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Context of 'January 21, 2001: Bush Legal Team Ordered to Expand Presidential Power, Tighten Conservative Grip on Judiciary'

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The Bush administration’s legal team meets for the first time. The head of the group, White House counsel Alberto Gonzales, is well known as a staunchly loyal aide to President Bush, and has long ensured that Bush receives the legal opinions he wants. While Bush was governor of Texas, Gonzales routinely prepared briefings for him on death row prisoners appealing for clemency, briefings that usually left out mitigating circumstances that might have led Bush to consider waiving the death penalty. Bush was pleased at Gonzales’s approach, and the White House legal team will quickly come to understand that that same approach will be used in its legal work. One young team member is Bradford Berenson, who made his reputation working with the Bush-Cheney campaign in its fight to win the disputed 2000 presidential election. Berenson is one of eight White House associate counsels. Gonzales tells the gathered counsels and legal staff that most of their work will be in handling the everyday legal tasks generated by the White House, reviewing speeches and letters, making judgments on ethical issues, and the like. But, according to Gonzales, Bush has personally instructed him to give his team two missions as their top priority.
Appoint Conservatives to Judiciary Positions - One is to find as many conservatives as they can to fill the numerous vacancies on the federal courts, vacancies left unfilled because of Senate Republicans’ refusal to schedule hearings for Clinton nominees. Now, Gonzales tells the legal team, they are to find as many conservative “judicial restraint”-minded lawyers as there are judgeships to be filled, and to get them confirmed as quickly as possible. This is an unsurprising mission, as most in the room expect the Republicans to lose control of Congress in 2002—as, historically, most parties who control the executive branch do in midterm elections—and therefore have only a limited time in which to get nominees named, vetted, and confirmed by friendly Congressional Republicans.
Find Ways to Expand Presidential Power - Gonzales’s second mission is more puzzling. The lawyers are to constantly look for ways to expand presidential power, he tells them. Bush has told his senior counsel that under previous administrations, the power of the presidency has eroded dramatically. (Ironically, some of the losses of executive power came due to the Republican-led investigation of former President Clinton’s involvement in Whitewater and his affair with a White House intern, when Secret Service bodyguards and White House attorneys were compelled to testify about their communications with the president, and Congressional Republicans issued subpoenas and demanded information from the White House.) It is time to turn back the tide, Gonzales tells his team, and not only regain lost ground, but expand presidential power whenever the opportunity presents itself. Berenson will later recall Gonzales telling them that they are “to make sure that [Bush] left the presidency in better shape than he found it.” Berenson will later remark: “Well before 9/11, it was a central part of the administration’s overall institutional agenda to strengthen the presidency as a whole. In January 2001, the Clinton scandals and the resulting impeachment were very much in the forefront of everyone’s mind. Nobody at that point was thinking about terrorism or the national security side of the house.” Berenson does not learn until much later that much of the direction they have received has come, not from President Bush, but from Vice President Cheney and his legal staff, particularly his chief counsel, David Addington. [Savage, 2007, pp. 70-75]

Entity Tags: David S. Addington, Alberto R. Gonzales, Bush administration (43), Richard (“Dick”) Cheney, Bradford Berenson, George W. Bush

Timeline Tags: Civil Liberties

President Bush informs a small group of reporters that he is forming an “energy task force” to draw up a new national energy policy. It will be the first major policy initiative of his presidency. The administration is driven by its concern for “the people who work for a living… who struggle every day to get ahead.” The task force will find ways to meet the rising demand for energy and to avoid the shortfalls causing major power blackouts in California and other areas (see January 23, 2001). He has chosen Vice President Cheney to chair the task force. “Can’t think of a better man to run it than the vice president,” he says. He refuses to take questions, turning aside queries with jokes about the recent Super Bowl. The short press briefing will be virtually the only time the White House tells reporters anything about Cheney’s National Energy Policy Development Group. [Savage, 2007, pp. 85-86] Deputy press secretary Scott McClellan will later write that the task force “held a series of meetings with outside interests whose identities were withheld from the public. This created an early impression of an administration prone to secrecy and reinforced the image of the Bush White House as in thrall to corporate interests.” [McClellan, 2008, pp. 96]

Entity Tags: George W. Bush, Scott McClellan, Richard (“Dick”) Cheney, National Energy Policy Development Group

Timeline Tags: US Environmental Record

House Democrats Henry Waxman (D-CA) and John Dingell (D-MI) write to Andrew Lundquist, the executive director of the Cheney energy task force (see January 29, 2001), asking for access to the task force’s records. Waxman and Dingell ask with whom the task force met and what had been said at those meetings. They base their request on the 1972 Federal Advisory Committee Act (FACA), an open-government law that states when nongovernment officials, such as energy company officials or lobbyists, help craft public policy, the government must ensure that a balance of viewpoints is represented and such meetings must be open to the press and the public. Two weeks later, Cheney’s chief counsel, David Addington, replies, denying Waxman and Dingell any information. Addington says that FACA does not apply to the task force, and attaches a memo from Lundquist asserting that while nongovernmental officials have been part of the task force’s deliberations, since they were not official members of the task force, their participation does not count. “These meetings… were simply forums to collect individuals views rather than to bring a collective judgment to bear,” Addington writes. Addington then advises the representatives that they need to show “due regard for the constitutional separation of powers,” claims that the White House can assert executive privilege over the task force’s records, and finishes with the assertion that Congress is not even entitled to the information Addington has provided—he has done so, he writes, “as a matter of comity between the executive and legislative branches.” [General Accounting Office, 8/25/2003 pdf file; Savage, 2007, pp. 87-88]

