Rove Faces The Music... In Private

After years of wrangling, the House Judiciary Committee will finally receive testimony from Karl Rove and Harriet Miers about their roles in the US Attorneys scandal. Here's the statement:

In an agreement reached today between the former Bush Administration and Congressman John Conyers, Jr. (D-Mich.), Chairman of the House Judiciary Committee, Karl Rove and former White House Counsel Harriet Miers will testify before the House Judiciary Committee in transcribed depositions under penalty of perjury. The Committee has also reserved the right to have public testimony from Rove and Miers. It was agreed that invocations of official privileges would be significantly limited. (emphasis mine)

In addition, if the Committee uncovers information necessitating his testimony, the Committee will also have the right to depose William Kelley, a former White House lawyer who played a role in the U.S. Attorney firings.

The Committee will also receive Bush White House documents relevant to this inquiry. Under the agreement, the landmark ruling by Judge John Bates rejecting key Bush White House claims of executive immunity and privilege will be preserved. If the agreement is breached, the Committee can resume the litigation.

I figure that the Obama Justice Department was going to release the documents anyway, so Rove and Miers could either explain them or not. And the limiting of privilege is good. But I'm a little dismayed that this is all happening in private. It's unclear whether or not the public will have access to the transcriptions generated, but my guess is no.

Here's John Conyers' statement:

“I have long said that I would see this matter through to the end and am encouraged that we have finally broken through the Bush Administration’s claims of absolute immunity. This is a victory for the separation of powers and congressional oversight. It is also a vindication of the search for truth. I am determined to have it known whether U.S. Attorneys in the Department of Justice were fired for political reasons, and if so, by whom.”

Symbolically, this is very important, agreed. Whether it means that the truth will actually be uncovered about who authorized the firings of US Attorneys is less clear.

Signing Statement Expiration Dates

We've all been concerned about President Bush's disrespect of the Constitution and the separation of powers, but one interesting sidelight to it all is that, at least on the question of signing statements, the long-term effects are less severe than realized, at least in the specific sense.

Critics say the statements, which went mostly unnoticed [3] until the middle of Bush's second term, usurp Congress' constitutional right to make laws and violate the separation of powers. But hope is just around the corner for the signing statement opponents.

"They will mean nothing" once Bush leaves office, said Stephen Saltzburg, a law professor at George Washington University and member of an American Bar Association task force that studied, and ultimately condemned [4] (PDF), the practice of using signing statements to reject statutes. Presidents should veto laws they believe are unconstitutional, the task force said.

Though the statements aren't legally binding, they send the message to executive branch agencies that they may ignore certain laws, usually on the contention that they impinge on the president's constitutional authority. Agencies that have adopted such presidential advice as policy could still be affected when President-elect Barack Obama's appointees inherit the "status quo," Saltzburg said.

Neal Sonnett, a Miami lawyer who led the Bar Association task force, suggested that Obama make a general statement withdrawing the Bush signing statements to assure a clean break. But Sonnett and others believe the most conspicuous statements -- and their effects -- will be obvious to the newcomers.

Of course, the problem with signing statements wasn't really that they would settle law, but that they would embolden the executive to follow Bush in determining which parts of a statute to abide by and which to ignore. That the specific damage done washes away is a good thing, but the precedent remains. President-elect Obama would do well to completely repudiate the practice, to at least try and establish a new precedent.

Good Opposition

I do worry that Democrats in Congress relish nothing more than to shiv the incoming Democratic President, and that will stunt progress as each massive ego tries to get the most they can out of every bill. However, I don't want a situation where the Congress eagerly reads off the talking points of their party's President and enacts whatever he wants. The separation of powers is crucial to democracy. And when the Congress is weighing in on behalf of getting rid of those badly conceived tax cuts in the proposed stimulus package, I'm not going to argue at all.

Both Democrats and Republicans have questioned a provision that would provide a $3,000 tax credit to companies for every job created and, possibly, for every job spared. They contend that the idea would be ripe for abuse and difficult to administer.

Lawmakers are also skeptical about a measure that would allow companies to deduct large portions of recent losses. The proposal would benefit companies that have been hit hardest by the recession, including in the banking and real estate sectors, but experts worry that costs could soar because so many would be eligible [...]

