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President Abraham Lincoln, responding to a Confederate attack on Fort Sumter in South Carolina, does not wait for Congress to begin its next session to make his response. Instead, Lincoln, wielding powers that the Constitution does not grant him and without a formal declaration of war, drastically enlarges the Union’s army and navy, blockades Southern ports, spends money not appropriated by Congress, and arrests Northern citizens suspected of being Confederate sympathizers. All of these steps exceed his authority under the Constitution and under federal law. Lincoln addresses Congress as soon as it reconvenes, admitting that he has exceeded his authority (see 1787 and 1793), and refusing to argue that his actions are lawful based on any “prerogative of power” inherent to the presidency. Instead, he explains that he felt he had to respond immediately to the sudden crisis, and asks Congress to retroactively authorize his emergency actions. He says, “These measures, whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity, trusting then, as now, that Congress would readily ratify them.” Congress gives Lincoln the retroactive authorization he seeks. (Savage 2007, pp. 16-17)

Headline from the New York Times regarding the ‘Roe’ decision.Headline from the New York Times regarding the ‘Roe’ decision. [Source: RubeReality (.com)]The US Supreme Court, in a 7-2 decision, legalizes abortion on a federal level in the landmark case of Roe v. Wade. The majority opinion is written by Justice Harry Blackmun; he is joined by Chief Justice Warren Burger and Justices William O. Douglas, William Brennan, Potter Stewart, Thurgood Marshall, and Lewis Powell. Justices Byron “Whizzer” White and William Rehnquist dissent from the opinion. Blackmun’s majority opinion finds that the 14th Amendment’s guarantees of personal liberty and previous decisions protecting privacy in family matters include a woman’s right to terminate her pregnancy. White’s dissent argues that the Court has “fashion[ed] and announce[d] a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invest[ed] that right with sufficient substance to override most existing state abortion statutes.” The decision does not make abortion freely available to women in any stage of pregnancy. It places the following constraints:
bullet No restrictions on availability are made during the first trimester (three months) of a woman’s pregnancy.
bullet Because of increased risks to a woman’s health during the second trimester, the state may regulate the abortion procedure only “in ways that are reasonably related to maternal health.”
bullet In the third and final trimester, since the rate of viability (live birth) is markedly greater than in the first two trimesters, the state can restrict or even prohibit abortions as it chooses, “except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
Originally brought to challenge a Texas law prohibiting abortions, the decision disallows a host of state and federal restrictions on abortion, and sparks an enormous controversy over the moral, religious, and legal viability of abortion that continues well into the 21st century. (ROE v. WADE, 410 US 113 (1973) 1/22/1973; Mears and Franken 1/22/2003; National Abortion Federation 2010) In a related case, Roe v. Bolton, the Court strikes down restrictions on facilities that can be used to provide abortions. The ruling leads to the establishment of so-called “abortion clinics.” (CBS News 4/19/2007)

The Supreme Court rules in INS v. Chadha that Congress has no right to issue what it calls “legislative vetoes,” essentially provisions passed by Congress giving the executive branch specific powers but with Congress reserving the right to veto specific decisions by the executive branch if it does not approve of the decisions made by the executive. Congress had relied on such “legislative vetoes” for years to curb the expanding power of the president. The Court strikes down hundreds of these “legislative vetoes” throughout federal law. Congress quickly schedules hearings to decide how to respond to the Court’s ruling. White House attorney John Roberts (see September 29, 2005), a young, fast-rising conservative, is one of a team of lawyers assigned to review the administration’s upcoming testimony before Congress. Some of the lawyers want to push Congress to place independent agencies such as the Federal Trade Commission (FTC) and Food and Drug Administration (FDA) under White House control—part of the evolving “unitary executive” theory of presidential power (see April 30, 1986). Roberts writes: “With respect to independent agencies… the time may be ripe to reconsider the existence of such entities, and take action to bring them back within the executive branch.… I agree that the time is ripe to reconsider the Constitutional anomaly of independent agencies… More timid souls may, however, desire to see this deleted as provocative.” (Savage 2007, pp. 256-257)

Young White House attorney John Roberts (see September 29, 2005), an advocate of expanded presidential powers (see June-July 1983), is selected to respond to a letter from retired Supreme Court Justice Arthur Goldberg. The former justice is commenting on the Reagan administration’s decision to unilaterally invade the tiny Caribbean island nation of Grenada. Goldberg wrote that President Reagan probably did violate the Constitution by sending troops to Grenada without Congressional approval, and in that sense has left himself open to impeachment. However, he added, the invasion had succeeded in establishing democracy in that nation. Therefore Reagan’s actions should be compared to those of President Abraham Lincoln during the Civil War, because, like Lincoln, he “acted in good faith and in the belief that this served our national interest” (see April 12 - July 1861). Drafting the letter for Reagan’s signature, Roberts thanks Goldberg for his defense of Reagan but insists that the invasion was perfectly legal. The president, Roberts writes, has “inherent authority in international affairs to defend American lives and interests and, as commander in chief, to use the military when necessary in discharging these responsibilities.” (Savage 2007, pp. 257)

Young conservative White House lawyer John Roberts (see September 29, 2005), an advocate of expanded presidential powers (see June-July 1983 and October 1983), advises senior Reagan officials that the White House should challenge the 1978 Presidential Records Act. To Roberts’s mind, the law goes much too far in requiring that presidential papers be considered government property and should, with some exceptions, be released to the public 12 years after a president leaves office. The law infringes on the right of a president to keep information secret, Roberts argues. Later, he will argue that the 12-year rule is far too brief and, as it would “inhibit the free flow of candid advice and recommendations within the White House,” is unconstitutional. (Savage 2007, pp. 258)

Young conservative White House lawyer John Roberts (see September 29, 2005), an advocate of expanded presidential powers (see June-July 1983 and October 1983), expands on his previous argument that the president’s papers and documents should remain secret and unavailable to the public (see February 13, 1984). Roberts writes that the Reagan administration should oppose a bill pending in Congress that would make the National Archives a separate agency, independent of the White House. Roberts writes that the “legislation could grant the archivist [the head of the National Archives] some independence from presidential control, with all the momentous constitutional consequences that would entail.” Others in the White House disagree with Roberts, and the administration does not oppose the bill. Roberts suggests that President Reagan attach a signing statement to the bill making it clear that Reagan has the power to fire the archivist if he/she tries to disobey the White House in releasing a presidential document. (Savage 2007, pp. 258)

Neoconservative academic Michael Ledeen, who left the Defense Department under suspicion of engaging in espionage on behalf of Israel (see 1983), gains a position at the National Security Council. His boss is Lieutenant Colonel Oliver North (see July 7-10, 1987 and May-June, 1989). According to Iran-Contra investigators, it is Ledeen who suggests to North “that Israeli contacts might be useful in obtaining release of the US hostages in Lebanon” (see November 4, 1979-January 20, 1981). Ledeen is granted high-level security clearance. (Green 2/28/2004)

According to former Reagan Justice Department official Terry Eastland, writing in his 1992 book Energy in the Executive, the process of selecting Antonin Scalia as a Supreme Court Justice begins now, well before anyone knows there will be a vacancy for him. Attorney General Edwin Meese asks his assistant attorney general, William Bradford Reynolds, to advise him in preparing a nominee, “just in case.” Reynolds assembles a team of Justice Department officials, who examine about twenty possible choices, mostly federal judges, focusing primarily on conservative judicial philosophy. Two individuals stand out: Robert Bork and Scalia. Eastland writes, “Neither was ranked over the other; both were regarded as the best available, most well-qualified exponents of Reagan’s judicial philosophy.” Both are seen as powerful and influential legal figures. When Chief Justice Warren Burger announces his decision to retire from the bench, Reynolds advises Meese to choose Justice William Rehnquist to replace Burger as Chief Justice (see September 26, 1986), and to choose either Bork or Scalia to replace Rehnquist. Reagan makes the final decision: Scalia. (Dean 2007, pp. 133)

Steven Calabresi joins the Justice Department. Calabresi is a young conservative lawyer who has clerked for appeals court Robert Bork, who failed to secure a position on the Supreme Court just months before (see July 1-October 23, 1987). Calabresi, a co-founder of the Federalist Society of conservative lawyers and judges, joins forces with another ambitious young Justice Department lawyer, John Harrison, and the two begin working to expand the power of the president. Calabresi and Harrison decide that an aggressive use of presidential signing statements can advance the president’s authority to the detriment of the legislative and judicial branches. Unfazed by a recent judicial rejection of just such signing statement usage (see 1984-1985), Calabresi and Harrison write a memo to Attorney General Edwin Meese advocating the issuing of more signing statements as part of a larger strategy to increase the president’s influence over the law. Calabresi and Harrison are interested in how what they call “activist judges” use the legislative history of a bill that became law to interpret that law’s meaning in subsequent judicial actions. The two lawyers believe that by issuing signing statements, the president can create a parallel record of presidential interpretations of potentially ambiguous laws to help guide judicial decisions. Meese approves of the idea, and in December has the West Publishing Company, which prints the US Code Congressional and Administration News, the standard collection of bills’ legislative history, begin including presidential signing statements in its publications. In 2007, author Charlie Savage will call Meese’s move “a major step in increasing the perceived legitimacy of the device.” (Savage 2007, pp. 232) In 2007, Calabresi will say: “I initially thought of signing statements as presidential legislative history. I’ve subsequently come to think of them as being important vehicles by which presidents can control subordinates in the executive branch. They subsequently came to be important to the unitary executive [theory of presidential power].” (Savage 2007, pp. 234)

Edwin Meese.Edwin Meese. [Source: GQ (.com)]Attorney General Edwin Meese receives a report, “Separation of Powers: Legislative-Executive Relations.” Meese had commissioned the report from the Justice Department’s Domestic Policy Committee, an internal “think tank” staffed with hardline conservative scholars and policy advisers.
Recommendations for Restoring, Expanding Executive Power - The Meese report approvingly notes that “the strong leadership of President Reagan seems clearly to have ended the congressional resurgence of the 1970s.” It lays out recommendations for restoring the power taken from the executive branch after Watergate and Vietnam, and adding new powers besides. It recommends that the White House refuse to enforce laws and statutes that “unconstitutionally encroach upon the executive branch,” and for Reagan to veto more legislation and to use “signing statements” to state the White House’s position on newly passed laws. It also assails the 1972 War Powers Resolution and other laws that limit presidential power.
Reinterpreting the Separation of Powers and the Concept of 'Checks and Balances' - Perhaps most importantly, the Meese report claims that for 200 years, courts and scholars alike have misunderstood and misinterpreted the Founders’ intentions in positing the “separation of powers” system (see 1787 and 1793). The belief that the Constitution mandates three separate, co-equal branches of government—executive, judicial, and legislative—who wield overlapping areas of authority and work to keep each of the other branches from usurping too much power—a concept taught in school as “checks and balances”—is wrong, the report asserts. Instead, each branch has separate and independent sets of powers, and none of the three branches may tread or encroach on the others’ area of responsibility and authority. “The only ‘sharing of power’ is the sharing of the sum of all national government power,” the report claims. “But that is not joint shared, it is explicitly divided among the three branches.” According to the report, the White House should exercise total and unchallenged control of the executive branch, which, as reporter and author Charlie Savage will later explain, “could be conceived of as a unitary being with the president as its brain.” The concept of “checks and balances” is nothing more than an unconstitutional attempt by Congress to encroach on the rightful power of the executive. This theory of presidential function will soon be dubbed the “unitary executive theory,” a title adapted from a passage by Alexander Hamilton in the Federalist Papers. (Savage 2007, pp. 47-48) Charles Fried, Reagan’s solicitor general during the second term, will later write that though the unitary executive theory displays “perfect logic” and a “beautiful symmetry,” it is difficult to defend, because it “is not literally compelled by the words of the Constitution. Nor did the framers’ intent compel this view.” (Savage 2007, pp. 50)

William Rehnquist.William Rehnquist. [Source: US Department of Justice]Associate Justice William Rehnquist becomes Chief Justice of the Supreme Court. A strict conservative, Rehnquist will oversee the transformation of the Court from a middle-of-the-road, sometimes left-leaning instrument into a conservative entity dominated by the “axis” of Rehnquist, Antonin Scalia (see September 26, 1986), and Clarence Thomas (see July 2-August 28, 1991). (Mauro 9/5/2005)
False Testimony? - According to former Nixon White House counsel John Dean, writing in his 2007 book Broken Government, Rehnquist is the first true conservative fundamentalist to be appointed to the Court, “and he would set a pattern for other fundamentalists who found it necessary to make their way through the confirmation process by deception.” Dean, and others, have alleged that Rehnquist lied to the Senate both in his 1971 appointment to the Court as an associate judge (see January 7, 1972) and in his 1986 hearings for becoming chief justice. Dean will write that Rehnquist’s testimony during both sets of Senate confirmations hearings was “conspicuously false,” and in 1986 he committed “pure perjury.” In both sets of hearings, Rehnquist was embarrassed by a 1952 memo he had written while clerking for then-Justice Robert Jackson, in which Rehnquist had urged Jackson not to vote in support of the Brown v. Board of Education verdict that overturned the “separate but equal” clause that allowed for state-sponsored segregation. Although it is clear Rehnquist was stating his own pro-segregationist views, he apparently lied to the Senate over this memo as well, claiming that the memo was written to reflect Jackson’s own views and not his own. Dean will write, “It was an absurd contention, and a defamation of the dead justice for which he worked.” Law professor Laura Ray will observe in 1996: “With the [top] seat on the Supreme Court almost in his grasp, Rehnquist may well have retreated from an uncomfortable position taken almost twenty years earlier in the only way that seemed open to him. That such a step might tarnish the reputation of Justice Jackson years after his death does not seem to have been a concern.” (Dean 2007, pp. 129-137)

Campaigning on behalf of conservative Republican candidates in an attempt to have the GOP retain control of the Senate, Ronald Reagan goes on a campaign tour of the South, where he alludes to Republicans’ plans for exerting control of the nation’s court system. Typical of Reagan’s stump speech is the following one he delivers on behalf of embattled Republican incumbent James Broyhill: “Since I’ve been appointing federal judges to be approved by people like Jim Broyhill in the Republican Senate, the federal judiciary has become tougher, much tougher, on criminals. Criminals are going to jail more often and receiving longer sentences. Over and over the Democratic leadership has tried in the Senate to torpedo our choices for judges. And that’s where Jim Broyhill can make all the difference. Without him and the Republican majority in the Senate, we’ll find liberals like Joe Biden and a certain fellow from Massachusetts deciding who our judges are. And I’ll bet you’ll agree; I’d rather have a Judiciary Committee headed by Strom Thurmond than one run by Joe Biden or Ted Kennedy.” Broyhill will be defeated, and Democrats will regain control of the Senate in spite of Reagan’s efforts, in large part because of Southern blacks offended by such speeches. The new Democratic leadership, responding to the voters, will help block the racially questionable Robert Bork’s nomination to the Supreme Court (see July 1-October 23, 1987). (Dean 2007, pp. 140)