Entity Tags: Federal Advisory Committee Act, Andrew Lundquist, David S. Addington, John Dingell, National Energy Policy Development Group, Henry A. Waxman, Richard (“Dick”) Cheney, Bush administration (43)

Timeline Tags: US Environmental Record, Civil Liberties

The General Accounting Office (GAO), the nonpartisan investigative arm of Congress, sends David Addington, the chief counsel to Vice President Cheney, a letter declaring that it intends to review the composition and activities of Cheney’s energy task force (see January 29, 2001). Addington is the one who issued the flat refusal to allow members of Congress to see any of the minutes or documents generated by the task force (see April 19 - May 4, 2001); in response, the members of Congress who requested the information asked GAO chief and comptroller general David Walker for help in investigating the task force. Walker is quite bipartisan, having worked for the Reagan and Bush-Quayle administrations before being appointed to the chairmanship of the GAO by President Clinton. [Savage, 2007, pp. 88] Addington will reply to Walker, denying that the GAO has any authority to investigate the task force (see May 16 - 17, 2001). In 2007, author Charlie Savage will call the Cheney-Addington battle with the GAO an early instance of the Bush administration’s fight to claim ever-widening presidential powers at the expense of Congress (see January 21, 2001).

Entity Tags: David Walker, Bush administration (43), David S. Addington, General Accounting Office, Richard (“Dick”) Cheney, Charlie Savage, National Energy Policy Development Group

Timeline Tags: US Environmental Record, Civil Liberties

In response to a General Accounting Office (GAO) demand for information about the energy task force chaired by Vice President Cheney (see May 8, 2001), Cheney’s chief legal adviser, David Addington, rebuffs the GAO, claiming that the agency has no authority under the Constitution to investigate the task force. The task force is a creature of the executive branch, Addington argues, and as an arm of the legislative branch, the GAO cannot “inquire into the exercise of authorities committed to the executive by the Constitution.” The president can keep any such government deliberations entirely secret from Congress and the public, Addington asserts, in order to guarantee the “candor” of the advice he receives. GAO chief David Walker replies to Addington, rejecting his interpretation of the Constitution. Addington will, in the words of author Charlie Savage, “follow… injury with insult,” responding to Walker’s request for information by conceding that Congress might have the right to know about the direct costs incurred by the task force, and sending 77 pages of mundane expense reports (see June 21, 2001). The highlight of those reports: task force chair Andrew Lundquist’s ordering of a pizza on his own credit card. Walker will not be cowed by Addington’s flip rejoinder. [Savage, 2007, pp. 88-89]

Entity Tags: David Walker, Andrew Lundquist, David S. Addington, General Accounting Office, Charlie Savage, National Energy Policy Development Group, Richard (“Dick”) Cheney

Timeline Tags: US Environmental Record, Civil Liberties

Vice President Cheney’s top aide, David Addington, begins attending meetings of the Cheney energy task force, further emphasizing the White House’s refusal to cooperate with the General Accounting Office (GAO—see April 19 - May 4, 2001, May 8, 2001, and May 16 - 17, 2001). White House lawyer Bradford Berenson, the legal liaison on the case, is puzzled by the White House’s refusal to cooperate. Most of the information about the task force has already come out in the media, particularly the fact that almost all of the task force’s meetings have been with fossil fuel and nuclear energy corporate executives. But the White House seems willing to weather the controversy in order to keep withholding information from the GAO. In 2007, author Charlie Savage will write, “The long-term payoff was an opportunity to establish a high principle of presidential power: Communications involving the office of the presidency should be secret, whatever a law passed by Congress and signed by some previous president might say.” Addington further enforces the doctrine during the regular morning meetings at the White House counsel’s office, even though he does not work for senior White House counsel Alberto Gonzales. [Savage, 2007, pp. 90-91]

Entity Tags: Charlie Savage, Bradford Berenson, Bush administration (43), General Accounting Office, National Energy Policy Development Group, Richard (“Dick”) Cheney, David S. Addington

Timeline Tags: Civil Liberties

Judicial Watch logo.Judicial Watch logo. [Source: Judicial Watch]The conservative government watchdog organization Judicial Watch sends a letter to Vice President Dick Cheney demanding to see the records of his secret energy task force (see January 29, 2001 and May 16, 2001). Chris Farrell, the organization’s director of investigations and research, saw a May 2001 Newsweek article about the task force. Farrell later says he was struck by the similarities between Cheney’s energy task force and the 1994 health care task force chaired by then-First Lady Hillary Clinton. “The government can’t operate in secret,” Farrell will later say. “They are answerable to the people. There are appropriate times for secrecy on military and intelligence matters, but the notion that national policy on a matter like energy or health care can be developed in secret is offensive and counter to the Constitution.” Farrell, along with Judicial Watch chairman Larry Klayman and president Thomas Fitton, agreed that the task force violates core conservative principles, and made the decision to challenge Cheney’s office. Their letter notes that the rules governing the task force are clear: if the executive branch chooses to solicit outside advice while writing policy, then the Federal Advisory Committee Act (FACA) is triggered, requiring the government to make the details of those meetings public (the same argument made by the General Accounting Office—see May 8, 2001). “Judicial Watch respectfully requests that, in light of the questionable legal and ethical practices, negative publicity, and public outrage surrounding Hillary Rodham Clinton’s 1994 national health-care policy development group, you direct the [energy task force] to abide by the FACA. [Such openness] will instill public trust and confidence in the operations of the [task force] and insure that the national policy is formulated, discussed, and acted upon in a manner consistent with the best traditions of our Constitutional Republic.” [Savage, 2007, pp. 91-92] Cheney’s office will refuse the request (see July 5, 2001). In return, Judicial Watch will sue for the documents’ release (see July 14, 2001).

