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Context of 'Summer 2001: White House Refusal to Comply with GAO Request Centered in Establishing Principle of Secrecy in White House Communications'

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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]

Entity Tags: John Harrison, Charlie Savage, Federalist Society, West Publishing Company, US Department of Justice, Edwin Meese, Robert Bork, Steven Calabresi, US Supreme Court

Timeline Tags: Civil Liberties

Law professor John Yoo writes a lengthy essay for the California Law Review entitled “The Continuation of Politics by Other Means: The Original Understanding of War Powers,” in which he argues that the Founding Fathers intended to empower presidents to launch wars without Congressional permission. Yoo has clerked for conservative judge Laurence Silberman and equally conservative Supreme Court Justice Clarence Thomas, and served for a year as counsel to then-Senate Judiciary Committee Chairman Orrin Hatch (R-UT). He has become a regular speaker at Federalist Society events, the informal but influential group of conservative lawyers, judges, and legal scholars who will come to have so much influence in the Bush administration. You argues that for generations, Constitutional scholars have misread the Constitution: the Founders actually supported, not repudiated, the British model of executive power that gave the king the sole power of declaring war and committing forces to battle. The Constitution’s granting of the legislature—Congress—the power to “declare war” is merely, Yoo writes, a reference to the ceremonial role of deciding whether to proclaim the existence of a conflict as a diplomatic detail. The Founders always intended the executive branch to actually declare and commence war, he writes. Most other Constitutional scholars will dismiss Yoo’s arguments, citing notes from the Constitutional Convention that show the Founders clearly intended Congress, not the president, to decide whether to commit the country to war. One of those Founders, James Madison, wrote in 1795 that giving a president the unilateral ability to declare war “would have struck, not only at the fabric of the Constitution, but at the foundation of all well organized and well checked governments. The separation of the power of declaring war from that of conducting it, is wisely contrived to exclude the danger of its being declared for the sake of its being conducted.” [Savage, 2007, pp. 80-81] Yoo will go on to join the Bush administration’s Office of Legal Counsel, and write numerous torture memos (see October 4, 2001, November 6-10, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24-26, 2002, March 13, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and March 14, 2003) and opinions expanding the power of the president (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, October 23, 2001, and June 27, 2002).

Entity Tags: Federalist Society, John C. Yoo

Timeline Tags: Civil Liberties

NSA servers used to collect and sift data.NSA servers used to collect and sift data. [Source: FrancesFarmersRevenge.com]The National Security Agency (see 1952) begins building a massive data-mining system, code-named “Trailblazer,” that is intended to sift through reams of digital communications intercepts and find nuggets of information relevant to national security. The program’s task is huge—to sort through the 2 million bits of data the NSA collects every hour—and one made even more complex by the relatively new types of wireless, Internet, cell phone, and instant messaging communications now becoming ever more commonplace. Trailblazer is strongly embraced by General Michael Hayden, who became the NSA’s director in March 1999. Hayden recognizes from the outset that the NSA is years behind the technological curve, and casts Trailblazer as the future of the agency’s intelligence gathering and sorting. In November 1999, Hayden makes Trailblazer the centerpiece of his “100 Days of Change,” his plan to transform the agency into a leaner, more efficient organization, fast-tracking the program to vault it ahead of other initiatives. “It was going to structure us to handle the digital revolution,” a former intelligence official will recall. But from the outset the program has problems: a meeting between NSA and other government officials in December 1999 is unpromising, and, according to one government oversight official, the program “kicked off with not a real great definition of what it was trying to achieve.” Program managers fail to define standard data formats to allow for the proper sorting of information. After six years, $1.2 billion in expenditures, and endless man-hours of work, the utterly failed program will be recognized as the “biggest boondoggle… in the intelligence community” (see January 2006). [Baltimore Sun, 1/29/2006]

Entity Tags: Trailblazer, National Security Agency, Michael Hayden

Timeline Tags: Civil Liberties

Mike Frost.Mike Frost. [Source: NineMSN]One of the few commercial media reports about Echelon, the NSA’s global surveillance network (see April 4, 2001), appears on CBS’s 60 Minutes. The report is disturbing in its portrayal of Echelon as a surveillance system capable of, in host Steve Kroft’s words, capturing “virtually every electronic conversation around the world.” Kroft continues, “[V]irtually every signal radiated across the electromagnetic spectrum is being collected and analyzed,” including land line and cell phone signals, ATM transactions, fax machines,public and private radio broadcasts, even baby monitors. Mike Frost, a former intelligence officer for the CSE, the Canadian equivalent of the National Security Agency which often works closely with the NSA, says, “The entire world, the whole planet” is being surveilled. “Echelon covers everything that’s radiated worldwide at any given instant.… Every square inch is covered.” Listening stations around the world transmit their data to the NSA’s headquarters at Fort Meade, Maryland, where, as Kroft says, “acres of supercomputers scan millions of transmissions word by word, looking for key phrases and, some say, specific voices that may be of major significance.” Frost adds, “Everything is looked at. The entire take is looked at. And the computer sorts out what it is told to sort out, be it, say, by key words such as ‘bomb’ or ‘terrorist’ or ‘blow up,’ to telephone numbers or—or a person’s name. And people are getting caught, and—and that’s great.” Echelon is so secret that even its successes are not publicly documented, though it is believed that, among other successes, it helped capture international terrorist “Carlos the Jackal,” and helped identify two Libyans accused of planting a bomb on PanAm Flight 103 [CBS News, 2/27/2000] which exploded over Lockerbie, Scotland in 1988, killing 270 people. [Washington Post, 12/22/1988] “I say, never over-exaggerate the capacity of a system such as Echelon,” Frost noted in a 1999 interview with the Australian press. “Never ever over-exaggerate the power that these organizations have to abuse a system such as Echelon. Don’t think it can’t happen in Australia. Don’t think it can’t happen in Canada, because it does.” [NineMSN, 5/23/1999]
Monitoring Legal Conversations - As successful as Echelon has been in capturing terrorists, international drug dealers, and various criminals, it has raised serious concerns for its capability of monitoring ordinary, innocent civilians. Frost says that such monitoring happens every day: “Not only possible, not only probable, but factual. While I was at CSE, a classic example: A lady had been to a school play the night before, and her son was in the school play and she thought he did a—a lousy job. Next morning, she was talking on the telephone to her friend, and she said to her friend something like this, ‘Oh, Danny really bombed last night,’ just like that. The computer spit that conversation out. The analyst that was looking at it was not too sure about what the conversation w—was referring to, so erring on the side of caution, he listed that lady and her phone number in the database as a possible terrorist.” Though the NSA has a long and checkered history of spying on American citizens, including extensive monitoring of antiwar and civil rights protesters during the 1970s, the agency refuses to provide any information about its activities—not to the public and not even to Congress. Congressman Bob Barr (R-GA) has for years pressed for more information about the program, which he recently said “engages in the interception of literally millions of communications involving United States citizens.” Even the chairman of the House Intelligence Committee, Porter Goss (R-FL) had trouble getting information when he requested it last year. At the time, Goss said, “[T]here was some information about procedures in how the NSA people would employ some safeguards, and I wanted to see all the correspondence on that to make sure that those safeguards were being completely honored. At that point, one of the counsels of the NSA said, ‘Well, we don’t think we need to share this information with the Oversight Committee.’ And we said, ‘Well, we’re sorry about that. We do have the oversight, and you will share the information with us,’ and they did.” Goss had to threaten to cut the NSA’s budget before the agency would share even limited information with him. When asked how he can be sure the NSA isn’t listening in on ordinary citizens’ communications, Goss merely says, “We do have methods for that, and I am relatively sure that those procedures are working very well.”
Princess Diana, Human Rights Organizations Monitored - Evidence presented in the broadcast also suggests the NSA was monitoring Princess Diana (see November 30, 1998), as well as Amnesty International, Greenpeace, and other groups (see February 27, 2000). [CBS News, 2/27/2000]
British Ministers Monitored - Frost cites an instance where then-Prime Minister Margaret Thatcher monitored two of her own ministers (see 1983).
Americans Monitored - Former NSA contractor Margaret Newsham recalls hearing a monitored conversation featuring then-Senator Strom Thurmond (see April, 1988). Frost is not surprised. “Oh, of course it goes on,” he says. “Been going on for years. Of course it goes on.” Kroft asks, “You mean the National Security Agency spying on politicians in… in the United States?” Frost replies, “Sounds ludicrous, doesn’t it? Sounds like the world of fiction. It’s not; not the world of fiction. That’s the way it works. I’ve been there. I was trained by you guys” (see 1980s). Goss seems less concerned. He says that it is “[c]ertainly possible that something like that could happen. The question is: What happened next?… It is certainly possible that somebody overheard me in a conversation. I have just been in Europe. I have been talking to people on a telephone and elsewhere. So it’s very possible somebody could have heard me. But the question is: What do they do about it? I mean, I cannot stop the dust in the ether; it’s there. But what I can make sure is that it’s not abused—the capability’s not abused, and that’s what we do.”
Used for Corporate Advantage - In 2001, the European Parliament released a report listing many of Echelon’s surveillance stations around the world and detailing their capabilities (see July 11, 2001). Kroft notes, “The report says Echelon is not just being used to track spies and terrorists. It claims the United States is using it for corporate and industrial espionage as well, gathering sensitive information on European corporations, then turning it over to American competitors so they can gain an economic advantage.”
Encryption Effective? - European governments and corporations are encrypting more and more of their phone, fax, and e-mail transmissions to keep Echelon from listening in. In response, the US government is pressuring the Europeans to give US law enforcement and intelligence agencies software keys so that they can unlock the code in matters of national security. Parliament member Glyn Ford is not opposed to the idea in principle: “[I]f we are not assured that that is n—not going to be abused, then I’m afraid we may well take the view, ‘Sorry, no.’ In [Britain], it’s traditional for people to leave a key under the doormat if they want the neighbors to come in and—and do something in their house. Well, we’re neighbors, and we’re not going to leave the electronic key under the doormat if you’re going to come in and steal the family silver.” The NSA, CSE, and even Echelon are necessary evils, Ford acknowledges, but, “My concern is no accountability and nothing—no safety net in place for the innocent people that fall through the cracks. That’s my concern.” [CBS News, 2/27/2000]