"It is tough to see how a company that is seeing its sales slaughtered in today's recession is going to hire just because it gets a few thousand dollars per new worker from the government," Howard Gleckman wrote on the TaxVox blog for the Tax Policy Center, a nonpartisan think tank. "Profitable firms would merely take the credit for bringing on workers they were already planning on hiring."

Mark Zandi, chief economist and co-founder of Moody's Economy.com, said the credit "sounds good" but added, "It's going to be hard to design something" that proves effective and resistant to abuse.

This AP story has both Kent Conrad and John Kerry weighing in on how unwise it would be to include corporate giveaways in the stimulus.

They were especially critical of a proposed $3,000 tax credit for companies that hire or retrain workers.

"If I'm a business person, it's unlikely if you give me a several-thousand-dollar credit that I'm going to hire people if I can't sell the products they're producing," said Sen. Kent Conrad, D-N.D., a member of the committee.

"That to me is just misdirected," Conrad said.

Sen John Kerry, D-Mass., said, "I'd rather spend the money on the infrastructure, on direct investment, on energy conversion, on other kinds of things that much more directly, much more rapidly and much more certainly create a real job."

I'm happy to see a "Democrats in disarray" meme on this count. It provokes real debate about the efficacy of corporate tax cuts to meet the current challenge. That's a debate we should be having, one that Democrats in the past have shied away from. I'm glad they're challenging the President-elect on this.

And I'm glad Nancy Pelosi is speaking out about the incredible disappearing repeal of the Bush tax cuts.

Speaker Nancy Pelosi told reporters Thursday that she wants to see the Bush-era tax cuts for the wealthy repealed "as early as possible."

The call for repeal may place Pelosi at odds with President-elect Obama; during the campaign he called for repeal but his aides have since indicated that due to the deteriorating economy, he was leaning towards allowing them to expire.

Asked again after her press conference about the tax cuts, the Speaker said she is "urging repeal."

Good. There is no need to placate Republicans by continuing to allow the very rich to suck the Treasury dry, especially at a time of trillion dollar deficits. There's an urgent need for shared sacrifice and to push Obama to follow through on this campaign promise. That's opposition I can believe in.

Unexpected

This would be a major victory for the separation of powers:

A federal judge has sided with Congress in its fight with the Bush administration over whether top White House aides can be subpoenaed by Congress.

The House Judiciary Committee wants to question the president's chief of staff, Josh Bolten, and former legal counsel Harriet Miers, about the firing of nine U.S. attorneys.

But President Bush says they are immune from such subpoenas. They say Congress can't force them to testify.

U.S. District Judge John Bates said there's no legal support for that stance. He refused to throw out the case and said the aides can be subpoenaed.

The case always rested on the Bush Administration's conception of the executive branch as a kingship. Even the judge from Ken Starr's grand jury is balking at that one. This is from the opinion:

Indeed, the aspect of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled congressional process. The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President’s personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law.

We have a President, not a king. Who knew?

Of course, paraphrasing Andrew Jackson, the judge has made his decision, now let him enforce it.

(if they can, this has major implications for Karl Rove)

Next Steps On FISA - July 8 and Beyond

As we all know, we're in kind of a holding pattern while we wait another week until the Senate is likely to lay down and give Bush more than he expected on warrantless wiretapping and immunity for lawbreaking. I know many of us are calling representatives and talking to them when they come in our communities and even organizing inside Barack Obama's social networking site (9,300-plus strong now). But the reality is that we're likely to come up short. The Beltway elites are determined to bury their sins and make sure nobody finds out about the extent of this illegal and unconstitutional spy program.

So what do we do? There's a lot of outrage and energy around this issue, certainly it needs to be channeled. I think there are a number of things we can do.