Entity Tags: Larry Klayman, Chris Farrell, Federal Advisory Committee Act, Judicial Watch, National Energy Policy Development Group, Richard (“Dick”) Cheney, Tom Fitton, General Accounting Office

Timeline Tags: US Environmental Record, Civil Liberties

The General Accounting Office, repeatedly rebuffed by Vice President Cheney’s office in its attempt to secure information about Cheney’s secret energy task force (see May 8, 2001, May 10-17, 2001, May 16 - 17, 2001, June 7, 2001, June 21, 2001, and July 3, 2001), sends a letter written by its head, Comptroller General David Walker, to Cheney. Walker notes the repeated rebuffs from Cheney’s chief counsel, David Addington, and others in his office, and once again lays out his request for information regarding the task force’s participants, minutes of meetings, and other relevant information. When Walker follows up his letter with a phone call to Cheney on July 30, Cheney will fail to take the call. [General Accounting Office, 8/25/2003 pdf file]

Entity Tags: Richard (“Dick”) Cheney, David S. Addington, David Walker, National Energy Policy Development Group, General Accounting Office

Timeline Tags: US Environmental Record, Civil Liberties

The General Accounting Office (GAO)‘s chief, David Walker, backs down from his initial request for all pertinent documents and records of Vice President Cheney’s energy task force (see May 8, 2001). Instead, Walker modifies his request to ask for just the names of the lobbyists at the task force meetings, the dates of the meetings, the general topic(s) of discussion, and the cost of the meetings. Cheney will also refuse this request, and will escalate his rhetorical war against Walker and the GAO in defense of “executive privilege” (see July 26, 2001 and August 2, 2001). [General Accounting Office, 8/25/2003 pdf file; Savage, 2007, pp. 92-93]

Entity Tags: General Accounting Office, David Walker, Richard (“Dick”) Cheney, National Energy Policy Development Group

Timeline Tags: US Environmental Record, Civil Liberties

David Addington.David Addington. [Source: David Bohrer / White House]According to an in-depth examination by the Washington Post, within hours of the 9/11 attacks, Vice President Dick Cheney begins working to secure additional powers for the White House. Cheney had plans in place to begin acquiring these powers for the executive branch before the attacks, but had not begun to execute them.
Gathering the Team - David Addington, Cheney’s general counsel and legal adviser, had been walking home after having to leave the now-evacuated Eisenhower Executive Office Building. He receives a message from the White House telling him to turn around, because the vice president needs him. After Addington joins Cheney in the Presidential Emergency Operations Center (PEOC) below the East Wing of the White House, the pair reportedly begin “contemplating the founding question of the legal revolution to come: What extraordinary powers will the president need for his response?” Later in the day, Addington connects by secure video with Timothy Flanigan, the deputy White House counsel, who is in the White House Situation Room. John Yoo, the deputy chief of the Office of Legal Counsel, is also patched in from the Justice Department’s command center. White House counsel Alberto Gonzales joins them later. This forms the core legal team that Cheney will oversee after the terrorist attacks. Associate White House counsel Bradford Berenson will later recall: “Addington, Flanigan and Gonzales were really a triumvirate. [Yoo] was a supporting player.” Addington dominates the group. Gonzales is there primarily because of his relationship with President Bush. He is not, Yoo will later recall, “a law-of-war expert and [doesn’t] have very developed views.” Along with these allies, Cheney will provide what the Washington Post calls “the rationale and political muscle to drive far-reaching legal changes through the White House, the Justice Department, and the Pentagon,” which will free the president to fight the war on terror, “as he saw fit.”
Drafting the AUMF - The team begins drafting the document that will become the Authorization to Use Military Force (AUMF—see October 10, 2002) passed by Congress for the assault on Afghanistan. In the words of the group, the president is authorized “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States.”
Extraordinarily Broad Language - The language is extraordinarily broad; Yoo will later explain that they chose such sweeping language because “this war was so different, you can’t predict what might come up.” The AUMF draft is the first of numerous attempts to secure broad powers for the presidency, most justified by the 9/11 attacks. The Washington Post will later report, “In fact, the triumvirate knew very well what would come next: the interception—without a warrant—of communications to and from the United States” (see September 25, 2001). [CNN, 9/11/2001; CNN, 9/12/2001; Unger, 2007, pp. 220-221; Washington Post, 6/24/2007]

Entity Tags: Richard (“Dick”) Cheney, John C. Yoo, Timothy E. Flanigan, Craig Unger, Bradford Berenson, David S. Addington, Alberto R. Gonzales

