Tuesday, August 28, 2007

Bush and Truman

President Bush, we have been hearing for at least a year, likes to compare himself to Harry Truman, who spent the last two years of his Presidency with approval ratings at least as low as his own, largely because of an unpopular war. The resignation of Attorney General Alberto Gonzales provides an interesting test of that comparison because President Truman, at the same point in his presidency, also had to deal with the problem of an embattled cabinet member—Secretary of State Dean Acheson.

Acheson, a conservative Democrat and a leading Washington attorney, had taken over from George C. Marshall as Secretary of State in 1949. A brilliant, imposing and often arrogant man, he had continued his predecessor’s critical work in Western Europe, including the Marshall Plan, the building up of NATO, and, after 1950, the first steps towards the rearmament of Germany. He had to try to explain to Congress and the American people why the United States was not intervening to stop a Communist victory in the latter stages of the Chinese civil war—in retrospect, a wise decision—and he was also involved in the decisions to develop the hydrogen bomb and to fight in Korea. And meanwhile, beginning in February 1950, he had to deal with Senator Joseph McCarthy’s reckless accusations of dozens, or hundreds, of known Communists working in the State Department (the numbers changed almost every day, but the nature of the accusations and the lack of any proof did not.) At almost the same moment, in January 1950, Acheson’s own loyalty to two friends—Alger Hiss and Hiss’s brother Donald, who had been one of his law partners at Covington & Burling—gave his opponents an irresistible opportunity. Asked in January 1950 for a comment on Hiss’s conviction for perjury (because he had denied giving State Department documents to Soviet spy Whittaker Chambers), Acheson replied that whatever happened, “I am not going to turn my back on Alger Hiss.” The hue and cry began immediately and lasted for a full two years.

A Proquest search for the keywords “Acheson” and “resign” for the years 1950-2 turns up 160 entries. Virtually every leading Republican officeholder joined the hue and cry, including Senator Robert Taft (widely assumed to be the 1952 candidate), Governor Harold Stassen of Minnesota (another leading candidate), Congressman Walter Judd of Minnesota, McCarthy, and, by 1951, a newly elected Senator from California named Richard Nixon. They blamed Acheson for the Korean War because he had refused to state that the United States would definitely defend South Korea if it were attacked in March 1950, but it was Secretary of Defense Louis Johnson, who had been cutting the defense budget for several years, who resigned instead. In 1951 Republicans in the House of Representatives floated the idea of forbidding the State Department from paying Acheson’s salary in an Appropriations Bill, but dropped it. By that time even friendly columnists were suggesting that Acheson had become too much of a political liability to keep, but he stayed in office. The hue and cry resumed after Truman fired another leading figure—General Douglas MacArthur—but to no avail.

President Truman stuck by Acheson for several reasons. Truman himself was loyal to a fault. After Acheson had refused to condemn Hiss, he remarked to the Secretary that he himself had recently taken some heat for attending the funeral of Tom Prendergast, the Kansas City machine boss who had given him his start in politics and who had died not long after emerging from prison. He kept General Harry Vaughn, his military aid, in the White House even though Vaughn was involved in several influence-peddling scandals. But more importantly, Truman simply recognized the attacks on Acheson for what they were—pure partisanship, frequently of the most irresponsible kind—and understood how much critical work the State Department, now under continual attack from McCarthy, Nixon and others, was accomplishing. I am not myself an unreserved admirer of Acheson’s diplomacy by any means. He focused on strengthening the western alliance to the exclusion of any possibility of accommodation with Communist adversaries—a position that led to his estrangement from George Kennan, whom he eventually replaced as director of his Policy Planning Staff with the more hawkish Paul Nitze. He had little understanding of or sympathy for developments in the third world, and endorsed the decision to help the French in Indochina in order to keep them on board for NATO in Europe. He was, as his own memoirs show, every bit as arrogant, if much less verbose, than Henry Kissinger, and he clearly did feel that he was too good for many of his countrymen. But for all that, he was an extremely effective Secretary of State, and he had not, in fact, done anything wrong. During the 1952 campaign Nixon accused Adlai Stevenson, the Democratic Presidential candidate, of having earned a Ph.D from “Acheson’s College of Cowardly Communist Containment,” but Eisenhower failed to find a new policy when he got into office.

Truman repeatedly refused Acheson’s offers to resign and the two men left office together on January 20, 1953.

Surely it is not too soon to note the critical difference in these two cases. Although Acheson had certainly made some debatable decisions and a controversial public statement, he had conducted his office honestly and he had never shrunk from giving the Congress and the people a full accounting. Gonzales was deeply involved in the politicization of the Justice Department and refused to “recall” what he had done, and when. Unlike Acheson, he acted like a man with something to hide. What is noteworthy, however, is the contrast between Truman’s repeated, straightforward affirmations of support for Acheson, and President Bush’s statement yesterday,. Here it is.

“This morning, Attorney General Alberto Gonzales announced that he will leave the Department of Justice, after two and a half years of service to the department. Al Gonzales is a man of integrity, decency and principle. And I have reluctantly accepted his resignation, with great appreciation for the service that he has provided for our country.

