Spyhopping the Right.
David Neiwert is a freelance journalist based in Seattle. He is the author of Strawberry Days: How Internment Destroyed a Japanese American Community (Palgrave/St. Martin's Press, June 2005), as well as Death on the Fourth of July: The Story of a Killing, a Trial, and Hate Crime in America, (Palgrave/St. Martin's, 2004), and In God's Country: The Patriot Movement and the Pacific Northwest (1999, WSU Press). His reportage for MSNBC.com on domestic terrorism won the National Press Club Award for Distinguished Online Journalism in 2000. His freelance work can be found at Salon.com, the Washington Post, MSNBC and various other publications. He can be contacted at dneiwert@hotmail.com.
Sara Robinson has worked as an editor or columnist for several national magazines, on beats as varied as sports, travel, and the Olympics; and has contributed to over 80 computer games for EA, Lucasfilm, Disney, and many other companies. A native of California's High Sierra, she spent 20 years in Silicon Valley before moving to Vancouver, BC in 2004. Her lifelong interest in the social effects of authoritarianism have most recently led her to pursue the MS in Futures Studies at the University of Houston. She's also a student member of the Association of Professional Futurists, and member of the Accelerated Studies Foundation advisory board on social and cultural issues. For fun, she raises kids and travels. You can reach her at srobinson@enginesofmischief.com.
Sara's recent series:
Cracks in the Wall: Parts I, II, and III.
Tunnels and Bridges: Parts I, II, III, and IV, plus a Short Detour.
Dave's recent series:
The March of the Minutemen
Intro: Parts 1, 2, 3, 4, 5, and 6.
Unhinged: Unhonest
Parts 1, 2, 3, 4, 5, and 6.
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Other books by Dave [limited availability]:
"The Rise of Pseudo Fascism": An essay
Available in Adobe PDF format here
Support independent journalism:
Suggested $5 donation
Original posts: Part 1, Part 2, Part 3, Part 4, Part 5, Part 6, and Part 7.
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Choice essays:
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"The Political and the Personal"
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"Bush, the Nazis and America":
Parts 1, 2, 3, and 4.
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Rush, Newspeak and Fascism: An Exegesis
[PDF file]
[Suggested $5 donation]
[In HTML: Parts I, II, III, IV, V, VI, VII, VIII, IX, X,, XI, XII, XIII, XIV and XV. See explanatory note.]
[Also available in HTML, and with art, at Cursor.]
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Orcinus Principium No. 1
Orcinus Principium No. 2
Why Orcinus?
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Spreading extremism
Friday, October 10, 2003
The progression of extremist ideas and agendas into the mainstream via conservative transmitters happens in small increments, but these are always worth observing. The most recent case comes from Colorado -- home to many a right-wing nutcase -- where the Jefferson County Treasurer is distributing extremist material to taxpayers with the county's official imprimatur. And yes, he's a Republican.
The story surfaced last week in the Denver Post:
- Rights group: 'Extremism' behind Jeffco official's guide
Most of the coverage of the story focused on the treasurer, a fellow named Mark Paschall, and the apparent religious taint of his views, particularly the notion that jurors were obligated to follow "God before the law." But as the Post story explained:
- Paschall said he paid for 1,000 copies of the "Citizens Rule Book," which have been available at the treasurer's office counter, at a display in the county building and from him "wherever I go."
The pocket-sized guides promote "jury nullification," a concept that politically conservative groups argue means jurors have the right not only to decide guilt or innocence but also whether laws are just and are in keeping with God's law.
Paschall said Jefferson County District Court Chief Judge Thomas Woodford called him Tuesday.
"He was wondering about the jury things" in the booklet, Paschall said. "I asked him if a juror just says, 'I vote not guilty,' is that all they are required to say, because otherwise you get into the thought police."
Woodford declined to comment.
Inside most of the 61-page booklets is the stamp: "This information is provided by Jefferson County Treasurer Mark Paschall."
Paschall is unfazed. "I as a citizen have the right to express my religious beliefs. I don't care if I am in the treasurer's office."
Of course, he's expressing far more than merely his religious views. What is far more significant are the political views contained in the "Citizens Rule Book."
[A side note: It is probably worth observing that Paschall also has a military record resembling that of other prominent Republicans. But, y'know, conservatives like Rush Limbaugh, Pat Robertson and Newt Gingrich have been lecturing us about decadent "liberal" morality for years now. Such paragons are they.]
