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WEEKLY WONK

Originally Published: 6/30/2007

Subpoenas:  The Senate Judiciary Committee issued subpoenas to the White House, Vice President Cheney's office, the Justice Department, and the National Security Council for documents relating to the warrantless surveillance program. They said they want to figure out what kind of internal disputes existed about the legality of the eavesdropping programs and what kinds of agreements were made with telecommunications companies that participated. There probably will be another showdown with the White House but Senate Dems were quick to emphasize that they issued the subpoenas only after several requests were ignored. (NY Times) If you're interested, here's the subpoena packet for the White House, the VP's office, the National Security Counsel, and the Justice Department.
 
White House Documents:  Solicitor General Paul Clement sent a letter to Senator Patrick Leahy (D, VT) and Rep. John Conyers (D, MI), each chair of the Judiciary Committee for their respective chambers, saying the White House will not turn over any documents (See The Weekly Wonk, Finally, Subpoenas, 6/16/07.) relating to the firing of the federal attorneys, claiming Executive Privilege. (Washington Post) The letter confirms the White House role in the firing of federal attorneys. Clement writes, "Among other things, these communications discuss the wisdom of such a proposal, specific U.S. Attorneys who could be removed, potential replacement candidates, and possible responses to congressional and media inquiries about the dismissals." If you remember, Bush said he approved the dismissals only after the Justice Department recommended them. (White House) This looks like a conflict of interest to me. Clement is the attorney who is supposed to be investigating the whole thing. Congress is fighting back. Leahy and Conyers responded, saying, "We are even more disappointed now with yet further stonewalling. Whether or not we have the benefit of the information we have directed you to provide by July 9, we will take the necessary steps to rule on your privilege claims and appropriately enforce our subpoenas backed by the full force of law." (Raw Story)
 
Government Contracting:  The House Committee on Oversight and Government Reform has released a report entitled "Dollars, Not Sense: Government Contracting Under the Bush Administration." It says that the "shadow government" of "private companies working under federal contract" has grown significantly. The report has 3 conclusions: Procurement spending is accelerating rapidly, contract mismanagement is widespread, and the costs to taxpayers are enormous. It says: "Between 2000 and 2005, procurement spending rose by 86% to $377.5 billion annually. Spending on federal contracts grew over twice as fast as other discretionary federal spending. Under President Bush, the federal government is now spending nearly 40 cents of every discretionary dollar on contracts with private companies, a record level." The report says there are multiple causes, "including poor planning, noncompetitive awards, abuse of contract flexibilities, inadequate oversight, and corruption." Who's getting all that money is not a surprise: "Federal procurement spending is highly concentrated on a few large contractors, with the 5 largest federal contractors receiving over 20% of the contract dollars awarded in 2005. Last year, the largest federal contractor, Lockheed Martin, received contracts worth more than the total combined budgets of the Department of Commerce, the Department of the Interior, the Small Business Administration, and the U.S. Congress. The fastest growing contractor under the Bush Administration has been Halliburton. Federal spending on Halliburton contracts increased over 600% between 2000 and 2005." [Emphasis added.]
 
The Vice President:  The Washington Post ran an expose examining Dick Cheney's "largely hidden and little-understood role in crafting policies for the War on Terror, the economy and the environment." Right after being sworn in, former VP Dan Quayle tried to explain to Cheney that vice presidents don't really do much. As Quayle recalls, Cheney smirked and explained that he had "a different understanding with the president." The first installment "recounts Cheney's campaign to magnify presidential war-making authority, arguably his most important legacy. . . Cheney has shaped his times as no vice president has before. . . In roles that have gone largely undetected, Cheney has served as gatekeeper for Supreme Court nominees, referee of Cabinet turf disputes, arbiter of budget appeals, editor of tax proposals and regulator in chief of water flows in his native West. On some subjects, officials said, he has displayed a strong pragmatic streak. On others he has served as enforcer of ideological principle, come what may." The Post goes behind the scenes and explains how Cheney's secretive maneuvering allowed him to guide the administration's policies in the war on terror. Most striking is how potential dissenters are left out of the loop. For example, as Cheney's small cadre of legal experts was drafting plans for a domestic surveillance program, they bypassed the ranking national security lawyer in the White House, as well as Congress. The second installment focuses on his role in the torture policy. Anyone surprised that he was a key advocate for torture or that it's still going on today? The Post gives a picture of a vice president so determined to get his way, he'll even go behind the back of other administration officials. The third installment looks at Cheney's influence on economic policies. It notes that, while Bush may be the "decider," "the vice president often serves up his menu of choices." The fourth installment shows how Cheney has, in many cases, stepped in to "undercut long-standing environmental regulations for the benefit of business" in everything from air and water quality to the preservation of national parks and forests. "It was Cheney's insistence on easing air pollution controls, not the personal reasons she cited at the time, that led Christine Todd Whitman to resign as administrator of the Environmental Protection Agency . . . "
 