Timeline Tags: Complete 911 Timeline, 9/11 Timeline, Civil Liberties

After the 9/11 attacks, the Bush administration seizes the new opportunities to expand the power of the presidency that present themselves as part of the government’s response to the attacks (see (After 10:00 a.m.) September 11, 2001). The Bush-Cheney legal team, largely driven by Vice President Dick Cheney and his staff (see January 21, 2001), aggressively pushes for new opportunities to expand executive branch authorities.
'Bravado,' 'Close-Minded Group of Like-Minded People' - A senior White House official later tells author and reporter Charlie Savage of the “pervasive post-9/11 sense of masculine bravado and one-upmanship when it came to executive power.” In Savage’s words, and quoting the official, “a ‘closed group of like-minded people’ were almost in competition with one another, he said, to see who could offer the farthest-reaching claims of what a president could do. In contrast, those government lawyers who were perceived as less passionate about presidential power were derided as ‘soft’ and were often simply cut out of the process” (see also September 25, 2001).
Suspicion of Oversight - “The lawyers for the administration felt a tremendous amount of time pressure, and there was a lot of secrecy,” the official will say. “These things were being done in small groups. There was a great deal of suspicion of the people who normally act as a check inside the executive branch, such as the State Department, which had the reputation of being less aggressive on executive power. This process of faster, smaller groups fed on itself and built a dynamic of trying to show who was tougher on executive power.”
Addington and Yoo: Outsized Influence - While nominally the leaders of the White House legal team are Attorney General John Ashcroft and White House counsel Alberto Gonzales, neither has as much influence as lawyers and staffers ostensibly of lower rank than themselves. Ashcroft is a vociferous supporter of the administration’s anti-terrorism policies, but is not a member of Bush’s inner circle and sometimes disagrees with the White House’s legal moves. Neither Ashcroft nor Gonzales have prior experience dealing with the legal issues surrounding executive power and national security. Two of the driving forces behind the White House’s push for more presidential power are Cheney’s chief counsel, David Addington, and an obscure deputy in the Office of Legal Counsel (OLC), John Yoo. Because of a dispute between Ashcroft and the Bush inner circle over who should lead the OLC, there is no official chief of the OLC until November 2002, leaving Yoo and his fellows free to be as aggressive as they like on expanding presidential power and handling the war on terrorism. When the OLC chief, law professor Jay Bybee, finally arrives, he, like Ashcroft and Gonzales, finds himself hampered by his lack of knowledge of the law as it pertains to national security. Savage will later write, “When he finally started work, Bybee let deputies continue to spearhead the review of matters related to the war on terrorism.” Yoo is only a deputy assistant attorney general, but he has “signing power”—the ability to make his opinion legally binding—and is rarely reviewed by his peers because much of his work is classified. [Savage, 2007, pp. 76-78] As for Addington, Lawrence Wilkerson, the chief of staff for Secretary of State Colin Powell, will later say that he was the leader of the small but highly influential group of lawyers “who had these incredible theories and would stand behind their principles [Cheney, Bush, and others], whispering in their ears about these theories, telling them they have these powers, that the Constitution backs these powers, that these powers are ‘inherent’ and blessed by God and if they are not exercised, the nation will fall. He’d never crack a smile. His intensity and emotions and passion for these theories are extraordinary.” [Savage, 2007, pp. 84]

Entity Tags: US Department of State, Lawrence Wilkerson, Alberto R. Gonzales, Bush administration (43), Charlie Savage, David S. Addington, Jay S. Bybee, Richard (“Dick”) Cheney, John C. Yoo, John Ashcroft

Timeline Tags: Civil Liberties

John Yoo, a deputy assistant attorney general in the Department of Justice (DOJ) Office of Legal Counsel (OLC), issues a legal opinion that says the US can conduct electronic surveillance against its citizens without probable cause or warrants. According to the memo, the opinion was drafted in response to questions about whether it would be constitutional to amend the Foreign Intelligence Surveillance Act (FISA) to state that searches may be approved when foreign intelligence collection is “a purpose” of the search, rather than “the purpose.” Yoo finds this would be constitutional, but goes further. He asserts that FISA is potentially in conflict with the Constitution, stating, “FISA itself is not required by the Constitution, nor is it necessarily the case that its current standards match exactly to Fourth Amendment standards.” Citing Vernonia School Dist. 47J v. Acton, in which the Supreme Court found that warrantless searches of students were permissible, Yoo argues that “reasonableness” and “special needs” are also the standards according to which warrantless monitoring of the private communications of US persons is permissible. According to Yoo, the Fourth Amendment requirement for probable cause and warrants prior to conducting a search pertain primarily to criminal investigations, and in any case cannot be construed to restrict presidential responsibility and authority concerning national security. Yoo further argues that in the context of the post-9/11 world, with the threat posed by terrorism and the military nature of the fight against terrorism, warrantless monitoring of communications is reasonable. Some information indicates the NSA began a broad program involving domestic surveillance prior to the 9/11 attacks, which contradicts the claim that the program began after, and in response to, the attacks (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001). [US Department of Justice, 9/25/2001 pdf file; American Civil Liberties Union [PDF], 1/28/2009 pdf file; New York Times, 3/2/2009; Inspectors General, 7/10/2009]
Yoo Memo Used to Support Legality of Warrantless Surveillance - Yoo’s memo will be cited to justify the legality of the warrantless domestic surveillance program authorized by President Bush in October 2001 (see October 4, 2001). NSA Director General Michael Hayden, in public remarks on January 23, 2006, will refer to a presidential authorization for monitoring domestic calls having been given prior to “early October 2001.” Hayden will also say, “The lawfulness of the actual authorization was reviewed by lawyers at the Department of Justice and the White House and was approved by the attorney general.” The various post-9/11 NSA surveillance activities authorized by Bush will come to be referred to as the President’s Surveillance Program (PSP), and the first memo directly supporting the program’s legality will be issued by Yoo on November 2, 2001, after the program has been initiated (see November 2, 2001). Many constitutional authorities will reject Yoo’s legal rationale. [Michael Hayden, 1/23/2006]
Yoo Memo Kept Secret from Bush Officials Who Might Object - According to a report by Barton Gellman and Jo Becker in the Washington Post, the memo’s “authors kept it secret from officials who were likely to object,” including ranking White House national security counsel John Bellinger, who reports to National Security Adviser Condoleezza Rice. Bellinger’s deputy, Bryan Cunningham, will tell the Post that Bellinger would have recommended having the program vetted by the Foreign Intelligence Surveillance Court, which oversees surveillance under FISA. Gellman and Becker quote a “senior government lawyer” as saying that Vice President Dick Cheney’s attorney, David Addington, had “open contempt” for Bellinger, and write that “more than once he accused Bellinger, to his face, of selling out presidential authority for good ‘public relations’ or bureaucratic consensus.” [Washington Post, 6/24/2007]