Attorney General Edwin Meese.Attorney General Edwin Meese. [Source: Doug Mills / Bettman / Corbis]Attorney General Edwin Meese undertakes an internal fact-finding investigation focused on President Reagan’s involvement in the November 1985 sale of Hawk missiles to Iran (see 1985). Meese is apparently not interested in finding facts, because he refuses a request to assist from the FBI, and takes no notes during his interviews of administration officials.
'Shredding Party' - Additionally, during his investigation, National Security Council documents are altered or destroyed, including a presidential finding from December 1985 that retroactively authorized US missile sales to Iran (see November 24-25, 1985 and December 5, 1985); National Security Adviser John Poindexter will later admit to destroying this document. Lieutenant Colonel Oliver North holds what is later called a “shredding party,” destroying thousands of documents that would likely implicate White House officials in a criminal conspiracy to break the law (see November 21-23, 1986). The Iran-Contra investigative committee will later fault Meese for departing from “standard investigative techniques” during his investigation.
Document Linking Iran Arms Sales, Contra Supplies Survives - Meese also finds a potentially explosive document in the desk of North, the National Security Council staffer who managed the Iran arms deals. The document, an undated memorandum apparently from April 1986, outlined “a planned diversion of $12 million in proceeds from the Iran arms sales to the Nicaraguan contras” (see April 4, 1986). Meese’s investigation now diverges onto two tracks, one a continuation of the Hawk shipments, and the second an investigation into who knew about, and who had approved, the diversion.
Reagan Courting Impeachment? - Meese confirms from North that the $12 million had indeed been given to the Contras, and informs Reagan, Chief of Staff Donald Regan, and Vice President Bush. Reagan is reportedly shocked by the revelation, in part because he knows he could face impeachment for violating the Boland Amendment (see October 10, 1984). Meese informs the cabinet the next day. Apparently Meese does not want to know if any senior White House officials knew of the diversion, because he does not ask them about it. When Poindexter informs Meese that before December 1985, his predecessor Robert McFarlane handled the Iran arms sales “all alone” with “no documentation,” Meese accepts his word. Several White House officials present at the meeting—Reagan, Regan, Bush, Poindexter, Secretary of State George Shultz, and Secretary of Defense Caspar Weinberger—all know that Poindexter is lying, but none correct him. After the meeting, Shultz tells his aide, Charles Hill: “They may lay all this off on Bud [McFarlane].… They [are] rearranging the record.” Investigative counsel Lawrence Walsh will later write: “The Select Committees viewed this as an isolated error. It was not.”
'Case for Deniability' for Reagan - In Walsh’s opinion, Meese is not conducting an investigation at all, but instead is “building a case of deniability for his client-in-fact, President Reagan.” Walsh will characterize Meese’s actions as “an effort to obstruct a congressional inquiry.” In 2006, authors Lou Dubose and Jake Bernstein will write, “The two strands of an illegal policy came together in that memo.” The authors refer to the US arms sales to Iran and the diversion of the profits from those sales to the Contras. (New York Times 11/19/1987; United States Court of Appeals for the District of Columbia Circuit 8/4/1993; PBS 2000; Dubose and Bernstein 2006, pp. 66)

Robert Bork.Robert Bork. [Source: National Constitution Center]The controversial nomination of conservative judge Robert Bork to the Supreme Court is defeated in the US Senate. Bork is denied a seat on the Court in a 58-42 vote, because his views are thought to be extremist and even some Republicans vote against him.
'Right-Wing Zealot' - Bork, nominated by President Reagan as one of the sitting judges who most completely reflects Reagan’s judiciary philosophy (see 1985-1986), is characterized even by administration officials as a “right-wing zealot.” Reagan also wants a nominee to placate the hard right over their disaffection caused by the brewing Iran-Contra scandal. However, to make him more palatable for the majority of Americans, Reagan officials attempt to repackage Bork as a moderate conservative. Senate Judiciary Committee member Edward Kennedy (D-MA) attacks Bork’s political philosophy, saying before the committee hearings: “[In Bork’s America] women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is the—and is often the only—protector of the individual rights that are the heart of our democracy.… No justice would be better than this injustice.” Kennedy’s words provoke complaint, but the characterization of Bork is based on his lengthy record of court verdicts and his large body of judicial writings.
Racial Equality Issues - Although there is no evidence to suggest that Bork is himself a racist, former Nixon White House counsel John Dean will write that “his positions on civil rights were an anathema to all who cared about equality in America.” Constitutional law professor Herman Schwartz will write in 2004, “Bork condemned the Fourteenth Amendment’s Equal Protection Clause decisions outlawing the poll tax (to him it was just ‘a very small tax’), the decision establishing the one-person, one-vote principle, abolishing school segregation in the District of Columbia, barring courts from enforcing racially restrictive housing covenants, preventing a state from sterilizing certain criminals or interfering with the right to travel, and prohibiting discrimination against out-of-wedlock children…. Bork’s hostility to governmental action on behalf of minorities did not stop with his critique of court action. In 1963 he criticized a section of the proposed Civil Rights Act of 1964 that required white businesses to serve blacks as resting on a principle of ‘unsurpassed ugliness.’”
Ready to Fight - The Reagan administration understands that Bork’s nomination is opposed; on July 1, the day of his announced nomination, the media reports that Reagan will try to ensure Bork’s confirmation by waging an “active campaign.” Even Senate-savvy James Baker, Reagan’s chief of staff, is uncertain about Bork’s chances at being confirmed, and further worries that even if Bork wins the fight, the cost to Reagan’s political capital will be too high.
His Own Worst Enemy - Conservatives Justice Department official Terry Eastland will later say Senate Democrats sabotage Bork’s chances at faring well in the confirmation hearings, even positioning his table to ensure the least favorable angles for Bork on television. However, the public’s opinion of Bork is unfavorable, and Dean will write: “[I]t was not the position of his chair in the hearing room that made Bork look bad, but rather his arrogance, his hubris, and his occasional cold-bloodedness, not to mention his equivocations and occasional ‘confirmation conversions,’ where he did what no one else could do. He made himself a terrible witness who did not appear to be truthful.” The confirmation conversions even surprise some of his supporters, as Bork abandons his previous stances that the First Amendment only applies to political speech, and the Fourteenth Amendment’s equal protection clause does not apply to women. The Senate Judiciary Committee passes Bork’s nomination along to the full Senate, where Bork is defeated 58-42.
The Verb 'To Bork' - In 2007, Dean will write, “Bork’s defeat made him both a martyr and a verb,” and quotes conservative pundit William Safire as writing that “to bork” someone means to viciously attack a political figure, particularly by misrepresenting that figure in the media. (Dean 2007, pp. 137-143)

Oliver North testifying before the Iran-Contra Committee.Oliver North testifying before the Iran-Contra Committee. [Source: Bettmann / Corbis]Lieutenant Colonel Oliver North testifies before the joint House-Senate Iran-Contra investigative committee. During the course of his testimony, he says he does not know if President Reagan had any knowledge of the diversion of funds from Iranian arms sales to the Nicaraguan Contras (see December 6, 1985 and April 4, 1986). North also testifies that William Casey, the recently deceased CIA director (see May 6, 1987), knew of and approved the diversion of funds to the Contras. North admits that the Iranian arms sales were initially designed to help facilitate the release of the American hostages being held by Hezbollah. (New York Times 11/19/1987)
Tour de Force - North’s testimony is a “tour de force,” in the words of authors Lou Dubose and Jake Bernstein, that allows Republicans the opportunity to reverse the field of the hearings and go on the offensive instead of defending the conduct of the Reagan administration. North, a Marine lieutenant colonel, wears his full-dress Marine uniform throughout his entire testimony with rows of ribbons festooning his chest. Handsome and full of righteous patriotism, he is striking on television, and contrasts well with the nasal, disdainful committee lawyers (see May 5, 1987) who spend four days interrogating him.
Need to Free Hostages Trumps Law - For the first two days, North and House counsel John Nields spar for the cameras. North says that Casey had directed him to create the so-called “Enterprise” (see November 19, 1985 and February 2, 1987), the clandestine organization that supported the Nicaraguan Contras with money, weapons, and sometimes US personnel. North admits to shredding untold amounts of evidence after the operation came to light (see November 21-25, 1986). He also admits to lying to Congress in previous testimony. But all of his actions are justified, he says, by the need to get Iran to free the American hostages. “I’d have offered the Iranians a free trip to Disneyland if we could have gotten Americans home for it,” he declares in response to one question about US arms sales to Iran. Senate counsel Arthur Liman will later write, “He made all his illegal acts—the lying to Congress, the diversion [of funds from Iranian arms sales to the Contras], the formation of the Enterprise, the cover-up—seem logical and patriotic.”
Targeting Covert Operations - Nields’s preferred line of questioning—covert operations—makes many committee members uncomfortable. Some House Democrats want to use the investigation to further their own goals of limiting covert actions, and others simply want the truth to be revealed. In contrast, House Republicans are united in opposition to any details of covert operations being revealed on national television and thus hampering the president’s ability to conduct future operations as needed. After the first day of North’s testimony, committee member Dick Cheney (R-WY) exults on PBS that North “probably was as effective as anybody we’ve had before the committee in coming forward very aggressively and stating what he did, saying why he did it, arguing that he was in fact authorized to take the activities that he did.”
Leaky Congress Unfit to Know of Covert Ops, North Contends - North echoes Cheney’s position that the question is not whether White House officials broke the law, but whether Congress was fit to consider the question of national security at all. North goes so far as to question the propriety of the hearings themselves: “I believe that these hearings, perhaps unintentionally so, have revealed matters of great secrecy in the operation of our government, and sources of methods of intelligence activities have clearly been revealed, to the detriment of our security.” North’s message is clear: Congress is not fit to handle covert operations or, by and large, to even know about them. Best for the legislature to allow the White House and the intelligence community to do what needs doing and remain quiet about it. North’s contention that Congress has leaked vital national security information is shot down by Senate committee chairman Daniel Inouye (D-HI), who not only forces North to admit that he has no evidence of his contention, but that the White House, not Congress, is the main source of leaked classified information. Indeed, North himself has leaked information (see July 7-10, 1987). Inouye’s co-chair, Warren Rudman (R-NH) will later say: “The greatest leaks came out of the White House. North and company were the biggest leakers of all during that period.” (Dubose and Bernstein 2006, pp. 75-78) Nields, addressing North’s implication that the NSC has no obligation to tell the truth to Congress, says towards the end of his session with North: “We do believe in a democracy in which the people, not one lieutenant colonel, decide important policy issues, don’t we? … You denied Congress the facts North had admitted to lying about the government’s involvement with the Hasenfus plane. You denied the elected representatives of the people the facts.” (Siegel 7/9/1987)
Impact on Public Opinion - Results will differ on North’s popularity with viewers (see July 9-31, 1987).

After Robert Bork’s nomination to the Supreme Court fails (see July 1-October 23, 1987), President Reagan nominates an equally hard-line conservative, appeals court judge Douglas Ginsberg. Ginsberg withdraws his nomination after the press learns that he had ignored a serious conflict-of-interest problem while at the Department of Justice, that he had smoked marijuana as both a student and a professor at Harvard Law School, and that, though Ginsberg professes to be stringently anti-abortion, his wife is a doctor who has herself performed abortions. Reagan will nominate a third and final selection for the Court, the somewhat more moderate Anthony Kennedy. (Sabato 1998; http://www.fjc.gov/servlet/tGetInfo?jid=864 9/26/2006; Dean 2007, pp. 143-144)

Former National Security Adviser John Poindexter is indicted on seven felony counts relating to his participation in the Iran-Contra affair. Poindexter is named with fellow Iran-Contra conspirators Oliver North, Richard Secord, and Albert Hakim as part of a 23-count, multi-defendant indictment. The charges are based on evidence that shows all four defendants conspired to defraud the United States and violate federal law by secretly providing funds and supplies to the Nicaraguan Contras. The cases will soon be severed and each defendant will be tried separately (see May-June, 1989). (FINAL REPORT OF THE INDEPENDENT COUNSEL FOR IRAN/CONTRA MATTERS: Chapter 3: United States v. John M. Poindexter 8/4/1993; PBS 2000)

Lieutenant Colonel Oliver North, the former National Security Council member who had been a key figure in the Iran-Contra scandal (see July 7-10, 1987), is tried for crimes related to the operation (see March 16, 1988). (Dubose and Bernstein 2006, pp. 82)

Lieutenant Colonel Oliver North, a key figure in the Iran-Contra scandal (see February 1989), is convicted of three counts of falsifying and destroying documents (see November 21-25, 1986 and March 16, 1988), of obstructing a Congressional investigation, and of illegally receiving a gift of a security fence around his home. He is acquitted of nine other counts. Though facing up to ten years in prison and a $750,000 fine, North receives an extremely lenient sentence: three years’ suspended, two years’ probation, community service, and a $150,000 fine. He also has his Marine service pension suspended. During the trial, North admits he lied repeatedly to Congress during his testimony (see July 7-10, 1987), but says that his superiors, including National Security Adviser John Poindexter, ordered him to lie under oath. North contends that he was made a scapegoat for the Reagan administration. “I knew it wasn’t right not to tell the truth about these things,” he says, “but I didn’t think it was unlawful.” US District Court Judge Gerhard Gesell calls North a “low-ranking subordinate who was carrying out the instructions of a few cynical superiors,” and says to North: “I believe you still lack understanding of how the public service has been tarnished. Jail would only harden your misconceptions.” North, who had been staunch in justifying his actions in the Iran-Contra hearings, now expresses remorse over his crimes, saying, “I recognize that I made many mistakes that resulted in my conviction of serious crimes… and I grieve every day.” North, who is a popular speaker with conservative organizations, can pay off his fine with six speaking engagements. Nevertheless, he says he will appeal his conviction. (BBC 7/5/1989; Johnston 9/17/1991) North’s conviction will indeed be overturned by an appeals court (see September 17, 1991).

When Supreme Court Justice Thurgood Marshall, the first and only African-American to serve on the Court, announces his retirement, the Bush administration is ready with a far more conservative replacement. President Bush himself is already under fire for previously naming a moderate, David Souter, to the Court, and Bush is determined to give his conservative base someone they can back. Although Bush had wanted to nominate an appropriately conservative Hispanic, his eventual nomination is Clarence Thomas, who is completing his first year as a judge on the DC Court of Appeals. Thomas has two qualifications that Bush officials want: like Marshall, he is African-American; unlike Marshall, he is as conservative a jurist as Antonin Scalia (see September 26, 1986) or Robert Bork (see July 1-October 23, 1987). Two of former President Reagan’s closest legal advisers, C. Boyden Gray and Lee Liberman (a co-founder of the conservative Federalist Society), privately call Thomas “the black Bork.” Bush calls Thomas “the most qualified man in the country” for the position. (Dowd 7/2/1991; Dean 2007, pp. 146-153) During the July 2 press conference to announce Thomas’s nomination, Bush says: “I don’t feel he’s a quota. I expressed my respect for the ground that Mr. Justice Marshall plowed, but I don’t feel there should be a black seat on the Court or an ethnic seat on the Court.” For his part, Thomas extols his upbringing as a desperately poor child in Georgia, crediting his grandmother and the nuns who taught him in Catholic schools as particular influences on his life and values. Republican senator Orrin Hatch says that opposing Thomas will be difficult: “Anybody who takes him on in the area of civil rights is taking on the grandson of a sharecropper.” (Dowd 7/2/1991) However, the non-partisan American Bar Association’s recommendation panel splits on whether Thomas is qualified or not, the first time since 1969 the ABA has failed to unanimously recommend a nominee. Twelve panelists find Thomas “qualified,” two find him “not qualified,” and none find him “well qualified.” One senior Congressional aide calls the assessment of Thomas “the equivalent of middling.” (Lewis 8/28/1991; Dean 2007, pp. 146-153) In 2007, former Nixon White House counsel John Dean will write, “For the president to send a nominee to the Supreme Court with anything less than a uniformly well-qualified rating is irresponsible, but such decisions have become part of the politicization of the judiciary.” Thomas, himself a beneficiary of the nation’s affirmative action programs, opposes them, once calling them “social engineering;” he has no interest in civil rights legislation, instead insisting that the Constitution should be “color-blind” and the courts should stay out of such matters. Civil rights, women’s rights, and environmental groups are, in Dean’s words, “terrified” of Thomas’s nomination. To overcome these obstacles, the Bush administration decides on a strategy Dean calls “crude but effective… us[ing] Thomas’s color as a wedge with the civil rights community, because he would pick up some blacks’ support notwithstanding his dismal record in protecting their civil rights. (Dowd 7/2/1991; Dean 2007, pp. 146-153) The nomination of an African-American quells some of the planned resistance to a conservative nominee promised by a number of civil rights organizations. (Dowd 7/2/1991) Three months later, Thomas will be named to the court after a bitterly contentious brace of confirmation hearings (see October 13, 1991).

