This was a clear attack on the currently standing principle of the separation of powers, established in 1952 in Youngstown Sheet & Tube Co. v. Sawyer, allowing noncompartmentalization of powers, and a certain amount of overlap. Justice Jackson in his concurrence voiced the underlying principle: "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity."

Scalia, however, contends that his absolutist approach is what the Framers had in mind, while announcing his disdain for the evolved body of law in the interim:

The ad hoc approach to constitutional adjudication has real attraction, even apart from its work-saving potential. It is guaranteed to produce a result, in every case, that will make a majority of the Court happy with the law. The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. I prefer to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound. Like it or not, that judgment says, quite plainly, that "[t]he executive Power shall be vested in a President of the United States."

The Bush administration -- particularly under Olson's guidance as Solicitor General -- has hewn closely to this reasoning throughout its tenure, particularly when claiming that the records of Vice President Dick Cheney, in his meetings with energy-company officials while plotting out the nation's energy policy, are off-limits.

The Bush legal and PR team, in defending Cheney, cites the well-established principle behind executive privilege, namely, that (as Warren Burger put it in U.S. v Nixon) "the President's need for complete candor and objectivity from advisers calls for great deference from the court." However, Cheney's claim of privilege runs head-on into the same ruling in its insistence that "when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises."

As John Dean observes in this recent piece in FindLaw about the Cheney case -- which now looms before the Supreme Court -- the Bush legal team is in fact seeking an unprecedented expansion of presidential powers, to the point of being nearly unaccountable:

What are the implications if Cheney does win this case, and Scalia's bright-line rule prevails? For a sense of them, it's useful to look to Judge Sullivan's well-reasoned opinion (and remember, Judge Sullivan has been nominated to judgeships by two Republicans -- as well as one Democrat).

Judge Sullivan wrote that "The implications ... are stunning," for Cheney's position is "untenable." He gave a few key examples of what accepting the bright line rule would mean:

Any action by Congress or the Judiciary that intrudes on the president's ability to recommend legislation to Congress or get advice from Cabinet members in any way would necessarily violate the Constitution. The Freedom of Information Act and other open government laws would therefore constitute an unconstitutional interference with Executive authority. Any action by a court or Congress that infringes on any other Article II power of the President, for example, the President's role as Commander in Chief of the armed forces and the national security concerns that derive from that role, would violate the Constitution. Any congressional or judicial ruling that infringes on the President's role in foreign affairs, would violate the Constitution.

The result, Judge Sullivan argued persuasively, would be to "eviscerate the understanding of checks and balances between the three branches of government on which our constitutional order depends." In other words, it would be to forever change the government, and the system our Founders envisioned.

What is noteworthy about the Bush power grab is that the administration has leveraged the "war on terror" specifically as a tool for expanding its powers. As I've explored previously, its assertion of military powers for arresting and controlling civilians suspected of abetting the "war on terror" under the guise of its "enemy combatant" status and military tribunals is based on a similar worldview -- namely, that the executive branch's powers under wartime are virtually illimitable, and not accountable to any civilian court.

Recall, if you will, Olson's logic in defending the secret court system underpinning the Bush 'war on terror', as recounted by the Washington Post, in which he described the criteria that would be applied in determining who's an "enemy combatant":

"There won't be 10 rules that trigger this or 10 rules that end this," Olson said in the interview. "There will be judgments and instincts and evaluations and implementations that have to be made by the executive that are probably going to be different from day to day, depending on the circumstances."

And what's to restrain the president? Only the prospect of losing re-election:

Administration officials, however, imply that the main check on the president’s performance in wartime is political -- that if the public perceives his approach to terrorism is excessive or ineffective, it will vote him out of office.

“At the end of the day in our constitutional system, someone will have to decide whether that [decision to designate someone an enemy combatant] is a right or just decision,” Olson said. “Who will finally decide that? Will it be a judge, or will it be the president of the United States, elected by the people, specifically to perform that function, with the capacity to have the information at his disposal with the assistance of those who work for him?”

The obdurate handling of Rice's testimony before the 9/11 commission is part and parcel of this power grab: Bush, Cheney, Olson and Co. all see any concession of testimony before any other body, congressional or otherwise, a concession of its constitutional powers.

It's all about the Imperial Presidency. The principle -- just as it was for Nixon -- is the power of the president and his advisers to lie, fumble, and even break the law without consequence. Just because he's president.

The concern that Americans might have about getting to the truth of how 9/11 happened, especially in the way of preventing its recurrence, must take a back seat to such principles, evidently.

And who knows? They may even have a leg to stand on, legally speaking, in denying Rice's sworn testimony to the committee. Politically speaking, it's more difficult, given that Rice has been out there on every network imaginable running down Richard Clarke and spreading, well, intriguing explanations about just why she can't testify.

You'd think that a team as politically savvy as the Rove Squad would recognize that drawing a highly visible distinction between what Rice is saying publicly and what she might be forced to say on a witness stand is not exactly a good idea.

After all, don't you wonder why she can explain it all on national TV -- but not under oath?

[Cross-posted at The American Street.]