Entity Tags: US Department of Justice, John Bellinger, National Security Agency, Bryan Cunningham, Condoleezza Rice, David S. Addington, Foreign Intelligence Surveillance Act, Foreign Intelligence Surveillance Court, Office of Legal Counsel (DOJ), John C. Yoo, George W. Bush, Richard (“Dick”) Cheney

Timeline Tags: Civil Liberties

Vice President Cheney gives one of the first public indications that he and his office have a keen and active interest in expanding the power of the presidency (see January 21, 2001). Interviewed by ABC’s Cokie Roberts, Cheney openly discusses his interest in reversing the restraints placed on the presidency after Watergate and the Vietnam War. He calls the restraints “unwise compromises” that serve to “weaken the presidency and the vice presidency.” His job, he explains, is to reverse the “erosion of [presidential] powers and the ability of the president of the United States to do his job.” Cheney says he has laid out his case to President Bush, who agrees with his rationale and his agenda. “One of the things that I feel an obligation on—and I know the president does, too, because we talked about it—is to pass on our offices in better shape than we found them to our successors.” [Savage, 2007, pp. 75-76]

Entity Tags: George W. Bush, Richard (“Dick”) Cheney, Cokie Roberts

Timeline Tags: Civil Liberties

David Walker, comptroller of the General Accounting Office (GAO) and a Ronald Reagan appointee, files a lawsuit to compel Vice President Dick Cheney and his office to reveal the names of the private businessmen and organizational officials that his energy task force (see January 29, 2001) met with to craft the Bush administration’s energy policies (see May 8, 2001). This is the first time since its creation in 1920 that the GAO has been forced to file suit to compel another government agency to follow the law and cooperate with its requests. [Dean, 2004, pp. 78-79] In a statement, Walker writes: “This is the first time that GAO has filed suit against a federal official in connection with a records access issue. We take this step reluctantly. Nevertheless, given GAO’s responsibility to Congress and the American people, we have no other choice. Our repeated attempts to reach a reasonable accommodation on this matter have not been successful. Now that the matter has been submitted to the judicial branch, we are hopeful that the litigation will be resolved expeditiously. [General Accounting Office, 2/22/2002 pdf file]
'Fundamental Questions' about Governmental 'Checks and Balances' - Former Nixon White House counsel John Dean will write in 2004: “This was, to say the least, a high-stakes lawsuit. It raised fundamental questions about the very nature of our system of checks and balances. If the GAO could not get the information it requested, then there was a black hole in the federal firmament—a no-man’s land where a president and vice president could go free from Congressional oversight.” By random selection, the case lands in the court of Judge John Bates, a career Justice Department lawyer who once worked for the Whitewater investigative team led by Kenneth Starr, and had just recently been appointed to the bench by President Bush. The choice of Bates will prove critical to the verdict of the case. [Dean, 2004, pp. 78-79]
Schlafly: Secrecy a 'Mistake' - Conservative commentator and activist Phyllis Schlafly will write in 2002: “[T]he public wants to know how our energy policy was developed. When information is kept secret, the natural inference is that there must be something the administration is very eager to hide. While private businesses and households can be selective about what they tell the world, the American people are not willing to accord the same privacy to public officials paid by the taxpayers. Regardless of the legal veil woven over the energy policy meetings, Cheney’s secrecy is a political mistake.” [Eagle Forum, 3/6/2002]

Entity Tags: Kenneth Starr, Phyllis Schlafly, US Department of Justice, Richard (“Dick”) Cheney, John Dean, Government Accountability Office, Bush administration (43), David Walker, George W. Bush, Energy Task Force, John Bates