Entity Tags: Greenpeace, Wayne Madsen, Glyn Ford, Echelon, Communications Security Establishment, Central Intelligence Agency, Amnesty International, Strom Thurmond, Electronic Privacy Information Center, Steve Kroft, Princess Diana, Mike Frost, Margaret Thatcher, Margaret Newsham, National Security Agency, Robert “Bob” Barr, House Intelligence Committee, Porter J. Goss, Ilich Ramírez Sanchez

Timeline Tags: Civil Liberties

The NSA completes a report for the incoming Bush administration entitled “Transition 2000” that tells how the NSA is planning to improve its intelligence gathering. More importantly, it tells incoming White House officials that in the process of improving its intelligence gathering, some US citizens will inevitably be targeted for surveillance, though, according to a former NSA official, analysts were supposed to “delete the name of the” citizen being surveilled. Such inadvertent surveillance of US citizens took place even during the Clinton administration, says that former official, but the citizens’ names were always deleted from the transcripts of the communications intercepts. The law expressly prohibits the NSA from spying on US citizens, US corporations, or even permanent US residents. (With the permission of the Foreign Intelligence Surveillance Court (FISC), the NSA can spy on diplomats and foreigners inside US borders.) An NSA official will tell the Boston Globe in October 2001, “If, in the course of surveillance, NSA analysts learn that it involves a US citizen or company, they are dumping that information right then and there.” However, once President Bush takes office in January 2001, that practice will undergo a radical change (see Spring 2001). [Truthout (.org), 1/17/2006] In the same transition report, agency officials say that the NSA must become a “powerful, permanent presence” on the commercial communications networks, a goal they admit will raise legal and privacy issues. [New York Times, 12/16/2007]

Entity Tags: Bush administration (43), National Security Agency

Timeline Tags: Civil Liberties

According to reporter and author Charlie Savage, the White House staff quickly coalesces into two camps: “Bush People[,] mostly personal friends of the new president who shared his inexperience in Washington,” which includes President Bush’s top legal counsels, Alberto Gonzales and Harriet Miers, both corporate lawyers in Texas before joining Bush in Washington. The second group is “Cheney People—allies from [Vice-President Dick] Cheney’s earlier stints in the federal government (see May 25, 1975, November 18, 1980, 1981-1992, 1989, and June 1996) who were deeply versed in Washington-level issues, a familiarity that would allow their views to dominate internal meetings. These included [Defense Secretary Donald] Rumsfeld and other cabinet secretaries, key deputies throughout the administration, and David Addington, Cheney’s longtime aide who would become a chief architect of the administration’s legal strategy in the war on terrorism” (see July 1, 1992 and (After 10:00 a.m.) September 11, 2001). Savage will observe, “Given the stark contrast in experience between Cheney and Bush, it was immediately clear to observers of all political stripes that Cheney would possess far more power than had any prior vice president.”
'Unprecedented' Influence - Cheney will certainly have “unprecedented” influence, according to neoconservative publisher William Kristol, who himself had served as former Vice President Dan Quayle’s chief of staff. “The question to ask about Cheney,” Kristol will write, is “will he be happy to be a very trusted executor of Bush’s policies—a confidant and counselor who suggests personnel and perhaps works on legislative strategy, but who really doesn’t try to change Bush’s mind about anything? Or will he actually, substantively try to shape administration policy in a few areas, in a way that it wouldn’t otherwise be going?”
Expanding the Power of the Presidency - Cheney will quickly answer that question, Savage will write, by attempting to “expand the power of the presidency.” Savage will continue: “He wanted to reduce the authority of Congress and the courts and to expand the ability of the commander in chief and his top advisers to govern with maximum flexibility and minimum oversight. He hoped to enlarge a zone of secrecy around the executive branch, to reduce the power of Congress to restrict presidential action, to undermine limits imposed by international treaties, to nominate judges who favored a stronger presidency, and to impose greater White House control over the permanent workings of government. And Cheney’s vision of expanded executive power was not limited to his and Bush’s own tenure in office. Rather, Cheney wanted to permanently alter the constitutional balance of American government, establishing powers that future presidents would be able to wield as well.” [Savage, 2007, pp. 7-9] Larry Wilkerson, the chief of staff for Secretary of State Colin Powell, will say after leaving the administration: “We used to say about both [Defense Secretary Donald Rumsfeld’s office] and the vice president’s office that they were going to win nine out of 10 battles, because they were ruthless, because they have a strategy, because they never, never deviate from that strategy. They make a decision, and they make it in secret, and they make it in a different way than the rest of the bureaucracy makes it, and then suddenly, foist it on the government—and the rest of the government is all confused.” [Unger, 2007, pp. 299]
Signing Statements to Reshape Legislation, Expand Presidential Power - To that end, Cheney ensures that all legislation is routed through his office for review before it reaches Bush’s desk. Addington goes through every bill for any new provisions that conceivably might infringe on the president’s power as Addington interprets it, and drafts signing statements for Bush to sign. In 2006, White House counsel Bradford Berenson will reflect: “Signing statements unite two of Addington’s passions. One is executive power. And the other is the inner alleyways of bureaucratic combat. It’s a way to advance executive power through those inner alleyways.… So he’s a vigorous advocate of signing statements and including important objections in signing statements. Most lawyers in the White House regard the bill review process as a tedious but necessary bureaucratic aspect of the job. Addington regarded it with relish. He would dive into a 200-page bill like it was a four-course meal.” It will not be long before White House and Justice Department lawyers begin vetting legislation themselves, with Addington’s views in mind. “You didn’t want to miss something,” says a then-lawyer in the White House. [Savage, 2007, pp. 236]

Entity Tags: David S. Addington, Bradford Berenson, Alberto R. Gonzales, Charlie Savage, William Kristol, Richard (“Dick”) Cheney, Donald Rumsfeld, Bush administration (43), Harriet E. Miers, George W. Bush, Lawrence Wilkerson

Timeline Tags: Civil Liberties

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

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

Timeline Tags: Civil Liberties

Newly elected president George W. Bush says he opposes price caps on wholesale electricity, and suggests that for California to ease its power crisis, it should relax its environmental regulations and allow power companies such as Enron to operate unchecked. “The California crunch really is the result of not enough power-generating plants and then not enough power to power the power of generating plants,” he says. [Harper's, 1/23/2001] In 2002, former Enron energy trader Steve Barth will give a different perspective. “This was like the perfect storm,” he will say of Enron’s merciless gaming of the California energy crisis. “First, our traders are able to buy power for $250 in California and sell it to Arizona for $1,200 and then resell it to California for five times that. Then [Enron Energy Services] was able to go to these large companies and say ‘sign a 10-year contract with us and we’ll save you millions.’” [CBS News, 5/16/2002]