"As Attorney General and before that, as White House counsel, Al Gonzales has played a role in shaping our policies in the war on terror, and has worked tirelessly to make this country safer. The Patriot Act, the Military Commissions Act and other important laws bear his imprint. Under his leadership, the Justice Department has made a priority of protecting children from Internet predators, and made enforcement of civil rights laws a top priority. He aggressively and successfully pursued public corruption and effectively combated gang violence.

“As Attorney General he played an important role in helping to confirm two fine jurists in Chief Justice John Roberts and Justice Samuel Alito. He did an outstanding job as White House Counsel, identifying and recommending the best nominees to fill critically important federal court vacancies.

“Alberto Gonzales's tenure as Attorney General and White House Counsel is only part of a long history of distinguished public service that began as a young man when, after high school, he enlisted in the United States Air Force. When I became governor of Texas in 1995, I recruited him from one of Texas's most prestigious law firms to be my general counsel. He went on to become Texas's 100th secretary of state and to serve on our state's supreme court. In the long course of our work together this trusted advisor became a close friend.

“These various positions have required sacrifice from Al, his wife Becky, their sons Jared, Graham and Gabriel, and I thank them for their service to the country.

"After months of unfair treatment that has created a harmful distraction at the Justice Department, Judge Gonzales decided to resign his position, and I accept his decision. It's sad that we live in a time when a talented and honorable person like Alberto Gonzales is impeded from doing important work because his good name was dragged through the mud for political reasons.

“I've asked Solicitor General Paul Clement to serve as Acting Attorney General upon Alberto Gonzales's departure and until a nominee has been confirmed by the Senate. He's agreed to do so. Paul is one of the finest lawyers in America. As Solicitor General, Paul has developed a reputation for excellence and fairness, and earned the respect and confidence of the entire Justice Department.

"Thank you.”

In other words, the President tells us, although Attorney General Gonzales has performed brilliantly and has done nothing wrong, he has to resign because of purely partisan political attacks—exactly what Truman refused to let Acheson do Bush may know (perhaps because of some impending bombshell involving Gonzales, Karl Rove, or both) that the Attorney General’s position was about to become completely untenable. But in any case, he is proving once again that the slogan he likes to use to characterize the days of his youth—“If it feels good, do it, and if you’ve got a problem, blame some one else”—is nothing but projection of the most blatant kind. His Attorney General has to quit—but it’s all the fault of those wicked Democrats.

Mr. President—you’re no Harry Truman.

Saturday, August 25, 2007

The NIE

On Thursday the Office of National Intelligence produced a new NIE on how things in Iraq are going—one which, given the climate in Washington, is a remarkable document. Inevitably, it included enough optimism to allow the White House briefer Gordon Johndroe to cite it as an indication of progress. But it doesn’t take very long to find out that it holds out literally no hope for either a free, democratic or stable Iraq any time in the next five to ten years—and probably, ever.

Let’s take the good news first. Here are the two key paragraphs.

“There have been measurable but uneven improvements in Iraq’s security situation since our last National Intelligence Estimate on Iraq in January 2007. The steep escalation of rates of violence has been checked for now, and overall attack levels across Iraq have fallen during seven of the last nine weeks. Coalition forces, working with Iraqi forces, tribal elements, and some Sunni insurgents, have reduced al-Qa’ida in Iraq’s (AQI) capabilities, restricted its freedom of movement, and denied it grassroots support in some areas. However, the level of overall violence, including attacks on and casualties among civilians, remains high; Iraq’s sectarian groups remain unreconciled; AQI retains the ability to conduct high-profile attacks; and to date, Iraqi political leaders remain unable to govern effectively. There have been modest improvements in economic output, budget execution, and government finances but fundamental structural problems continue to prevent sustained progress in economic growth and living conditions.

“We assess, to the extent that Coalition forces continue to conduct robust counterinsurgency operations and mentor and support the Iraqi Security Forces (ISF), that Iraq’s security will continue to improve modestly during the next six to 12 months but that levels of insurgent and sectarian violence will remain high and the Iraqi Government will continue to struggle to achieve national-level political reconciliation and improved governance. Broadly accepted political compromises required for sustained security, long-term political progress, and economic development are unlikely to emerge unless there is a fundamental shift in the factors driving Iraqi political and security developments.” [All boldface in the original.]

Now I have laid a lot of stress in these pages on keeping track of the overall level of violence in Iraq, both as reflected in American casualties (which have substantially increased, not fallen, over the last six months), attacks on Americans (which have reportedly declined, although that is something of a paradox given the casualty figures), and deaths of Iraqis (which are indeed somewhat down from their peak.) The estimate states that the escalation of levels of violence “has been checked,” which could mean that it is still increasing, but at a slower rate. It says more specifically that overall attacks have indeed fallen in seven of the last nine weeks. But the summary—the only part of the estimate which ordinary Americans like us can read—doesn’t give any actual figures. And meanwhile, its statements about these favorable trends have to be read in light of a lengthy disclaimer which its authors had the honesty to include earlier in their presentation, to wit:

“Analytic Caution: Driven largely by the accelerating pace of tribal engagement and the increasing tempo of Coalition operations, developments in Iraq are unfolding more rapidly and with greater complexity today than when we completed our January NIE. Regional variations in security and political circumstances are great and becoming increasingly more distinct––for example, intra-Shia violence in southern Iraq is very different from patterns of violence elsewhere. The intelligence assessments contained in this NIE largely focus on only a short period of the Iraqi conflict—the last six months—and in circumscribed areas—primarily the central provinces, which contain the center of gravity for Iraq’s security prospects and in which we have a greater Coalition presence and therefore more information. The unfolding pace and scope of security and political realities in Iraq, combined with our necessarily limited focus of analysis, contain risks: our uncertainties are greater, and our future projections subject to greater chances of error. These issues, combined with the challenges of acquiring accurate data on trends in violence and continued gaps in our information about levels of violence and political trends in areas of Iraq without a substantial Coalition presence and where Intelligence Community collectors have difficulty operating, heighten our caution. Nonetheless, we stand by these judgments as our best collective assessment of security and political conditions in Iraq today and as likely to unfold during the next six to12 months.” [italics added.]

In other words, what we are saying applies only to one critical area of the country, the central provinces, and our data for much of the country is inadequate—which may explain why no figures for attacks, etc., were given in the unclassified summary.

Meanwhile, what is the nature of the progress? That is quite clearly stated. In Sunni areas—particularly in Anbar province—the American authorities have made deals with local sheiks, involving substantial transfers of arms and reconstruction money. In return, the sheiks and their tribes, who obviously include many former insurgents, are cooperating against recalcitrant insurgents led by Al Queda in Iraq (AQI), which the Administration has now defined as the main threat (and sometimes speaks of as if it were the source of all our problems there.) This has made life safer (though by no means safe) for American troops and has allowed violence against Iraqis in those areas to fall. The NIE calls these tactics “bottom-up security initiatives.” This step does represent typical counterinsurgency practice (though not the kind of counterinsurgency theory of putting Americans among the people that General Petraeus likes to talk about): dividing the occupying country in order to rule it, and paying off some of its natural leaders. That’s what the British did all over the world, what settlers in the United States frequently did to control Indian tribes, and what the French did in North Africa. It’s a return, in other words, to traditional colonialism, and to work in the long run it would require an indefinite presence and flow of arms and money from the United States. (In a way it’s the same strategy we have pursued to try to control Egypt, Israel, and the Gulf states, but in those cases we deal with national governments instead of sheiks, and we sell sophisticated weaponry instead of handing out AK-47s.)

Unfortunately, as the NIE points out, this strategy is utterly at odds with our professed goal of a united, democratic, non-sectarian Iraq. I quote again:

“Sunni Arab resistance to AQI has expanded in the last six to nine months but has not yet translated into broad Sunni Arab support for the Iraqi Government or widespread
willingness to work with the Shia. The Iraqi Government’s Shia leaders fear these
groups will ultimately side with armed opponents of the government, but the Iraqi
Government has supported some initiatives to incorporate those rejecting AQI into
Interior Ministry and Defense Ministry elements. . . . .

The I[ntelligence] C[ommunity] assesses that the emergence of “bottom-up” security initiatives, principally among Sunni Arabs and focused on combating AQI, represent the best prospect for improved security over the next six to 12 months, but we judge these initiatives will only translate into widespread political accommodation and enduring stability if the Iraqi Government accepts and supports them. A multi-stage process involving the Iraqi Government providing support and legitimacy for such initiatives could foster over the longer term political reconciliation between the participating Sunni Arabs and the national government. We also assess that under some conditions “bottom-up initiatives” could pose risks to the Iraqi Government. . .

We judge such initiatives are most likely to succeed in predominantly Sunni Arab areas, where the presence of AQI elements has been significant, tribal networks and identities are strong, the local government is weak, sectarian conflict is low, and the ISF [Iraqi Security Forces] tolerate Sunni initiatives, as illustrated by Al Anbar Province.”

The new strategy, in other words, stands a good chance of partially pacifying some Sunni areas, but the Shi’ite-dominated Iraqi government resents it because it is strengthening its enemies. (Several reports of clashes between Prime Minister Al-Maliki and General Petraeus on this point, as well as accounts of armed confrontations between Sunni militias sponsored by the US and Iraqi security forces, have found their way into print recently.) In effect, if not intentionally, we are giving up on reconciling the Sunnis to Shi’ite rule—and this could conceivably be a positive step somewhere down the road, but only if we follow this logic further and completely change our policy objectives.

Other information in the NIE, however—confirmed and supplemented by recent reports from other sources—suggests that the new strategy is doing nothing at all about the most serious problem in Iraq, sectarian violence and ethnic cleansing. The NIE states:

Population displacement resulting from sectarian violence continues, imposing burdens on provincial governments and some neighboring states and increasing the danger of destabilizing influences spreading across Iraq’s borders over the next six to 12 months. The polarization of communities is most evident in Baghdad, where the Shia are a clear majority in more than half of all neighborhoods and Sunni areas have become surrounded by predominately Shia districts. Where population displacements have led to significant sectarian separation, conflict levels have diminished to some extent because warring communities find it more difficult to penetrate communal enclaves.”