A federal judge drops all charges against convicted felon Oliver North (see May-June, 1989). A federal appeals court had reversed part of North’s conviction and ordered the case returned to a US District Court for the remainder of the convictions. District Judge Gerhard Gesell, who presided over the original trial that found North guilty of three felonies, drops the charges after special prosecutor Lawrence Walsh says he is forced to abandon the prosecution of North. In order to testify before the Iran-Contra hearings (see July 7-10, 1987), North was granted limited immunity from prosecution, and Walsh says prosecutors will be unable to show that North’s immunity grant did not affect his trial testimony, and the testimony of witnesses in his earlier trials. The decision by Walsh and Gesell brings to an end five years of court proceedings against North, who calls himself “fully, completely” vindicated. Last week, former National Security Adviser Robert McFarlane, North’s former superior and mentor, testified that his testimony in North’s earlier trials had been heavily influenced by North’s testimony before Congress. President Bush says: “He’s been through enough. There was an appeal. He’s been let off. Now that’s the system of justice is working.… I’m very, very pleased.” Senate Majority Leader Bob Dole (R-KS) says the Walsh investigation should be closed down entirely, saying, “What have American taxpayers received for their $50 million?” referring to some estimates of the cost of the overall inquiry. “A lot of press releases. A lot of rumor and innuendo. But little in terms of justice.” Walsh, who had opposed immunity for North from the start of the investigations in 1987, says: “This is a very, very serious warning that immunity is not to be granted lightly. Now, I have never criticized Congress. I urged them not to grant immunity, but they have the very broad political responsibility for making a judgment as to whether it’s more important that the country hear the facts quickly or that they await a prosecution.” (Johnston 9/17/1991) An outraged New York Times editorial says that North’s claim of complete exoneration is a “wild overstatement” and calls the reversal “a serious setback for another objective of democratic government: promptly to uncover the truth in high-profile cases and to prosecute them when necessary without sacrificing the Constitution’s privilege against compelled self-incrimination.” It concludes: “Mr. North can thank his battling lawyers and a fastidious judiciary for letting him beat the rap. That remains far short, however, of exoneration.” (New York Times 9/17/1991)

Clarence Thomas survives the Senate hearings to join the Supreme Court.Clarence Thomas survives the Senate hearings to join the Supreme Court. [Source: PBS]The full Senate votes to confirm Clarence Thomas (see July 2-August 28, 1991, October 8, 1991, and October 11-12, 1991) on a 52-48 vote, the lowest margin of victory by any Supreme Court nominee in US history. It is possible that some senators’ votes are influenced by a wash of “fast-action” polls reported by the White House, purporting to show that African-Americans overwhelmingly support Thomas, and a majority of citizens support Thomas’s confirmation. A year later, analysis proves those polls to be completely wrong. (Thomas Hearings Website 8/1997; Dean 2007, pp. 146-153) In 1992, Senator Joseph Biden (D-DE), a member of the Senate Judiciary Committee, will say: “That last hearing was not about Clarence Thomas. It was not about Anita Hill. It was about a massive power struggle going on in this country, a power struggle between women and men, and a power struggle between minoritites and the majority.” (Thomas Hearings Website 8/1997)

Retired Colonel David Hackworth, a columnist for Newsweek, talks to PBS interviewer Charlie Rose about his recent interview with accused Oklahoma City bomber Timothy McVeigh (see 8:35 a.m. - 9:02 a.m. April 19, 1995 and April 21, 1995). Hackworth’s interview will result in a brief column (see July 3, 1995) and a cover story (see June 26, 1995), both of which engender tremendous controversy; critics have said that Hackworth has played into McVeigh’s lawyers’ efforts to “soften his image” (see June 26, 1995). Hackworth says that while he “expected to find a monster,” he found a normal young man, “disarming… laid back,” and a “very cool” person. “He came across as the boy that lived next door.” Hackworth says he set up the interview after sending McVeigh a copy of his book About Face, which interested McVeigh enough to have him and attorney Stephen Jones agree to the interview, McVeigh’s first after being arrested. McVeigh is “nothing like I had read in the press.” Rose asks how much of McVeigh’s presentation was “spin” to affect the press, and Hackworth says, “One hundred percent.… He knew that Newsweek talks to 20 million people, he knew that if he could project this kind of ‘boy next door’ image, it would hit the, uh, it might present a new twist on where he is coming from.… He handled himself very well.… He’s so smart that he’s capable of masterminding the operation, which a lot of people in the press said” he was too unintelligent to have done on his own. People in the Pentagon have told him, Hackworth says, that McVeigh could have been a brilliantly successful officer had he stayed in the military. Hackworth says that McVeigh refused to answer direct questions about his carrying out the bombing, instead saying, “We’re going to trial… we’re pleading not guilty.” He calls the bombing a “precise… military operation” that “wasn’t something a militia type, frothing at the mouth, could have put together.” The bombing was handled well, he says, up until McVeigh’s “bug out,” or escape: “To jump in that old car… and get stopped (see 9:03 a.m. -- 10:17 a.m. April 19, 1995) was a minor charge.” Asked what that says about McVeigh, Hackworth replies, “It was almost one of those odd coincidences that we saw in the Lee Harvey Oswald case [the purported assassin of President John F. Kennedy], you know, it was perfect except he’s got the wrong ammunition or something.” Hackworth reiterates his characterization in Newsweek of McVeigh suffering from a “postwar hangover,” a depression that ensued after the war ended and he lost his battlefield comrades (see November 1991 - Summer 1992); his judgment became clouded and his thinking became skewed. Hackworth says that McVeigh denies any miltia ties whatsoever, and denies ever claiming he was being held as a “prisoner of war,” as news reports have alleged. Hackworth says that McVeigh told him he was treated well by his jailers, but says that McVeigh asked why he was not given a bulletproof vest on his short walk from the Noble County Courthouse to his transport to the El Reno federal facility. Hackworth says that the blank, grim look on McVeigh’s face that has characterized him in the news is actually the “thousand-yard stare” that soldiers get when they are expecting to be shot. Hackworth says he expected to “push a button” by asking McVeigh about the Branch Davidian standoff and ultimate tragedy (see April 19, 1993 and April 19, 1993 and After), but McVeigh was not rattled. He concludes that when he interviewed accused Iran-Contra conspirator Oliver North (see May-June, 1989), he caught North in “a hundred lies,” but he did not catch McVeigh in a single lie. Either McVeigh was telling the truth, Hackworth says, or he is a masterful liar. (Rose 6/26/1995)

Jury selection begins in the trial of Oklahoma City bomber Timothy McVeigh (see 8:35 a.m. - 9:02 a.m. April 19, 1995 and August 10, 1995). Judge Richard Matsch has denied defense attempts to delay the trial after a brief controversy erupted over media reports using defense documents (see February 28 - March 4, 1997). “I have full confidence that a fair-minded jury can and will be impaneled and that those selected will return a just verdict based on the law and evidence presented to them,” Matsch wrote on March 17. Jurors’ identities are kept hidden from the press. One potential juror, asked by US Attorney Patrick Ryan, “Did you watch a lot of the coverage?” answers: “It was unavoidable. In Oklahoma, it was wall to wall and floor to ceiling.” Another potential juror says he worries about his safety in regards to what he will learn in the course of the trial: “It would seem this case goes further, wider, and deeper in many ways. A juror is going to be an insider on information he might just as soon not know.” (Kenworthy 3/18/1997; Thomas 4/1/1997; Douglas O. Linder 2001) The pressure of this being a death-penalty trial, and the prospect of potentially confusing forensic evidence countered by the raw emotions of the bombing itself and of the conspiracy theories surrounding the proceedings, raises oft-asked questions about the competence of 12 jurors to find the truth in such a complex situation. The difference between an open-minded juror and one who is ignorant or intellectually challenged is difficult for lawyers and observers to assess. New York Times reporter Laura Mansnerus reflects on the trial of Lieutenant Colonel Oliver North, charged with crimes relating to the Iran-Contra scandal (see July 7-10, 1987 and May-June, 1989), in which, she writes: “When the jury was selected for the 1989 trial of Oliver North, a search went out for 12 people who knew nothing about Oliver North, which produced, well, 12 people who knew nothing about Oliver North. One person who qualified for service said she had seen him on television, but added, ‘It was just like I was focusing on the Three Stooges or something.’” That ill-informed jury proved remarkably pliable to North’s theatrics, Mansnerus writes, and many believe McVeigh’s defense team hopes for a similar jury pool that may be willing to set aside scientific evidence in favor of conspiracy theories and emotional pleas. Jury expert Jeffrey Abramson of Brandeis University tells Mansnerus: “In a case that’s heavy on scientific, forensic evidence, the defense is going to favor people who are less sophisticated about scientific matters and who are prone to conspiracy theories. That’s the classic defense approach.” Philadelphia prosecutor Jack McMahon warned in a well-known 1986 instructional video of the pitfalls that can result in letting “smart people” on the jury, saying: “Smart people will analyze the hell out of your case. They have a higher standard. They take those words ‘reasonable doubt’ and they actually try to think about them. You don’t want those people.” Moreover, people with jobs requiring any real level of responsibility are routinely excused from jury service; this case is no exception, leaving a pool of jurors with little or no steady employment, spotty educational status, and somtimes limited intellectual capabilities to judge McVeigh’s innocence or guilt. (Mansnerus 4/6/1997)

Legal and media analysts say the trial of convicted Oklahoma City bomber Timothy McVeigh (see June 2, 1997) never captured the public’s attention the way some other trials have in recent years. “Maybe it was the absence of cameras in the courtroom,” writes the New York Times’s Bill Dedman. “Maybe the outcome never seemed in doubt. Maybe it was the numerousness of the victims or the nobodyness of the defendant or the mind-numbing horror of the event.” Dedman compares the public interest in the McVeigh trial to the far more sensational, media-saturated trials of acquitted murder suspect O.J. Simpson and the Los Angeles police officers acquitted of beating motorist Rodney King. The McVeigh trial did not attract anywhere near the media and public interest of those two trials, Dedman asserts, based on numerous polls and focus group studies. The McVeigh trial did not even garner the same level of interest as the Oliver North Iran-Contra trial (see July 7-10, 1987 and May-June, 1989). Jeffrey Toobin, a legal analyst for ABC News who wrote a best-selling book on the Simpson case, says: “It’s not that people are uninterested in this story. It’s just that it’s just another story. I’m certainly not writing a book about the McVeigh case.” Polls show that 30 percent of Americans followed the McVeigh case “very closely,” a number not significantly higher than the interest showed in most big news stories, and far lower than the public interest in the Simpson and King trials. Andrew Kohut, director of the Pew Center, says: “There is not the manic interest there was in O.J. at certain points in time. I don’t think people are swept up in the emotion of this. That’s for sure.” Merrill Brown of MSNBC’s Internet news service calls the McVeigh trial one of “the top half-dozen” stories he could recall in the network’s Internet news coverage. “It has not changed people’s lives, like the Simpson case,” Brown says. “It has not reached into the nation’s consciousness like Rodney King or William Kennedy Smith [a member of the Kennedy family accused of rape] or any trial that received national notoriety as a result of cameras.” Most media news outlets covered the McVeigh trial steadily, but with few pre-emptions and special reports. Neither Time nor Newsweek featured the trial as a cover story, and supermarket tabloids paid little attention to the trial. The most obvious reason for the relative lack of media coverage is the lack of cameras in the courtroom. Dedman writes: “As a result, people never got to scrutinize the witnesses’ demeanor, study the prosecutor’s hair style and wardrobe, hear the judge’s voice, watch the lawyers bicker, see the defendant react—all those things that… turned the Simpson case from a trial into a drama.” Media psychology professor Stuart Fischoff says: “I think America has very quickly adapted to a sense of judicial activities as entertainment. [Americans now] expect to see their trials on television” so they can become “hooked.” The trial also lacked the salacious and controversial elements of other trials: unlike the Simpson case, there was virtually no sexual content, nor was there the overt racism that permeated the King trial. And unlike Simpson and Smith, no celebrities or wealthy persons were involved. Fischoff says of McVeigh: “There’s nothing particularly interesting about him. He’s not particularly handsome, he’s not particularly verbal, he’s not particularly horrible. He’s not [convicted serial killer and cannibal] Jeffrey Dahmer; you really can’t love to hate this guy. There’s no Darth Vader quotient.” And though the victims evoked considerable sympathy among Americans, they did not evoke fascination such as the victims in the Simpson murders. Observers such as CNN’s Greta van Susteren have said the victims’ stories were just too painful to contemplate for long; others have said there were too many victims for Americans to focus upon. (Scott 6/4/1997)

The Justice Department, on behalf of the Environmental Protection Agency, files lawsuits against 32 power plants in 10 mid-west and southeast states for failing to install state-of-the-art pollution controls—as required by the New Source Review (NSR) section of the Clean Air Act—when companies made major modifications to their coal-fired plants. The suits say that the companies’ violations of NSR has resulted in illegal emissions of tens of millions of tons of sulfur dioxide, nitrogen oxides, and particulate matter into the air. (US Department of Justice 11/3/1999) Some of these companies have been releasing these illegal emissions for 20 years or more. (Barcott 4/4/2004) Six months after coming to office, the Bush administration will put all of these investigations on hold, causing some companies to abandon settlements or pull out of their negotiations with the Justice Department (see June 22, 2001).

The energy and utility industries lobby Congress to attach a rider to a pending appropriations bill that would deny the Environmental Protection Agency and Justice Department funding to pursue litigation (see November 3, 1999) against a group of mid-western and southern utility companies for violations of the New Source Review (NSR) section of the Clean Air Act. In letters to Congress, the groups insist that failing to pass the rider “could have severe implications for [electric] supply reliability in the near future.… [U]nits covered by the enforcement action could potentially be shut down.” Environmental groups counter that passing the rider would make enforcement of NSR impossible. Congress does not pass the rider. (Washington Post 11/15/1999)

Governor of New Jersey Christine Todd Whitman announces that her state has joined the federal government’s lawsuits (see November 3, 1999) against several mid-west and southeast utility companies for allegedly releasing tens of millions of illegal emissions in violation of the New Source Review section of the Clean Air Act. Governor Whitman says: “We’ve done much here in New Jersey to ensure that our residents can breathe clean air. All of our efforts are fruitless, however, if New Jerseyans must breathe the dirty air coming into our state from mid-west coal-burning power plants. This legal action will require that these power plants clean up their emissions and stop polluting our air.” (New Jersey 12/3/1999; Reuters 12/6/1999)

Cinergy Corp., a Cincinnati-based electric utility, agrees to settle a Justice Department lawsuit (see November 3, 1999) over its alleged violation of the New Source Review section of the Clean Air Act. As part of the agreement, Cinergy will spend $1.4 billion to install state-of-the-art pollution controls at 10 coal-fired power plants in Ohio, Indiana, and Kentucky. It is estimated that the plant upgrades will reduce the company’s annual sulfur dioxide and nitrogen oxide emissions by 400,000 tons and 100,000 tons, respectively. The company also agrees to pay an $8.5 million fine and complete $21 million in environmental projects. (Cinergy Corp. 12/21/2000; Environmental Protection Agency 12/21/2000; Associated Press 12/21/2000)

Incoming Vice President Dick Cheney is already working to formulate the new administration’s energy policy, and to do so he is calling on a variety of CEOs and lobbyists for the oil, gas, and energy corporations. Authors Lou Dubose and Jake Bernstein will later observe that Cheney’s “visitor log began to look like the American Petroleum Institute [API]‘s membership list. This was no coincidence.” In early January, an oil and gas lobbyist brings a group of industry executives to the API’s Washington offices to put together a wish list for Cheney and the administration. Shortly after the inauguration, the same lobbyist, J. Steven Griles, will be named deputy secretary of the interior and assigned to work with the Cheney energy task force (see May 16, 2001). Griles will become the conduit for API members to funnel their recommendations directly to the task force. (Dubose and Bernstein 2006, pp. 7)

Two of the first people to meet with the newly inaugurated President Bush are Enron CEO Kenneth Lay and Enron vice president Robert Shapiro. Lay and Shapiro are close political allies of Bush and Vice President Cheney. Lay and his Enron executives were not only the largest campaign donors for the Bush-Cheney presidential effort, but are Bush’s largest lifetime political backers, having financed Bush’s two campaigns for governor of Texas to the tune of some $775,000. Enron sank $1.2 million into the various 2000 Republican political campaigns, with the lion’s share of those donations going to the Bush-Cheney campaign. Enron provided more tangible support than just money; during the contentious December 2000 recount debacle in Florida, Enron (and Halliburton) provided corporate jets that shuttled Bush-Cheney lawyers and personnel around Florida and Washington. The early meetings with Bush are matched by meetings between Cheney, Lay, Shapiro, and at least four other Enron executives. (Dubose and Bernstein 2006, pp. 6-7)

The media reports that the Bush White House has apparently been victimized by pranks. During the last days of the Clinton administration, some Clinton officials apparently removed the “W” keys from computer keyboards in the White House and in the Old Executive Office Building, in apparent reference to incoming President George W. Bush’s middle initial. An anonymous White House aide says, “There are dozens, if not hundreds, of keyboards with these missing keys,” and adds: “In some cases the W is marked out, but the most prevalent example is the key being removed. In some cases the W keys have been taped on top of the doorways, which are 12 feet tall.” Chris Lehane, the press secretary for former vice president and Democratic presidential candidate Al Gore, jokes: “My guess is that the White House did not have many reasons to use the letter W over the last couple of years. It’s possible they just fell off because of sheer atrophy.” (Grove 1/23/2001) Lehane laughingly tells the Washington Post, “I think the missing W’s can be explained by the vast left-wing conspiracy now at work.” (Lauerman and Montgomery 5/23/2001) In the following days, the reports will mushroom from tales of a harmless prank into allegations of serious and systematic vandalism and theft by Clinton officials, becoming what many will call “Vandalgate,” or the “Clinton vandal scandal” (see January 26, 2001). These reports will be proven to be complete fabrications (see February 8, 2001, February 14, 2001, and May 18, 2001), apparently started by Bush officials and embellished by conservative reporters and pundits in order to besmirch the Clinton administration (see January 25, 2001).

