U.S. District Court Judge Colleen Kollar-Kotelly ruled this week that the White House’s Office of Administration (OA) does not have to turn over documents relating to the disappearance of potentially millions of emails. Citizens for Responsibility and Ethics in Washington (CREW) had filed a Freedom of Information Act (FOIA) request and in her decision Kollar-Kotelly wrote “the Court concludes that OA is not an agency subject to the FOIA”. CREW plans to appeal.
She acknowledged that until the administration decided otherwise “OA considered itself an agency subject to the FOIA and operated as such.” Why should a decades-long practice under Republican and Democratic administrations alike be so casually disregarded? Considering the reverence for precedents in the judicial system it would seem logical that longstanding conventions elsewhere would be granted some measure of respect. Instead she concludes that even though the OA always considered itself bound by FISA and responded accordingly, all that was required to end this long-running practice was for the current President to order it.
Such logic is fine in the abstract. There are lots of things we’ve done for long periods of time without ever having a formal blessing, and many of them would not stand up to official scrutiny. But principles are not formulated in a vacuum, nor should they be interpreted in one. The lawsuit sought to preserve an area of transparency from the government. The OA is by all accounts not some kind of top secret agency that deals in national security secrets. Releasing documents under FOIA may reveal embarrassing details of incompetence or corruption, and that would certainly be one reason for an administration to want to suppress them. But it also makes it even more important that responsiveness and openness be adhered to.
Consider the source for the lawsuit, too. How has the White House acted regarding routine access of information requests like this, or testimony of top officials, or willingness to share ordinary (but important) details on its decision making methods? It has generally acted with an unrivalled level of opacity. This is a group that does not want what it is doing to be visible to the public. Of course, based on what we have seen from them it appears there is good reason for them to want as little openness as possible, but why on earth would Kollar-Kotelly continue to enable such behavior?
Finally, think about it in simple terms of a turf battle. The judicial branch is confronted with an executive branch that does not respect it. It has relentlessly politicized the Justice Department and attempted to render terms like “voter fraud” and “civil rights” meaningless. It has tried to evade the courts by going to great lengths to stay beyond their jurisdiction - black sites, Guantánamo Bay, extraordinary rendition. (At what point do we start to ask the President what he finds so offensive about American soil?) Now in the wake of Boumediene they are indicating they will attempt to defy a ruling by the Supreme Court itself. Spokesman Tony Fratto said “[t]his was not a slam-dunk by the Supreme Court - this was a deeply divided decision - but there’s no question it has done damage to our ability to protect the country.” Or consider the President’s exchange with Adam Boulton:
BOULTON: But the Supreme Court have just said that — you know, ruled against what you’ve been doing down there.
THE PRESIDENT: But the district court didn’t. And the appellate court didn’t.
BOULTON: The Supreme Court is supreme, isn’t it?
THE PRESIDENT: It is, and I accept their verdict. I don’t agree with their verdict. And it’s not what I was doing down there. This was a law passed by our United States Congress that I worked with the Congress to get passed and sign into law.
BOULTON: But it looked like an attempt to bypass the Constitution, to a certain extent.
THE PRESIDENT: This was a law passed, Adam. We passed a law. Bypassing the Constitution means that we did something outside the bounds of the Constitution. We went to the Congress and got a piece of legislation passed.
Note how he gives weight to the district and appellate court rulings; notice how he emphasizes the law passed by Congress. He will not so much as lift a finger in response to this ruling. He will publicly ignore it and work to undermine it. This is the environment judges are ruling in. It would seem reasonable for them to take such casual contempt for the law by a petitioner into account, but clearly not all of them feel that way. Colleen Kollar-Kotelly, this is the man you deferred to.
I’m pleased to not use the title “This Week in Tyranny” because of the Supreme Court’s ruling this week striking down (barely) the administration’s attempt to create a legal and judicial netherworld in places we control but aren’t technically ours. It is an almost palpable relief to see our highest court stand up so emphatically for the Constitution. Instead of issuing a dissent Antonin Scalia therew a temper tantrum; perhaps we should change his nickname from Nino to Niño.
Lame duck periods have historically been very quiet. Eisenhower’s negotiations with the Soviet Union were derailed by the U2 incident, and while he signed the Civil Rights Act of 1960 he didn’t champion it. Johnson was too unpopular to get anything big done by the time he term-limited himself. Reagan limped to the finish in the wake of Iran-Contra and Clinton in the wake of impeachment. Probably all shared some feeling of simple courtesy toward their successors as well - don’t dump some big new program or policy on the President-elect. Clear the decks as much as possible; leave the next one a clean slate. Our current President is having none of that.