I happen to have had a great deal of experience with the "Citizens Rule Book," because it was one of the most popular items available for sale at militia meetings I attended. It also popped up in two trials I covered: the Montana Freemen, and the Washington State Militia. In both cases, Patriot agitators attending the trial attempted to have the guides distributed among the jurors of those trials and were slapped down.
I described it briefly in Chapter 11 (p. 297) of In God's Country, which is about the 1996 trial of the six members of the Washington State Militia accused of engaging in a bomb- and mischief-making conspiracy (Jane Kramer, incidentally, focused on the case in her terrific Lone Patriot: The Brief Career of an American Militiaman). It made a brief appearance in the courtroom, which was overseen by U.S. District Judge John Coughenour, a blunt jurist with a low tolerance for Patriot courtroom antics. There was nonetheless a good deal of typical Patriot folderol going on among the audience, including attempts to intimidate reporters and distribute anti-Semitic propaganda. But then:
- All of the Patriot frolic took a serious turn when William Smith’s attorney, Robert Leen, attempted to have the "Citizen’s Rule Book" made available to the jury, claiming it was part of the defendants' beliefs and should be admitted as evidence. The pamphlet to which he referred is probably the most popular item available at militia meetings, since it only costs $1.25; it claims to prove the concept of "jury nullification," the Patriot notion that jurors are laws unto themselves -- that they can actually sit in judgment on the justness of a law itself and that, moreover, they can ignore the instructions of the judge to the jury. Coughenour, the embodiment of the no-nonsense judge, turned Leen’s request down.
However, this outraged the Patriots in the gallery. Gene Goosman filed a Patriot "Affidavit" against Coughenour, demanding that he uphold his oath of office. Hartford Van Dyke, a Patriot from the southwestern Washington town of Battle Ground, filed a lien of $1.7 billion against Coughenour as well as deputy U.S. attorneys Gene Porter and Susan Dohrmann, who were prosecuting the case.
[Such "affidavits," for those interested, are devoid of any force of law.]
The "Rule Book" also made a brief appearance at the Montana Freemen's trial in Billings. As it happened, Coughenour drew the assignment for that case as well, and having become familiar with the "Citizens Rule Book" in Seattle, managed to ensure that no copies were allowed in the courtroom.
What is "jury nullification" all about?
There is in fact a long history of jury nullification both in American and English law -- cases in which the jurors simply ignored the requirements of the law and set the accused free. However, it has primarily been viewed as a malfunction of the law, not as a positive principle to be practiced.
"Nullification is, by definition, a violation of a juror's oath to apply the law as instructed by the court," according to a 1997 federal ruling, the strongest, most recent court decision on the topic. The opinion by Judge Jose Cabranes said jurors who reject the law should not be allowed to serve; when the ruling was appealed, the courts upheld, but also ordered a new trial after declaring that only "unambiguous evidence" of a juror's disregard of the law can justify his dismissal.
Other jurists have been equally clear about the actual standing of jury nullification:
- "It is a recipe for anarchy . . . [when jurors] are allowed to substitute personal whims for the stable and established law." -- Colorado circuit Judge Frederic B. Rodgers
"Jury nullification is indefensible, because, by definition, it amounts to juror perjury -- that is jurors lying under oath by deciding a case contrary to the law and the evidence after they have sworn to decide the case according to the law and the evidence." -- D.C. Superior Court Judge Henry F. Greene
In essence, jury nullification -- by sitting in judgment not just of the facts of the case but of the laws themselves -- arrogates to itself not only the role of the judge but of the legislature, essentially overturning at whim those laws that have been passed through democratic processes. In this sense, jury nullification is a threat not only to the courts, but to the very systems of laws on which the nation rests.
The leading proponent of jury nullification is a Montana-based outfit called the Fully Informed Jury Association. They present a relatively normative, broad-spectrum front, particularly since they have attracted a substantial audience among libertarians and drug-war critics (a small splinter group, also based in Montana, with a similar name in fact was overtly extremist in orientation and was closely associated with the Montana Freemen); this seeming variety on the political spectrum lets it pose as semi-mainstream. As their Web site proclaims:
- The American Bar Association (ABA) wrote that FIJA drew its support from "a wide and unusual spectrum of political thought--from the National Rifle Association to gun control advocates, from abortion rights supporters to their opponents, and from backers of marijuana legislation to law-and-order types." The appeal of FIJA crosses the full spectrum of American lifestyle and ideology because the FIJA goals reflect the goals of those who are alert to the fragile liberties of Americans.