Online columnist Rich Galen, a former Republican strategist who has numerous contacts within the new Bush administration, reports: “Vice President Dick Cheney’s staffers trying to move into the Office of the Vice President space in the Old Executive Office Building right next to the White House found the offices had been left in complete shambles by the Gore staff on its way out on Friday and Saturday (see January 23, 2001). Every cord and wire, in many offices—telephone, power, computer, and lamp—was slashed. Furniture was tossed, and trash was, literally, everywhere. One person [told Galen] that it was his understanding that Mrs. Gore [the wife of former Vice President Gore] had to phone Mrs. Cheney to apologize.” (Galen 1/24/2001) Conservative gossip writer Matt Drudge uses Galen’s column and his own White House sources to report that, according to a “close Bush adviser,” the damage went “way beyond pranks, to vandalism.” The Los Angeles Times soon debunks the story of the Gore apology by asking the Gores; Vice President Cheney will also say that the phone call never happened. Galen, however, insists that the apology was indeed made. (Lauerman and Montgomery 5/23/2001)

White House spokesman Ari Fleischer says he cannot confirm the extent of the alleged vandalism carried out by Clinton staffers in the last days of the Clinton administration (see January 23, 2001). President Bush intends to change the tone in Washington to a positive one, Fleischer says, and as a result, the White House will not comment on the charges of rampant vandalism and theft. “Whether things were done that were perhaps less gracious than should have been, it is not going to be what President Bush focuses on, nor will it be what his staff focuses on,” he says. “Whatever may have been done, we are going to just put our heads down and look ahead.” (NewsMax 1/26/2001; Kettle 1/26/2001)
Hints and Innuendos - However, the White House is “cataloguing” the damage allegedly done by Clinton staffers, Fleischer says. When asked what is being catalogued, Fleischer responds: “I choose not to. I choose not to describe what acts were done that we found upon arrival because I think that’s part of changing the tone in Washington.” Sensing more to the story, reporters hone in, asking why make a catalogue “if you’re going to give them a pass,” what the dollar estimate of damage might be, and other questions. When a reporter says, “You’ve got to blame somebody,” Fleischer cuts him off: “President Bush is not going to come to Washington for the point of blaming somebody in this town. And it’s a different way of governing, it’s a different way of leading.” When asked what he knows of the supposed apology offered to Vice President Cheney’s wife by former Vice President Gore’s wife (see January 24, 2001), Fleischer says, “I know that a phone call was made to the vice president’s office, but I really—I don’t recall who made it.” When asked where the majority of the alleged damage was, Fleischer says, “You know, I really stopped paying attention to all the different places.” Finally, when asked whether some of the damage could actually be the result of renovations and normal repairs, Fleischer says, “I don’t think that the people who were professionals, who make their business to go in and prepare a White House for new arrivals, would cut wires.” Fleischer ends the briefing, having given reporters enough hints and implications of severe, widespread vandalism to whet their appetites. (Lauerman and Montgomery 5/23/2001)
Story Fed by Fleischer, White House Officials - The allegations of vandalism and theft will prove to be almost entirely false (see February 14, 2001 and May 18, 2001). Salon will later report that while Fleischer and other White House officials publicly remain above the fray, in private they are feeding the controversy by giving detailed off-the-record interviews to selected reporters, pundits, and talk show hosts. One White House reporter will later admit that the story was pushed by at least two “unnamed Bush aides.” Salon correspondents Kerry Lauerman and Alicia Montgomery add: “Fleischer and the off-the-record Bush staffers, meanwhile, got a lot of help from a press corps eager for early scoops from a new administration. For some reporters and pundits, the White House vandalism story was just too good to pass up.” (Lauerman and Montgomery 5/23/2001) A Washington Post report later states: “A high-level Republican who saw some of the damage said the White House was leery about putting information out about this because chief of staff Andrew Card Jr. did not want to appear to be ratting on the Clinton administration. ‘People wanted to talk about this, and Andy said no,’ an official said.” (Allen 1/26/2001)
Stories Debunked - It will not be long before the stories are proven almost entirely false (see February 8, 2001, February 14, 2001, and May 18, 2001).

The Bush White House alleges that officials and aides from the outgoing Clinton administration vandalized the White House in the last days before Bush officials took over. Conservative news site NewsMax reports that the “slovenly misfits” of the Clinton administration “left the [White House] in a shambles” in the transition between the outgoing Clinton administration and the incoming Bush administration. Clinton aides engaged in “deliberate vandalism,” the report says, and cites a General Services Administration (GSA) official estimating that it may cost up to $250,000 to repair the damage. NewsMax quotes a report by another conservative publication, the American Spectator, which itself quotes “an inspector… called in to assess the vandalism as saying that several executive desks were damaged to the point that they must be replaced, and several more offices must be repainted because of graffiti.” (Kettle 1/26/2001; NewsMax 1/26/2001) Conservative Internet gossip writer Matt Drudge reports that “White House offices [were] left ‘trashed’” and so-called “[p]orn bombs [and] lewd messages” were left behind. No explanation of what Drudge meant by the “porn bomb” allegation is ever given. (Curl 1/27/2001) The allegations of vandalism and theft will prove to be almost entirely false (see February 8, 2001, February 14, 2001, and May 18, 2001).
Gore's Staffers Charged with Worst of Vandalism - British newspaper The Guardian repeats earlier claims that the worst of the damage was found in offices once occupied by staffers for former Vice President Al Gore, and that Gore’s wife, Tipper, has phoned Lynne Cheney, the wife of Vice President Dick Cheney, to apologize for the damage. The story is false (see January 24, 2001). (Kettle 1/26/2001)
Reports: Cut Phone Lines, Extensive Damage, Pornographic Photos - Both the Washington Post and The Guardian report allegations that computer and telephone lines were “sliced,” voice-mail messages were changed to “obscene remarks and lewd greetings,” desks were overturned, and trash strewn throughout the premises. The reports add that filing cabinets were glued shut with Superglue, pornographic photographs displayed in printers, and “filthy graffiti scrawled on at least one hallway wall.” The Spectator’s inspector adds that “[e]ntire computer keyboards will have to be replaced because the damage to them is more extensive than simply missing keys,” referring to allegations that some White House keyboards had the “W” keys pried off. The Spectator also reports tales of former Clinton staffers reportedly “laughing and giggling about the mess their former colleagues left behind.” A Bush White House official calls the White House “a pigsty” in the aftermath of the transition. “The Gore and Clinton people didn’t ‘clean out’ the place because there was nothing clean about what they did before they left.” The GSA will pursue the former Clinton officials for reimbursement and expenses. The Spectator reports that “investigators” conclude the damage was “the result of a carefully organized campaign of vandalism unlike anything ever seen in the aftermath of a presidential transition.” (NewsMax 1/26/2001; Kettle 1/26/2001; Allen 1/26/2001) The New York Daily News reports, “The destruction was so vast that a telecommunications staffer with more than a quarter-century of service was seen sobbing near his office one night last week.” (DeFrank 1/27/2001) CNN’s Paula Zahn observes: “All right, but this is the White House, for God’s sakes. We’re not talking about people living in a fraternity.” (Fairness and Accuracy in Reporting 5/21/2001) Fox News is particularly vehement in its coverage. “They trash[ed] the place,” says Fox commentator Sean Hannity. ”$200,000 in furniture [was] taken out.” Fellow Fox commentator Oliver North (see May-June, 1989) adds: “We should expect from white trash what they did at the White House.… I recommend that what the Bush White House do is peel the wallpaper off that they defaced with their graffiti and ship it off to the Clinton Library so people can see it.” Fox host Bill O’Reilly says, “I mean, the price tag right now is about $200,000, so that’s a felony right there.” And O’Reilly guest Tom Schatz says, referring to the famous film about fraternity life, “They turned it into Animal House.” (Goldstein 2/8/2001; Fairness and Accuracy in Reporting 5/21/2001)
Air Force One 'Stripped Bare,' Reports Claim - The Guardian also reports that during former President Clinton’s last trip in Air Force One, the presidential jet was subjected to what it calls “an orgy of pilfering” (see January 25-27, 2001). It was “stripped bare” by aides, who reportedly took china, silverware, salt and pepper shakers, and other items, most bearing the presidential seal. (Kettle 1/26/2001) On Fox, Hannity charges, “They strip[ped] Air Force One of the china and everything else that wasn’t bolted down.” (Goldstein 2/8/2001)
Clinton Officials Admit to 'Pranks,' Bush Officials Allege Attempts at Theft - Clinton and Gore officials deny the reports of vandalism, but admit to carrying out pranks such as removing the “W” keys and affixing satirical signs to office doors that read, “Office of Strategery,” “Office of Subliminable Messages,” and “Division of Uniting.” A former Clinton official says, “It’s childish, but it’s also funny.” However, a senior Bush official accuses Clinton staffers of attempting to steal White House paintings and official seals from doors, and attempting to have those items shipped to themselves; Bush officials have ordered that all packages leaving the White House be X-rayed. (Allen 1/26/2001)
Bush Aide Documenting Damages - A Bush White House aide has been delegated to document the vandalism, videos are being taken of the damages, and White House officials are being interviewed. White House press secretary Ari Fleischer has confirmed that the administration is reviewing reports of the alleged vandalism. (NewsMax 1/26/2001) Bush himself downplays the reports, saying: “There might have been a prank or two, maybe somebody put a cartoon on the wall, but that’s okay. It’s time now to move forward.” (DeFrank 1/27/2001)

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)

Former President Clinton asks aides to investigate reports of vandalism alleged to have been perpetrated by outgoing members of his staff (see January 25-27, 2001 and January 26, 2001). If warranted, Clinton says he and his former officials will “make amends.” Clinton spokesman Jake Siewert says that Bush officials declined to allow Clinton officials to examine the reported damage: “We made an offer to go over and survey what was done—take a look and see if we can make amends. We asked to take a look at the damage and offered to try to sort it out. They said that it was isolated incidents and that that would not be necessary.” (Los Angeles Times 1/30/2001) The allegations of vandalism and theft will prove to be almost entirely false (see February 8, 2001, February 14, 2001, and May 18, 2001).

The National Security Agency seeks the assistance of global telecommunications corporation AT&T to help it set up a domestic call monitoring site to eavesdrop on US citizens’ phone communications, according to court papers filed in June 2006 as part of a lawsuit against AT&T (see October 2001). The NSA is expressly forbidden from spying on US citizens within US borders unless authorized by the Foreign Surveillance Intelligence Court (FISC) (see 1978). When the NSA program, which wiretaps phone and email communications often without court warrants, becomes public knowledge well over four years later (see December 15, 2005), President Bush, NSA Director Michael Hayden, and other White House and government officials will assert that the program was set up in response to the September 11, 2001 terrorist attacks. If the claims made in the lawsuit are accurate, these assertions are provably false. “The Bush administration asserted this became necessary after 9/11,” lawyer Carl Mayer will claim in 2006. “This undermines that assertion.” Unbeknownst to most Americans, the NSA is operating a secret “data mining” operation that, by 2006, will have compiled phone records and contact information on millions of domestic phone and email communications. The NSA project is code-named “Project Groundbreaker,” and is ostensibly an above-board attempt announced in June 2000 to have AT&T and other firms help modernize its technological capabilities. The project originally seeks to have AT&T build a network operations center that duplicates AT&T’s facility in Bedminster, New Jersey; this plan will be altered when the NSA decides it will be better served by acquiring the monitoring technology itself. The agency is seeking bids for a project to “modernize and improve its information technology infrastructure,” including the privatization of its “non-mission related” systems support. (Leopold 6/13/2000; Harris 6/30/2006) Groundbreaker’s privatization project is expected to provide up to $5 billion in government contracts to various private firms such as AT&T, Computer Sciences Corporation, and OAO Corporation, (Computerworld 12/4/2000; Cahlink 9/1/2001) and up to 750 NSA employees will become private contractors. Hayden, who has aggressively instituted a corporate management protocol to enhance productivity and has brought in numerous senior managers and agency executives from private defense firms, is a strong proponent of privatizing and outsourcing much of the NSA’s technological operations, and in 2001 will say that he wants the agency to focus on its primary task of breaking codes and conducting surveillance. Hayden does not admit that Groundbreaker is part of a larger NSA domestic surveillance program, (Cahlink 9/1/2001) and publicly, NSA officials say that the project is limited to administrative and logistics functions. (Computerworld 12/4/2000) The covert data mining portion of the project is code-named “Pioneer.” A former, unnamed employee of the NSA, (Harris 6/30/2006) and a former AT&T technician, Mark Klein, will provide the key information about Groundbreaker (see Late 2002, July 7, 2009 and December 15-31, 2005). Klein will say in 2006 that he saw the NSA construct a clandestine area within its switching center in San Francisco, and saw NSA technicians shunt fiber optic cable carrying Internet traffic into that area, which contains a large data bank and secret data mining hardware (see April 6, 2006). Klein will say he knew that the NSA built other such facilities in other switching locations. He will go on to say that the NSA did not work with just AT&T traffic; when AT&T’s network connected with other networks, the agency acquired access to that traffic as well. (Democracy Now! 5/12/2006) The information about AT&T and the NSA will become public knowledge after the 2006 filing of a lawsuit against AT&T and other telecommunications firms (see May 12, 2006 and June 26, 2006).

Knight Ridder is the first newspaper publisher to express public skepticism over White House and media reports of the Clinton “vandal scandal,” which allege that Clinton staffers vandalized and looted the White House and Air Force One in the last days of the Clinton administration (see January 25, 2001 and January 26, 2001). “It was a news story that had a lot going for it,” Knight Ridder correspondent David Goldstein writes, “except on-the-record sources and many hard facts.” Goldstein calls the “vandal scandal” reporting “an example of post-election political warfare waged on a slapstick level” and “clearly a sample of how journalism in Washington is practiced in the age of the 24-hour news cycle and its unceasing demand for information, sometimes regardless of the provenance.” Tom Rosenstiel of the Project for Excellence in Journalism says, “The dirty little secret of the information revolution is often there’s not a lot of verification.” Earlier in the week, US News and World Report printed a story alleging that the White House is spending $10,000 a day repairing the White House telephone system after it was damaged by Clinton staffers, but a White House spokesman responded, “I can’t find any supporting evidence” of that charge. “No one can confirm it.” As for allegations that Clinton staffers looted Air Force One (see January 25-27, 2001), Lieutenant Colonel Dana Carroll of Andrews Air Force Base, which houses the presidential jet, says: “The public was misinformed. There was no china or anything like that missing.” Carroll says the only items missing from Air Force One after the Clintons’ final trip was a tray of 15 glasses, which Clinton staffers say broke during a moment of turbulence; reporters on the aircraft saw the glasses fall and break. Former Clinton strategist James Carville says the reports are little more than efforts to smear Clinton. “It just seems to be like everything else that happens to this president,” he says. Referring to the Whitewater investigations, Carville adds, “Next they’ll be calling for an independent counsel, bring back Ken Starr to investigate this.” House Republican Bob Barr (R-GA) is asking that the General Accounting Office investigate the story (see May 18, 2001). (Goldstein 2/8/2001) In July, Goldstein will call the “vandal scandal” stories “questionable from the beginning.” (American Journalism Review 7/2001)

President Bush tells reporters that Air Force One was not looted and/or vandalized by Clinton staffers, as reports have alleged (see January 25-27, 2001 and January 26, 2001). “I will tell you one thing, just in terms of the former president,” he says. “All the allegations that they took stuff off of Air Force One is simply not true, for example.” Bush says he was told by Air Force One’s chief steward that the stories were false. (Tapper 2/14/2001) Bush’s statement follows confirmation by an Andrews Air Force Base spokesman that nothing had been stolen from Air Force One (see February 8, 2001).