The most recent sign came with Leila Fadel’s McClatchy report on Monday that begins “Iraqi lawmakers say the United States is demanding 58 bases as part of a proposed ‘status of forces’ agreement [SOFA] that will allow U.S. troops to remain in the country indefinitely.” I have written previously about how Congress could lead on this. It is the branch that ratifies treaties and it is clear that a SOFA is very limited. Establishing a long term military presence that nearly doubles our current number of bases and essentially formalizes our role as an occupying power stretches its intent past the breaking point. It puts us into “looks like a duck” territory.
Another issue that refuses to go away is FISA reform. From the debate over the Protect America Act, to its passage, the excitement over its expiration and the attempt to get some kind of permanent version passed there has been a remarkable amount of lying, deception, and what can only be charitably called sloppy reporting. Of the last, the most recent came from Eric Lichtblau this week - and was quickly, comprehensively and hilariously taken apart by Glenn Greenwald. By all indications the finished product would be a major piece of legislation. The biggest sticking point has been retroactive immunity for the telecom industry. Right now lawsuits over their cooperation with government surveillance are in process, and potentially the most explosive part will not be verdicts or even testimony but discovery. At that point we will start to see just how indiscriminate and invasive the spying has been, and the public will likely be furious. Shutting them down now is a major decision and deserves a public discussion. Other aspects of FISA reform are extremely important as well. At this late date the President should not push for something to get hustled through. We are on America’s clock now, not his.
Then there is Iran. James Fallows has some history of the saber rattling along with some recent rumors. For one example, last year then-CENTCOM commander William Fallon reportedly said an attack “will not happen on my watch…There are several of us trying to put the crazies back in the box.” (That kind of outlook in the current administration is a good way to give your job title a “then-” prefix.) Still, Fallows’ new warning is important. There have been rumblings of a surgical strike and a limited campaign, but if we have learned anything in Iraq it is that the law of unintended consequences can easily turn quick strikes into massive blowback. (This is the charitable explanation - less charitably, the consequences were intended all along, or consequences of either type were never considered.) If it is a bad idea to change horses midstream then isn’t it even worse to enter the stream knowing you will have to change?
Here is an early test of Barack Obama. John McCain is on board with all the major current policies so there is no reason to expect he would object. But if Obama objects he has options. He could announce on the campaign trail that effective immediately he will repudiate any SOFA negotiated by the President unless he first gives it his blessing. (The “politics stops at the waters edge” policy was suspended on May 15th, and don’t fool yourself - he was referring to Obama (via) until the criticism started.) Obama could take to the floor and lead a filibuster of any radical FISA overhaul. He could forcefully come out against strikes against Iran and promise impeachment hearings for any military action not authorized by Congress. He could short-circuit just about any grand design at this point; if push comes to shove will he?
There are already comparisons made between the high crimes and misdemeanors that got Bill Clinton impeached and the ones that will likely go unpunished with his successor. If the trend is that the former did something bad and the latter did something catastrophic then consider: The final act Bill Clinton is most remembered for as President is his pardon of Mark Rich.
The tribunals established by the Military Commissions Act are turning out to be as messy in practice as they looked on paper. Five of the accused appeared in court and according to Reuters
[t]he judge, Marine Col. Ralph Kohlmann, tried to persuade the men to accept their military lawyers, but all refused.
Aziz Ali said he had barely been allowed to meet with his lawyer anyway and described him as “a signboard” hung up so the government could say, ‘Hey, we give these people lawyers.’”
“All this is just a stage play,” he said.
Khalid Sheikh Mohammed was one of them. He is an accused 9/11 mastermind and most likely the kind of scumbag it would be awesome to see rotting in jail for the rest of his life. Here were his thoughts about the kangaroo court:
“They mistranslated my words and put many words in my mouth,” he said in broken English learned as an engineering student in North Carolina.
He called the trial “an inquisition” and added, “All of this has been taken under torturing. You know that very well.”
Ladies and gentlemen, there in a nutshell is the problem with extra-judicial proceedings and torture: Even if they arrive at a proper decision and are justified (according to your morality) their irregularity taints all outcomes. Everything about them is suspect to the civilized world. They will not ever be considered legitimate, and they actually reduce the likelihood that the Khalid Sheikh Mohammeds of the world will come to ultimate justice. Instead we are turning them into martyrs.
I’ve previously complimented John McCain for positive indications on executive power. All bets are off now, though. He basically reversed his previous positions. God bless Charlie Savage for getting him on the record in the first place and Glenn Greenwald for emphatically noting its significance.
Twenty former U.S. attorneys, both Republicans and Democrats, urged a federal judge Thursday to intervene in a constitutional battle over whether two White House officials should be forced to testify before Congress about the firings of nine U.S. attorneys.
I hope this has an effect, but I am not optimistic. Even if it helps persuade the judge I don’t see the President allowing the testimony. And yes, even if a federal judge rules against him it will not happen without his permission.