In reality, FIJA's origins and orientation are extremist, built (like most Patriot schemes) on long-rejected legal theories and dubious "facts."
Now, there have been exceptional rulings in which jury nullification can be seen ipso facto as beneficial (particularly in some of the recent drug-war cases), and these cases are cited readily by FIJA adherents. However, these cases have no more force of law in modern courts than does the Dred Scot decision (though that ruling too is cited on more than a few occasions by FIJA adherents). That system is predicated upon the admonition that juries must rule on evidence and the law, pure and simple, and they take oaths to uphold that standard. Their failure to do so in fact breaks the law.
The legal powers that nullification proponents would hand to juries violates the careful balance of powers that exists within the system. If juries are deciding the justness of the laws, they are assuming powers traditionally relegated to the judiciary and, in other contexts, to the legislative branch. There is nothing in any body of law that would allow them to do this, other than the pure absence of an outright prohibition -- which actually exists in the form of the jurors’ oaths.
But if nullification was mostly a malfunction -- as in the many black-lynching acquittals recorded in the South from the Civil War onward -- then how did it ever become an organizing principle for social or legal reform? For that answer, turn to the Posse Comitatus.
The Posse was in most respects a kind of far-right tax protest. It built its multitudinous "constitutional" theories out of legalisms touted by John Calhoun and other Dred Scot types. The Posse was a direct descendant of old right-wing elements from the 1930s Silver Shirts organization and the anti-Semitic contingent (like the Minutemen) of the far right which split from the John Birch Society in the late 1950s because it refused to adopt anti-Semitic theories.
The Posse and their followers, who preached that taxes were illegal and that the IRS was an unconstitutional body, became extremely frustrated as their followers, beginning in the early 1970s, were getting so much prison time from their mounting tax convictions. Convinced that the legal system itself was corrupt and would never allow their view of constitutional law to see the light of day, they developed the idea of organized jury nullification: If they couldn’t get the courts to change, all they had to do was get one or two jurors to hang up the process.
The chief proponent of the concept in Posse circles was a Montanan named Red Beckman. He had a long and colorful career as a tax protester and anti-Semite; his book, The Church Deceived, described the Holocaust as God's judgement on "the Anti-Christ Church" for wqorshipping Satan, and was noted for repeating the charge that Jews are Satan worshippers on TV interviews. He also appeared as a keynote speaker at numerous Christian Identity events over the years. Beckman was an early and important influence on LeRoy Schweitzer, the leader of the Montana Freemen.
Beckman's ideas about jury nullification became a cornerstone of his anti-tax strategy, and they quickly gained popularity, not just among the Posse, but among many elements of the far right that were coming into conflict with legal authorities for their many activities. Not only could jury nullification solve problems related to tax cases, but juries could also potentially overturn charges ranging from malicious harassment to firearms violations and bomb building. As the Posse mutated into the Christian Patriots, who then became merely Patriots, the theories became more distilled and more widely distributed.
Because it does have a certain legal history, it has proven to be a powerful recruiting tool within the mainstream. It meshes nicely with the Patriot modus operandi of the 1990s: hiding the agenda by adopting a mainstream pose, offering crackpot theories as legitimate by spouting a blizzard of legalisms, and generally gnawing away at the legal system in the hopes of inducing its collapse. And they’ve been very successful at getting out the jury-nullification Gospel to a broad swath of society (particularly barter-fair types and libertarians), all under the guise of enacting a needed reform of the court system.
It is likely that the bulk of nullification proponents -- including, probably, Mark Paschall, though his notions about placing God's laws before man's are common among both Identity followers and Christian Reconstructionists -- have no idea whose agenda they’re being used for. But then, most people are oblivious to the elements in our society that would like to see it all fall apart, and are doing their damnedest to make it happen.
6:18 PM
Spotlight
Diebold and the California vote
Mark Crispin Miller offers an eye-catching post about the California recall election results vis a vis the use of Diebold's voting technology.