Exxon logo.Exxon logo. [Source: Goodlogo (.com)]One of the first officials to meet with Vice President Cheney’s energy task force (the National Energy Policy Development Group—see May 16, 2001) is James Rouse, the vice president of ExxonMobil and a large financial donor to the Bush-Cheney presidential campaign. Several days later, Kenneth Lay, the CEO of Enron, meets with the group. It will not be his last meeting (see April 17, 2001 and After). The names of the various officials, executives, lobbyists, and representatives who meet with the task force will not be released until 2007 (see July 18, 2007). (Abramowitz and Mufson 7/18/2007)

Peabody Energy logo.Peabody Energy logo. [Source: BNet (.com)]Ira F. Engelhardt and Fred Palmer, the CEO and vice president of Peabody Energy, meet with Andrew Lundquist, the director of Vice President Cheney’s energy task force (the National Energy Policy Development Group—see May 16, 2001). Also at the meeting are Energy Secretary Spencer Abraham and Bush economic adviser Lawrence Lindsey. Peabody, the world’s largest coal company, is preparing a stock offering. The task force’s coal policy recommendations will directly impact the stock market’s response to Peabody’s IPO. The task force releases its recommendations (see May 16, 2001) less than a week before Peabody releases its stock offering on May 21. In part because the energy policy strongly emphasizes the use of coal, Peabody raises $420 million by going public—$60 million more than stock analysts predicted. Authors Lou Dubose and Jake Bernstein will write, “The task force was, in effect, flogging a stock offering.” (Dubose and Bernstein 2006, pp. 17-18)

Duke Energy logo.Duke Energy logo. [Source: University of Michigan]Several officials from the nation’s biggest electric utilities, including Duke Energy and Constellation Energy Group, meet with Vice President Cheney’s energy task force (the National Energy Policy Development Group—see May 16, 2001). The names of the various officials, executives, lobbyists, and representatives who meet with the task force will not be released until 2007 (see July 18, 2007). (Abramowitz and Mufson 7/18/2007)

Joseph Kelliher, a top political appointee on Vice President Cheney’s energy task force (see January 29, 2001) e-mails natural gas executive Dana Contratto with the following question: “If you were King or Il Duce, what would you include in a national [energy] policy, especially with respect to natural gas issues?” The e-mail is never intended to become public knowledge. Kelliher will later become President Bush’s appointee to head the Federal Energy Regulatory Commission (FERC). (Savage 2007, pp. 86)

API logo.API logo. [Source: American Petroleum Institute]James Ford, an official with the American Petroleum Institute (API), sends Energy Department official Joseph T. Kelliher copies of the API’s position papers. In that packet is what the Cheney energy task force (the National Energy Policy Development Group—see May 16, 2001) will describe as a “suggested executive order to ensure that energy implications are considered and acted on in rulemakings and executive actions.” In May 2001, President Bush will issue that selfsame executive order (see May 11, 2001). (Abramowitz and Mufson 7/18/2007)

Conoco logo.Conoco logo. [Source: Perkins Oil (.net)]The chairman of oil giant Conoco, Archie Dunham, meets with Vice President Cheney’s energy task force (the National Energy Policy Development Group—see May 16, 2001). In November 2005, ConocoPhillips CEO James Mulva will claim that no one from Conoco ever met with the task force (see November 16, 2005). (Milbank and Blum 11/16/2005)

British Petroleum logo.British Petroleum logo. [Source: British Petroleum]Officials from British Petroleum, including regional president Bob Malone, meet with Vice President Cheney’s energy task force (the National Energy Policy Development Group—see May 16, 2001). The BP representatives are part of a group of officials from some 20 different oil and drilling companies and organizations to meet with Cheney’s task force in March and April. The other organizations include the National Mining Association, the Interstate Natural Gas Association of America, and the American Petroleum Institute. The names of the various officials, executives, lobbyists, and representatives who meet with the task force will not be released until 2007 (see July 18, 2007). In November 2005, BP America CEO Ross Pillari will testify in a Senate hearing that he does not know about any such meetings (see November 16, 2005). (Milbank and Blum 11/16/2005; Abramowitz and Mufson 7/18/2007)

Senators John Breaux (R-LA) and James Inhofe (R-OK) send a letter to Vice President Dick Cheney asking him, in his capacity as chairman of the National Energy Policy Development Group, to order the suspension of the Environmental Protection Agency’s enforcement of the New Source Review (NSR) section of the Clean Air Act. The senators say utility companies are confused about NSR rules and that the EPA should clarify how it interprets new source reviews. They also asks Cheney to suspend current litigation efforts against several utility companies that were initiated under the Clinton administration (see November 3, 1999). The senators claim that the suits are undermining energy production. (Inhofe 3/23/2001; Reuters 3/30/2001)

Representatives of 13 environmentalist groups meet with officials from Vice President Cheney’s energy task force (the National Energy Policy Development Group—see May 16, 2001). Since late January, some 40 task force meetings have been held, all with oil and energy company executives and lobbyists (see Before January 20, 2001, After January 20, 2001, Mid-February, 2001, Mid-February, 2001, March 5, 2001, March 20, 2001, March 21, 2001, March 22, 2001, April 12, 2001. April 17, 2001, and April 17, 2001 and After). Today is the one day where environmental groups are allowed to have any input. Anna Aurilio of the US Public Interest Group will later say, “It was clear to us that they were just being nice to us.” (Notably, the only people ever identified as “lobbyists” by the task force to the press are the representatives from the environmental groups from today’s meeting.) Their input is neither wanted nor used; an initial draft of the task force’s report has already been prepared and President Bush has already been briefed on its contents. The names of the various officials, executives, lobbyists, and representatives who meet with the task force will not be released for six years (see July 18, 2007). Until this meeting, the only environmentalist group to meet with the Cheney task force has been the Council of Republicans for Environmental Advocacy, founded in 1998 by conservative tax activist Grover Norquist and Gale Norton, now the Bush administration’s Secretary of the Interior. That group is now run by Italia Federici, described by the Washington Post as “socially involved” with Norton’s deputy, J. Steven Griles. (Dubose and Bernstein 2006, pp. 18; Abramowitz and Mufson 7/18/2007)

USOGA logo.USOGA logo. [Source: US Oil and Gas Association]An official from the oil giant Conoco, along with two officials from the US Oil and Gas Association (USOGA), meet with Vice President Cheney’s energy task force (the National Energy Policy Development Group—see May 16, 2001). In November 2005, ConocoPhillips CEO James Mulva will claim that no one from Conoco ever met with the task force (see November 16, 2005). (Milbank and Blum 11/16/2005)

Shell Oil logo.Shell Oil logo. [Source: Terra Daily (.com)]Royal Dutch/Shell Group chairman Sir Mark Moody Stuart, Shell Oil chairman Steven Miller, and two other officials from those firms meet with Vice President Cheney’s energy task force (the National Energy Policy Development Group—see May 16, 2001). In November 2005, Shell Oil president John Hofmeister will claim that no one from Shell ever met with the task force (see November 16, 2005). (Milbank and Blum 11/16/2005)

The White House fails to produce the documentation it says it has compiled on the so-called Clinton “vandal scandal,” the allegations that Clinton staffers looted and vandalized the White House, Air Force One, and the Eisenhower Executive Office Building next to the White House, in the last days of the Clinton administration (see January 26, 2001). As a result, the General Accounting Office (GAO) is unable to pursue an investigation of the allegations as requested by Bush officials. In January, White House press secretary Ari Fleischer told reporters that the White House was compiling a “catalogue” of damages and missing items; in recent days, Fleischer has said that no actual list was being documented, but instead White House staffers (or a single staffer, Fleischer is unclear) were keeping track of the damages “in their heads.” In a letter responding to the GAO’s March request for details about “damage that may have been deliberately caused” by the Clinton administration, Phillip Larsen, a special assistant to the president, tells GAO official Bernard Ungar: “After investigation, we have located no such record. And our repair records do not contain information that would allow someone to determine the cause of the damage that is being repaired.” (Goldstein 6/4/2001)

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)

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).

The General Accounting Office (GAO) tries five times to arrange a meeting with David Addington, the chief counsel for Vice President Cheney, regarding the GAO’s request for information about Cheney’s secret energy task force (see January 29, 2001). Addington rebuffs all attempts to meet with GAO officials, and instead sends a letter refusing to comply with the GAO’s request (see May 16 - 17, 2001). On May 17, Addington leaves a voicemail on a GAO telephone saying that he is not authorized to meet with officials to discuss the task force, but that his letter is complete and “self-explanatory.” (General Accounting Office 8/25/2003 pdf file)

President Bush signs Executive Order 13211. It is a verbatim copy of a “suggested” order sent in March by American Petroleum Institute official James Ford (see March 20, 2001). The executive order, enigmatically titled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” exempts certain industry actions from federal review. (White House 5/22/2001; Dubose and Bernstein 2006, pp. 17)

EPA administrator Christine Todd Whitman tells the Senate Environmental and Public Works Committee that she doesn’t know of any proposal to drop the government’s New Source Review (NSR)lawsuits against utility and energy companies. Her statement is in response to a question from Senator Hillary Clinton who noted that there were reports (see After January 22, 2001) of an internal White House debate over the suits. (US Congress 5/15/2001, pp. 31-32 pdf file; Reuters 5/15/2001) In 1999, the EPA had accused the companies of illegally releasing tens of millions of tons of sulfur dioxide and nitrogen oxide emissions in violation of the NSR section of the Clean Air Act (see November 3, 1999).

National Energy Policy report.National Energy Policy report. [Source: Climate Change Technology Program]Vice President Cheney’s National Energy Policy Development Group releases its energy plan. The plan, titled Reliable, Affordable, and Environmentally Sound Energy for America’s Future, warns that the quantity of oil imported per day will need to rise more than fifty percent to 16.7 million barrels by 2020. “A significant disruption in world oil supplies could adversely affect our economy and our ability to promote key foreign and economic policy objectives, regardless of the level of US dependence on oil imports,” the report explains. To meet the US’s rising demand for oil, the plan calls for expanded oil and gas drilling on public land and the easing of regulatory barriers to building nuclear power plants. (US President 5/16/2001, pp. 8.5 pdf file; Associated Press 12/9/2002; Macalister et al. 1/23/2003)
Emphasis on Foreign Oil - The report places substantial emphasis on oil from the Persian Gulf region. Its chapter on “strengthening global alliances” states: “By any estimation, Middle East oil producers will remain central to world oil security. The Gulf will be a primary focus of US international energy policy.” (US President 5/16/2001, pp. 8.5 pdf file) But it also suggests that the US cannot depend exclusively on traditional sources of supply to provide the growing amount of oil that it needs and will have to obtain substantial supplies from new sources, such as the Caspian states, Russia, Africa, and the Atlantic Basin. Additionally, it notes that the US cannot rely on market forces alone to gain access to these added supplies, but will also require a significant effort on the part of government officials to overcome foreign resistance to the outward reach of American energy companies. (Klare 4/30/2002)
Revamping of Clean Air Act - The plan also calls for a clarification of the New Source Review section of the Clean Air Act, which requires energy companies to install state-of-the-art emission control technology whenever it makes major modifications to its plants. The administration’s energy plan gives the Environmental Protection Agency 90 days to review NSR and determine whether it is discouraging companies from constructing or expanding power plants and refineries. It also instructs the attorney general to review current NSR litigation efforts against utility companies to determine whether those efforts are contributing to the country’s energy problems. “The outcome could determine whether the government drops some cases, approaches others more leniently, or even renegotiates settlements already reached,” the New York Times reports. (US President 5/16/2001, pp. 8.5 pdf file; Jehl 5/18/2001)
Dodging the EPA - The representative of the Environmental Protection Agency (EPA) on the task force had blocked the recommendation of a technique called “hydraulic fracturing.” Sometimes called “fracking,” the technique, used to extract natural gas from the earth, often contaminates aquifers used for drinking water and irrigation. The recommendation was removed to placate the EPA official, then quietly reinserted into the final draft. Halliburton, Cheney’s former firm, is the US leader in the use of hydraulic fracturing. (Dubose and Bernstein 2006, pp. 18)
Cheney Stayed Largely behind the Scenes - Much of the task force’s work was done by a six-member staff, led by executive director Andrew Lundquist, a former aide to senators Ted Stevens (R-AK) and Frank Murkowski (R-AK). Lundquist served as the Bush-Cheney campaign’s energy expert, earning the nickname “Light Bulb” from the president. Lundquist will leave the Bush administration and become a lobbyist for such firms as British Petroleum, Duke Energy, and the American Petroleum Institute. Much of the report is shaped by Lundquist and his colleagues, who in turn relied heavily on energy company executives and their lobbyists. For himself, Cheney did not meet openly with most of the participants, remaining largely behind the scenes. He did meet with Enron executive Kenneth Lay (see April 17, 2001 and After), with officials from Sandia National Laboratories to discuss their economic models of the energy industry, with energy industry consultants, and with selected Congressmen. Cheney also held meetings with oil executives such as British Petroleum’s John Browne that are not listed on the task force’s calendar. (Abramowitz and Mufson 7/18/2007)
Controversial Meetings with Energy Executives - Both prior to and after the publication of this report, Cheney and other Task Force officials meet with executives from Enron and other energy companies, including one meeting a month and a half before Enron declares bankruptcy in December 2001 (see After January 20, 2001), Mid-February, 2001, March 21, 2001, March 22, 2001, April 12, 2001, and April 17, 2001). Two separate lawsuits are later filed to reveal details of how the government’s energy policy was formed and whether Enron or other players may have influenced it, but the courts will eventually allow the Bush administration to keep the documents secret (see May 10, 2005). (Associated Press 12/9/2002)

The General Services Administration (GSA) reports that there was no truth to assertions that Clinton White House officials had vandalized the White House before departing in January 2001. Bush White House officials made those assertions in January (see January 25, 2001), claims which were picked up on and embellished by conservative talk radio hosts and other media reporters (see January 25-27, 2001 and January 26, 2001). The GSA investigated the claims at the request of House Representative Bob Barr (R-GA).
Normal Wear and Tear, Pranks Found - The GSA report finds that nothing unusual had occurred during the transition from the Clinton administration to the Bush administration. “The condition of the real property was consistent with what we would expect to encounter when tenants vacate office space after an extended occupancy,” the GSA report finds. Although some pranks were found to have taken place—“W” keys removed from computer keyboards and signs reading “Office of Strategery” placed on office doors, for example—none of the other alleged actions took place.
No Evidence for Allegations of Vandalism - No computers, copiers, or telephones were destroyed; no lewd graffiti or pornographic images were pasted to walls or displayed on computer monitors. Nothing was stolen either from the White House or from Air Force One, as many reports had insisted (see February 8, 2001 and February 14, 2001).
Attempt to Smear Clinton Administration? - Harvard University’s Alex Jones says: “I think it was this calculated effort to plant a damaging story. There was a sort of fertile ground for believing anything bad.” The General Accounting Office’s Bernard Unger, director for physical infrastructure, says of the GSA investigation, “They told me that there were papers that were not organized lying on the floor and on desks; there were some scratches here and there, but the bottom line was they didn’t see anything really in their view that was significant and that would appear to some as real extensive damage.” Clinton aide Mark Lindsay, who oversaw the transition between the Clinton and Bush administration, says he is pleased that the GSA has set the record straight. “Because of President Clinton, this was one of the smoothest transitions in the history of the presidency,” he says. “This was nothing more than just lies.” Conservative pundit Tony Snow, one of the harshest critics of the Clinton administration over the so-called “vandal scandal” (see January 26, 2001), says, “I’m perfectly willing to admit my error on the aircraft,” but insists that the information he disseminated about vandalism and wholesale theft at the White House was true. “What often happens in Washington is gossip becomes news,” he notes. “That’s not a good thing.” (Goldstein 5/18/2001; Marquis 5/19/2001) Former Clinton chief of staff John Podesta says: “Certainly people inside the [Bush] administration fed this story. At least they got what they wanted out of it.” (Lauerman and Montgomery 5/23/2001)