Entity Tags: Enron Energy Services, Enron Corporation, George W. Bush, Steve Barth

Timeline Tags: US Environmental Record

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

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

Timeline Tags: US Environmental Record

The NSA asks Qwest, a major US telecommunications firm and a cutting-edge provider of high-tech wireless and Internet connectivity, to reveal information about its customers and their phone calls. Qwest’s CEO, Joe Nacchio, refuses after meeting with NSA officials and deciding that the program is illegal without court orders (see February 27, 2001). The NSA refuses to seek court authorization for its wiretaps and electronic surveillance. The NSA will renew its request from Qwest after the 9/11 attacks, and will also ask the firm to help it track suspected terrorists. Other telecommunications firms such as Verizon, AT&T, and BellSouth, will comply with the NSA’s requests (see February 2001 and Beyond).
Fears of a 'Digital Pearl Harbor' - According to a former White House official, the NSA’s primary purpose before 9/11 is to watch for computer hackers and foreign-government agents trying to hack into the government’s computer information systems, particularly those within the Defense Department. Government officials fear a “digital Pearl Harbor” if hackers were ever to seize control of those systems or other key US infrastructures. The former official will say in 2007 that the NSA’s proposal to Qwest is, “Can you build a private version of Echelon and tell us what you see?” Echelon is the NSA’s enormous signals intelligence (SIGINT) network used by the agency and its counterparts in Australia, Canada, New Zealand, and Britain. Qwest is constructing a high-speed network for phone and Internet traffic, and the NSA wants Qwest to keep records of its customers’ transactions for it. The NSA, another source will say, wants to analyze call, e-mail, and other transmissions’ traffic patters for signs of suspicious activity. The White House official will say that telecom firms such as Qwest “have an enormous amount of intelligence-gathering” capability. They don’t have to target individual customers to “look for wacky behavior,” or “groups communicating with each other in strange patterns.” Such information could augment intelligence that the NSA and other agencies were gathering from other sources, and enable the NSA to collect the information it wants without violating laws prohibiting it and other intelligence agencies from directly gathering data on US citizens.
Ill Will from NSA - Nacchio’s refusal to go along with the NSA’s request garners it some ill will among the US intelligence community, the former White House official will say. Nacchio will contend that because of his refusal, the NSA denied Qwest a lucrative government contract. A former high-level intelligence official will add that other telecom companies had little problem agreeing to the NSA’s requests. Nacchio believes that the NSA’s request is illegal under the Telecommunications Act without court orders; the former White House official will acknowledge that it might violate the 1986 Electronic Communications Privacy Act. After 9/11, that law will be amended by the USA Patriot Act to give the government more room to monitor US citizens.
Qwest, Other Telecom Firms Cooperative with Other Agencies - Qwest is apparently less reluctant to share other information with the Pentagon. Qwest began sharing its technology and information as far back as 1997 (see 1997). In May 2001, Commerce Secretary Don Evans will tell the Senate Appropriations Committee that his department helped persuade Qwest to “share proprietory information with the Defense Department to evaluate the vulnerability of its network.” Qwest, which serves the Rocky Mountain and West Coast regions of the country, covers the areas that house some of the military’s most important command-and-control facilities, including the US Strategic Command. In the 1990s, Qwest began actively pursuing contracts with the Defense Department to build more modern, private, secure networks for defense and intelligence agencies. [National Journal, 11/2/2007]
Meetings with Bush Officials - In court documents filed in 2006 to challenge his prosecution for insider trading and, in heavily redacted form, released to the public in 2007, Nacchio will indicate that telecom executives met frequently with Bush administration officials before 9/11, including Deputy Defense Secretary Paul Wolfowitz, National Security Adviser Condoleezza Rice, NSA Director Michael Hayden, and counterterrorism “tsar” Richard Clarke. Many telecom firms are working closely with the government to develop highly classified operations, including joint networks to which the government will have unfettered access. The future director of national intelligence, Mike McConnell, works with telecom firms to expand the cooperation between the telecom industry and the federal government. [Salon, 10/15/2007]

Entity Tags: Condoleezza Rice, US Department of Defense, Bush administration (43), Verizon Communications, AT&T, US Department of Commerce, Senate Appropriations Committee, US Strategic Command, BellSouth, Donald L. Evans, Echelon, Richard A. Clarke, Qwest, Mike McConnell, National Security Agency, Joe Nacchio, Paul Wolfowitz

Timeline Tags: Civil Liberties

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). [Washington Post, 7/18/2007]

Entity Tags: National Energy Policy Development Group, Enron Corporation, James Rouse, ExxonMobil, Richard (“Dick”) Cheney, Kenneth Lay

Timeline Tags: US Environmental Record

The National Security Agency (NSA) engages in apparently illegal surveillance of US citizens beginning shortly after the inauguration of George W. Bush as president. This will not be revealed to the public until media reports in January 2006, a month after the press revealed that the NSA had engaged in similar illegal wiretaps and surveillance of American citizens after the 9/11 attacks, using those attacks as justification for the surveillance (see December 15, 2005). The former NSA and counterterrorism officials who reveal the pre-9/11 spying will claim that the wiretaps, e-mail monitoring, and Internet surveillance were all “inadvertent,” as NSA computers “unintentionally” intercepted US citizens’ international phone calls and e-mails when the computers flagged keywords. NSA protocol demands that such “inadvertent” surveillance end as soon as NSA analysts realize they are spying on those citizens, and the names of the monitored citizens are supposed to be deleted from the NSA databases. Instead, the NSA is instructed to continue monitoring some citizens that are characterized as “of interest” to White House officials. Those officials include President Bush, Vice President Cheney, and Defense Secretary Donald Rumsfeld, say the former NSA and counterterrorism officials. In December 2000, the NSA told the incoming Bush administration that some US citizens are being inadvertently targeted for surveillance, but the names of the citizens are deleted because the law expressly prohibits the NSA from spying on US citizens, US corporations, or even permanent US residents (see December 2000). However, once Bush takes office in January 2001, that practice undergoes a radical change. In the first few months of the administration, President Bush assigns Vice President Cheney to make himself more of a presence at the various US intelligence agencies, particularly the CIA, NSA, and DIA. Cheney, along with other officials at the State and Defense Departments, begins making repeated requests to the NSA to reveal the identities of those Americans which had previously been deleted, so that administration officials can more fully understand the context and scope of the intelligence. Such requests are technically legal. But Cheney goes well beyond the law when he requests, as he frequently does, that the NSA continue monitoring specific Americans already caught up in the NSA’s wiretaps and electronic surveillance. A former White House counterterrorism official will later claim that Cheney advised Bush of what he was learning from the NSA. “What’s really disturbing is that some of those people the vice president was curious about were people who worked at the White House or the State Department,” says another former counterterrorism official. “There was a real feeling of paranoia that permeated from the vice president’s office and I don’t think it had anything to do with the threat of terrorism. I can’t say what was contained in those taps that piqued his interest. I just don’t know.” [Truthout (.org), 1/17/2006]

Entity Tags: Richard (“Dick”) Cheney, Central Intelligence Agency, Defense Intelligence Agency, George W. Bush, Donald Rumsfeld, US Department of Defense, National Security Agency, US Department of State

Timeline Tags: Civil Liberties

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). [Washington Post, 7/18/2007]

Entity Tags: Constellation Energy Group, National Energy Policy Development Group, Richard (“Dick”) Cheney, Duke Energy

Timeline Tags: US Environmental Record

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]

Entity Tags: Dana Contratto, Joseph T. Kelliher, National Energy Policy Development Group

Timeline Tags: US Environmental Record

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). [Washington Post, 7/18/2007]

Entity Tags: US Department of Energy, Richard (“Dick”) Cheney, James Ford, George W. Bush, American Petroleum Institute, Joseph T. Kelliher, National Energy Policy Development Group

Timeline Tags: US Environmental Record

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). [Washington Post, 11/16/2005]