One of Miller's correspondents performed some number-crunching of the Diebold counties and concluded:
- The probability of scoring twice the expected average county % could charitably be construed as the upper limit of the possible. Some candidates exceed that figure in Diebold counties by a four or five fold margin. If you have done statistics, you know that is so far beyond what might be expected that you would reject it as defective data. If it happened to one candidate in this election, I would be surprised but might accept it. There are a large number of candidates who have this same systematic pattern of receiving skimmed votes.
The California recall shows Diebold trying to affect the election outcome by moving votes from high ranked candidates to low ranked candidates.
By doing this, Diebold keep the total number of votes cast constant but rob some candidate of their votes.
At this remove, it's impossible to assess the accuracy of the analysis, but it certainly appears valid, and moreover bears investigating.
I'm sure the California media will get right on it.
5:27 PM
Spotlight
The coverup
Thursday, October 09, 2003
The importance of the recent revelation that the Bush administration is focused, in its handling of the Valerie Plame leak, not on the source of that leak, but on the official who confirmed it, seems to have escaped notice so far. So let's explore it a little further.
The recent Newsweek piece by Michael Isikoff -- a fairly clear iteration of White House talking points -- made this shift in the direction of the investigation within the White House explicit. It even laid out the thinking of the Bush team:
- [I]t suggested for the first time that there was a big-league dissenter within the upper ranks of the Bush administration, someone who was genuinely appalled at crude White House attempts to discredit a critic. (Novak’s small point was that Wilson was dispatched by the CIA to check out claims that Saddam Hussein was seeking to buy uranium from Niger only because his agency wife recommended him.) It also was the strongest evidence that the disclosure of Plame’s identify was done with malicious intent and not, as Novak has since insisted, a passing reference in the course of a lengthy conversation about a wide range of matters.
Not only do the anonymous official's remarks rebut the White House's emerging claim that there was no "criminal intent" in the release of Plame's identity, but they run smack into the chief operating principle of the Bush team: Loyalty above all.
Whoever talked to the Post was disloyal to the team. And that means they will be ferreted out and punished.
This lays bare the same lack of principle, the same skewed priorities, that were operative in the outing of Plame's CIA identity -- wherein fealty to Bush and the triumph of his politics is of greater significance than anything, even national security. Joseph Wilson and his wife's value as human beings, and as civil servants, was rendered moot under this calculus. They became expendable from a political standpoint.
The same fate almost certainly awaits whoever the "senior administration official" might be. He will be made an example of, as Bush's proof of his desire to root out leakers. The sources of the leak to Novak, however, will be found innocent of "criminal intent."
Most of all, this change in focus means that the Bush team is in full coverup mode -- seeking to punish the dissenters who stray from the team's official story about the leak -- even if, as Atrios points out, that official story is already full of holes.
Well, the Beltway press has not been noted for its ability to take in the big picture. At some point, though -- perhaps when Team Bush files for executive privilege in the case -- they'll understand just how far along this coverup has proceeded already.
5:06 PM
Spotlight
America haters
Pat Robertson has finally slipped off the deep end.
In an interview he conducted with author Joel Mowbray on his 700 Club show last week, Robertson said the following:
- I read your book. When you get through, you say, "If I could just get a nuclear device inside Foggy Bottom, I think that’s the answer." I mean, you get through this, and you say, "We’ve got to blow that thing up." I mean, is it as bad as you say?
The State Department has filed a protest, saying Robertson's remarks were "despicable," with a "senior administration official" saying "Robertson had been made aware of Secretary of State Colin Powell's extreme outrage at the tone and content of the remarks."
Robertson, of course, has gone off the reservation on previous occasions -- publishing his Protocols-inspired "New World Order" tome, making inflammatory remarks about Muslims after Sept. 11. But this time, both the sentiment and rhetoric are so notably extremist in nature that it's hard to imagine him retaining any credibility.
One wonders when all those pundits and bloggers on the lookout for signs of America-bashing will chime in.
3:39 PM
Spotlight
Spinning stupidity
Wednesday, October 08, 2003
Well, it appears that the White House's investigation indeed is not focusing on the original leaker(s) of Valerie Plame's identity as a CIA operative to the press, but instead is attempting to ferret out just who might be the "senior administration official" who fingered two "top White House officials" as the sources of the leak to the Washington Post.
This is made explicit in the recent Newsweek report by Michael Isikoff:
"Criminal or Just Plain Stupid?"