Cinergy Corp announces that it is backing out of its settlement with the Justice Department. In 1999, the Justice Department filed a suit against the company for allegedly violating the New Source Review section of the Clean Air Act. Cinergy’s decision to pull out of the settlement comes less than a week after the Bush administration announced that it would review all of the Environmental Protection Agency’s enforcement cases (see May 16, 2001). According to the terms of the settlement (see December 21, 2000), the Ohio-based utility company would have spent $1.4 billion on environmental improvements to their plants reducing its annual emissions of sulfur dioxide and nitrogen oxide by an estimated 500,000 tons. (Air Daily 5/21/2001; National Environment Trust 6/29/2006)

White House press secretary Ari Fleischer backs off of previous claims that Clinton administration officials vandalized the White House, and stole all manner of items, during the January 2001 transition between the Clinton and Bush administrations (see January 26, 2001). A General Services Administration report found the allegations virtually without merit (see May 18, 2001). Fleischer is asked about the report, and about his allegations that Bush officials had made a “catalogue” of the vandalism and theft that apparently does not exist. Fleischer now says that he had attempted to “knock… down” reports of alleged vandalism “and draw everybody back and away from this story because it was not something the White House was pursuing.” Fleischer continues: “And I indicated that there was no investigation going on, because there wasn’t. I said, if anything, somebody is cataloguing this. And the next day I further explained that meant that somebody was just keeping mental track of what was taking place. There were no written records about it all. But they were keeping on eye on and noting what did take place as this administration came into office.… The General Services Administration contacted the White House recently and asked if there were any written records of what took place. And just as I indicated, because there were no written records, the White House informed the General Services Administration that we had no written records to provide them. And I think that’s what their report indicated, the White House did not provide them any written records because there were none. Which is what I indicated at the time.” Fleischer says the White House intends “not to live in the past” and focus on “things that took place as this administration entered office…” (White House 5/22/2001) Fleischer fails to acknowledge that it was his hints and innuendos to the White House press corps that encouraged the story to spread (see January 25, 2001).

In the aftermath of the General Services Administration’s report that the Clinton “vandal scandal” never happened (see May 18, 2001), some wonder how involved the Bush administration was in pushing the falsehoods onto the press—and how willing the press was to run with the juicy, but baseless, allegations. Former Clinton press secretary Jake Siewert says: “The media left a very damaging and false impression. I’d hope the reporters [would] go back and try to figure out what went wrong.” Siewert is less critical of the Bush administration’s role in the scandal, saying that “it’s hard to put any blame on the administration.” Siewert also declines to lay blame on Bush press secretary Ari Fleischer, “especially,” Siewert says, “if the guidance he got on the story was wrong” (see May 22, 2001). Washington Post reporter Lloyd Grove, whose short report sparked the entire controversy (see January 23, 2001), says Fleischer is at the heart of the story. “The person who really needs to explain what he was doing was Ari, why he let the story percolate, and why he juiced it with his coy responses,” Grove says. “I think it’s a fair point to ask to what extent Mr. Fleischer’s credibility has been damaged by this.” Washington Post reporter Mike Allen, who contributed much of the Post’s reporting of the alleged vandalism (see January 26, 2001), says Fleischer’s allegation that Clinton staffers “cut [the] wires” of telephones and computers sparked so much coverage (see January 25, 2001). “That seems tough to ignore,” Allen says. Journalism professor Geneva Overholser pins much of the blame on the press: “We wouldn’t have had to go through all this if we had done our job right in the first place.” The media should have pressed harder for documentation and should not have allowed White House sources to remain anonymous, she says. “It’s just amazing what we let people get away with saying.” One White House reporter says that Fleischer did not have to do much more than start the story rolling. “We’re often such willing co-conspirators,” the reporter says. “They don’t have to hatch anything.” (Lauerman and Montgomery 5/23/2001; American Journalism Review 7/2001)

Senator Dianne Feinstein (D-CA) calls for the Senate Committee on Governmental Affairs to hold hearings on a possible improper relationship between Enron and the Federal Energy Regulatory Commission (FERC). Her call for an investigation is prompted by media reports of Enron CEO Kenneth Lay pressuring FERC chairman Curtis Hebert to deregulate the energy industry in ways favorable to Enron (see August 14, 2001). Feinstein writes to Senator Joseph Lieberman (D-CT), the ranking member of the committee, “Despite evidence of manipulation and price gouging in both the electricity and natural gas markets in California and the West, and a finding by FERC last November of ‘unjust and unreasonable’ rates, the commission has failed to take the actions necessary to bring reliability and stability to the marketplace… [I]t is clear that the citizens of the United States, especially the people of California, who are suffering from FERC’s failure to do its job, deserve an investigation and full public hearing into what happened. FERC is a $175 million a year agency charged with regulating the energy industry, and it would be unconscionable if any of the nation’s electricity traders or generators were in a position to be able to determine who chairs or becomes a member of the commission.” Lay is accused of forcing Hebert from his position in favor of another, more Enron-friendly chairman, Pat Wood. Feinstein adds, “Since FERC has refused to fulfill its legally mandated function under the Federal Power Act to restore ‘just and reasonable’ electricity rates, we need to ask whether undue influence by the companies that FERC regulates has resulted in its failure to act… In California, the total cost of electricity in 1999 was $7 billion. This climbed to $28 billion in 2000 and is predicted to reach $70 billion this year. At the same time, with FERC refusing to act, power generators and marketers have made record profits. The people of our nation deserve a full investigation.” (US Senate 5/25/2001)

The general counsel for the General Accounting Office (GAO) sends a letter to Vice President Cheney’s chief counsel, David Addington, explaining that the GAO believes its attempt to investigate Cheney’s secret energy task force (see January 29, 2001, May 16, 2001, and May 16 - 17, 2001) is right and proper under US law. (General Accounting Office 8/25/2003 pdf file)

Bush officials release this photo as evidence of the ‘systematic vandalism’ performed by outgoing Clinton staffers in January 2001.Bush officials release this photo as evidence of the ‘systematic vandalism’ performed by outgoing Clinton staffers in January 2001. [Source: White House / Salon]The White House releases a list of damages it says were done by Clinton staffers as part of the Clinton “vandal scandal,” allegations that the White House and Air Force One were vandalized and looted in the final days of the Clinton administration (see January 26, 2001). White House press secretary Ari Fleischer gives the list to Washington Post reporter Mike Allen, but no one else.
Catalogue Based on Bush Staffers' Recollections - For months, White House officials have claimed they were keeping a “catalogue” detailing the damages done, but until now have failed to produce that catalogue; such a listing was not provided to the General Services Administration (GSA) when it reported that the stories of vandalism and looting were almost entirely false (see May 18, 2001). The General Accounting Office (GAO) reported in April that, partly because of the White House’s refusal to release its list of damages, it could confirm none of the often-sensational claims. According to Allen, the damages include “obscene graffiti in six offices, a 20-inch-wide presidential seal ripped off a wall, 10 sliced telephone lines, and 100 inoperable computer keyboards.” Also, pornographic or obscene phone messages were recorded on 15 telephone lines in various offices, requiring the answering machines to be reprogrammed; some printers had pornographic images inserted in stacks of blank copy paper. Doorknobs and nameplates are also listed as “missing.” Most of the alleged vandalism occurred, not in the White House, but in the Eisenhower Executive Office Building, adjacent to the White House. Fleischer says the catalogue was not prepared until Friday, and is based on what Allen calls “the recollections of officials and career government employees, in response to Democrats’ ‘suggestion that the Bush White House made things up’” (see June 1, 2001).
Blaming Clinton Officials, Democrats, Press - Fleischer tells Allen: “The White House will defend itself and the career employees. We tried to be gracious, but the last administration would not take graciousness. By getting the information out, we hope to put an end to this, so everyone can go on with the policy and business of the government.” Former Clinton officials note that Fleischer’s catalogue bears little resemblance to the lurid claims of widespread destruction and looting made in January. Former presidential press secretary Joe Lockhart says the vandalism allegations were part of a failed Bush strategy to “make the new administration look good by comparison to the last one.” He adds: “If anyone did anything that harmed government property, that’s wrong. But to have suggested there was an organized effort that ran into hundreds of thousands of dollars in damage is grossly wrong and misleading.” House Representative Anthony Weiner (D-NY) says that Fleischer and other Bush officials “deliberately misled the American people and smeared the names of public servants who were guilty of nothing.” Fleischer blames the press for keeping the story alive, saying: “Sometimes, stories just are like water running downhill and you can try to slow down the press, but you can’t stop them. All the White House comments were aimed at moving forward. It was all in the context of drawing reporters back from the story, because that’s what the president wanted.” (Allen 6/3/2001)

The General Accounting Office (GAO) intends to reopen its investigation into the so-called Clinton “vandal scandal,” which alleged that Clinton aides had vandalized and looted both the White House and Air Force One in the final days of the Clinton administration (see January 26, 2001). The General Services Administration has recently found that reports of vandalism and theft are almost wholly false (see May 18, 2001). The GAO wants the list of damages that White House press secretary Ari Fleischer recently gave the Washington Post (see June 2-3, 2001), a list that for months White House officials insisted never existed. “We are going to proceed and do the review,” says Bernard Ungar, the GAO’s director of physical infrastructure. “Now they say there is a list.” In April, the GAO asked for the list, which Fleischer had said in January was being compiled (see January 25, 2001); at that time, White House officials admitted that such a list did not exist except in some officials’ “heads” (see April 18, 2001). White House spokeswoman Claire Buchan says that President Bush and others have been downplaying the “vandal scandal” issue because Bush wanted to “move forward”; however, she says, “when it became clear on Friday that others wanted to pursue this issue, the White House staff reconstructed orally what happened.” Buchan is referring to demands from Anthony Weiner (D-NY) that Bush apologize for smearing Clinton staffers’ reputations with the false allegations (see June 1, 2001). “Nothing has fundamentally changed about this story from the very beginning,” says former Clinton press secretary Jake Siewert. “The White House has been smearing a whole class of people without providing any evidence. Most of us are perfectly willing to accept the fact if it turns out to be that something happened. It’s just been these vague allegations without any proof. If there’s damage, there will be a record. If I wanted to get a phone fixed, there’s a paper trail.” Buchan blames White House service staff, who work at the site regardless of what administration is in office, for the original rumors. (Goldstein 6/4/2001) A year later, the GAO will release a report finding “minor damages” occurred during the Clinton-Bush transition (see June 12, 2002).

David Addington, the chief counsel to Vice President Cheney, writes another letter rebuffing the General Accounting Office (GAO)‘s attempt to secure information about Cheney’s secret energy task force (see January 29, 2001 and May 16, 2001). This time, Addington writes that the GAO lacks the authority to obtain the requested information. He reasons that in statute 31 USC 717, which requires the GAO’s chief, the comptroller general, to “evaluate the results of a program or activity the government carries out under existing law,” the words “existing law” do not include the US Constitution. Under statute 31 USC 712, which requires the comptroller general to investigate “all matters related to the receipt, disbursement, and use of public money,” the task force is only required to inform the GAO of financial cost information—hence Addington’s previous letter informing the GAO about the task force’s mundane expenses (see May 16 - 17, 2001 and June 21, 2001). (General Accounting Office 8/25/2003 pdf file)

Pursuant to his letter to the General Accounting Office (GAO—see June 7, 2001), David Addington, the chief counsel for Vice President Cheney, sends the GAO 77 pages of financial information relating to Cheney’s secret energy task force. The documents cover little more than mundane expenses by the task force, including a pizza bought by task force chief Andrew Lundquist. The GAO will characterize the documents as “virtually impossible to analyze, as they consisted, for example, of pages with dollar amounts but no indication of the nature or the purpose of the expenditure. Nor did the materials reflect any apparent expenses in connection with the work of the six assigned [task force] staff.” (General Accounting Office 8/25/2003 pdf file; Savage 2007, pp. 88-89)

The Wall Street Journal reports that the Justice Department has put all of its New Source Review (NSR) investigations on hold, pending the outcome of a review of NSR by the Environmental Protection Agency. Taken as a whole, the Justice Department probes constitute one of the largest environmental investigations in US history. It has been looking at dozens of firms accused by the EPA, under Clinton, of expanding power plants or refineries without installing state-of-the-art pollution control systems, as required by the NSR section of the Clean Air Act. Together these plants are alleged to have spewed hundreds of millions of tons of illegal emissions into the atmosphere. According to EPA spokeswoman Tina Kreisher, the agency—under order from the White House (see May 16, 2001)—is now trying to determine whether companies can be given “more operational and design flexibility” to meet NSR requirements. Likewise, the Justice Department is also conducting a review. Cristine Romano, a spokeswoman for the department, says the Justice Deparmtment intends to look at the “legal soundness” of the NSR investigations. The Journal also reports that the Justice Department is actually advising companies not to sign settlements, but instead to wait until the EPA review has been completed. For example, Dominion Resources almost agreed to spend $1.2 billion on pollution-control upgrades at its plants as part of a settlement. But according to the Journal, it decided not to on advice offered by the Justice Department. (Fialka and Cloud 6/22/2001)

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).

David Addington, the chief counsel to Vice President Cheney, refuses to accept any more communications from the General Accounting Office (GAO) regarding the GAO’s attempt to learn about the doings of Cheney’s secret energy task force (see January 29, 2001 and May 16, 2001). Addington directs GAO officials to contact a lawyer at the Department of Justice with any further inquiries. (General Accounting Office 8/25/2003 pdf file)

David Addington, the chief counsel for Vice President Dick Cheney, writes a three-sentence letter to the government oversight organization Judicial Watch, rejecting its request for the records of Cheney’s secret energy task force (see June 25, 2001). Addington uses the same argument he used to reject the General Accounting Office’s request for records of the task force (see June 7, 2001): since open-government laws do not apply to the task force, in his opinion, there will be “no disclosure of the materials you requested.” Judicial Watch will file a lawsuit demanding the task force’s records be made available to the public (see July 14, 2001). (Savage 2007, pp. 92)

The conservative government watchdog organization Judicial Watch files a lawsuit demanding the release of documents pertaining to Vice President Cheney’s energy task force (see January 29, 2001 and May 16, 2001). Judicial Watch had requested that Cheney voluntarily turn over the records, a request his office denied (see July 5, 2001). (Savage 2007, pp. 92)

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)

ABC reporter Ted Koppel asks Vice President Dick Cheney about meetings with his “pals” from the oil and energy industries (see January 29, 2001 and April 17, 2001 and After). Koppel is referring to the attempts by Congress to be given the names of the participants in Cheney’s energy task force meetings. Cheney says: “I think it’s going to have to be resolved in court, and I think that’s probably appropriate. I think, in fact, that this is the first time the GAO [Government Accountability Office] has ever issued a so-called demand letter to a president/vice president. I’m a duly elected constitutional officer. The idea that any member of Congress can demand from me a list of everybody I meet with and what they say strikes me as—as inappropriate, and not in keeping with the Constitution.” Authors Lou Dubose and Jake Bernstein will later write, “The vice president was deftly turning a request for records into a constitutional struggle between the legislative and executive branches.” Representative Henry Waxman (D-CA), who issued the original requests before turning them over to the GAO, will put his demands for information on hold because of the 9/11 attacks and the war in Afghanistan, but the case will indeed end up in court (see February 22, 2002). (Dubose and Bernstein 2006, pp. 11-12)

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)

Vice President Cheney’s chief counsel, David Addington, responds to the General Accounting Office (GAO)‘s offer to scale back its request for information regarding Cheney’s energy task force (see July 31, 2001) with another blanket refusal. Addington again asserts that the GAO has no authority to make such a request (see June 7, 2001). (General Accounting Office 8/25/2003 pdf file)