An NGO report last week went even further—the displacement of Iraqis accelerated during the last six months. The above paragraph is rather striking because it could actually be read to suggest that we should be encouraging peaceful population transfers, since homogeneous neighborhoods will be quieter and more secure. But more importantly, it really suggests the irrelevance, sadly, of the sacrifices of the 150,000 troops in Iraq to what is actually going on—the partition of the country along ethnic lines, in total opposition to our stated objectives.

There are other troubling signs with respect to what the surge actually consists of. It has put American troops among the people—but we learn today that they have also been arresting and detaining Iraqis at an accelerated rate. Today’s New York Times reports that the American-held inmate population has grown from 16,000 in February to 24,500 today. No one, I am sure, has any real idea of how many of those people were really insurgents, much less of how many of their fathers, sons and brothers will begin helping insurgent groups because of their arrests. We are also calling in lots of air strikes in urban areas, drawing repeated protests from Iraqis that many of the casualties are women and children. As in Vietnam, the American military simply will not abandon superior firepower as a response to insurgency, despite the enormous wealth of historical evidence that the tactic is completely counterproductive.

Despite all this, the NIE reports the changes in the military situation, very guardedly, as relatively good news. The bad news, of course, relates to Iraqi national politics, where the NIE can’t find anything good to say.

The IC assesses that the Iraqi Government will become more precarious over the next six to 12 months because of criticism by other members of the major Shia coalition (the Unified Iraqi Alliance, UIA), Grand Ayatollah Sistani, and other Sunni and Kurdish parties. Divisions between Maliki and the Sadrists have increased, and Shia factions have explored alternative coalitions aimed at constraining Maliki.

The strains of the security situation and absence of key leaders have stalled internal political debates, slowed national decision-making, and increased Maliki’s vulnerability to alternative coalitions.

We judge that Maliki will continue to benefit from recognition among Shia leaders that searching for a replacement could paralyze the government.”

Maliki, in other words, who has no support from Sunni areas, has lost control of his own coalition of Shi’ites and Kurds, and only the difficulty of finding a replacement is allowing him to keep his job. The estimate continues to declare that local authorities are gaining at the expense of the central government all over Iraq—including the Shi’ite south, where various militias are competing for power—and that Iran, Saudi Arabia, and Turkey are all watching various aspects of the situation closely and becoming more and more involved. The NIE says that an American draw down may make things worse, and they could be right.

The U.S. intervention, in short, has turned Iraq into a much larger and richer Lebanon—a nation ruled by local sectarian factions, heavily influenced by outside powers. Even now it seems that the Iranians, who seem to have much better relations with the Shi’ite leadership than we do, are getting more benefit from this than anyone else. I can’t see the slightest evidence that the trend towards fragmentation can be reversed, and I can’t really see much benefit for the United States for continuing its role. Today’s papers have another story—that the top military leadership in the Joint Chiefs of Staff believe that we simply must begin drawing down troops in Iraq to restore the Army and the Marines. General Petraeus, the theater commander, naturally feels differently.

To have turned one of the largest, richest, and best-organized nations in the Middle East—a totalitarian dictatorship, yes, but one with a substantial middle class—into a chaotic struggle among sects and feudal fiefdoms is perhaps the worst outcome in the history of American foreign policy. We did a great deal of harm in Vietnam and Cambodia—and in Cambodia we helped bring about chaos in the same way, by undermining the existing government and spreading war into its territory—but Vietnam has been able to recover, prosper, and actually become friendly to the United States within 30 years. I do not think that will happen in Iraq. It could, perhaps, develop into three relatively stable entities, although it is far from clear that any real peace between Shi’ites and Sunnis is possible. Since that seems like by far the best possible outcome, I think the United States should try to pursue it. I am not confident, however, that our policy will change even in 2009—but that’s a subject for another post involving the foreign policy controversies among the Democratic candidates.

Saturday, August 18, 2007

Rove's victory

During 2004, a senior White House official, widely thought to be Karl Rove, was quoted as saying that the Administration now created its own reality, making it impossible for the "reality-based community" to keep up. Some time later I indirectly heard that Rove had made an even bolder statement--that reality was what he said it was, and that if he could convince 51% of the American people that he was right, nothing else mattered. Rove's sudden and as yet quite unexplained resignation on Monday confirmed how successful he was in several respects--even among his supposed opponents in the reality-based community, the nation's elite newspaper reporters. Here are some of the things the analysis pieces said about him.

“His advocates credit him with devising a winning strategy twice in a row for a presidential candidate who seemed to start out with myriad weaknesses. His detractors blame Rove for a style of politics that deepened divisions in the country, even after the unifying attacks of Sept. 11, 2001. Both sides attributed outsize qualities to him, and he enjoyed mythic status for much of the Bush presidency.” (Anne E. Kornblut and Michael D. Shear, the Washington Post. )

"But Mr. Rove leaves the White House anything but victorious. His legendary reputation, forged by steering George W. Bush to two arguably unlikely victories, was seriously diminished by the Republican defeats of 2006. He is blamed in Republican circles for many of the political problems President Bush has suffered in a difficult second term — problems that occurred as Mr. Rove expanded his writ and tried his hand at policy." Adam Nagourney, New York Times)

"In nearly a decade as the guiding political strategist for George W. Bush and the Republican Party, Karl Rove was often hailed as a genius. He masterminded Bush's rise to national prominence, directed his two winning presidential campaigns and wrote a campaign playbook for GOP success in Congress and statehouses across the country." Tom Hamburger and Peter Wallstein, Los Angeles Times.