Cheney & Gonzales:  Michael Isikoff of Newsweek has an interesting take on Cheney's refusal to comply with the executive order requiring annual reports on security measures. (See The Weekly Wonk, Vice President is 4th Branch, 6/23/07.) J. William Leonard, the chief of the Archives' Information Security Oversight Office, sent a letter to Gonzales last January asking for an official ruling. He sent a copy of the letter to Steve Bradbury, the chief of the Office of Legal Counsel (OLC). Gonzales' aides have told reporters that the request was "under review" but when a Freedom of Information Request was submitted for the OLC documents, they said they didn't have anything.
 
White House Handling of Classified Documents:  On June 22, 2007, White House spokesperson Dana Perino said, "The President and the Vice President are complying with all the rules and regulations regarding the handling of classified material and making sure that it is safeguarded and protected." (White House) However, a letter from House oversight chair Henry Waxman (D, CA) to White House counsel Fred Fielding on June 26, 2007, said: "The security officers described repeated instances in which security breaches were reported to the White House Security Office by Secret Service or CIA agents, but were never investigated. In one case, the White House Security Office took no action after receiving a report that a White House official left classified materials unattended in a hotel room."
 
Bruce Fein:  He was an Associate Deputy Attorney General under Ronald Reagan and a leading player in the push to impeach Clinton, but he's been speaking out against the Bush administration for some time. In March 2006, he testified before the Senate Judiciary Committee in support of Senate Resolution 398, which called for the censure of Bush over the warrantless surveillance program. He said Bush had crippled "the Constitutionís checks and balances and political accountability." (Raw Story) Last October he nailed Bush for his "alarming usurpations of legislative prerogatives," and ripped into the then-Republican controlled Congress for sitting idly by and "placing party loyalty above institutional loyalty, contrary to the expectations of the Founding Fathers." (Washington Monthly)  Now he's written a scathing editorial for Slate, calling for Cheney's impeachment. "Cheney has dulled political accountability and concocted theories for evading the law and Constitution that would have embarrassed King George III." He details "multiple crimes against the Constitution" committed by Cheney, including the creation of military commissions, the "kidnappings, secret detentions, and torture in Eastern European prisons of suspected international terrorists," the advocating of "signing statements" to ignore pieces of legislation, and the encouragement of the use of torture. "The vice president has maintained that the entire world is a battlefield," and that Cheney has used terrorism to justify a shoot first, ask questions later approach to dealing with suspected terrorists, even when that includes American citizens."
 
Royce Lamberth:  He's a U.S. District Court judge in Washington and, from 1995 to 2002, was the presiding judge of the Foreign Intelligence Surveillance Court (FISC). He spoke last week at the American Library Association's annual convention. "We have to understand you can fight the war [on terrorism] and lose everything if you have no civil liberties left when you get through fighting the war." (It's my personal opinion that Bush, et al. don't plan to ever "get through" fighting a "war" on terrorism.) "The judge said it is proper for executive branch agencies to conduct such surveillance. 'But what we have found in the history of our country is that you can't trust the executive,' he said." (Washington Post)
 
Gitmo Tribunals:  Lt. Col. Stephen Abraham, a 26-year veteran of military intelligence who is an Army reserve officer and a California lawyer, played "a key role in the U.S. military hearings at Guantanamo Bay." He has sworn out an affidavit that says that "they relied on vague and incomplete intelligence and were pressured to declare detainees 'enemy combatants,' often without any specific evidence." "What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence. (AP)
 