Vice President Cheney sends a letter to Congressional leaders demanding that they order the General Accounting Office (GAO)‘s chief, David Walker, to immediately withdraw his request for records pertaining to Cheney’s secret energy task force (see July 18, 2001). Walker has already scaled back his initial request (see July 31, 2001), but Cheney asserts that even the limited information Walker is requesting would violate “the confidentiality of communications among a president, a vice president, the president’s other senior advisers, and others.” Cheney also rails against “actions undertaken by an agent of the Congress, the comptroller general [Walker], which exceeded his lawful authority and which if given effect, would unconstitutionally interfere with the functioning of the executive branch.” (Savage 2007, pp. 93) The GAO notes that Cheney’s letter does not cite the specific information requested by the GAO, as required by law. (General Accounting Office 8/25/2003 pdf file)

Curtis Hebert of the FERC.Curtis Hebert of the FERC. [Source: PBS]Curtis Hebert is replaced by Pat Wood as the head of the Federal Energy Regulatory Commission (FERC). Hebert announced his resignation on August 6. (US Department of Energy 12/2001) Hebert, a Clinton appointee who nevertheless is a conservative Republican, an ally of Senator Trent Lott (R-MS), and quite friendly towards the energy corporations, had been named to the FERC shortly before Clinton left office; Bush named him to chair the commission in January 2001. (Parry 5/26/2006)
Replaced at Enron Request - Hebert is apparently replaced at the request of Enron CEO Kenneth Lay, who did not find Hebert responsive enough in doing Enron’s bidding. Hebert had just taken the position of FERC chairman in January when he received a phone call from Lay, in which Lay pressured him to back a faster pace in opening up access to the US electricity transmission grid to Enron and other corporations. (Lay later admits making the call, but will say that keeping or firing Hebert is the president’s decision, not his.) When Hebert did not move fast enough for Lay, he is replaced by Pat Wood, a close friend of both Lay and President Bush. (Borger 5/26/2001; Scheer 12/11/2001) Lay apparently threatened Hebert with the loss of his job if he didn’t cooperate with Enron’s request for a more pro-Enron regulatory posture. (CNN 1/14/2002)
Opposed Enron Consolidation Plan - Hebert was leery of Enron’s plan to force consolidation of the various state utilities into four huge regional transmission organizations (RTOs), a plan that would have given Enron and other energy traders far larger markets for their energy sales. Hebert, true to his conservative beliefs, is a states’ rights advocate who was uncomfortable with the plan to merge the state utilities into four federal entities. Lay told Hebert flatly that if he supported the transition to the RTOs, Lay would back him in retaining his position with FERC. Hebert told reporters that he was “offended” at the veiled threat, but knew that Lay could back up his pressure, having already demonstrated his influence over selecting Bush administration appointees by giving Bush officials a list of preferred candidates and personally interviewing at least one potential FERC nominee (see January 21, 2001). (Moyers 2/2/2002; Parry 5/26/2006) According to Hebert, Lay told him that “he and Enron would like to support me as chairman, but we would have to agree on principles.” (Borger 5/26/2001) Hebert added to another reporter, “I think he would be a much bigger supporter of mine if I was willing to do what he wanted me to do.” Lay recently admitted to making such a list of preferred candidates: “I brought a list. We certainly presented a list, and I think that was by way of letter. As I recall I signed a letter which, in fact, had some recommendations as to people that we thought would be good commissioners.…I’m not sure I ever personally interviewed any of them but I think in fact there were conversations between at least some of them and some of my people from time to time.” (Moyers 2/2/2002)
Cheney Behind Ouster - Joe Garcia, a Florida energy regulator, says he was interviewed by Lay and other Enron officials. After Hebert made it clear to Lay that he wouldn’t go along with Lay’s plans to reorganize the nation’s utilities, Vice President Dick Cheney, who supervises the Bush administration’s energy policies (see May 16, 2001, began questioning Hebert’s fitness. (Borger 5/26/2001) Cheney said in May 2001, “Pat Wood has got to be the new chairman of FERC.” In private, Cheney said then that Hebert was out as chairman and Wood was in, though Hebert did not know at the time that his days were numbered. (Moyers 2/2/2002) “It just confirms what we believed and what we’ve been saying, that the Bush-Cheney energy plan is written by corporations and it’s in the interests of the corporations,” says the National Environmental Trust’s Kevin Curtis. (Borger 5/26/2001) Not only was Hebert not responsive enough to Lay’s pressure, but he had become a focus of criticism for his refusal to scrutinize Enron’s price gouging in the California energy deregulation debacle. Wood’s more moderate position helps ease the worries of other states themselves losing confidence in the Bush administration’s deregulation advocacy. (Bradley 1/2/2002)
Hebert Investigating Enron Schemes - And even more unsettling for Enron, Hebert was beginning to investigate Enron’s complicated derivative-financing procedures, an investigation that may have led to an untimely exposure of Enron’s financial exploitation of the US’s energy deregulation—exploitation that was going on under plans nicknamed, among other monikers, “Fat Boy,” “Death Star,” “Get Shorty,” all of which siphoned electricity away from areas that needed it most and being paid exorbitant fees for phantom transfers of energy supposedly to ease transmission-line congestion. (Parry 5/26/2006) “One of our problems is that we do not have the expertise to truly unravel the complex arbitrage activities of a company like Enron,” Hebert recently told reporters. “We’re trying to do it now and we may have some results soon.” (Borger 5/26/2001) Instead, Hebert is forced out of FERC. Senator Dianne Feinstein (D-CA) called for an investigation into Enron’s improper influence of the FERC committee after the media revealed Lay’s phone call to Hebert in May 2001 (see May 25, 2001).

The General Accounting Office (GAO)‘s chief, Comptroller General David Walker, issues a report detailing the history of the GAO’s request for information regarding Vice President Cheney’s secret energy task force, and reiterating its request (see July 31, 2001). The report is sent to President Bush, Cheney, Congress, the attorney general, and the Office of Management and Budget (OMB). It reads in part: “In communications with the vice president’s counsel… we offered to eliminate our earlier request for minutes and notes and for the information presented by members of the public. Even though we are legally entitled to this information, as a matter of comity, we are scaling back the records we are requesting to exclude these two items of information.… The GAO as an institution, and the comptroller general as an officer of the legislative branch, assist the Congress in exercising its responsibilities under the Constitution to oversee, investigate, and legislate. In order to help members of Congress carry out their role and evaluate the process used to develop the National Energy Policy, GAO needs selected factual and non-deliberative records that the vice president, as chair of the NEPDG [National Energy Policy Development Group, the formal name for Cheney’s task force], or others representing the Group, are in a position to provide GAO. The records we are requesting will assist the review of how the NEPDG spent public funds, how it carried out its activities, and whether applicable law was followed.” (David Walker 8/17/2001 pdf file; York 2/20/2002)

Vice President Cheney’s office responds to repeated requests by the General Accounting Office (GAO) for information about Cheney’s secret energy task force (see August 17, 2001) by sending it a list of the task force’s office support staff, and nothing more. The GAO now considers itself empowered by law to file a lawsuit seeking the requested information, and the next day will issue a statement to that effect. (General Accounting Office 8/25/2003 pdf file)

Appeals Court Judge Sonia Sotomayor delivers a lecture at the University of California at Berkeley School of Law. Sotomayor, whose parents are Puerto Rican, speaks on the subject of Hispanics in the judiciary and her own experience as a Latina (Hispanic woman) jurist. After noting the tremendous cultural and ethnic diversity among Hispanics, and citing the ascension of increasing numbers of Hispanics and women to the judiciary, Sotomayor addresses the issue of judges acting without regard for their ethnic heritage or gender. “[J]udges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law,” she says, and notes that while she tries to aspire to that goal: “I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address. I accept the thesis… that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought.… I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that—it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.” She adds: “Justice [Sandra Day] O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases.… I am also not so sure that I agree with the statement. First… there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life. Let us not forget that wise men like Oliver Wendell Holmes and Justice [Benjamin] Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I… believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable.… However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench.” (National Council of La Raza Law Journal 10/2001; Sotomayor 10/26/2001 pdf file; New York Times 5/14/2009) After Sotomayor is nominated to the Supreme Court (see May 26, 2009), many critics will use this speech to accuse her of racism (see May 26, 2009, May 26, 2009, May 26, 2009, May 27, 2009, May 28, 2009, and June 3, 2009).

White House lawyers have become impatient with the interagency group’s (see Shortly Before September 23, 2001) less than full endorsement of the use of military commissions to try suspected terrorists. By late October, Timothy E. Flanigan takes the task of designing a strategy for prosecuting terrorists away from the group and proceeds to focus on military commissions as the only preferable option. The White House lawyers now work more in secret, excluding many agencies and most of the government’s experts in military and international law, but together with the lawyers of the Office of Legal Counsel (OLC), with the intention of drafting a presidential military order. (Golden 10/24/2004) There is a remarkable secrecy surrounding the drafting process (see November 11-13, 2001). Both Attorney General John D. Ashcroft and his deputy, Larry D. Thompson, are closely consulted. But the head of the Justice Department’s Criminal Division, Michael Chertoff is kept out of the loop. Secretary of Defense Donald H. Rumsfeld is informed through his general counsel, William J. Haynes. Other Pentagon experts, however, are excluded. (Golden 10/24/2004) When the order is signed (see November 13, 2001), many express surprise. “That came like a bolt from the blue,” a former Pentagon official says. “Neither I nor anyone I knew had any insight, any advance knowledge, or any opportunity to comment on the president’s military order.” (Goldenberg 6/9/2004) “I can’t tell you how compartmented things were,” retired Rear Adm. Donald J. Guter, the Navy’s Judge Advocate General, later recalls. “This was a closed administration.” (Golden 10/24/2004)

President Bush issues a three-page executive order authorizing the creation of military commissions to try non-citizens alleged to be involved in international terrorism (see November 10, 2001). The president will decide which defendants will be tried by military commissions. Defense Secretary Rumsfeld will appoint each panel and set its rules and procedures, including the level of proof needed for a conviction. A two-thirds vote is needed to convict a defendant and impose a sentence, including life imprisonment or death. Only the president or the secretary of defense has the authority to overturn a decision. There is no provision for an appeal to US civil courts, foreign courts, or international tribunals. Nor does the order specify how many judges are to preside on a tribunal or what qualifications they must have. (US Department of Defense 11/13/2001; Lardner and Slevin 11/14/2001; Golden 10/24/2004)
Questionable Rule of Evidence Adopted - The order also adopts a rule of evidence stemming from the 1942 Supreme Court case of United States v. Quirin that says evidence shall be admitted “as would… have probative value to a reasonable person.” This rule, according to Judge Evan J. Wallach, “was repeatedly used [in World War II and in the post-war tribunals] to admit evidence of a quality or obtained in a manner which would make it inadmissible under the rules of evidence in both courts of the United States or courts-martial conducted by the armed forces of the United States.” (Wallach 9/29/2004) Evidence derived from torture, for example, could theoretically be admitted. It should be noted that the order is unprecedented among presidential directives in that it takes away some individuals’ most basic rights, while claiming to have the power of law, with the US Congress not having been so much as consulted.
Specifics Left to Rumsfeld - Bush’s executive order contains few specifics about how the commissions will actually function. Bush will delegate that task to Rumsfeld, although, as with the order itself, White House lawyers will actually make the decision to put Rumsfeld in charge, and Bush will merely sign off on the decision (see March 21, 2002). (Savage 2007, pp. 138)
Dispute over Trial Procedures - During the next few years, lawyers will battle over the exact proceedings of the trials before military commissions, with many of the military lawyers arguing for more rights for the defendants and with Defense Department chief counsel William J. Haynes, and Justice Department and White House lawyers (including White House counsel Alberto Gonzales, vice presidential counsel David Addington, and Gonzales’ deputy Timothy Flanigan) taking a more restrictive line. (Golden 10/24/2004)
Out of the Loop - Both National Security Adviser Condoleezza Rice and Secretary of State Colin Powell were left outside of the circle during the drafting of this directive (see November 6, 2001 and November 9, 2001). Rice is reportedly angry about not being informed. (Golden 10/24/2004)
Serious 'Process Failure' - National Security Council legal adviser John Bellinger will later call the authorization a “process failure” with serious long-term consequences (see February 2009).

Salim Hamdan is captured in Afghanistan. (Guantanamo Military Commissions 11/20/2007 pdf file) Hamdan is an Arab who has lived in Afghanistan for some time and has some knowledge about al-Qaeda and its operations there. He will later become well known after he is transferred to Guantanamo and engages in a series of legal battles to gain his freedom (see November 8, 2004 and June 30, 2006). (Gomez 7/24/2008; Mikkelsen 7/24/2008) At some point, he is handed over to the FBI. However, agents for the bureau do not read him his Miranda rights. “Our policy at the time was not to read Miranda rights,” FBI special agent Robert Fuller will say in testimony at a US military commission hearing for Hamdan. Reuters will later write, “Similar warnings must be given to suspects in US military custody, and suspects overseas who may face US charges commonly receive warnings.” FBI special agent Stewart Kelley will say, “If they are a suspect, and they are detained, a Miranda is usually given.” (Mikkelsen 7/24/2008)

Salim Hamdan, a detainee with some knowledge about al-Qaeda who was captured in late November, takes FBI agents on two tours of facilities associated with al-Qaeda in Afghanistan. Hamdan and the agents twice drive around Kandahar in the months after his capture and he points out compounds owned by Osama bin Laden, including Tarnak Farms, and guest houses where al-Qaeda members could safely stay, which the agents take pictures of. Robert Fuller, one of the agents who accompanies Hamdan, will later say: “The first compound, when we arrived to it, it was destroyed. No roof was left.” The second compound is intact, and “in great shape,” according to Fuller. Hamdan also tells the FBI of his time at a training camp, but says he only stayed for a month and then returned to a guest house to be with his family. In addition, he identifies several high-ranking al-Qaeda officials and describes visits by bin Laden and other al-Qaeda figures to the camp. They gave speeches and “offered words of encouragement,” according to FBI agent Craig Donnachie. (Gomez 7/24/2008; Mikkelsen 7/24/2008) Despite this co-operation, Hamdan will be transferred to Guantanamo, held there for years, and prosecuted in a military commission (see June 30, 2006).