The flaw in this picture was pointed out by Sidney Blumenthal in Salon. Rove did not mastermind a George W. Bush victory in 2000; he masterminded a defeat. Bush lost the popular vote by a substantial margin. In Florida a very measurable majority of voters went to the polls intending to vote against him, but four things went wrong. First, hundreds were prevented from voting by a pre-election purge of the rolls that relied on the broadly similar names of Florida voters and felons from other states. Second, the misleading ballot in Palm Beach cost Al Gore at least a few hundred votes. Thirdly, the votes (as we learned many months later) were miscounted in Republican areas, giving Bush a crucial couple of hundred votes. And fourthly, Al Gore asked for only a partial, not a full recount, and five Republican-appointed Supreme Court justices stopped even that, (Congratulations are in order for Mark Silva of the Chicago Tribune and Peter Canellos of the Boston Globe, both of whom managed to write their analyses without referring to a 2000 "victory."

Rove spent the last six years and a half years securing President Bush's power with a mixture of fear, hatred, and corruption. 9/11 enabled the President to step into the role of protector of America's safety, while portraying the Democrats as too soft, both because they wanted to preserve American civil liberties and to fight only those wars that would actually help, rather than hinder, the war on terror. The gay marriage issue helped mobilize the hatred of those who fear sexual difference, especially, I suspect, within themselves. And the whole federal government was largely reshaped to serve the political purposes of the Republican Administration. The rush to privatize government services continued apace, creating more and richer contractors who could make more and bigger campaign contributions. We are now learning how various agencies received political briefings during campaign seasons and apparently targeted programs to key Republican districts. And last year, Rove apparently helped orchestrate a plan to force U.S. Attorneys to bring spurious vote fraud claims against Democrats by firing some of those who refused to do so. Not since the 1870s, when the federal government was much smaller, has it been so brazenly used for purely political purposes.

The success of Rove's broader linguistic strategy continues as well. By the end of last year the essential failure of the Administration's policy in Iraq was very clear to the American people. On the one hand, we had never had even half as many troops as the occupation of Iraq would require; on the other, the political basis for the united, democratic Iraq we sought did not exist. But by going forward rather than back, the Administration has changed the terms of the debate to whether the surge, which never had a chance, is "working"--and has given its many acolytes in the media the chance to claim that it is, despite all evidence (frequently discussed here) that it isn't even changing the military balance in our favor. And the long-term Republican strategy is already clear: to use the surge as the basis for yet another stab-in-the-back theory about how Democrats ended the war just as it as on the verge of victory. (Lots of evidence suggests, indeed, that at least some of the possible Democratic victors in 2008 will be sufficiently intimidated so as to continue the war at a reduced--and therefore even more hopeless--scale.)

None of the stories about Rove referred to the Abramoff scandal. Even though we have known for more than a year that Abramoff aids visited the White House dozens and dozens of times during the first few years of the Bush Adminstration, and even though Abramoff passed a key staffer on to Rove, Rove has so far escaped direct involvement. That investigation is after all being carried out by the Gonzales Justice Department (even though a Special Prosecutor has never been more appropriate.) Perhaps some new revelation is at hand. But at the moment that Rove, standing next to an obviously shaken President Bush, announced his resignation, he went out ahead. He was still controlling the discussion of public affairs in the United States.

After last week's post on executive privilege I had an interesting exhange with a friend of mine, a lawyer and legal journalist, about the state of the law. He pointed out that in several Watergate-era decisions, federal courts gave explicit recognition (sadly) to the idea of executive privilege and the value of confidential communications with the President. (We should note, however, that such communications are not at the heart of the current controversy over U.S. Attorneys.) The most important case on the subject of Congressional power to secure evidence, he said, was Senate Select Committee on Presidential Campaign Activites v. Richard M. Nixon, which the D. C. Court of Appeals decided in May 1974. In it, the court not only acknowledged the existence of executive privilege, but refused to let the Senate Watergate Committee hear five tapes of conversations between Nixon and its star witness, John. W. Dean. The decision, however, was narrowly drawn, and hardly supports Nixon's and Bush's extraordinary claims of immunity from supoena power

The court, speaking through Judge David Bazelon, followed its own precedent of a year later, when it had ordered the White House to turn the same tapes over to the special prosecutor, Archibald Cox. The need for confidentiality, it argued, had to be weighed against competing interests. In the earlier case it had concluded that the competing interest of an effective grand jury proceeding in a criminal case outweighed the need for confidentiality, and Nixon had eventually complied. In this case, however, the Senate Committee was seeking the tapes for two less compelling reasons: to resolve contradictions in testimony before it (especialy between Dean and H. R. Haldeman, who claimed to have based part of his testimony on listening to the tapes himself), and for legislative purposes. Meanwhile, the White House had already released edited transcripts of the tapes. The court did not find the committee's need to be overwhelming in this case.