• If we keep organizing around the July 8 vote, the best opportunity for us is to encourage passage of the Bingaman amendment, which would put a stay on any immunity until 90 days after the completion of a Justice Department Inspector General report about the President's warrantless wiretapping program. This would be beneficial for a number of reasons. It's "sensible" enough - why give immunity before we know what we're immunizing? - to attract bipartisan support. The IG report would certainly take long past President Bush's exit from the White House, which is extremely beneficial. And the 90 days gives an opportunity to deep-six the immunity after the worst abuses are brought to light. Most important, this would be a change in the bill from the House, which would send it into a conference committee and require another round of votes after reconciliation, AND the President wouldn't be likely to sign anything with the Bingaman amendment in it because he wants his immunity and he wants it now. So for so many reasons, strategically speaking that amendment is the right one to push with your lawmakers.

• Keith Olbermann is right - the right will continue to make up some excuse to attack Obama for this vote on some grounds, so he owes it to his supporters to do the right thing and, if telecom immunity remains in the bill, vote against it. The fantasy of criminal prosecution for the telecoms, well, I'll get to that in a minute. But for those organizing around Obama from now to July 8, it should be around making sure he's at that vote and voting for the Dodd-Feingold amendment, for the Bingaman amendment, and against the bill if they fail.

• What happens AFTER July 8 strikes me as more relevant now - it's highly unlikely that we stop this freight train. Are there any next steps? First of all, we must continue to pressure the next President to investigate the program. The IG report will be made, and there must be a concerted effort to make that public. The bill's expanded wiretapping powers are arguably more pernicious than immunity, and so bringing them into full view could spark an outrage that would roll the whole system back, similar to the Church Committee's findings in the 1970s.

...the bottom line for the ACLU is that no president should have the power to monitor the phones and emails of Americans without a warrant, and telecommunications companies should not be let off the hook. No president should have the power to pardon companies that broke the law.

The ACLU calls on the next president to conduct an immediate investigation of warrantless wiretapping and calls on him to release documents relating to the legality of the NSA’s monitoring of American’s calls and email without warrants.

This issue has awakened a sleeping giant, a broad coalition of Americans worried about the creeping loss of their civil liberties for the last 50 years. Whether it's unwarranted spying or just catalog companies harvesting your emails and selling them off to advertisers, Americans desire their privacy and will fight efforts to take it away. The Strange Bedfellows coalition will live on beyond July 8 and will seek to hold those who limited freedom and curbed civil liberties accountable. But as a specific action, demanding a full, thorough, and public investigation is a good place to start.

• Litigation will not end if our efforts fail on July 8.

Lawyers for the Electronic Frontier Foundation and American Civil Liberties Union, two groups that have been leading the charge against dismissing the lawsuits, are working on possible legal challenges for the FISA bill that is expected to pass soon. That being said, no one is ready to throw in the towel on the continuing FISA fight happening in the Senate.

"Assuming that the immunity does pass, which right now we are not assuming, we are certainly preparing for litigation against the application of immunity in our case," Kevin Bankston, a senior attorney for EFF told RAW STORY [...]

While the precise sequence of events in unclear, Bankston said the challenges would take place in the Northern District of California Court, where the telecom lawsuits themselves are being litigated. He said he's pleased that at least the immunity question is not being decided by the secret FISA court, as was proposed in an earlier bill.

The ACLU is keeping its options open but has not decided how or if it will proceed with court challenges to an eventual FISA agreement, a spokesman says.

If the bill granting immunity is a violation of separation of powers, the courts could overturn it. Obviously we have a Supreme Court in hock to corporate interests so the odds would be long, but courts also don't really like their authority usurped so I'm not sure it's such a slam-dunk.

My larger point is that there's a lot of work to be done, both in the next week and beyond, to put us on a path where we have liberty and security, where privacy rights and civil liberties are sacrosanct, and where no man or corporation is above the law. We must continue the fight.

Constitution Can Wait

The Congress is too busy giving away money to people they hope to have vote for them (not that it's wrong, but some long-term regulatory and policy shifts instead of handouts would be nice) to bother themselves with the rule of law.

House Democrats will postpone votes on criminal contempt citations against White House chief of staff Joshua Bolten and former White House counsel Harriet Miers, while congressional leaders work with President Bush on a bipartisan stimulus package to fend off an economic downturn, according to party leaders and leadership aides.