According to Isikoff:
- The "senior administration official" is not the original leaker who first told columnist Robert Novak that Wilson’s wife, Valerie Plame, was a CIA "operative" specializing in weapons of mass destruction. That as-yet-unidentified official remains the target of Justice Department investigators who today are awaiting stacks of White House records -- including phone logs, e-mails and other material relating to the possible dissemination of information about Wilson and his undercover spouse.
Instead, it is another "senior administration official" -- the one quoted in a Sept. 28 Washington Post article as saying that "before Novak’s column ran" two top White House officials "called at least six Washington journalists" and disclosed the identify and occupation of Wilson’s wife. "Clearly, it was meant purely and simply for revenge," that senior administration official told the Post’s Mike Allen and Dana Priest.
The Post story may have been the most eye-popping development in the leak story: it suggested for the first time that there was a big-league dissenter within the upper ranks of the Bush administration, someone who was genuinely appalled at crude White House attempts to discredit a critic. (Novak’s small point was that Wilson was dispatched by the CIA to check out claims that Saddam Hussein was seeking to buy uranium from Niger only because his agency wife recommended him.) It also was the strongest evidence that the disclosure of Plame’s identify was done with malicious intent and not, as Novak has since insisted, a passing reference in the course of a lengthy conversation about a wide range of matters.
But more than 10 days after the story exploded, an alternative theory is emerging among those who are directly involved in the leak case: that the “senior administration official” quoted in the Washington Post piece simply got it wrong. There were indeed White House phone calls to reporters about Wilson’s wife. But most, if not all, of these phone calls, were made after the Novak column appeared, some government officials now believe. They were placed as part of a blundering effort to persuade journalists to concentrate on Wilson’s presumed lack of credentials as a critic of pre-Iraq war intelligence rather than the substance of his critique.
The upshot of this scenario: Novak was the only journalist to whom Plame's identity as a CIA agent was leaked before his column ran. All other White House contacts about the matter only pointed to the Novak column -- which by itself was not against the law.
Isikoff has been a reasonably reliable transmitter of Republican talking points, and the headline of the piece -- and the thrust of its contents -- suggests what will almost certainly become the White House's story about the Plame matter: There were no laws broken. Just "stupid" behavior.
Someone -- the "senior administration official," possibly Andy Card -- will be made a scapegoat, and the sources of the leak will have their hands slapped.
Earlier today, Josh Marshall wondered why press spokesman Scott McClellan answered questions about the complicity of two key suspects -- Lewis Libby and Elliot Abrams -- with carefully worded responses referring to "leaks of classified information".
Isikoff's story explains why this distinction is important to the White House:
- One possible translation: whatever they may or may not have said to Novak, nobody passed along anything they knew to be classified at the time.
And that may make all the difference in the world. As former CIA director James Woolsey points out, the 1982 law that makes it a federal crime to disclose the identify of an undercover CIA agent was carefully written to target witting perpetrators. Congress had in mind actors such as ex-CIA agent turned left-wing critic Philip Agee who, for political reasons, wrote a book "outing" many of his former colleagues, leading to considerable and justifiable concern about their safety. The law "was quite narrowly drafted," notes Woolsey, and much will depend on "whether there was criminal intent" by the leaker. If the leaker did not know that Wilson’s wife was undercover at the time of the conversation with Novak, that alone may get him or her off the hook.
Anyone willing to wager that John Ashcroft's Justice Department will find that there was no "criminal intent" on the part of the leaker?
I'm reminded of the time back in the late 1970s when then-Congressman George Hansen -- a Bircher Republican from Idaho -- was convicted of tax evasion, in no small part a product of Hansen's cockamamie Posse-style arguments about the legitimacy of the Internal Revenue Service. (Hansen's congenital "mishandling" of campaign funds was also a problem.)
Hansen was convicted rather readily, despite his courtroom theatrics. But when it came time for sentencing, the judge decided to simply give Hansen a fine and a warning: After all, the judge reasoned, it was clear that Hansen was too "stupid" to have formed any real criminal intent.
Hansen -- whose political career survived the first conviction -- was convicted a few years later of kiting checks. The second time around, the judge was not so easily fooled, and sent him to prison.
11:40 PM
Spotlight
Executive Privilege, the Plame Affair and Ted Olson
Lisa English at Ruminate This raises the specter of "executive privilege" as a possible White House tactic in forestalling the Justice Department's investigation of the leaking of CIA operative Valerie Plame's identity. English cites a Boston Globe piece headlined, "Executive privilege seen as leak-case option":
- The very words "executive privilege" evoke memories of scandal-plagued presidents trying to use the power of their office to hide from public view politically damaging information, and White House press secretary Scott McClellan was careful not to use the term. Still, he would not rule out the use of executive privilege, saying: "I think it's premature to even speculate about such matters."