The court, however, added some very interesting comments about another contemporary proceeding. To begin with, it specifically rejected any broad executive right to withhold information.

It is true, of course, that [HN5] the Executive cannot, any more than the other branches of government, invoke a general confidentiality privilege to shield its officials and employees from investigations by the proper governmental institutions into possible criminal wrongdoing. 32 The Congress learned this as to its own privileges in Gravel v. United States, 33 as did the judicial branch, in a sense, in Clark v. United States, 34 and the executive branch itself in Nixon v. Sirica. But under Nixon v. Sirica, the showing required to overcome the presumption favoring confidentiality turned, not on the nature of the presidential conduct that the subpoenaed material might reveal, 35 but, instead, on the nature and [**20] appropriateness of the function in the performance of which the material was sought, and the degree to which the material was necessary to its fulfillment. Here also our task requires, and our decision implies, no judgment whatever concerning possible presidential involvement in culpable activity. On the contrary, we think the sufficiency of the Committee's showing must depend solely on whether the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee's functions.

32 Committee for Nuclear Responsibility v. Seaborg, 149 U.S. App. D.C. 385, 463 F.2d 788, 794 (1971). See Gravel v. United States, 408 U.S. 606, 627, 33 L. Ed. 2d 583, 92 S. Ct. 2614 (1972).


The court then put the specific case under review within a broader context of Congressional power, both theoretical and actual.

" . . . Congress has, according to the Committee, power to oversee the operations of the executive branch, to investigate instances of possible corruption and malfeasance in office, and to expose the results of its investigations to public view. The Committee says that with respect to Watergate-related matters, this power has been delegated to it by the [*732] Senate, and that to exercise its power responsibly, it must have access to the subpoenaed tapes. 37



37 E.g., Reply Brief of Senate Select Committee, et al., at 21-23.

"We turn first to the latter contention. In the circumstances of this case, we need neither deny that the Congress may have, quite [**22] apart from its legislative responsibilities, a general oversight power, nor explore what the lawful reach of that power might be under the Committee's constituent resolution. Since passage of that resolution, the House Committee on the Judiciary has begun an inquiry into presidential impeachment. The investigative authority of the Judiciary Committee with respect to presidential conduct has an express constitutional source. 38"


The last paragraph was in effect a preview of the decision the Supreme Court reached three months later with fatal consequences of Nixon’s Presidency—that he had to meet the requests of the House Judiciary Committee. In short, the Appeals Court did not deny the kind of general investigative authority that Raoul Berger showed the Congress had always possessed towards the doings of the Executive Branch—and specifically acknowledged the authority of impeachment investigations, even if directed (as they need not be) against the President himself. In short, the powers Berger identified in the book that I discussed last week remain intact. The Congress only needs to exercise them.

Saturday, August 11, 2007

"Executive Privilege"

Late last month, the White House refused to allow two former officials, including former White House counsel Harriet Miers, to testify under oath before Congress regarding the firing of various U.S. Attorneys. The White House statement read, in part:

“Specifically, the President was not willing to provide your Committees with documents revealing internal White House communications or to accede to your desire for senior advisors to testify at public hearings. The reason for these distinctions rests upon a bedrock Presidential prerogative: for the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisors and between those advisors and others within and outside the Executive Branch. Presidents would not be able to fulfill their responsibilities if their advisors––on fear of being commanded to Capitol Hill to testify or having their documents produced to Congress––were reluctant to communicate openly and honestly in the course of rendering advice and reaching decisions. These confidentiality interests are especially strong in situations like the present controversy, where the inquiry seeks information relating to the President’s powers to appoint and remove U.S. Attorneys -- authority granted exclusively to the President by the Constitution.”

The current controversy is the climax of a battle by the executive branch to create new powers that has been going on for more than 50 years—which actually defines the period in which the term “executive privilege” has come into use. The controversy reached its first climax, of course, during the Nixon Administration, and in that case the executive lost its case, but not without getting a legal foot in the door thanks to the Nixon-appointed Supreme Court. Now that well over half the American population has spent its entire adult life hearing about executive privilege, however, the executive seems very near to winning its case—and one could not have much confidence that the current Supreme Court would not endorse it.

In 1974, at the height of the Nixon controversy, legal scholar Raoul Berger—already a rather elderly man at that time—published his second book, Executive Privilege: A Constitutional Myth. Berger was both a lawyer and a professional classical violinist. He was also an immigrant, giving him the kind of reverence for American institutions that only adopted children, at times, seem to have (though I hardly think it is unique to them.) I have been rereading it, and it is indeed a very sad commentary on what has happened to American government in the second half of the twentieth century.

Berger’s premise, as in his early book Impeachment: The Constitutional Problems (which I believe I discussed in an earlier post), was historically unassailable: that the Framers, while writing the Constitution, were building upon British legal traditions. Not only had they been trained in those traditions, but they had always believed that they offered the world’s best guarantees of liberty. Because George III had, as they saw it, managed to subvert even the guarantees offered by the British Constitution, they were unusually sensitive to the inevitable dangers of abuse of power, especially executive power, and they therefore provided themselves and their descendants with the best tools to fight them that anyone ever has. Unfortunately, as Berger showed very conclusively, they did not bother even to codify some of the most basic powers (just as they did not codify the right of habeas corpus, even while declaring that it could only be suspended by the Congress in time of invasion or rebellion), because they assumed them.