Criminal Justice System Must Go (Constitution Too):  Judge Richard Posner from the U.S. Court of Appeals for the 7th Circuit, supposedly a "liberal-leaning jurist regarded by many as a future US Supreme Court candidate, said traditional concepts of criminal justice were inadequate to deal with the terrorist threat and the U.S. had 'over-invested' in them." At a conference of Australian judges and barristers in Chicago, Posner "advocated for secret trial for terrorists, more surveillance of Muslim populations across North America and an end to counter-terrorism efforts being 'hog-tied' by the U.S. Constitution." (The Australian)
 
More on Vote Caging:  4 days before the 2004 election, U.S. District Judge Susan Dlott in Cincinnati, Ohio, was deciding whether to let the Republicans' challenge of 23,000 most black (caged) voters stand. She received a letter from Assistant Attorney General Alex Acosta who "argued that it would undermine the enforcement of state and federal election laws if citizens could not challenge voters' credentials." She didn't bite, but they won in Ohio anyway. Acosta is now a federal attorney in Florida. (McClatchy)
 
The Supremes on Affirmative Action:  In a 5-4 decision they ruled that "public school systems cannot seek to achieve or maintain integration through measures that take explicit account of a studentís race." This doesn't effect higher education. The ruling "invalidated programs in Seattle and metropolitan Louisville, Ky., that sought to maintain school-by-school diversity by limiting transfers on the basis of race or using race as a 'tiebreaker' for admission to particular schools. Both programs had been upheld by lower federal courts and were similar to plans in place in hundreds of school districts around the country." Chief Justice John Roberts said, "The way to stop discrmmination on tle basis of race is to stop discriminating on the basis of race." While Kennedy voted with the majority saying that the 2 programs were unconstitutional, he didn't join in the opinion. In fact, he was "highly critical of what he described as the chief justiceís 'all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account.'" He said that achieving racial diversity, "avoiding racial isolation," and addressing "the problem of de facto resegregation in schooling" were "compelling interests" that a school district could constitutionally pursue as long as it did so through programs that were sufficiently "narrowly tailored." He said the 4 justices were "too dismissive" of the validity of these goals and that they were "profoundly mistaken" to read the Constitution as requiring "that state and local school authorities must accept the status quo of racial isolation in schools." (People are going to be arguing for decades over what that means.) The conservative judges claimed they were staying true to the 1954 decision Brown v. Board of Education. (See NY Times analysis of Brown.) Justice Stephen Breyer spoke from the bench for more than 20 minutes. "It is not often in the law that so few have so quickly changed so much." Breyer penned the 77-page dissent, saying that the decision was a "radical" step away from settled law and would strip local communities of the tools they need, and have used for many years, to prevent resegregation of their public schools. He said that the ruling would "substitute for present calm a disruptive round of race-related litigation." "This is a decision that the court and the nation will come to regret." "He said the chief justiceís invocation of Brown v. Board of Education was 'a cruel irony' when the opinion in fact 'rewrites the history of one of this courtís most important decisions' by ignoring the context in which it was issued and the Supreme Courtís subsequent understanding of it to permit voluntary programs of the sort that were now invalidated." (NY Times) (For background and audio clips, see NY Times.) Juan Williams wrote an op-ed piece that praises what Brown v. Board of Education did, but saying it was time to let it go.
 
The Supremes on Campaign Financing:  They struck down the part of the McCain-Feingold bill the restricted what kind of political issue ads financed by corporations or unions can be broadcast before an election. In another 5-4 decision the court said that the part of the law that bans these type of ads if they mention a candidate's name weeks before an election is unconstitutional because it amounts to censorship of political speech. (This is part of the conservative "money is speech" theory. So, the more money you have, the more speech you have.) The court ruled that ads can be banned only if they explicitly say that one candidate should be favored in an election and not if it merely talks about a politician's views. (Washington Post) The dissenting justices pointed out that the Supreme Court had upheld the portion of the law that had to do with issue ads in 2003. Justice David Souter wrote: "The court (and, I think, the country) loses when an important precedent is overruled without good reason." (If you remember, in Chief Justice John Roberts confirmation hearings he said he would always honor precedents and prior rulings. Yeah. Now we know how well he lied.) Antonin Scalia, Anthony Kennedy, Samuel Alito, and Roberts were the 5 who made up the majority. However, Scalia and Thomas said they would have gone further and struck down the entire McCain-Feingold Act as unconstitutional. (LA Times) It's only a matter of time. Guess they're paving the way for more political issue ads before the 2008 elections. A Washington Post editorial said the ruling "reopens a dangerous loophole." You'll really see what door they've just opened in the 2008 election with so many candidates running on the issue of national health care. You have the multi-billionaire dollar health care industry that will be running "issue ads" on how they want to take away your choice of a doctor. Watch for it.
 