Presidents can invoke executive privilege to shield from public view some aspects of their internal decision-making process. "It's used to shroud advice that's sometimes inflammatory or has been rejected," said Thomas Sargentich, a law professor at American University in Washington, D.C. "Executive privilege is not supposed to be a shield in criminal investigations."
Particularly disturbing is the news that all of the White House information regarding the investigation is being filtered by White House Counsel Alberto Gonzales' office:
- Gonzales's office will also have the opportunity to examine what information, if any, should not be turned over because the administration believes it is protected by executive privilege. The Justice Department's Office of Legal Counsel, which provides legal opinions on questions with constitutional dimensions, would review any White House claims.
Sargentich, who worked in the Office of Legal Counsel during the Carter and Reagan administrations, said lawyers in that office can make independent judgments, though the attorney general remains their boss and can overrule them.
If the White House asserts a claim of executive privilege, Sargentich said it would be a strong sign that the investigation is heading to the highest levels of the Bush administration, given that the claim can only be used to shield the president's decision-making process.
The news that executive privilege is even being considered in this case is remarkable, considering the constraints built into the law regarding such assertions, especially insofar as they relate to criminal activity. There are other ways it is remarkable as well. As Benedict Spinoza correctly points out in the comments for Lisa's post [edited slightly for minor corrections]:
- Executive Privilege simply does not apply in this, at least not at this point. For anyone who remembers when the term was first coined, it was viewed as a formalization of the separation of powers doctrine, a doctrine that applies solely between the branches of government (executive, legislative, and judicial) and not within a single branch. Obviously, the DoJ and the White House are within a single branch, so executive privilege cannot apply.
There is however a parallel to this that does indeed apply in this case: chain of command. Since DoJ reports to the President, he can theoretically simply order DoJ to not ask for certain materials, and, observing the chain of command, DoJ would not. Were this to be the case, the only available solution would be for Congress to file for impeachment. If it chose to (a hypothetical, of course), the President could not then claim Executive Privilege because to do so would be contradictory to the explicitly enumerated Congressional Privilege of impeachment.
As Spinoza's analysis explores further, this only hints at the beginning of the can of worms this potential assertion of "executive privilege" opens. But let me point out that its audaciousness -- built on potentially uncharted areas of the law -- was something we could have predicted from this White House.
This is particularly so considering that its chief legal strategist is none other than Theodore B. Olson, the solicitor general -- the man who almost certainly will be arguing these executive-privilege claims when they go to court, as they almost assuredly will if made.
Olson, you see, has an especially charged history when it comes to claims of executive privilege -- all of which may well play into the lengths to which the Bush White House may try to shield itself from the consequences of its role in a grotesque breach of national-security interests.
Ted Olson is at heart an old Nixonian: he first became involved in Republican politics in the early '70s and the Nixon campaigns, and much of his tenure at the Reagan Justice Department (he was a high-ranking attorney in the Office of Legal Counsel) in the 1980s was devoted to overturning what he saw as the unconstitutional encroachments of congressional powers on executive powers that resulted from the post-Watergate reforms. Chief among these were the limits on asserting "executive privilege."
I reported in detail on this part of Olson's career in a Salon piece that, if you'll excuse the indulgence, I'll quote from at length here:
- Ted Olson's career as a battling Republican lawyer really began the day he stood next to James Watt as the interior secretary defiantly declared executive privilege.
That was in October 1981, a few months after President Reagan had named Olson assistant attorney general for the Office of Legal Counsel. Watt had been subpoenaed by Michigan Rep. John Dingell, the Democratic chairman of the subcommittee assigned to look into environmental cleanup efforts, to provide Dingell's subcommittee with documents relating to that work. Watt had deemed these papers "enforcement sensitive" -- that is, making them public, he said, would compromise the department's ability to enforce cleanup laws.
However, Watt's privilege assertion and the controversy accompanying it did not last long. Sensing a political fiasco, Reagan's White House counsel, Fred Fielding, negotiated an access agreement with the Dingell subcommittee in early 1982. Olson strongly opposed the terms of the agreement, and he apparently viewed the compromise as a personal defeat.