Entity Tags: Richard (“Dick”) Cheney, Archie Dunham, ConocoPhillips, National Energy Policy Development Group, James Mulva

Timeline Tags: US Environmental Record

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). [Washington Post, 11/16/2005; Washington Post, 7/18/2007]

Entity Tags: Interstate Natural Gas Association of America, American Petroleum Institute, Bob Malone, British Petroleum, National Mining Association, Ross Pillari, Richard (“Dick”) Cheney, National Energy Policy Development Group

Timeline Tags: US Environmental Record

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; Washington Post, 7/18/2007]

Entity Tags: Richard (“Dick”) Cheney, J. Steven Griles, US Public Interest Group, National Energy Policy Development Group, Italia Federici, Anna Aurilio, Grover Norquist, Council of Republicans for Environmental Advocacy, George W. Bush, Gale A. Norton

Timeline Tags: US Environmental Record

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). [Washington Post, 11/16/2005]

Entity Tags: US Oil and Gas Association, National Energy Policy Development Group, James Mulva, Richard (“Dick”) Cheney, ConocoPhillips

Timeline Tags: US Environmental Record

Vice President Cheney meets with Enron CEO Kenneth Lay as part of Cheney’s secretive energy task force (the National Energy Policy Development Group—see May 16, 2001). Though Cheney may not know it, Enron is on the verge of collapse, with liabilities far outweighing assets and heavily doctored earnings statements. Enron’s only income generation comes from the unregulated energy markets in California and other Western states (see January 23, 2001). Enron traders are gouging the California markets at an unprecedented pace; as authors Lou Dubose and Jake Bernstein later write, Enron is “taking power plants off-line to create shortages, booking transmission lines for current that never move[s], and shuttling electricity back and forth across state lines to circumvent price controls,” among a plethora of other illegal market manipulations.
Ignoring California's Energy Crisis - Unable to make a profit between buying Enron’s energy at staggering prices and then selling it at regulated rates, one of California’s two largest utility companies has filed for bankruptcy and the other has accepted a government bailout. California is in a calamitous energy crisis. Governor Gray Davis is pleading for rate caps that would help both utility companies and consumers. But price caps are the last thing Lay wants. Once in Cheney’s office, Lay gives Cheney a three-page memo outlining Enron’s recommendations for the administration’s national energy policy Cheney’s group is developing. Prominently featured in the memo is the following recommendation: “The administration should reject any attempt to deregulate wholesale power markets by adopting price caps.” Almost every recommendation in the Lay memo will find its way into the energy task force’s final report. Cheney may not know that Enron is in such dire financial straits, but he does know that energy prices in California have gone from $30 to $300 per megawatthour, with periodic jumps to as high as $1,500. He also knows that Enron’s profits in California, along with other power producers, have gone up 400% to 600%.
Price Caps in Spite of Lay, Cheney - Lay does not get his way; the Federal Energy Regulatory Commission will override Cheney’s arguments and impose price caps on energy traders working in California. The state’s energy prices are brought under control, Enron’s trading schemes—luridly given such sobriquets as “Death Star,” “Fat Boy,” and “Get Shorty”—are brought to an end, and Enron collapses six months later (see December 2, 2001). Cheney will have a measure of revenge by forcing one of Lay’s adversaries on FERC, Curtis Hebert, out of his position (see August 14, 2001).
Avoiding Scrutiny and Oversight - This meeting and others are cleverly designed to avoid legal government oversight. According to the Federal Advisory Committees Act (FACA), the energy task force should be subject to public accountability because private parties—in this case, oil and gas industry executives and lobbyists—are helping shape government policy. Cheney’s legal counsel, David Addington, devises a simple scheme to avoid oversight. When a group of corporate lobbyists come together to create policy, a government official is present. Suddenly, FACA does not apply, and the task force need not provide any information whatsoever to the public. Dubose and Bernstein will later write: “It was bold as [artist] Rene Magritte’s near-photographic representation of a pipe over the inscription ceci n’est pas une pipe—‘this is not a pipe.’ Fifteen oil industry lobbyists meet in the Executive Office Building and one midlevel bureaucrat from the Department of Energy steps into the room—and voila, ceci n’est pas une foule de lobbyists. Because one government employee sat in with every group of lobbyists, a committee of outside advisers was not a committee of outside advisers.” Between Addington’s bureaucratic end-around and Cheney’s chairmanship of the working group giving the entire business the cloak of executive privilege, little information gets out of the group. “The whole thing was designed so that the presence of a government employee at a meeting could keep the Congress out,” a Congressional staff lawyer later says. It also keeps the press at bay. [Dubose and Bernstein, 2006, pp. 3-4, 10]

Entity Tags: National Energy Policy Development Group, US Department of Energy, Richard (“Dick”) Cheney, Kenneth Lay, Jake Bernstein, Enron Corporation, David S. Addington, Curtis Hebert, Federal Energy Regulatory Commission, Gray Davis, Lou Dubose, Federal Advisory Committees Act

Timeline Tags: US Environmental Record

George Skelton, a reporter for the Los Angeles Times, gets an unexpected call asking if he wants to interview Vice President Cheney. Skelton thinks the call might be to lay some groundwork for the 2004 Bush-Cheney re-election campaign. But Cheney wants to talk energy. Skelton is happy to oblige: energy prices are out of control in California. Cheney doesn’t just want to talk energy, though, he wants to talk about how bad an idea price caps are (see April 17, 2001 and After). “Price caps provide short-term relief for politicians,” Cheney says, in an oblique swipe at California’s Democratic governor, Gray Davis. He continues, “But they do nothing to deal with the basic, fundamental problem.” Skelton asks if the administration will support temporary price caps to get California through the immediate crisis period, and Cheney replies: “Six months? Six years? Once politicians can no longer resist the temptation to go with price caps, they usually are unable to muster the courage to end them.… I don’t see that as a possibility.” Cheney goes on: “Frankly, California is looked on by many folks as a classic example of the kinds of problems that arise when you do use price caps.” What Skelton does not know is that Cheney is echoing the recommendations of Enron CEO Kenneth Lay, whose company is primarily responsible for the California energy crisis. [Dubose and Bernstein, 2006, pp. 4-5]

Entity Tags: Gray Davis, Enron Corporation, George Skelton, Los Angeles Times, National Energy Policy Development Group, Richard (“Dick”) Cheney, Kenneth Lay

Timeline Tags: US Environmental Record

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

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

Timeline Tags: US Environmental Record, Civil Liberties

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

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

Timeline Tags: US Environmental Record, Civil Liberties

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]

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

Timeline Tags: US Environmental Record, Civil Liberties

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

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

Timeline Tags: US Environmental Record, Civil Liberties

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

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

Timeline Tags: Civil Liberties

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]

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

Timeline Tags: US Environmental Record, Civil Liberties

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]

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

Timeline Tags: US Environmental Record, Civil Liberties

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

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

Timeline Tags: US Environmental Record, Civil Liberties

In July 2001, NSA director Michael Hayden tells a reporter that the NSA does not monitor any US citizens without court warrants from the Foreign Intelligence Surveillance Court (FISC). “We don’t do anything willy-nilly,” Hayden says. “We’re a foreign intelligence agency. We try to collect information that is of value to American decision-makers, to protect American values, America—and American lives. To suggest that we’re out there, on our own, renegade, pulling in random communications, is—is simply wrong. So everything we do is for a targeted foreign intelligence purpose. With regard to the—the question of industrial espionage, no. Period. Dot. We don’t do that.” When asked how Americans could verify that, Hayden says that they should simply trust the NSA to police and monitor itself, along with oversight from the White House and from Congress. However, it will later come to light that the NSA began illegally monitoring US citizens from the start of the Bush administration (see Spring 2001). A former NSA official will later dispute Hayden’s account. “What do you expect him to say?” the official says. “He’s got to deny it. I agree. We weren’t targeting specific people, which is what the President’s executive order does. However, we did keep tabs on some Americans we caught if there was an interest [by the White House.] That’s not legal. And I am very upset that I played a part in it.” [Truthout (.org), 1/17/2006] Hayden also denies persistent allegations from European government officials that the agency has engaged in economic espionage to help American companies against European competitors (see April 4, 2001). In March 2001, the American Civil Liberties Union’s Barry Steinhardt says that “since there is no real check on [the NSA], there is no way to know” if they are following the law. Steinhardt says that Congress is the only real check on possible NSA abuses, but it has consistently failed to exercise any sort of aggressive oversight on the agency. [CNN, 3/31/2001]