They did, of course, give Congress the right to impeach and try the President, Vice President, and other civil officers, and to remove them from office for “treason, bribery, or other high crimes and misdemeanors.” In Impeachment, Berger drew on English precedents and constitutional debates to show that to them, that clause included not only criminal acts, but acts tending to corrupt the body politic (Madison, in this connection, even referred to abuse of the pardon power as an impeachable offense), or even, critically, the pursuit of disastrous policies—a frequent grounds for impeachment in early modern Britain. And as Berger argued, and as Parliamentary history showed, the power of inquiry—to compel testimony and documents from ministers about their conduct—was, obviously, an essential concomitant of the power to impeach, since the Congress could hardly try to punish behavior that it could not find out about.

Now conflicts over the power of inquiry began during the Washington Administration, but they entered a completely new phase after the Second World War. That was not accidental. The Executive Branch has consistently maintained at least since the Second World War that it cannot exercise the functions of a permanent world power without resorting to secrecy, not only from its enemies but from Congress and the American people. Richard Nixon, who was ironically on the other side of this controversy as a young Congressman during the Truman Administration, understood this perfectly, and argued bluntly that if he felt it necessary to send White House staffers to break into a psychiatrist’s office in the name of “national security,” he had both the right and the duty to do so. But we are getting ahead of ourselves: the key episode in this controversy, upon which Berger spent most of his book, was the “Rogers Memorandum,” written by Deputy Attorney General William Rogers in 1957, which first stated the case for executive privilege. The memo claimed an unlimited executive right to withhold information from Congress, pleading, among other things, the excuse that the President needed “unfettered advice” from his subordinates. (Why it should be expected that subordinates would naturally be embarrassed by the advice they had given has, frankly, always escaped me.) Rogers cited historical “precedents” going back to the beginning of the Republic, and as Berger showed, the executive branch (including Rogers himself as Secretary of State under Nixon, and Deputy Attorney General William Rehnquist) had been referring to those many decades of “precedents” ever since. The problem, as Berger spent many details pointing out, was that the memo was legally almost worthless: “a farrago of internal contradictions, patently slipshod analysis, and untenable inferences.” The cases he cited, without exception, did not support his claims at all.

Anyone who enjoys legal analysis will get great pleasure from Berger’s entire book, but here a few examples must suffice. The first two come from Washington’s Administration—Congressional inquiries into a disastrous expedition against Indian tribes by a General St. Clair, and the negotiation of the Jay Treaty. Rogers implied, evidently, that Washington had refused information, but in fact he did not. Rogers relied upon statements made by then-Secretary of State Thomas Jefferson that the President might in fact withhold information under certain circumstances—statements which Berger found to be highly dubious as a matter of law, but which, more importantly, had no effect on Washington’s disposition of the case, since he made everything the Congress wanted available! The case of the Jay Treaty is hardly more helpful to the idea of “executive privilege,” since Washington did refuse documents to the House of Representatives on the grounds that it had no treaty-making power, but gave the Senate what it wanted. He also clearly recognized that if the House trying to impeach him, it would indeed enjoy the right to see what it wanted. Continuing, Berger pointed out that when Thomas Jefferson asserted the power to withhold information arising from Aaron Burr’s treason trial from the Congress, the Congress himself had left him an escape hatch in the terms of its request. And in any case, the Supreme Court eventually ruled in that case that Jefferson had no power to withhold the document in question—moving Rogers, amazingly, to write that Jefferson had the power to disregard that subpoena. (In 1974 the Supreme Court ruled against Rogers’ former boss President Nixon on that very point, forcing him to turn over the tapes that proved him guilty of obstructing justice and forced him to resign.) Again and again, in cases involving Presidents Jefferson, Jackson, Tyler, and others, Berger showed that Rogers had both overstated the claims made by those precedents and ignored their failure either to cite appropriate legal authority (because none existed) or even to press their dubious claims fully.


Regarding the question currently before us—whether the Congress can compel executive officers to testify—Berger found no unequivocal precedents. He did, however, find that the Supreme Court, as early as 1838 (in Kendall vs. United States) had explicitly rejected the claim that executive officers were subject only to the direction of the President and could disregard orders (even in the form of laws) from other branches of government. Berger would explain the lack of distant precedents by the general recognition that the power of inquiry went along with the power of impeachment—and surely, if the executive had ever gotten away with a refusal to allow its officers to testify before Congress, he would have known about it.

Berger has been dead for many years, and alas, the chances of the legal academic community producing another like him have fallen considerably. Our debts to our British forbears have become unfashionable, as "critical legal theory" transforms Anglo-American jurisprudence into a conspiracy to preserve the supremacy of white males. In fact, we enjoy liberty today because British aristocrats originally wrested it from their monarchs, allowing the lower orders to contend for the same rights. Because law rests on precedent, the past is actually more alive in the law than in my own historical profession, but this, too, could pass.