The Supremes on Religion:  Another 5-4 decision "will allow more federal money to flow to church groups and religious organizations that do charitable work or provide social services. Bush's "faith-based initiatives" was challenged by a group of atheists and agnostics who argued that the program "amounted to unconstitutional governmental promotion of religion." They threw out the suit, saying that "ordinary taxpayers lacked the legal standing to challenge such a program." The majority were, again, made up of Roberts, Alito, Scalia, Kennedy, and Thomas, but, again, Scalia and Thomas said they would have gone further and ruled that "taxpayers never have standing to challenge government aid to religion." (LA Times)
 
Activist Judges:  This may be a good time to remind you that, for years, conservatives have been screaming about "liberal, activist judges." The Issue Wonk looked at this issue a while back. (See Judicial Philosophy.) If anyone had any doubts about who "activist" judges really are, this year's Supreme Court decisions have wiped them away. This new crew of ultra-conservative justices are boldly "activists," and you can expect much more during the next 20 years. Roberts and Alito, of course, are what changed. Bush and Cheney may be responsible for nominating them. The Republicans in the Senate may be responsible for approving them. But don't forget the Senate Democrats, who did little, if anything, to stop their appointments. Grant you, they didn't have a majority vote to override Republicans, but if you remember the hearings, they did nothing. There were also all kinds of rules shenanigans that they could have invoked to at least put up a fight. They didn't. There's a lot of blame to go around here, and we should dole it out liberally.
 
The Supremes on Habeas Corpus:  They decided to take up a case they declined in April on whether Gitmo detainees can challenge their detentions in U.S. courts. It's the first such reversal in decades and they didn't say why they changed their minds. The Washington Post has a good summary of previous Gitmo rulings and points out that Stevens and Kennedy said at the April refusal "that they would continue to monitor the legal proceedings involving the detainees . . . so perhaps the 2 justices concluded that they have seen enough." Georgetown law professor Neal K. Katyal, who previously argued a Gitmo case before the Supreme Court, said the case will boil down to "Does the Constitution protect the detainees?"
 
Be Afraid:  Authorities in London defused 2 "apparent" car bombs that targeted the city's busy theater district and that they say could have resulted in large numbers of deaths had the attacks not been averted. They were discovered by chance. In one case, an ambulance crew noticed smoke inside a Mercedes near the Tiger Tiger nightclub and told police, who later defused it. (NY Times) The other car was ticketed and unwittingly towed away by parking enforcement officers from an underground garage in the same area. (Washington Post) The bombs were made with gasoline, nails, and gas cylinders and bear some similarities with a previous plot to blow up buildings in London.  (LA Times) All attempts have been made to make this seem like a nuclear bomb. The Sun called it a "massive" bomb. Most news outlets reported that the bombs threatened hundreds of lives. However, if you've ever watched CSI you know that the car that was "smoking" didn't have enough oxygen to start the so-called fireball. It wouldn't work. It looks to me like whoever did this wasn't a sophisticated Jihadist. Just some wack-job who didn't have a clue. But, be afraid. Be very afraid. Be so afraid you don't pay any attention to lies, torture, and other constitutional violations.
 
Employee Free Choice Act:  This is the bill that would have given employees the "right to unionize as soon as a majority signed cards saying they wanted to do so. Under current law, an employer can insist on a secret-ballot election," even after a majority of employees express their desire to organize. (NY Times) It passed the House but Bush said he'd veto it. So, the Senate nixed the bill. It failed to get the 60 votes it needed to go to a full floor debate. (San Francisco Chronicle)
 
Pentagon Changes Position on Gays:  The Service Members Legal Defense Network released a Pentagon statement that "includes the first language from Pentagon leaders suggesting that lesbian and gay service personnel should continue to use their skills in support of national security efforts, even after facing dismissal under the law." The statement reads: "These separated members have the opportunity to continue to serve their nation and national security by putting their abilities to use by way of civilian employment with other Federal agencies, the Department of Defense, or in the private sector, such as with a government contractor." You knew this was coming. They're desperate for bodies.
 