Entity Tags: National Security Agency, Barry Steinhardt, Michael Hayden, American Civil Liberties Union

Timeline Tags: Civil Liberties

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]

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

Timeline Tags: US Environmental Record, Civil Liberties

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]

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

Timeline Tags: US Environmental Record, Civil Liberties

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]

Entity Tags: Judicial Watch, Richard (“Dick”) Cheney, National Energy Policy Development Group

Timeline Tags: US Environmental Record, Civil Liberties

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

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

Timeline Tags: US Environmental Record, Civil Liberties

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]

Entity Tags: Lou Dubose, Richard (“Dick”) Cheney, Government Accountability Office, Henry A. Waxman, Ted Koppel, Jake Bernstein, National Energy Policy Development Group

Timeline Tags: US Environmental Record, Civil Liberties

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

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

Timeline Tags: US Environmental Record, Civil Liberties

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]

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

Timeline Tags: US Environmental Record, Civil Liberties

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]

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

Timeline Tags: US Environmental Record, Civil Liberties

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. [Consortium News, 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. [Guardian, 5/26/2001; Los Angeles Times, 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). [PBS, 2/2/2002; Consortium News, 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.” [Guardian, 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.” [PBS, 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. [Guardian, 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. [PBS, 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. [Guardian, 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. [American Prospect, 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. [Consortium News, 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.” [Guardian, 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).

Entity Tags: National Environmental Trust, Trent Lott, Kevin Curtis, Pat Wood, Kenneth Lay, Federal Energy Regulatory Commission, George W. Bush, Curtis Hebert, Joe Garcia, Dianne Feinstein, William Jefferson (“Bill”) Clinton, Richard (“Dick”) Cheney, Enron Corporation

Timeline Tags: US Environmental Record

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; National Review, 2/20/2002]

Entity Tags: National Energy Policy Development Group, David Walker, General Accounting Office, John Ashcroft, Office of Management and Budget, George W. Bush, Richard (“Dick”) Cheney

Timeline Tags: US Environmental Record, Civil Liberties

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]

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

Timeline Tags: US Environmental Record, Civil Liberties

Dick Cheney and senior staff witness the collapse of the WTC South Tower. Directly behind Cheney are Norman Mineta and I. Lewis ‘Scooter’ Libby. National Security Advisor Condoleezza Rice stands behind Cheney’s left shoulder.Dick Cheney and senior staff witness the collapse of the WTC South Tower. Directly behind Cheney are Norman Mineta and I. Lewis ‘Scooter’ Libby. National Security Advisor Condoleezza Rice stands behind Cheney’s left shoulder. [Source: David Bohrer / White House]In the conference room of the Presidential Emergency Operations Center (PEOC), Vice President Cheney, National Security Adviser Condoleezza Rice, and their aides watch the South Tower collapsing on television. [Newsweek, 12/31/2001] Cheney will later say that the WTC coming down “was a shock to everybody—it certainly was to me.” [PBS, 9/9/2002] However, if he is indeed shocked, this is not how Cheney appears to others in the room. One witness who is present will later recall that, as the South Tower collapses, there is “a groan in the room that I won’t forget, ever. It seemed like one groan from everyone.” However, Cheney makes no sound, but closes his eyes for a long, slow blink. The witness says, “I remember turning my head and looking at the vice president, and his expression never changed.” [Washington Post, 6/24/2007] According to Mary Matalin, a counselor to the vice president, Cheney says nothing in response to the collapse, but “he emoted in a way that he emotes, which was to stop.” [CNN, 9/11/2002; CNN, 9/11/2002] When he is told that a casualty estimate ranges well into the thousands, the vice president reportedly just nods grimly. [Newsweek, 12/31/2001] According to the Washington Post, three people who are present say they see no sign now or later “of the profound psychological transformation that has often been imputed to Cheney.” What they see is “extraordinary self-containment and a rapid shift of focus to the machinery of power. While others assessed casualties and the work of ‘first responders,’ Cheney began planning for a conflict that would call upon lawyers as often as soldiers and spies.” He will promptly begin assembling the legal team that subsequently assists him in expanding presidential power (see (After 10:00 a.m.) September 11, 2001). [Washington Post, 6/24/2007]

Entity Tags: Mary Matalin, Richard (“Dick”) Cheney, Condoleezza Rice, World Trade Center

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

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

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

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

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

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

Timeline Tags: Civil Liberties

A self-styled White House “war council” begins meeting shortly after the 9/11 attacks, to discuss the administration’s response to the attacks and the methods it will use (see (After 10:00 a.m.) September 11, 2001). The ad hoc group is composed of White House counsel Alberto Gonzales, Justice Department lawyer John Yoo, Pentagon chief counsel William J. Haynes, and the chief aide to Vice President Dick Cheney, David Addington. According to Jack Goldsmith, who will become head of the Justice Department’s Office of Legal Counsel (OLC) in 2003 (see October 6, 2003), the four believe that the administration’s biggest obstacle to responding properly to the 9/11 attacks is the body of domestic and international law that arose in the 1970s to constrain the president’s powers after the criminal excesses of Richard Nixon’s White House. Chief among these restraints is the Foreign Intelligence Surveillance Act (FISA) of 1978 (see 1978). Though Addington tends to dominate the meetings with his imposing physical presence and aggressive personality, Yoo is particularly useful to the group; the head of the OLC, Jay Bybee (whom Goldsmith will replace) has little experience with national security issues, and delegates much of the responsibility for that subject to Yoo, even giving him the authority to draft opinions that are binding on the entire executive branch. Yoo agrees wholeheartedly with Addington, Gonzales, and Cheney about the need for vastly broadened presidential powers. According to Goldsmith, Yoo is seen as a “godsend” for the White House because he is eager to draft legal opinions that would protect Bush and his senior officials from any possible war crimes charges. However, Yoo’s direct access to Gonzales angers Attorney General John Ashcroft, who feels that the “war council” is usurping legal and policy decision-making powers that are legally his own. [New York Times Magazine, 9/9/2007] In 2009, Goldsmith will say, “[I]it was almost as if they [Cheney and Addington] were interested in expanding executive power for its own sake.” [Vanity Fair, 2/2009]

Entity Tags: Richard (“Dick”) Cheney, William J. Haynes, Richard M. Nixon, Office of Legal Counsel (DOJ), Jay S. Bybee, Jack Goldsmith, John C. Yoo, Bush administration (43), Foreign Intelligence Surveillance Act, Alberto R. Gonzales, David S. Addington

