Vice President Cheney’s office acknowledged for the first time yesterday that it has dozens of documents related to the administration’s warrantless surveillance program, but it signaled that it will resist efforts by congressional Democrats to obtain them. The disclosure by Cheney’s counsel, Shannen W. Coffin, came on the day that the Senate Judiciary Committee had set as a deadline for the Bush administration to turn over documents related to the wiretapping program, which allowed the National Security Agency to monitor communications between the United States and overseas without warrants. White House counsel Fred F. Fielding has also declined to turn over any documents about the program, telling lawmakers last week that more time was needed to locate records that might be responsive to the panel’s subpoenas.
The committee’s chairman, Sen. Patrick J. Leahy (D-Vt.), said yesterday that he will pursue contempt proceedings against administration officials if the documents are not produced. "When the Senate comes back in the session, I’ll bring it up before the committee," Leahy told reporters yesterday. "I prefer cooperation to contempt. Right now, there’s no question that they are in contempt of the valid order of the Congress."
Administration spokesman Tony Fratto said in a statement that Fielding "is seeking to reach an accommodation" with lawmakers but that responding to the subpoenas will take more time. "We have approached these discussions in a positive way that will not take us down the path of confrontation," Fratto said.
The dispute over NSA records is the latest in a series of battles between the Bush administration and Congress this year over access to witnesses and documents, including those sought in the continuing investigations by the House and Senate Judiciary committees into last year’s firings of nine U.S. attorneys by the Justice Department. In that case, the White House has asserted that the documents and witness testimony sought by Congress would improperly disclose internal deliberations, and thus are protected by a legal concept known as executive privilege.
Both Coffin and Fratto indicated that the administration is considering a similar argument in relation to the NSA program. Nonetheless, Coffin identified by date a series of memos and orders that "may be responsive" to the Senate committee’s demands. They include 43 separate authorizations from President Bush for the program, which had to be renewed approximately every 45 days beginning on Oct. 4, 2001.
The Supreme Court addressed ‘executive privilege’ in United States v. Nixon, the 1974 case involving the demand by Watergate special prosecutor Leon Jaworski that President Richard Nixon produce the audiotapes of conversations he and his colleagues had in the Oval Office of the White House in connection with criminal charges being brought against members of the Nixon Administration. Nixon invoked the privilege and refused to produce any records.
The Supreme Court did not reject the claim of privilege out of hand; it noted, in fact, "the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties" and that "[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process." This is very similar to the logic that the Court had used in establishing an "executive immunity" defense for high office-holders charged with violating citizens’ constitutional rights in the course of performing their duties.
The Supreme Court however rejected the notion that the President has an "absolute privilege." The Supreme Court stated: "To read the Article II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of ‘a workable government’ and gravely impair the role of the courts under Article III." Because Nixon had asserted only a generalized need for confidentiality, the Court held that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence.
But, unfortunately, my arguing with Mr. Cheney is for naught. The Bush White House currently controls the U.S. Justice Department. The avenue of a Special Prosecutor is not currently open to pursue these records. Instead, we have Congress [who has one guy, the Clerk of the Senate] trying to fill in for our absent DOJ. So we have Fred Fielding, David Addington, Tony Fratto, and Alberto Gonzales ruling on the law – and nothing in front of a Judge. This is, to me, a Constitutional Crisis extraordinaire. The Bush Administration has shut down the U.S. Justice System on purpose. As Patrick Fitzgerald said, "Obstruction of Justice is a serious crime." What could be a better example of Obstruction of Justice than making the whole justice system inoperative?
Excellent analysis.