Timeline Tags: US Environmental Record, Civil Liberties

District Court Judge John Bates rules against the General Accounting Office (GAO), the investigative arm of Congress, in its attempt to force Vice President Cheney to disclose some of his Energy Task Force documents (see January 29, 2001 and May 16, 2001). The judge writes, “This case, in which neither a House of Congress nor any congressional committee has issued a subpoena for the disputed information or authorized this suit, is not the setting for such unprecedented judicial action.” [Associated Press, 12/9/2002] Bates is a Republican who worked as the deputy independent counsel to Kenneth Starr in the Whitewater investigation, and was appointed to the bench by President Bush in 2001. [Savage, 2007, pp. 112] The GAO later declines to appeal the ruling (see February 7, 2003). In a similar suit being filed by Judicial Watch and the Sierra Club, the Bush administration has successfully delayed deadlines forcing these documents to be turned over. [Associated Press, 12/6/2002] That case will eventually be decided in the administration’s favor (see May 10, 2005).
Cheney Pushes Back - Unfortunately, the ruling’s claim of no Congressional involvement is somewhat misleading. The original request for information came from two ranking House members, Henry Waxman (D-CA) of the Committee on Government Reform and John Conyers (D-MI) of the Energy and Commerce Committee (see April 19 - May 4, 2001). Waxman and Conyers followed standard procedure by writing to David Walker, head of the GAO, to request information about who was meeting with the task force and what the task force was doing (May 8, 2001. Instead of complying with the request, Cheney’s legal counsel, David Addington, replied that the task force was not subject to the Federal Advisory Committee Act, and therefore not bound by law to provide such information (see May 16 - 17, 2001). Addington later challenged the GAO’s authority, saying that it was trying “to intrude into the heart of Executive deliberations, including deliberations among the President, the Vice President, members of the President’s Cabinet, and the President’s immediate assistants, which the law protects to ensure the candor in Executive deliberation necessary to effective government.” The GAO was not asking for such information; former Nixon White House counsel John Dean will write in 2004, “It was clear [Addington] was looking to pick a fight.”
Tug of War - The GAO advised Addington that it did indeed have the legal power to examine the deliberations of such entities as the task force, and provided Addington both the statutory law and the legislative history, which flatly contradicted Addington’s refusal. The GAO also noted that it was “not inquiring into the deliberative process but [was] focused on gathering factual information regarding the process of developing President Bush’s National Energy Policy.” The GAO even narrowed the scope of its original request, asking only for the names of those who had worked with the task force, and the dates (see July 31, 2001). But this provoked further resistance from Cheney and his office, with Cheney publicly stating on numerous occasions that the GAO was unlawfully trying to intrude into the deliberative process. Walker’s patience ran out in January 2002, and he notified the White House and Congress that the GAO was taking the administration to court (see February 22, 2002).
Hardball in Federal Court - Usually the case will be handled by lawyers from the Justice Department’s Civil Division. But this case is much more important to the White House to be left to the usual group of attorneys. Instead, this lawsuit is one of the very few to be handled by a special unit operating under the direct supervision of Deputy Solicitor General Paul Clement and Clement’s boss, Solicitor General Theodore Olson. Olson, the lawyer who spearheaded the team that successfully argued the December 2000 Bush v. Gore case that awarded George W. Bush the presidency. Dean later learns that this special team was created specifically to find and handle cases that they can take to the Supreme Court in order to rewrite existing law, mostly laws that restrict the power of the presidency (see January 21, 2001). Many career attorneys at the Justice Department will become so offended by the existence and the agenda of this special legal team that they will resign their positions. The administraton sent a strong signal to Judge Bates when it sent Olson, who has argued many times before the Supreme Court, to argue the government’s case in his court. Dean will write that Bates, a recent Bush appointee and a veteran of the Whitewater investigation, “got the message.” He knows this case is slated to go to the Supreme Court if it doesn’t go the way the White House wants.
Standing the Law On Its Head - According to Dean, Bates turns the entire body of statutory law overseeing the GAO and its powers to compel information from the executive branch on its head. He rules that the GAO lacks the “standing to sue,” saying that it doesn’t have enough of a legal stake in the controversy to have a role in trying to compel information. Bates, flying in the face of over eight decades of law and precedent, rules that, in essence, the GAO is merely an agent of Congress, and because neither the GAO nor Walker had suffered injury because of the task force’s refusal to comply with its request, the GAO has no legal recourse against the executive branch. Bates hangs much of his ruling on the fact that Congress has not yet subpoenaed the White House for the task force information. Thusly, Bates guts the entire structure of enforcement authority the GAO has as part of its statutory mandate. Bates does not go as far as the Justice Department wants, by not specifically ruling that the entire GAO statute is unconstitutional, but otherwise Bates’s ruling is a complete victory for the White House. [Dean, 2004, pp. 76-80] Authors Lou Dubose and Jake Bernstein later write that “Bates’s ruling creates a legislative Catch-22 for Democrats.” Because the GOP is the majority party, and because GOP Congressional leaders refuse to subpoena the White House on virtually any issue or conflict, no such subpoenas as Bates is mandating are likely to ever be granted by Republican committee chairmen. [Dubose and Bernstein, 2006, pp. 14] In 2007, author and reporter Charlie Savage will write that Bates’s ruling severely eroded the GAO’s “ability to threaten to file a lawsuit [and] damaged the congressional watchdog’s capability to persuade executive branch agencies to comply with its requests for information.… Bates had established a principle that, if left undisturbed, could change the attitudes of executive branch officials when the GAO asked for documents they did not want to disclose.” [Savage, 2007, pp. 112-113]

Entity Tags: John Dean, Lou Dubose, Paul Clement, Sierra Club, John Conyers, US Supreme Court, US Department of Justice, Theodore (“Ted”) Olson, Richard (“Dick”) Cheney, John Bates, Judicial Watch, Henry A. Waxman, Bush administration (43), Charlie Savage, David Walker, David S. Addington, Government Accountability Office, Energy Task Force, Jake Bernstein, Federal Advisory Committee Act