Senior Democrats have decided that holding a controversial vote on the contempt citations, which have already been approved by the House Judiciary Committee as part of its investigation into the firing of nine U.S. attorneys, would “step on their message” of bipartisan unity in the midst of the stimulus package talks.

It's enough of a struggle to get Congress to walk, you don't expect them to chew gum at the same time, do you?

“Right now, we’re focused on working in a bipartisan fashion on [the] stimulus,” said House Majority Leader Steny H. Hoyer (D-Md.), indicating that the contempt vote is not expected for weeks, depending on how quickly the stimulus package moves.

Brendan Daly, a spokesman for House Speaker Nancy Pelosi (D-Calif.), said “no decision has been made” as to when a criminal contempt vote would be held by the House.

These citations were originally approved in the Judiciary Committee LAST JULY, by the way.

They will NEVER be voted upon, I think that much is clear. There will always be an excuse. And there will always be Blue Dogs unwilling to "look weak" by doing something strong. Democratic aides admit they don't even have the votes in the House to protect their own oversight responsibilities. And so a President will have set the precedent of extending executive privilege even further, and Congress will become even more irrelevant.

I liked it better when they were out of session, it was much easier on my stomach.

The Trial

In a scenario only Kafka could write, the US 6th Circuit Court of Appeals yesterday ordered a dismissal of the ACLU lawsuit against the President's warrantless wiretapping program, which a federal judge earlier ruled unconstitutional, because of lack of standing.

So, the appeals court is saying that, because the plaintiffs could not show that they were subject to surveillance, they could not bring suit. When the plaintiffs tried to determine from the government if their were being spied upon, the government claimed official secrecy. So you can't sue for having your civil rights violated through spying unless you KNOW that the government is spying on you. Which defeats the purpose of SPYING.

The government through the Congress can still investigate the spying program, but the President can cite executive privilege. And it doesn't seem like they can, as Jonathan Turley suggested, investigate it as a crime, since it's a crime without standing.

This is a casualty of the national security state, as official secrecy has been built out (and the courts have become very deferential), and what the courts are really saying here is that any program conducted in secret is by default legal, because nobody can prove that it exists. Is this how we want our American principles and ideals to be carried forward? If this ruling stands, the American experiment is actually over. It provides a blueprint for any successive Administration to perform any action that impinges on the rights and liberties of citizens: just don't tell anybody about it.

The ACLU has vowed to continue the fight, and they make a couple good points in the service of futility:

"We are deeply disappointed by today's decision that insulates the Bush administration's warrantless surveillance activities from judicial review and deprives Americans of any ability to challenge the illegal surveillance of their telephone calls and e-mails. As a result of today's decision, the Bush administration has been left free to violate the Foreign Intelligence Surveillance Act, which Congress adopted almost 30 years ago to prevent the executive branch from engaging in precisely this kind of unchecked surveillance.

"It is important to emphasize that the court today did not uphold the legality of the government's warrantless surveillance activity. Indeed, the only judge to discuss the merits clearly and unequivocally declared that the warrantless surveillance was unlawful.

"We are currently reviewing all of our legal options, including taking this challenge to the U.S. Supreme Court. In the meantime it is now more important than ever for Congress to engage in meaningful oversight."

Which is all true, but the recent Extreme Makeover: Federalist Society Edition of the Supremes means that this argument of standing is likely to hold water with them, and so it doesn't matter if the judiciary doesn't uphold the legality of the wiretapping progam. It's certainly not ILLEGAL if it's unable to be stopped.

And, I would add that, as Glenn Greenwald says, the appeals court decision was legally sound.

But the fact that the decision's result is so unfair does not mean, unfortunately, that it was wrongly decided. The role of the judge is to apply the law as it exists, and a judge is not free -- nor should we want them to be free -- to disregard binding legal doctrine whenever the judge decides that doing so is necessary to avoid unfair results. In a society that exists under the rule of law, the solution to bad laws and bad legal doctrines is to change those laws democratically, not to empower judges unilaterally to disregard the law in order to produce (what the individual judge perceives to be) better results.

As technical-seeming as it is, "standing" is a critically important constitutional limitation on the power of the judiciary. Independently, whether one believes in the merits of this doctrine or not, it is a requirement that must be fulfilled before the Constitution permits a court to rule on any matter. And there is good reason for that.

