Expanding the cloak of secrecy

Bush’s unrivaled claims to executive privilege deprive Americans of the basic info they need to act as citizens
By EDITORIAL  |  July 3, 2007

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It was announced that the president “failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives . . . and willfully disobeyed such subpoenas . . . thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment.”

That quote comes not from this week’s mounting constitutional crisis — spawned by Congress’s inquiry into the attorney-general firings — but from Article Three of the 1974 impeachment charges against Richard M. Nixon.

But make no mistake: the Bush administration is attempting to codify Nixonian secrecy as official constitutional doctrine. It would be a perfectly appropriate, if disastrous, legacy for this presidency, which has operated from day one with obsessive secrecy and unprecedented usurpation of power.

The effects of that conduct are all around us, preventing us citizens from performing the most basic functions of democracy. We can’t tell whether our government has done a good job of protecting us from terrorist attacks, when the only incidents the Bush administration discloses are ridiculously puffed-up tales, such as the “plot” against Fort Dix. We can’t tell whether the Iraq “surge” is working when the Bush administration has repeatedly lied about our “progress” at every juncture to date.

How can we know who to vote for in the future if we don’t know what’s going on?

To keep us permanently in the dark about our own government, Bush is now trying to go much further than Nixon ever dared to: he is proposing to toss the court’s 1974 ruling on executive privilege in the trash, and daring anyone to stop him. At that time the court, while recognizing some executive privilege for a president’s personal documents (though not, in that case, the infamous secret tapes), declared that privilege applies only to the president, not to his staff. Raising his middle finger to today’s Congressional Democrats and the 1974 court, Bush’s lawyer claimed on Friday that executive privilege extends to “discussions and deliberations . . . among his advisors and between those advisors and others within and outside the Executive Branch.” In other words, everything and everyone.

With that declaration of blanket monarchical authority, Bush refused to comply with subpoenas for documents and testimony from his staff on the firings of attorneys general. He is also expected to reject separate subpoenas issued this past week — for information on the domestic-eavesdropping program — to the Justice Department and Vice-President Dick Cheney (who has agreed to be part of the executive branch for the purpose of claiming privilege).

Patrick Leahy, of Vermont, and chair of the Senate Judiciary Committee, said this weekend that, if Bush does not back down, he will call for Congress to hold the president in contempt. This would trigger prosecution of Bush, presumably leading in short order to a Supreme Court ruling.

Given the dismaying and logic-defying decisions of this year’s court, that’s a frightening thought. As if to seal their own irrelevance, Senate Democrats did nothing to stop Bush from seating right-wing ideologues John Roberts and Samuel Alito on the bench for the rest of their working lives, and liberals have whimpered softly as the Roberts court has ignored precedent, law, and reason in their haste to undo what conservatives see as a century of unfortunate protection of liberty and justice.

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