Timeline Tags: US Environmental Record, Civil Liberties

The General Accounting Office (GAO), the nonpartisan investigative arm of Congress, declines to appeal a case attempting to force Vice President Cheney to disclose his Energy Task Force documents (see May 16, 2001, February 22, 2002, and December 9, 2002). This ends a potentially historic showdown between the Congressional watchdog agency and the executive branch. [Los Angeles Times, 2/8/2003] It is widely believed that the suit is dropped because of pressure from the Republican Party—the suit was filed when the Democrats controlled the Senate, and this decision comes shortly after the Republicans gained control of it. [Washington Post, 2/8/2003] The head of the GAO denies the lawsuit is dropped because of Republican threats to cut his office’s budget, but US Comptroller General David Walker, who led the case, says there was one such “thinly veiled threat” last year by a lawmaker he wouldn’t identify. [Reuters, 2/25/2003] Another account has Senator Ted Stevens (R-AK) and a number of other congresspeople making the threat to Walker. [Hill, 2/19/2003] The GAO has previously indicated that accepting defeat in this case would cripple its ability to oversee the executive branch. [Washington Post, 2/8/2003] A similar suit filed by Judicial Watch and the Sierra Club continues to move forward, but will ultimately be defeated by the Supreme Court (see May 10, 2005). [Washington Post, 2/8/2003]
Picking Its Battles - Walker explains that to continue the case “would require investment of significant time and resources over several years.” Later, he will say that he decided not to appeal the case for what reporter Charlie Savage will call “damage-control reasons.” Walker does not want to involve the GAO in what he fears will be perceived as a partisan conflict, and he does not want to risk further crippling the GAO’s ability to function by risking another negative ruling from a federal appeals court. “If the GAO was going to fight that legal battle,” Savage will write in explanation of Walker’s reasoning, “it was strategically unwise to use a case that involved records inside the White House itself instead of a less prominent part of the executive branch.” [Savage, 2007, pp. 113]
Refusal to Appeal 'Stunning' - In 2004, former Nixon White House counsel John Dean will write that he finds the GAO’s decision not to appeal the ruling “stunning.” Walker says the GAO isn’t going to challenge the ruling because it does not materially affect the GAO’s ability to function because the “decision did not address the merits” of the GAO’s arguments. The ruling, Walker says, “has no effect on GAO’s statutory audit rights or the obligation of agencies to provide GAO with information.” Dean calls this line of reasoning “wishful thinking at its best.” Dean will ask a high-level GAO official about the reported threats from Congressional Republicans. The official will reply that the threats did not worry Walker and the GAO lawyers nearly as much as the possibility that, if the GAO were to pursue the lawsuit, then, Dean will write, “the Supreme Court could do again what it did in Bush v. Gore and make Walker v. Cheney the landmark ruling ending virtually all Congressional oversight.” But lawyers for the Congressional Research Service (CRS) say that the ruling as it stands places severe restrictions on Congressional oversight. As Dean puts it: “The GAO has lost not only standing to file a lawsuit but the leverage of the threat of filing such a lawsuit, should an executive department or agency stonewall the way Cheney did. The GAO must now simply take what the White House (and its many appendages…) volunteers. This has never before been the case. [The GAO] will see only what Bush and Cheney want it to see.” The CRS notes that the ruling “calls into question the ability of Congress to delegate investigative authority to its agents;” Dean will write that this “may be the true reason for the lawsuit and for Cheney’s actions.” [Dean, 2004, pp. 80-81]
'Big Win' for Bush/Cheney - Constitutional scholar Thomas Mann of the Brookings Institution will call the ruling a “big win” for the Bush-Cheney administration, saying: “President Bush and Vice President Cheney have an extreme and relentless executive-centered conception of American government, and it plays out every day, and there are dozens of fronts in this effort to strengthen the presidency. Power naturally gravitates to the presidency in times of uncertainty. But people are going to question putting all of our trust in an unfetttered presidency.” Former Justice Department official Bruce Fein is more blunt. “Now they have a precedent that they can hold over Congress’s head,” he will say. “Like a loaded gun. Forever.” [Dubose and Bernstein, 2006, pp. 14-15]

Entity Tags: George W. Bush, Ted Stevens, Energy Task Force, John Dean, David Walker, Bruce Fein, Charlie Savage, Congressional Research Service, Brookings Institution, Richard (“Dick”) Cheney, Thomas Mann

Timeline Tags: US Environmental Record, Civil Liberties

In an 8-0 ruling, the District of Columbia Court of Appeals dismisses a lawsuit by the Sierra Club and Judicial Watch asking that the court require information to be disclosed from Vice President Cheney’s energy task force from 2001 (the National Energy Policy Development Group—see May 16, 2001). The US Supreme Court sent the case back to the appeals court (see April 27, 2004 and June 24, 2004). The appeals court ignores reports from the Government Accountability Office finding that energy executives and lobbyists took part in the task force deliberations (see After January 20, 2001, Mid-February, 2001, March 21, 2001, March 22, 2001, April 12, 2001, and April 17, 2001), and accepts the government’s contentions that the executive branch should not be forced to disclose information about its workings to either the legislative or judicial branches. Because no evidence was submitted that showed the energy executives or lobbyists cast votes or exercised veto power over task force decisions, the court rules, the task force is not obligated to comply with federal laws mandating that such governmental working groups reveal details of their deliberations. The executives and lobbyists are essentially no different than staff aides, the court finds. Cheney’s energy task force was not an advisory committee, and therefore “the government owed the plaintiffs no duty, let alone a clear and indisputable or compelling one,” says the court’s opinion. The court applies the Supreme Court’s standard of law as recommended in the case, a standard far more favorable to the executive branch than any previously applied in the case. Several of the appellate judges will later say that they took the Court ruling to mean that the judiciary should not be involved in a legal struggle with the executive branch. The ruling allows Cheney to keep the task force documents secret, and says that the task force is not bound by the Federal Advisory Committees Act (FACA). [Associated Press, 5/10/2005; Savage, 2007, pp. 176]
'Double Blow' - David Bookbinder, a lawyer for the Sierra Club, says, “The decision is not going to be helpful in assuring open and accountable government.” [Sierra Club, 5/15/2005] He says the ruling is a double blow: “As a policy matter, we see the Bush administration has succeeded in its efforts to keep secret how industry crafted the administration’s energy policy. As a legal matter, it’s a defeat for efforts to have open government and for the public to know how their elected officials are conducting business.” Judicial Watch official Chris Farrell will later say the ruling leaves the open-government laws “a hollow shell.” [Savage, 2007, pp. 176] The New York Times calls the decision “regrettable,” and observes, “The Bush administration hardly needs encouragement to deny public access to vital government information.” [New York Times, 5/15/2005]
Rejected Judicial Precedent - In 2007, author and reporter Charlie Savage will write: “The decision relied entirely upon the assertion of two Cheney aides that the lobbyists had not cast any votes, a claim no judge ever verified by looking at the records. The court’s ruling also dismissed arguments that ‘influential participation’ by outsiders made them de facto members of the task force whether or not they cast votes, rejecting the standard the courts had applied to the 1994 Clinton health care task force.” [Savage, 2007, pp. 176]