Earmarking:  More hypocrisy. Last January, at a Rose Garden speech, "Bush called for the number of earmarks to be cut in half. 'Earmarks often divert precious funds from vital priorities like national defense. And each year they cost the taxpayers billions of dollars. Congress needs to adopt real reform that requires full disclosure of the sponsors, the costs, the recipients, and the justifications for every earmark. And Congress needs to cut the number and cost of earmarks next year at least in half." However, a House Appropriations Committee report showed that Bush requested 93 of the 321 earmarks in a Department of the Interior funding bill. "Bush requested 17 special projects worth $947 million, more than any single member of Congress." (The Hill)
 
Immigration Bill:  The Senate voted to bring the bill back to life. (LATimes) Shortly after being resurrected it was crucified again. It's really dead now. (LA Times)
 
Ambassador Cronyism:  According to Scholars & Rogues, after examining the records at the Office of the Historian at the State Department, almost 40% of Bush's nominees for ambassadors have been "non-career" or "political" appointees, compared with his father's 31% and Clinton's 29%. They added "a few caveats." Bush still has about 19 months remaining in his second term, but his father only served one term. "During the early í90s, the United States recognized about 20 new governments with most receiving Foreign Service careerists as ambassadors, mostly named by George H.W. Bush and continued by President Clinton."
 
Recess Appointments:  Bush has filled 105 positions with recess appointments. To get an idea of how much this is, Clinton only did it 42 times at the same point in his presidency. (Washington Post)
 
Mission Accomplished:  In Bob Woodward's book State of Denial, he quoted Rummy as saying, regarding Bush's speech on the carrier ship shortly after invading Iraq: "I took 'Mission Accomplished' out. I was in Baghdad and I was given a draft of that thing and I just died. And I said, it's too inclusive. And I fixed it and sent it back. They fixed the speech but not the sign." (Washington Post) However, Dan Bartlett, Bush's former attorney, said, "There was a comment Rumsfeld made in one of those books where he claimed that he took the phrase mission accomplished out of the speech itself but that he couldn't get the banner pulled down. That's just wrong. I went back and looked at every draft of the speech. That phrase was never in it." (Men.Style.com)
 
The Family Jewels:  This is the name given to the hundreds of pages of documents the CIA released this week in response to a Freedom of Information Act filed in 1992. The documents detail their illegal activities from the 1950s to the early 1970s. "CIA officials compiled the documents in 1973, after newspaper reports connected the June 1972 Watergate break-in to former CIA officers E. Howard Hunt and James McCord." Many portions of the documents were blackened and there are plenty of blank pages. (USA Today) Reports are that most of what's there is nothing new, we've known about all of it for years. But the interesting thing is the details of what has been general knowledge. Examples: The CIA tried to enlist the help of a Mafia boss to assassinate Fidel Castro. (LA Times) Operatives grew their hair long to infiltrate anti-war groups (what a revelation). They carried out wiretaps on Americans, including journalists (I'm shocked). They tested drugs that could alter behavior, including hallucinogens such as LSD, on "unwitting subjects."  (Washington Post) What is striking is the similarity to today's events. The LA Times noted that, back then, the enemy was communism while today it's terrorism and, like today, the country was "grappling" with how much latitude they should have. "The documents describe secret CIA holding cells and the possibly illegal detention of a suspected Soviet spy who was held without trial for years at a CIA lockup facility in Maryland before it was determined he was a legitimate defector. They also detail plans to eavesdrop on international phone calls of U.S. residents, and aggressive efforts to root out leaks of classified information to reporters." James Bamford, who writes about intelligence, said, "What's going on today makes the family jewels pale by comparison." (NY Times) Let me also remind you that, during much of the time that this stuff was going on, Dick Cheney and Don Rumsfeld were in Nixon's administration. The documents also show Kissinger's role in the Nixon administration and, as Raw Story reminds us, Kissinger was Bush's first choice to head the 9/11 Commission. So, the similarities with today shouldn't surprise anyone.
 
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