Timeline Tags: Civil Liberties

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

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

Timeline Tags: Civil Liberties

President Bush issues a directive authorizing the National Security Agency (NSA) to operate a warrantless domestic surveillance program. Author/journalist Jane Mayer will report in 2011, “[O]n October 4, 2001, Bush authorized the policy, and it became operational by October 6th,” and, “[t]he new policy, which lawyers in the Justice Department justified by citing President Bush’s executive authority as commander in chief, contravened a century of constitutional case law.” Mayer will interview NSA whistleblower Thomas Drake for her article and quote him as saying that, following the October 4 directive, “strange things were happening. Equipment was being moved. People were coming to me and saying, ‘We’re now targeting our own country!’” Bush’s directive is based on a legal opinion drafted by Department of Justice Office of Legal Counsel Deputy Attorney General John Yoo (see September 25, 2001). [New Yorker, 5/23/2011]
Conflicting Information regarding Date of First Authorization - The existence of the NSA’s domestic surveillance program will first be made public in December 2005, following reporting by the New York Times that will cite “[n]early a dozen current and former officials” (see December 15, 2005). The Times article will state that in 2002, “[m]onths after the Sept. 11 attacks,” Bush signed an executive order authorizing the NSA to monitor domestic phone calls, including those of US citizens and permanent residents, if one end of the call was outside the country. The Times article also mentions an NSA “‘special collection program’ [that] began soon after the Sept. 11 attacks, as it looked for new tools to attack terrorism.” The difference between the October 4, 2001 directive and the 2002 executive order referred to by the Times is unclear. [New York Times, 12/16/2005]
Other Sources for October Directive - Other sources, including Bush, NSA Director General Michael Hayden, and the inspectors general of five separate agencies, will later refer to a presidential order having been given in “October,” or “weeks” after the 9/11 attacks, and say that, subsequent to this order, international calls of US persons are targeted for content-monitoring. Following the publication of the Times article, Bush will say in a December 17, 2005 radio address: “In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with US law and the Constitution, to intercept the international communications of people with known links to al-Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks” (see December 17, 2005). This presidential authorization was based on a legal opinion drafted by Department of Justice Office of Legal Counsel attorney John Yoo (see October 18, 2001). [WhiteHouse(.gov), 12/17/2005] Hayden, in public remarks on January 23, 2006, will refer to a presidential authorization for monitoring domestic calls having been given prior to “early October 2001,” which is when he “gathered key members of the NSA workforce… [and] introduced [the NSA’s] new operational authority to them.” Hayden will also say, “The lawfulness of the actual authorization was reviewed by lawyers at the Department of Justice and the White House and was approved by the attorney general,” and that “the three most senior and experienced lawyers in NSA… supported the lawfulness of this program.” [Michael Hayden, 1/23/2006] In a July 10, 2009 jointly-issued report, the inspectors general of the Department of Defense, Department of Justice, CIA, NSA, and Office of the Director of National Intelligence will refer to the “President’s Surveillance Program” (PSP) and “the program’s inception in October 2001.” The report will say: “One of the activities authorized as part of the PSP was the interception of the content of communications into and out of the United States where there was a reasonable basis to conclude that one party to the communication was a member of al-Qaeda or related terrorist organizations.… The attorney general subsequently publicly acknowledged the fact that other intelligence activities were also authorized under the same presidential authorization, but the details of those activities remain classified.” [Inspectors General, 7/10/2009] Citing “a senior administration official,” the Washington Post will report on January 4, 2006: “The secret NSA program… was authorized in October 2001.… The president and senior aides have publicly discussed various aspects of the program, but neither the White House, the NSA, nor the office of the director of national intelligence would say what day the president authorized it.” [Washington Post, 1/4/2006]

Entity Tags: US Department of Justice, Thomas Drake, US Department of Defense, Office of Legal Counsel (DOJ), Office of the Director of National Intelligence, Michael Hayden, National Security Agency, George W. Bush, Central Intelligence Agency, John C. Yoo, Jane Mayer

Timeline Tags: Civil Liberties

John Yoo, the Justice Department’s (DOJ) Office of Legal Counsel (OLC) deputy assistant attorney general, sends a classified memo to Attorney General John Ashcroft justifying warrantless surveillance of US persons. The National Security Agency (NSA)‘s domestic surveillance authorized by President Bush (see October 4, 2001, Early 2002, and December 15, 2005) will come to be publicly referred to as the President’s Surveillance Program (PSP). This is not the first Yoo memo supporting warrantless surveillance (see September 25, 2001), but a 2009 report on the PSP jointly issued by the inspectors general (IGs) of the Department of Defense (DOD), DOJ, CIA, National Security Agency (NSA), and Office of the Director of National Intelligence (ODNI) will refer to it as “[t]he first OLC opinion directly supporting the legality of the PSP.” The IGs’ report will quote from and comment on the memo, noting that “deficiencies in Yoo’s memorandum identified by his successors in the Office of Legal Counsel and the Office of the Deputy Attorney General later became critical to DOJ’s decision to reassess the legality of the program in 2003.” According to the IGs’ report, Yoo asserts that warrantless surveillance is constitutional as long as it is “reasonable” under the Fourth Amendment, which only protects against “unreasonable searches and siezures.” On this point, the IGs’ report will note that Yoo’s successors were troubled by his failure to discuss the Supreme Court’s decision in Youngstown Sheet & Tube Co. v. Sawyer (1952), which found the president’s wartime authority to be limited. His memo does acknowledge that the Foreign Intelligence Surveillance Act (FISA) “purports to be the exclusive statutory means for conducting electronic surveillance for foreign intelligence,” but asserts that it is only a “safe harbor for electronic surveillance” because it cannot “restrict the president’s ability to engage in warrantless searches that protect the national security.” Yoo also writes that Congress has not “made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area.” The IGs’ report will state that Yoo’s successors considered this problematic because Yoo has omitted discussion of the fact that FISA explicitly authorizes the president to conduct warrantless surveillance during the first 15 days following a declaration of war by Congress, which they considered an expression of Congress’s intent to restrict warrantless surveillance to a limited period of time and specific circumstances. The IGs’ report will also state that Yoo’s memo discusses “the legal rationale for Other Intelligence Activities authorized as part of the PSP,” and that Yoo concludes, “[W]e do not believe that Congress may restrict the president’s inherent constitutional powers, which allow him to gather intelligence necessary to defend the nation from direct attack.” The IGs’ report will say that “Yoo’s discussion of some of the Other Intelligence Activities did not accurately describe the scope of these activities,” and that Yoo’s successors considered his discussion of these other activities to be “insufficient and presenting a serious impediment to recertification of the program as to form and legality.” [Inspectors General, 7/10/2009, pp. pp. 11-13]
Memo's Existence Revealed by ACLU Lawsuit - On December 15, 2005, the New York Times will report that Bush authorized an NSA warrantless domestic surveillance program after the 9/11 attacks (see December 15, 2005). The American Civil Liberties Union (ACLU) will request records pertaining to the program under the Freedom of Information Act (FOIA) and then sue the Justice Department for the release of records. The existence of Yoo’s November 2 memo will first be revealed in an October 19, 2007 deposition filed by then head of the OLC Steven Bradbury in response to the ACLU lawsuit, which says that it “[concerns] the legality of certain communications intelligence activities.” After the 2009 release of the IGs’ report the ACLU will notify the court and the government will agree to reprocess four OLC memos, including Yoo’s November 2 memo. This memo and a May 6, 2004 memo by Yoo’s OLC successor Jack Goldsmith that disputes many of Yoo’s conclusions will be released in heavily redacted form on March 18, 2011. [ACLU.org, 2/7/2006; United States District Court of DC, 10/19/2007; American Civil Liberties Union, 3/19/2011]
Constitutional Experts Dispute Yoo's Legal Rationale - Numerous authorities on the law will question or reject the legal bases for warrantless domestic surveillance. In 2003, Yoo will leave the OLC. Goldsmith will begin a review of the PSP, after which he will conclude it is probably illegal in some respects and protest, within the executive branch, its continuation (see Late 2003-Early 2004 and December 2003-June 2004). Following the public disclosure of its existence, a January 5, 2006 report by the Congressional Research Service will find it to be of dubious legality (see January 5, 2006). On January 19, 2006, the DOJ will issue a 42-page white paper laying out the legal bases for the program (see January 19, 2006). These bases will be reviewed and rejected by 14 constitutional scholars and former government officials in a joint letter to Congress on February 2, 2006. [al [PDF], 2/2/2006 pdf file] The American Bar Association will adopt a resolution on February 13, 2006 that rejects DOJ’s arguments and calls on Congress to investigate the program. [Delegates, 2/13/2006 pdf file] On August 17, 2006, in the case ACLU v. NSA, US district judge Anna Diggs Taylor will reject the government’s invocation of the “state secrets privilege” and its argument that plaintiffs’ lack standing due to their being unable to prove they were surveilled, and will rule that warrantless surveillance is in violation of “the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution, the FISA, and Title III” (see August 17, 2006). Taylor’s ruling will be overturned on appeal, on the grounds that the plaintiffs lack standing as they cannot prove that surveillance has occurred. In another case, Al Haramain v. Barack Obama, the government will make the same arguments, but US district judge Vaughn Walker will reject these and conclude in 2010 that illegal surveillance occurred (see March 31, 2010). [Al-Haramain v. Obama, 3/31/2010]

Entity Tags: Steven Bradbury, Vaughn Walker, Ronald Dworkin, George W. Bush, John C. Yoo, American Bar Association, Office of Legal Counsel (DOJ), American Civil Liberties Union, John Ashcroft, Anna Diggs Taylor, US Department of Justice