Vice President Dick Cheney continues to battle the General Accounting Office (GAO)‘s request for the records of his energy task force (see January 29, 2001 and April 17, 2001 and After) in the broadcast media (see July 26, 2001). On Fox News, he reiterates his insistence that he will not turn over any records from the task force unless compelled to do so by the courts, and says indignantly, “They’ve demanded of me that I give Henry Waxman [the California Democratic representative who originated the demand for task force records] a list of everybody I met with, of everything that was discussed, any advice that was revealed, notes and memos of these meetings.” Cheney is lying. The GAO only asked for the minutes from the meetings and the names of the participants (see July 31, 2001 and February 22, 2002), and soon the GAO will scale back its request to nothing more than the names and schedules of the participants and the meetings, not the contents of the meetings themselves. Four years later, when the court case has long been settled in Cheney’s favor (see February 7, 2003), Cheney will still mischaracterize the issue as an improper demand from Congress for an executive branch official to disclose the contents of private conversations and meetings, and therefore destroy “the ability of the president and the vice president to receive unvarnished advice.” Former Justice Department official Bruce Fein will call the argument “bogus, specious, [and] absurd.” (Dubose and Bernstein 2006, pp. 12-13) GAO officials call Cheney’s statement a “critical and highly material misrepresentation” of the facts. (York 2/20/2002)

Senator Carl Levin (D-MI), the chairman of the investigations subcommittee of the Senate Governmental Affairs Committee, and fellow senators Byron Dorgan (D-ND), Ernest Hollings (D-SC), and Joseph Lieberman (D-CT) ask the General Accounting Office (GAO) to evaluate the process by which the Bush administration’s energy policy has been developed (see May 16, 2001). The senators’ request is apparently in support of the GAO’s long-blocked investigation of Vice President Cheney’s energy task force (see January 29, 2001). (General Accounting Office 8/25/2003 pdf file)

The White House declares that the United States will apply the Geneva Conventions to the conflict in Afghanistan, but will not grant prisoner-of-war status to captured Taliban and al-Qaeda fighters. Though Afghanistan was party to the 1949 treaty, Taliban fighters are not protected by the Conventions, the directive states, because the Taliban is not recognized by the US as Afghanistan’s legitimate government. Likewise, al-Qaeda fighters are not eligible to be protected under the treaty’s provisions because they do not represent a state that is party to the Conventions either.
Administration Will Treat Detainees Humanely 'Consistent' with Geneva - In the memo, President Bush writes that even though al-Qaeda detainees do not qualify as prisoners of war under Geneva, “as a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.” The presidential directive is apparently based on Alberto Gonzales’s January 25 memo (see January 25, 2002) and a memo from Vice President Cheney’s chief of staff, David Addington (see January 25, 2002).
Bush Chooses Not to Suspend Geneva between US and Afghanistan - The directive also concludes that Bush, as commander in chief of the United States, has the authority to suspend the Geneva Conventions regarding the conflict in Afghanistan, should he feel necessary: Bush writes, “I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time.” Though not scheduled for declassification until 2012, the directive will be released by the White House in June 2004 to demonstrate that the president never authorized torture against detainees from the wars in Afghanistan and Iraq. (George W. Bush 2/7/2002 pdf file; CNN 2/7/2002; Barry, Hirsh, and Isikoff 5/24/2004; Cohn 1/19/2005; Dubose and Bernstein 2006, pp. 191)
Overriding State Department Objections - Bush apparently ignores or overrides objections from the State Department, including Secretary of State Colin Powell (see January 25, 2002) and the department’s chief legal counsel, William Howard Taft IV (see January 25, 2002). Both Powell and Taft strenuously objected to the new policy. (Savage 2007, pp. 147)
Ignoring Promises of Humane Treatment - The reality will be somewhat different. Gonzales laid out the arguments for and against complying with Geneva in an earlier memo (see January 18-25, 2002), and argued that if the administration dispensed with Geneva, no one could later be charged with war crimes. Yet, according to Colin Powell’s chief of staff, Lawrence Wilkerson, sometime after the Bush memo is issued, Vice President Cheney and Defense Secretary Rumsfeld decide to ignore the portions promising humane treatment for prisoners. “In going back and looking at the deliberations,” Wilkerson later recalls, “it was clear to me that what the president had decided was one thing and what was implemented was quite another thing.” (Dubose and Bernstein 2006, pp. 190-191)

Anthony Gamboa, the general counsel for the General Accounting Office (GAO), reiterates the GAO’s modification of its original request for documents and records pertaining to Vice President Cheney’s energy task force (see January 29, 2001 and May 16, 2001). In a letter to the editor of the Wall Street Journal, Gamboa writes: “The GAO long ago dropped its request for the minutes and notes of the vice president’s meetings with people outside the government, as well as requests for any materials those individuals have given to Mr. Cheney (see July 31, 2001). The GAO simply seeks the names of those he met in his capacity as head of the energy policy task force, when and where he met them, the subject matter of the meetings, and an explanation of the costs incurred.” Cheney responds during an appearance on the late-night talk show The Tonight Show. He explains his continued refusal to cooperate with the GAO: “What’s at stake here is whether a member of Congress [Henry Waxman (D-CA), whom Cheney has accused the GAO of working for] can demand that I give him notes of all my meetings and a list of everybody I met with. We don’t think that he has that authority.” (York 2/20/2002) The GAO’s chief, Comptroller General David Walker, will later call Cheney’s statements “disinformation.” (Savage 2007, pp. 100)

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.” (Schlafly 3/6/2002)

Andrew Lundquist, the White House director of energy policy and the chairman of the Cheney energy task force (see January 29, 2001 and May 16, 2001), resigns from government service. The next day, Lundquist goes into the lobbying business. The Lundquist Group opens offices in what the Boston Globe will call a “posh office building perched kitty-corner from the Capitol.” Lundquist’s business will take in hundreds of thousands of dollars a year from clients such as British Petroleum (see March 22, 2001) and Duke Energy Corporation (see March 5, 2001). (Savage 2007, pp. 346)

The General Accounting Office (GAO) concludes its own investigation of the so-called Clinton “vandal scandal” (see January 26, 2001), and finds that some minor destruction of property did take place within the White House during the final days of the Clinton administration. (Pear 6/12/2002)
Keyboards Damaged, Glue on Desks, Graffiti in Restroom, Stolen Plaque - The GAO finds that about $13,000 to $14,000 of damage actually took place; initial reports from Bush administration sources placed the damages at closer to $250,000. Much of that money was spent on replacing computer keyboards, some of which had the “W” key either pried off or defaced. Other damage included glue smeared on desk drawers, derogatory graffiti written on a stall in a White House men’s bathroom, disparaging messages left on telephone answering machines, and signs with satirical or disparaging messages affixed to White House office doors. A file cabinet had a sticker reading “Jail to the Thief” stuck inside one drawer, obviously referring to allegations that President Bush had stolen the 2000 presidential election. And a foot-wide presidential seal went missing from the Eisenhower Executive Office Building. The GAO report notes that similar pranks and property damage were reported during earlier transitions, including the 1993 transition between the first Bush administration and the incoming Clinton administration. “We were unable to conclude whether the 2001 transition was worse than previous ones,” the report says. “Any intentional damage at the White House complex, which is a national treasure, is both inappropriate and a serious matter. The theft of or willful damage to government property would constitute a criminal act.” Representative Bob Barr (R-GA), a Clinton critic who requested the GAO investigation as well as an earlier investigation conducted by the General Services Administration (see May 18, 2001), says of the GAO report, “The Clinton administration treated the White House worse than college freshmen checking out of their dorm rooms.” (Pear 6/12/2002; Munn 6/12/2002)
Most Allegations Never Confirmed - Salon correspondent Kerry Lauerman notes that the GAO report is “a far cry from what was promised by Republicans like… Barr.” He asks: “Whatever happened to the looting and trashing Barr said would be documented? The expensive paintings that were supposedly stolen from the White House? The ‘cut wires’ that White House press secretary Ari Fleischer had publicly referred to (see January 25, 2001)? The never-explained ‘porn bombs’ that anonymous GOP sources had complained about? The presidential seals that were stolen, or the historical doorknobs that had been yanked off for souvenirs?” Some of the allegations of missing items, such as the missing seal and antique doorknobs, cannot be demonstrated as the result of theft, but are merely listed as “missing.” And many of the items, such as the antique doorknobs, were not on original inventory lists, but, as Lauerman writes, “suddenly showed up on a White House list compiled in June 2001—based on the months-old ‘recollections’ of staffers—which does not exactly scream reliability” (see June 2-3, 2001). (Lauerman 6/13/2002)
Bush White House Demands Further Investigations - Bush officials are reported to be “deeply disappointed” with the report, with White House counsel Alberto Gonzales demanding more details, including the full text of the graffiti and other messages that Gonzales describes as “especially offensive or vulgar.” Gonzales is disappointed that the report did not include, for example, “portions of a sign of a mock Time magazine cover” that was among the prank signs left in the White House, and that apparently contained a profanity. “It is vital to include the substance of specific graffiti, messages and signs observed” in order to fully document the acts of vandalism, Gonzales argues. “The content of a message can—and often does—indicate who wrote the message, and when” and “often provides an insight into the mindset or intention of the person who wrote it.” The GAO responds that such details are “unnecessary and inappropriate.” A Bush administration official accuses the GAO of “undertak[ing] a concerted effort to downplay the damage found in the White House complex.” Lauerman writes: “[I]t’s safe to say that a close reading of the GAO report doesn’t validate the charges of wanton, widespread destruction by the Clinton team. What it does show is the lengths to which the Bush administration went to try to make the scandal charges stick.” (Pear 6/12/2002; Lauerman 6/13/2002)
Degrees of Cooperation - Democratic National Committee spokeswoman Jennifer Palmieri says: “The real scandal here is how much time and money the Republicans have wasted in a vendetta against the Clinton administration. It’s troubling that the White House cooperated so enthusiastically with this investigation, but refused to provide the GAO with records of the energy task force headed by Vice President Cheney” (see May 16, 2001). Bush spokeswoman Anne Womack responds: “The GAO confirmed that damage was done at the White House. We have considered this matter closed for more than a year. Our focus is on moving forward.” (Pear 6/12/2002)
Tremendous Cost of Investigation - Lauerman concludes: “The White House made 78 staffers available for interviews with the GAO, and clearly spent an enormous amount of energy just to try to stick another scandal to the Clintons. (Gonzales’ time alone, billed by the hour, might cost more than the $9,000-plus the GAO blamed on the Clintons.) After 11 months, and an investigation that Democrats told the Washington Post cost $200,000, one somehow expected more. Now that all the facts are in, it seems pretty clear which administration should get the blame for the White House vandal scandal.” (Lauerman 6/13/2002)

District Court Judge Emmet Sullivan rules that if Vice President Dick Cheney wants to have him dismiss a lawsuit brought by the watchdog organization Judicial Watch (see June 25, 2001), Cheney must show him the task force documents so that he can make an informed decision. No one else would see the documents, Sullivan says, and he cites a 1993 ruling forcing the Clinton health care task force to reveal its source documents and allow a judge to decide whether that task force had had outside lobbyists directly participating in its work. Judicial Watch’s director of investigations, Chris Farrell, is jubilant over Sullivan’s ruling. “It was very encouraging,” he will later recall. “It looked like the judge had the intellectual honesty and courage to at least give it an evaluation and a fair look. If, in fact, everything the administration was saying was true, then the judge would look at it and draw that conclusion. At least then the public would have some sense of confidence and trust that the right thing was being done, because a fresh set of eyes had looked at it. Without that check, you don’t know.” But Cheney refuses to comply with the order, and instead appeals Sullivan’s decision, asking an appeals court to summarily dismiss Sullivan’s ruling without first making Cheney show the documents to a judge. The appeals court will turn Cheney down, paving the way for a Supreme Court hearing (see December 15, 2003). (Savage 2007, pp. 160-161)

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. (Yost 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)

The NSA’s secret room in the AT&T switching center.The NSA’s secret room in the AT&T switching center. [Source: PBS]Veteran AT&T technician Mark Klein (see July 7, 2009) takes an informal tour of his company’s facility on San Francisco’s Folsom Street (see Late 2002), along with three other technicians from his Geary Street offices. The tour, Klein will later say, is to introduce the four technicians to the Folsom Street staff, “because they were obviously eventually planning to bring us over there.” Klein learns that the rumors of a “secret room” in the facility are true (see Fall 2002). The secret room is on the facility’s sixth floor and is being built to house some sort of equipment, but Klein is unsure exactly what that equipment might be. Klein and the others see the outer door of the secret room, and a workman working on the door “suddenly [began talking to Klein and his colleages in a] very low voice like he didn’t want to be overheard. He felt like this was something secret, you know, and he didn’t know much about it, and he was saying: ‘None of us can go in there. It’s all secret.’ This was not only an affront to the technicians; it was a violation of union rules, because they were obviously planning to install telecommunications equipment, which is supposed to be the jurisdiction of the union technicians. We had a contract. So the technicians were not only angry about this secret thing that they’re not let in on, but also the fact that there’s work there that they’re excluded from. And they were told nothing about it. So that was it.” Klein is further surprised to learn that only a single non-union technician (whom he only identifies as “Ski,” an AT&T “field support specialist” who has been granted a security clearance by the National Security Agency (NSA)), is allowed to work in the secure room. No union technicians are allowed in, even though the installation work being done is specifically contracted to the union workers. “The regular technician work force was not allowed in the room,” Klein will later state. Klein deduces that this secret room is the long-rumored NSA installation he has been hearing about. Moreover, he notes with some alarm that the room is next door to the 4ESS phone switch, “the traditional workhorse used for AT&T long-distance calls.” Klein will write, “Now my mental alarm bells were ringing, but for the moment there was nothing to do but take some mental notes, particularly since it was not clear exactly what they [the NSA and AT&T] were doing.” (Wired News 4/7/2006; Democracy Now! 5/12/2006; PBS Frontline 5/15/2007; Klein 2009, pp. 26-28) Klein will explain that he chooses not to say anything about his concerns because he is “scared for several reasons, one being, well, this is obviously secret. This is obviously some federal government secret operation that they don’t want nosy people nosing around in, and if I started asking questions I could get into trouble. Furthermore, our jobs were in jeopardy anyway, because [we] were always getting wind that they were planning to close our previous office at Geary Street, and I didn’t need to give them an excuse to fire me. So I thought after thinking about it that the best thing to do is not to say anything and just watch it.” (PBS Frontline 5/15/2007) He later learns that similar cabinets are being installed in AT&T centers in other cities, including Seattle, San Jose, Los Angeles, and San Diego (see Late 2003). (Singel 4/7/2006) The Folsom Street facility is apparently connected to a more central surveillance facility operated out of one of AT&T’s main command centers in Missouri (see Late 2002-Early 2003).

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. (Simon 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. (Milbank 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. (Cornwell 2/25/2003) Another account has Senator Ted Stevens (R-AK) and a number of other congresspeople making the threat to Walker. (Brand and Bolton 2/19/2003) The GAO has previously indicated that accepting defeat in this case would cripple its ability to oversee the executive branch. (Milbank 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). (Milbank 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)

Former Marine colonel and convicted felon Oliver North (see May-June, 1989), now a conservative radio host, is embedded with a Marine unit by Fox News. North reports “rumors” that French officials at the Embassy in Baghdad are destroying documents proving French complicity in Iraq’s chemical—and biological—weapons programs. The report is quickly proven false. Fox spokeswoman Irena Steffen tells a newspaper that North is “a military contributor to Fox. He is neither a reporter nor a correspondent.” (Auletta 5/26/2003)

Map of Iraqi oil fields included in released documents.Map of Iraqi oil fields included in released documents. [Source: Judicial Watch]The conservative government watchdog group Judicial Watch releases documents recently turned over by the US Commerce Department through a Freedom of Information Act (FOIA) request. The documents show some of the activities of the secretive energy task force chaired by Vice President Dick Cheney (the National Energy Policy Development Group—see May 16, 2001). Cheney and the White House successfully blocked Congress from learning even the most basic information about the task force’s activities (see February 22, 2002). The Commerce Department documents include maps of Iraqi oil fields and oil infrastructure, and other charts showing Iraqi oil and gas projects, and a document entitled “Foreign Suitors for Iraqi Oilfield Contracts.” Other maps and documents show detailed information about oil fields and infrastructure in Saudi Arabia and the United Arab Emirates. All of the documents are dated March 2001. Judicial Watch has sought these documents under FOIA since April 2001, and only secured them after a federal judge ordered their release in March 2002. (The Judicial Watch lawsuit was consolidated with a similar suit from the Natural Resources Defense Council.) Why the government waited over a year to release the documents, even after a court order compelling them to do so, is unclear. “These documents show the importance of the Energy Task Force and why its operations should be open to the public,” says Judicial Watch’s Tom Fitton. “This was not about national security. This was about an undersecretary talking to a lobbyist.” (Judicial Watch 7/17/2003; Judicial Watch 7/17/2003; Dubose and Bernstein 2006, pp. 14-15) Authors Lou Dubose and Jake Bernstein call the Iraqi oil field documents “stunning,” and ask: “Why were the vice president and a group of oilmen poring over maps of Iraq long before there was any pretext to invade the country? Iraq’s oil was technically embargoed and under UN control—why make plans for divvying up oil reserves?” Dubose and Bernstein believe that Cheney may have been planning for US control of Iraq long before the Bush administration’s public push for war with that nation. Fitton is not so sure, but says worriedly: “We don’t know because we weren’t given the context. We have no way of knowing what they were deliberating.” (Dubose and Bernstein 2006, pp. 14-15) Judicial Watch, with other public interest groups such as the Sierra Club, will continue to seek information about the Cheney task force (see December 15, 2003 and April 27, 2004).

President Bush signs a bill into law banning so-called “partial-birth abortions.” A similar bill was vetoed by then-President Clinton in 1996 (see April 1996). The bill signing is part of a ceremony of abortion opposition featuring some 400 lawmakers and anti-abortion advocates. The new law, known as the Partial Birth Abortion Ban Act, is the first time the federal goverment has banned an abortion procedure since the 1973 Roe v. Wade decision legalized abortions (see January 22, 1973). A federal judge in Nebraska has already said the law may be unconstitutional, and many observers expect it to be challenged. (CBS News 4/19/2007) Three years later, the Supreme Court will uphold the law (see April 17, 2007).

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