Courts are not omnipotent, free-floating bodies that exist in order to resolve all disputes. If courts had the power to resolve every abstract political and legal dispute, courts themselves would be omnipotent, or at least supreme. The Constitution thus limits the power of courts by narrowing the circumstances in which courts are empowered to act ("The judicial Power shall extend to all Cases . . . [and] to Controversies to which the United States shall be a Party"). Rightly or wrongly, the Supreme Court over the years has interpreted that provision to require (roughly speaking) direct and unique injury by the party who is suing, and the Sixth Circuit judges were required to apply that doctrine.

This is essentially a crack in the Constitutional system that the Bush Administration has managed to exploit because of the accumulated buildup of the national security state and the continuing reverence for official secrecy. The Bush Administration never tries to make an argument that their spying program is legal, just that nobody has a right to challenge it. They understand that other branches of government will constrain themselves to the powers granted to them by the Constitution, even if they won't.

Here's the solution, as expressed by Greenwald:

There are ways for Congress to act here in order to enable or even compel a court to rule on the legality of the NSA warrantless eavesdropping program. Regardless of one's views on the legality of this program, obtaining a judicial ruling is urgently necessary. It should require little mental energy to contemplate the dangers of allowing our government leaders to spy on us (or take other actions against us) in secret and then simultaneously block any and all processes to determine whether they have broken the law.

Exactly. And Congress needs to act as quickly as possible. The powers of the executive have been constantly expanding over 230 years, and it's time for that process to stop.

Get Ready For Action

With the exception of the line "stopping the war will have to wait" I have to wholeheartedly endorse this Michael Tomasky article.

Whenever I hear a Democrat in Congress say something like, "We're not interested in the past; we're focused on the future," I shoot the nearest television. What this usually means is: "Our pollsters tell us that voters don't remember what happened last week, let alone three or four years ago, and that we just open ourselves up to attack for 'dwelling in the past.'"

This is exactly the kind of politics that lost them the last two very winnable presidential elections. Follow your polls, stay on safe ground, concede the other side's arguments before they've even made them; and for God's sakes, don't ever try to move public opinion, just try to meet it and placate it.

If they don't know by now how much this posture has cost them politically in the last seven years -- and how much it's cost the country in countless ways -- then majority status will be fundamentally wasted on them.

This is incredibly correct. We have one chance to get this right, or the same people that lied us into war and ran the White House like a criminal enterprise will rise again, years and years later, in an even worse incarnation. The American people have been lied to, repeatedly and totally. They need to know exactly how and why for a very simple reason: so that safeguards can be instituted to ensure something like this never happens again. Nobody thought there could be anything like Nixon after Nixon. They were right: it's worse.

Andrew Sullivan, who I don't quote often, writes here with great energy and vigor:

Something is rotten in the heart of Washington; and it lies in the vice-president's office. The salience of this case is obvious. What it is really about - what it has always been about - is whether this administration deliberately misled the American people about WMD intelligence before the war. The risks Cheney took to attack Wilson, the insane over-reaction that otherwise very smart men in this administration engaged in to rebut a relatively trivial issue: all this strongly implies the fact they were terrified that the full details of their pre-war WMD knowledge would come out. Fitzgerald could smell this. He was right to pursue it, and to prove that a brilliant, intelligent, sane man like Libby would risk jail to protect his bosses. What was he really trying to hide? We now need a Congressional investigation to find out more, to subpoena Cheney and, if he won't cooperate, consider impeaching him.

We cannot let a mechanism stay in place where the executive branch can manipulate intelligence, lie to everyone, create their own reality and send Americans off to die. This has been coming to a head for a long time and it has to stop. I'm glad that there is a new commission looking into the division of war powers. Indeed, there's a long-dormant War Powers Act that Congress seems averse to use. But this is a crisis point. The way in which the legislative branch has given up all foreign policy decision-making is appalling and has left us at the whim of a single executive. This doesn't work. There's too much power invested in one branch. And holding them accountable for their sins will go a long way to future Presidents not wanting to repeat the action.