Entity Tags: Sierra Club, New York Times, Government Accountability Office, Judicial Watch, Bush administration (43), David Bookbinder, Federal Advisory Committees Act, National Energy Policy Development Group, Richard (“Dick”) Cheney

Timeline Tags: US Environmental Record, Civil Liberties

Steven Calabresi, one of the architects of the ‘unitary executive’ theory, says Bush’s use of signing statements has gone too far.Steven Calabresi, one of the architects of the ‘unitary executive’ theory, says Bush’s use of signing statements has gone too far. [Source: MeFeedia]Legal scholars and constitutional experts decry President Bush’s claim that he can ignore or disobey laws with impunity. An examination by Boston Globe reporter Charlie Savage finds that to date, Bush has claimed the authority to disobey over 750 laws enacted since he took office (see January 20, 2001 and After, After September 11, 2001, January 27, 2002, November 5, 2002, March 12, 2004 and After, November 6, 2003, December 2004, December 17, 2004, Dec. 23, 2004, January 17, 2005, August 8, 2005, October 18, 2005, December 30, 2005, and January 23, 2006). He claims that as president, he has the power to override any statute passed by Congress when it conflicts with his interpretation of the Constitution. While the Constitution assigns Congress the power to write the laws and the president the duty “to take care that the laws be faithfully executed,” Bush asserts that he has no mandate to “execute” a law he believes is unconstitutional. Administration spokespersons have repeatedly said that Bush “will faithfully execute the law in a manner that is consistent with the Constitution,” but it is Bush who decides what is and is not constitutional. Many legal scholars disagree with Bush’s position, and accuse him of attempting to usurp Congressional power for himself.
Philip Cooper - Law professor Phillip Cooper says over the Bush administration’s tenure, it has relentlessly worked to concentrate ever more governmental power into the White House. “There is no question that this administration has been involved in a very carefully thought-out, systematic process of expanding presidential power at the expense of the other branches of government,” Cooper says. “This is really big, very expansive, and very significant.”
Christopher Kelley - Political science professor Christopher Kelley notes that Bush uses signing statements to abrogate Congressional powers in a manner inconsistent with Constitutional mandates. “He agrees to a compromise with members of Congress, and all of them are there for a public bill-signing ceremony, but then he takes back those compromises—and more often than not, without the Congress or the press or the public knowing what has happened,” Kelley says.
David Golove - Law professor David Golove says Bush has besmirched “the whole idea that there is a rule of law” because no one can be certain of which laws Bush thinks are valid and which he thinks he can ignore. “Where you have a president who is willing to declare vast quantities of the legislation that is passed during his term unconstitutional, it implies that he also thinks a very significant amount of the other laws that were already on the books before he became president are also unconstitutional,” Golove says. To the extent that Bush is interpreting the Constitution in defiance of Supreme Court rulings, Golove notes, he threatens to “overturn the existing structures of constitutional law.” When a president ignores the Court and is not restrained by a Congress that enables his usurpations, Golove says, the Constitution can be made to simply “disappear.” Golove adds, “Bush has essentially said that ‘We’re the executive branch and we’re going to carry this law out as we please, and if Congress wants to impeach us, go ahead and try it.’”
Jack Beerman - Law professor Jack Beermann says: “The president is daring Congress to act against his positions, and they’re not taking action because they don’t want to appear to be too critical of the president, given that their own fortunes are tied to his because they are all Republicans. Oversight gets much reduced in a situation where the president and Congress are controlled by the same party.”
Steven Calabresi - Former Justice Department official Steven Calabresi, who came up with the idea of using signing statements to counter Congressional powers during the Reagan administration (see August 23, 1985 - December 1985), now says, “I think what the administration has done in issuing no vetoes and scores of signing statements (see September 2007) is not the right way to approach this.”
Bruce Fein - Former Reagan Justice Department official Bruce Fein says: “This is an attempt by the president to have the final word on his own constitutional powers, which eliminates the checks and balances that keep the country a democracy. There is no way for an independent judiciary to check his assertions of power, and Congress isn’t doing it, either. So this is moving us toward an unlimited executive power.” [Boston Globe, 4/30/2006; Savage, 2007, pp. 243]

Entity Tags: Bush administration (43), Charlie Savage, Christopher Kelley, Jack Beermann, Bruce Fein, David Golove, George W. Bush, Phillip Cooper, Steven Calabresi

Timeline Tags: Civil Liberties

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