Timeline Tags: Civil Liberties

John Yoo, a lawyer for the Justice Department’s Office of Legal Counsel and a member of Vice President Cheney’s ad hoc legal team tasked to radically expand the power of the presidency, writes a legal brief declaring that President Bush does not need approval from Congress or the federal courts for denying suspected terrorists access to US courts, and instead can be tried in military commissions (see (After 10:00 a.m.) September 11, 2001). Two other team members, Cheney’s chief of staff David Addington and White House deputy counsel Timothy Flanigan, have decided that the government bureaucrats need to see that Bush can and will act, in the words of author Craig Unger, “without their blessing—and without the interminable process that goes along with getting that blessing.” Yoo’s opinion is a powerful object lesson. Yoo later says that he saw no need to seek the opinion of the State Department’s lawyers; that department hosts the archives of the Geneva Conventions and its lawyers are among the government’s top experts on the laws of war. “The issue we dealt with was: Can the president do it constitutionally?” Yoo will say. “State—they wouldn’t have views on that.” Neither does Yoo see a need to consult with his own superiors at the Justice Department. Attorney General John Ashcroft is livid upon learning that the draft gives the Justice Department no say in which alleged terrorists will be tried in military commissions. According to witnesses, Ashcroft confronts Cheney and David Addington over the brief, reminding Cheney that he is the president’s senior law enforcement officer; he supervises the FBI and oversees terrorism prosecutions throughout the nation. The Justice Department must have a voice in the tribunal process. He is enraged, participants in the meeting recall, that Yoo had recommended otherwise as part of the White House’s strategy to deny jurisdiction to the courts. Ashcroft talks over Addington and brushes aside interjections from Cheney: “The thing I remember about it is how rude, there’s no other word for it, the attorney general was to the vice president,” one participant recalls. But Cheney refuses to acquiesce to Ashcroft’s objections. Worse for Ashcroft, Bush refuses to discuss the matter with him, leaving Cheney as the final arbiter of the matter. In the following days, Cheney, a master of bureaucratic manipulation, will steer the new policy towards Bush’s desk for approval while avoiding the usual, and legal, oversight from the State Department, the Justice Department, Congress, and potentially troublesome White House lawyers and presidential advisers. Cheney will bring the order to Bush for his signature, brushing aside any involvement by Ashcroft, Secretary of State Colin Powell, or National Security Adviser Condoleezza Rice (see November 11-13, 2001). [Unger, 2007, pp. 222-223; Washington Post, 6/24/2007]

Entity Tags: John C. Yoo, Craig Unger, Condoleezza Rice, Colin Powell, David S. Addington, George W. Bush, John Ashcroft, US Department of State, Timothy E. Flanigan, US Department of Justice, Richard (“Dick”) Cheney, Office of Legal Counsel (DOJ)


Enron’s logo.
Enron’s logo. [Source: Enron]Enron files for Chapter 11 bankruptcy—the biggest bankruptcy in history up to that date. [BBC, 1/10/2002] However, in 2002 Enron will reorganize as a pipeline company and will continue working on its controversial Dabhol power plant. [Houston Business Journal, 3/15/2002]

Entity Tags: Enron Corporation

Timeline Tags: US Environmental Record, Complete 911 Timeline

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. [National Review, 2/20/2002]

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

Timeline Tags: US Environmental Record, Civil Liberties

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]

Entity Tags: Carl Levin, Bush administration (43), Byron L. Dorgan, General Accounting Office, Joseph Lieberman, National Energy Policy Development Group, Ernest F. Hollings

Timeline Tags: US Environmental Record, Civil Liberties

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

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

Timeline Tags: Civil Liberties

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.” [National Review, 2/20/2002] The GAO’s chief, Comptroller General David Walker, will later call Cheney’s statements “disinformation.” [Savage, 2007, pp. 100]

Entity Tags: National Energy Policy Development Group, Anthony Gamboa, David Walker, Henry A. Waxman, Richard (“Dick”) Cheney, General Accounting Office

Timeline Tags: US Environmental Record, Civil Liberties

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

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

Timeline Tags: US Environmental Record, Civil Liberties

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]

Entity Tags: British Petroleum, Andrew Lundquist, Duke Energy, Lundquist Group, Bush administration (43)

Timeline Tags: US Environmental Record

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]

Entity Tags: Richard (“Dick”) Cheney, Emmet Sullivan, Judicial Watch, Chris Farrell

Timeline Tags: US Environmental Record, Civil Liberties

Vice President Cheney, widely acknowledged as a master bureaucrat, uses a variety of bureaucratic strategies to craft his own foreign policy strategies, including the promotion the Office of Special Plans (OSP—see September 2002), simultaneously undercutting and marginalizing the CIA. Many senior intelligence officials have no idea that the OSP even exists. “I didn’t know about its existence,” Greg Thielmann, the director of the State Department’s in-house intelligence agency, the Bureau of Intelligence and Research (INR), will say.
Strategic Placement of Personal, Ideological Allies - Another Cheney strategy is personal placement. He moves his special adviser, neoconservative William Luti, into the OSP. Another influential neoconservative, Abram Shulsky, soon joins Luti there. A longtime associate of both Cheney and Defense Secretary Donald Rumsfeld, Stephen Cambone, becomes a special assistant to Rumsfeld (see Early 2001). Cheney now has his allies at the highest levels of the Pentagon. In Cheney’s office, chief of staff Lewis “Scooter” Libby serves as his liaison with the Pentagon. His chief counsel, David Addington, oversees Cheney’s aggressive and obsessively secretive legal staff. In the National Security Council (NSC), Stephen Hadley, Condoleezza Rice’s deputy, keeps a close eye on Rice in case she shows signs of falling back in with her old mentor, Brent Scowcroft (see August 1998). John Bolton and David Wurmser keep tabs on Colin Powell at the State Department. Cheney has John Yoo (see (After 10:00 a.m.) September 11, 2001) at the Justice Department. Not only does Cheney have highly placed loyalists in the State, Defense, and Justice Department, and in the NSC, he has vital allies in the Republican leadership in Congress.
Managing the Oval Office - Cheney handles the Oval Office himself. A Pentagon official who works closely with Cheney will later observe that President Bush handles the executive branch much as he handled the Texas Rangers baseball team: ignoring much of the daily functions, leaving most policy decisions to others and serving as a “corporate master of ceremonies, attending to the morale of the management team and focusing on narrow issues… that interested him.” Cheney becomes, in author Craig Unger’s words, “the sole framer of key issues for Bush,” the single conduit through which information reaches the president. Cheney, the Pentagon official will later say, “rendered the policy planning, development and implementation functions of the interagency system essentially irrelevant. He has, in matters he has deemed important, governed. As a matter of protocol, good manners, and constitutional deference, he has obtained the requisite ‘check-mark’ of the president, often during one-on-one meetings after a Potemkin ‘interagency process’ had run its often inconclusive course.” [Unger, 2007, pp. 249-250]

Entity Tags: Condoleezza Rice, Stephen A. Cambone, Stephen J. Hadley, Texas Rangers, William Luti, Brent Scowcroft, Abram Shulsky, Central Intelligence Agency, Office of Special Plans, Richard (“Dick”) Cheney, Lewis (“Scooter”) Libby, David Wurmser, David S. Addington, Craig Unger, National Security Council, John R. Bolton, Greg Thielmann, John C. Yoo, Bureau of Intelligence and Research, George W. Bush, Donald Rumsfeld

Timeline Tags: US International Relations

The House votes to give President Bush sweeping authorization to use military force against Iraq, on an overwhelming 296-133 vote. One hundred and twenty-six Democrats vote against the bill even though House Minority Leader Richard Gephardt (D-MO) co-authored it. House Majority Leader Dick Armey (R-TX) issues a veiled warning to the president to use his newly granted powers judiciously: “Mr. President, we are about to give you a great trust.” After the bill passes the House, Bush says, “The days of Iraq acting as an outlaw state are coming to an end… [t]he gathering threat of Iraq must be confronted fully and finally.” One of the opponents of the House bill, John Spratt (D-SC), says that without an international diplomatic approach, “this will be the United States versus Iraq and in some quarters the US versus the Arab and the Muslim world.” Commenting on the passing of the resolution, the Washington Post reports: “Yesterday’s debate often lacked the passion and unpredictability of the 1991 affair, when members sat late into the night listening attentively to a war of words. By contrast, the House chamber was largely empty most of yesterday: the arguments familiar, the outcome certain, the conclusion anticlimactic.” [White House, 10/2/2002; PBS, 10/10/2002; Washington Post, 10/11/2002] Bush calls on the Senate to pass the bill (see October 11, 2002) so it can be signed into law as soon as possible (see October 16, 2002). The Senate overwhelmingly approves the resolution the next day. [PBS, 10/10/2002; US Senate, 10/11/2002] The AUMF contains a caveat in the authorization that conditions Congress’s authorization of military force on a formal determination by Bush that Iraq poses a threat to the US that cannot be contained diplomatically, and that any military action against Iraq must be consistent with the war against those who attacked the US on 9/11 (see March 18, 2003). The US media virtually ignores this condition, and therefore the Bush administration does not feel particularly bound by it. Congress asks for the formal declaration either before launching an attack or within 48 hours of the attack, and insists that the declaration contain solid evidence of the impossibility of further diplomacy, and of Iraq’s connection to the 9/11 terrorists. [Dean, 2004, pp. 143-148]