Another opportunity for Olson to again tackle the executive-privilege question presented itself in short order. In September 1982, another House subcommittee -- chaired by Rep. Elliott Levitas, D-Ga. -- sought access to EPA files involving enforcement of the so-called Superfund hazardous-waste cleanup provisions, particularly focusing on the activities of Rita Lavelle, assistant administrator for solid waste and emergency response. Dingell's subcommittee also asked for documents involving the same matter. EPA staff members were reluctant to disclose some information, again fearing the documents were "enforcement sensitive."
Olson proceeded to lead the Reagan White House to claim executive privilege in spectacularly groundless fashion, with little regard for the requirements of the law:
- The biggest flaw in Olson's Oct. 25 memo, however, was the statement that the documents he was seeking to keep from investigators contained no evidence of wrongdoing. In fact, Olson's staff had not even conducted a thorough review of the documents Dingell wanted -- some 51 pieces in all -- and would not do so until Dec. 9, well after executive privilege was asserted. There had been a preliminary review in early October, and even then red flags had been raised; the OLC lawyers forwarded them at that point to Dinkins' attorneys for more detailed review. There is no indication that review was ever completed; Dinkins conducted a cursory check and then apparently let the matter lapse.
Most of all, when Congress finally cited the EPA Administrator, Anne Gorsuch Burford, for contempt in the matter, Olson then led the charge in a remarkable display of contempt for the separation of powers issues that were at the foundation of the executive-privilege laws:
- When the full House cited Burford on Dec. 16, he and his team responded with an extraordinary civil suit in federal court contesting the constitutionality of Congress' contempt powers, charging that the invocation of privilege was proper and that the contempt citations should not stand. The suit, however, had a short shelf life; it was dismissed by the court on Feb. 1.
The Olson team's effort was "without a doubt the sloppiest piece of legal work I had seen in 20 years of being a lawyer," Burford later wrote in her memoirs. It only cited in its support nonbinding opinions from a single case -- former President Richard Nixon's suit against the House Judiciary Committee -- and Burford notes that no factual defenses were raised.
Certainly in many other areas -- particularly the aggressive assertion of executive powers in setting up military tribunals and designating citizens "enemy combatants," as well as various surveillance powers under the so-called Patriot Acts -- the Bush White House has displayed all the signs of attempting to reacquire powers lost to the executive branch in the 1970s … a belated "Nixon's revenge," as it were. There is a high likelihood that Ted Olson has been one of the guiding lights in these acquisitions.
"Executive privilege" is especially an area near and dear to Olson's heart. And it is clear, from his record, that Olson believes such privilege should be nearly illimitable -- unless, of course, the president is a Democrat.
What his record especially suggests is that Olson may very well lead the Bush White House on a merry goose chase, attempting to extend executive privilege into areas where it was never intended, and where almost certainly legal mischief could turn up afoot. It has the makings of a real train wreck. As I noted at the end of the Olson piece:
- Olson's actual record in that period raises doubts about even this answer. His single-minded effort to assert executive privilege actually overlooked what the law permitted, and it wound up costing President Reagan dearly. One is only left to wonder what dubious legal tangles he has in store for President Bush's agenda.
It is however disturbing to note, as Benedict Spinoza's analysis suggests, that the makeup of the courts is quite different now than it was when Olson first attempted to claim Congress' powers of oversight unconstitutional. Considering that Olson has reason to believe he can succeed at the highest levels of the court, he is almost certain to push the envelope. Who knows? He might be able to prolong any resolution of the scandal, and force it onto the back pages, just by dragging it out through the courts.
In other words, look for the Plame affair to turn into a courtroom and congressional wrangle that is nasty, brutish and … long.
9:51 PM
Spotlight
An interesting slip
Josh Marshall yesterday mentioned this comment by President Bush in remarks to reporters:
- I mean this town is a -- is a town full of people who like to leak information. And I don't know if we're going to find out the senior administration official.
I thought this was strange, since the original report in the Washington Post cited a "senior administration official" who indicated that there were two "top White House officials" who leaked Valerie Plame's identity as a CIA operative to the press.
In other words, it's beginning to sound as though the White House is less interested in the identity of the two leakers than it is that "senior administration official" who spilled the beans to the Post.
Or did Bush simply misspeak again?
5:11 PM
Spotlight
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