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Friday, June 11, 2004

I joked earlier that it was funny that AG Ashcroft refused to hand over a memo that was instantly released onto the Internet. But as I find out more about the circumstances of that refusal, my blood starts boiling. It's a lot worse than I made it out to be, because I didn't know the extraordinary circumstances involved.

When testifying before the Senate Judiciary Committee, Ashcroft refused to hand over several -- not just one -- several memoranda discussing the status of the torture laws and their applicability to US officers interrogating prisoners as part of the "War" on Terror. (I use the quotes because it has never been made clear to me how this "War" is any different than the "War" on Drugs, or the "War" on Poverty, or Crazy Eddie's "War" on High Prices. Though terrorism is an immediate and serious threat to America, only the Congress has the power to declare "War.") So there were several memoranda. The one prepared by the Defense Department has been released, as has a memo written by White House Counsel Al Gonzales (calling the Geneva Convention "quaint"), but Ashcroft's refusal still presumably applies to the other memoranda from the Justice Department. Those memoranda, after all, are under his direct control, unlike the others.

So, there's still a problem here.

But the thing that really amazed me (and props to "The Daily Show" for showing the footage of this exchange) is that Ashcroft is not, I repeat not, underline it, circle it, put a big damn finger pointing to it, can I get a witness...

NOT


claiming "executive privilege." I had assumed he was, because it's the only way to make sense of his refusal.

Why is his rejection of "executive privilege" important? Because that's the only permissible reason to withhold a document from Congress. Congress gets to order the disclosure of documents that affect our foreign policy, our military, our judicial process, our government. They're running the show, so they get to see what people within the government are actually doing. But there has been a long-standing theory that there is something called "executive privilege," which is the recognition that the President is entitled to get advice from people without intrusion from Congress. The term does not exist in the Constitution, but it is presumed to exist because of the principle of separation of powers. (More on "executive privilege" in this good overview.) So, let's be clear. The only way the Attorney General -- an Executive officer -- can refuse to disclose documents from the Justice Department -- an Executive branch -- is by invoking Executive Privilege. There is nothing else. Nothing. Period.

And Ashcroft made a point of saying that he was not invoking "executive privilege." He danced around the term for most of his testimony, but in response to Sen. Kennedy's direct question, he confirmed that he was not relying on the doctrine of "executive privilege."

Why not? The answer is clear: in U.S. v. Nixon, the critical case on the doctrine, the Supreme Court held that executive privilege is a limited defense that did not justify withholding the White House tapes from Congress. It was the showdown of the 70s, in which Nixon privately declared that he would defy Congress if even one of the justices dissented. But it was 9-0; he handed over the tapes and resigned four days later. Executive Privilege cannot be used to cover up evidence that the President is committing a crime.

Phrased another way, "executive privilege" has two problems for Ashcroft. (1) It probably does not protect the "torture" memos, which instruct the executive branch on how to defy Congress and avoid criminal laws. (2) It smacks of Nixonian evasion.

So that's out. Rather -- and get ready for this -- he said "I do believe the president has the right to have legal advice from his attorney general and not have that revealed to the whole world." Of course, that is an accurate and concise definition of "Executive Privilege," which Ashcroft has deliberately eschewed because he knows it's an inflammatory, illegitimate argument.

So the only thing left is Ashcroft's own personal views. Ashcroft On What Ought To Be. I Don't Wanna.

Where do we stand? Simply stated, Ashcroft is now in open revolt against the Constitution. It cannot be stated less egregiously than that.

So what are you going to do about it?


 8:33 AM

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