“I believe in a strong, robust executive authority and I think that the world we live in demands it,” Vice President Cheney has stated. That is exactly what other post-1945 Presidents have claimed—that they need unaccountable authority in a dangerous world, including the right to violate the laws of other countries and, at times, our own. That is exactly the kind of arbitrary authority our revolution was fought against. More important is the exact nature of the controversy now raging in Congress. The firing of the U.S. Attorneys does not seem to have been a trivial matter, a normal exercise of Presidential power, as one comment on this blog seemed to suggest. Ample evidence suggests that it was a means of insuring that vote fraud cases and corruption cases would be brought against more Democrats to help shift the political balance of power, an attempt, in short, to corrupt the electoral process, which would in my opinion fully warrant the impeachment and Senate trial of any officer of the U.S. government that turned out to be involved in it. President Bush, it seems, had a telephone conversation with a Senator about one of the firings—in New Mexico—a fact which, as far as I can tell, the White House press corps has been too discreet to ask him about in recent press conferences. (Please correct me if I am wrong about that). “Executive privilege,” a recent creation without real legal foundation, is rapidly becoming customary law. Once again, as Madison and Jefferson foresaw, we are faced with a struggle to confirm the liberties they secured for us.

Friday, August 03, 2007

How are things in Iraq?

The issue of progress, or the lack thereof, in Iraq has never been more disputed or more critical. While Administration figures and some initial supporters of the war insist that General Petraeus's strategy is bearing fruit, many have pointed out a decline in coalition casualties (especially US casualties) during July as a possible harbinger of better news. Certainly one new tactic is bearing fruit at the local level. Alliances with Sunni tribes and even former insurgents have quieted a good deal of Anbar Province and, evidently, some Sunni neighborhoods around Baghdad. Such alliances are sensible--but they are also making the Al-Maliki government so angry that it is talking about demanding Petraeus's withdrawal. My intention this evening is briefly to survey the figures provided by the excellent web site icasualties.org to ask whether in fact the insurgency seems to be declining. And the answer, I regret to say, is clearly no.

To begin with, after a flurry of American deaths in the last few days of July, the drop in our killed in action did not turn out to be that big. The coalition lost 117 men killed in April, 131 in May, 108 in June--and 90 in July. That 90 was still more that the total in any of the first three months of this year. The surge, by putting more soldiers on the streets of Baghdad and surrounding areas, is putting more Americans at risk.

That, however, is not all. The best measure of insurgent activity would be the total number of attacks, but those figures are rarely released, and the Baker-Hamilton commission reported that the official figures often significantly understate the case. What we do have are weekly figures for Americans wounded, divided into those who were returned to duty within 48 hours and those who were not. The data does not allow us to precisely give the totals for months, as with those killed, but we can look at 4-week increments, and combine them into twelve-week increments.

For the twelve weeks ending on February 1--that is, before the surge--749 Americans were mildly wounded, and 460 more severely wounded. For the next twelve weeks, ending May 2, were 575 and 555. And for the next twelve weeks, ending Jul7 25, they were 990 and 798--a dramatic upward trend. Things don't look any better when we compare the four-week periods that began on May 3, May 31, and June 18. The less severely wounded for those periods went from 280 to 311 to 399; the more severely (those who did not quickly return to duty), from 311 to 209 to 278. What fell in July, in other words, was not only the total killed, but the ratio of killed to wounded. That, I would suggest, is a matter of luck--a few pieces of shrapnel that fortunately hit non-fatal spots instead of fatal ones. Although few people know this, the rise and fall of US casualties in Vietnam exactly tracked the total number of American troops there. So far the same thing is happening in Iraq--the surge has put more troops in harm's way, and they are suffering more casualties.

And of course, the real mission of the troops isn't to avoid casualties, but to increase security for Iraqis. Here there a mildly positive trend, according to the figures for deaths of Iraqi civilians and security forces published by icasualties.org--figures which are inevitably only approximate--but it is not yet clearly a sustainable one. The worst periods for Iraqi deaths during the last year were August-September of 2006 and February -March of 2007, when Iraqis died at the rate of 3000 per month, or 100 a day. Since March of this year the monthly totals are 1821 for April, 1980 for May, an encouraging 1345 for June, but 1690 for July. That represents some improvement, it still means a very insecure country.

The experience of Anbar province suggests something very important: that an American withdrawal will not, as the Administration argues, mean the ascendancy of Al Queda, whom Iraqi tribesmen have no reason to love. But meanwhile, there has been no rapprochement between Sunnis and Shi'ites. Our strategy appears to be to try to fight the extremists among both groups while supporting the moderates, and it is angering the Shi'ite government while failing to please the Sunnis, who just withdrew their ministers. The need for some kind of partition seems to get more obvious every day, but we are not moving in that direction yet.

In Vietnam American troops enjoyed substantial military successes in the 1968-70 period, mainly because the enemy launched a series of costly offensives, but also because then, too, we shifted somewhat towards a pacification strategy. All the gains turned out to be temporary, however, because we could not convince the South Vietnamese people that the Saigon government would in the long run be stronger than the Viet Cong--as indeed they were not. Military success, in short, did not translate into political success. We may well face the same problem in Iraq--but so far it is not clear that we have achieved even military success.