Entity Tags: Richard Gephardt, John Spratt, Bush administration (43), Dick Armey, George W. Bush, Washington Post

Timeline Tags: Events Leading to Iraq Invasion

Congress passes a law creating the Institute of Education Sciences, a subsidiary of the Department of Education. The new institute is designed to generate independent statistics about student performance. The law stipulates that the institute’s director may conduct and publish research “without the approval of the secretary [of education] or any other office of the department.” President Bush issues a signing statement indicating that contrary to the law, the director will be responsible to the secretary of education. Since the president has the power to control the actions of all executive branch officials, the statement asserts, “the director of the Institute of Education Sciences shall [be] subject to the supervision and direction of the secretary of education.” Bush’s signing statement directly contradicts the letter and the intent of Congress’s law. [Boston Globe, 4/30/2006; Savage, 2007, pp. 240]

Entity Tags: US Department of Education, Institute of Education Sciences, George W. Bush

Timeline Tags: Civil Liberties

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

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

Timeline Tags: US Environmental Record, Civil Liberties

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

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

Timeline Tags: US Environmental Record, Civil Liberties

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).

Entity Tags: US Department of Commerce, Lou Dubose, Judicial Watch, Jake Bernstein, National Energy Policy Development Group, Natural Resources Defense Council, Richard (“Dick”) Cheney, Tom Fitton, Sierra Club

Timeline Tags: US Environmental Record, Events Leading to Iraq Invasion

Congress passes a law that states US officials in Iraq cannot prevent an inspector general for the Coalition Provisional Authority from carrying out any investigation. The inspector general will inform Congress if officials refuse to cooperate with his inquiries. President Bush issues a signing statement directly contradicting the law. According to Bush’s statement, the inspector general “shall refrain” from investigating anything involving sensitive plans, intelligence, national security, or anything already being investigated by the Pentagon. The inspector cannot tell Congress anything if the president decides that disclosing the information would impair foreign relations, national security, or executive branch operations. [Boston Globe, 4/30/2006]

Entity Tags: Coalition Provisional Authority, George W. Bush

Timeline Tags: Civil Liberties

The US Supreme Court agrees to hear Vice President Cheney’s appeal of a lower court ruling that found he must reveal documents pertaining to his 2001 energy task force (the National Energy Policy Development Group—see January 29, 2001 and May 16, 2001). Cheney lost the case, filed by the conservative government watchdog group Judicial Watch and the environmentalist organization the Sierra Club, in two lower courts, and has ramrodded the case into the Supreme Court with unusual alacrity—filing the Supreme Court appeal even before the appeals court had finished the case. Cheney’s lawyers from the Justice Department will argue that because of the Constitutional provision of separation of powers, the executive branch can and should keep all such information secret if it so chooses. Judicial Watch and the Sierra Club insist that because energy executives and lobbyists were involved in the task force policy deliberations, federal law mandates that lists of participants and details of the meetings should be made public. Over a year ago, District Court Judge Emmet Sullivan ruled that the White House should either turn over the documents or provide a detailed list of the documents it was withholding, and explain why. The White House has done neither, and instead appealed the decision. The US Court of Appeals refused to overturn Sullivan’s decision and ruled that Cheney had no legal standing to refuse the judicial order. Cheney disagreed, and appealed to the Supreme Court. The Court will hear arguments in the spring of 2004 (see April 27, 2004). Thousands of documents concerning the task force from the Department of Energy, the Environmental Protection Agency, and other federal agencies have already been turned over (see July 17, 2003), but no White House documents have been released. The Sierra Club has accused the Bush administration of trying to delay release of the information until after the November 2004 presidential elections. [Reuters, 12/15/2003]

Entity Tags: US Supreme Court, US Department of Justice, Sierra Club, Environmental Protection Agency, Emmet Sullivan, Bush administration (43), US Department of Energy, Judicial Watch, Richard (“Dick”) Cheney, National Energy Policy Development Group

Timeline Tags: US Environmental Record, Civil Liberties

President Bush meets privately with acting Attorney General James Comey to discuss the Justice Department’s refusal to reauthorize the administration’s warrantless wiretapping program (see Late September, 2001). (Comey will later refuse to discuss the conversation during testimony before Congress.) After the meeting, Bush meets privately with FBI Director Robert Mueller, Comey’s partner in opposing the program (see March 10-12, 2004). After his meeting, Mueller tells Comey, “[W]e have the president’s direction to do what we believed, what the Justice Department believed was necessary to put this matter on a footing where we could certify its legality.” Author and reporter Charlie Savage will later write, “Comey, [Office of Legal Counsel chief Jack] Goldsmith, and their colleagues spent the next several weeks making a series of undisclosed changes to the warrantless surveillance program—during which time the original program continued to operate, even though the president had been told it was illegal.” Outside experts will later speculate that Comey and Goldsmith had constrained the program’s scope by imposing stricter controls on who can be monitored without a warrant. Some will decide that the program now monitors only communications specifically suspected to have a connection to al-Qaeda, not the more general “suspected terrorism” communications. They will also speculate that the authorization for the program now relies on Congress’s Authorization to Use Military Force (AUMF—see September 14-18, 2001), not the president’s inherent authority as commander in chief. But, Savage will write, the program still allows wiretapping without a judge’s approval, and therefore is still illegal. [Savage, 2007, pp. 188]

Entity Tags: George W. Bush, Charlie Savage, US Department of Justice, Robert S. Mueller III, James B. Comey Jr., Jack Goldsmith

Timeline Tags: Civil Liberties

The Supreme Court convenes to hear arguments in Vice President Cheney’s appeal of a judicial order to reveal information about his secret energy task force (see December 15, 2003). Justice Antonin Scalia has recently returned from a duck hunting trip with Cheney; though critics demand he recuse himself to avoid charges of conflict of interest, Scalia refuses. The plaintiffs, conservative watchdog organization Judicial Watch and progressive environmental group Sierra Club, are heavily represented in the courtroom, and friends and supporters jam the courthouse steps. Solicitor General Theodore Olson, arguing for the government, posits that the White House enjoys a “constitutional immunity” that protects the executive branch from all requests for information unless the president himself is under criminal investigation. If the Federal Advisory Committee Act (FACA) forces the president to make public any advice he or other White House officials have received, or even to make that information available to a judge (see August 2, 2002), FACA itself is unconstitutional, Olsen argues. “This is a case about separation of powers,” he says. Neither Congress nor the judiciary can force the president or his officials to disclose information to a judge, not even on a very limited basis to determine whether a lawsuit can proceed—a process called discovery. “We are submitting that the discovery itself violates the Constitution,” Olson asserts. Justice Ruth Bader Ginsburg is taken aback by the sweep of his claim, which, if accepted, would gut the ability of the courts to review any civil lawsuit involving the executive branch. “All discovery?” she asks. “Yes,” Olson replies. Throughout the questioning, most of the justices seem sympathetic to the administration’s general constitutional concerns, but uncomfortable with siding entirely with the White House’s sweeping claims of inherent legal immunity from scrutiny. [Savage, 2007, pp. 166-167] The oral arguments will continue for weeks (see April 27, 2004).

Entity Tags: Ruth Bader Ginsburg, Federal Advisory Committee Act, Antonin Scalia, Judicial Watch, Richard (“Dick”) Cheney, Theodore (“Ted”) Olson, National Energy Policy Development Group, US Supreme Court, Sierra Club

Timeline Tags: US Environmental Record, Civil Liberties

The Supreme Court hears oral arguments for and against the release of records pertaining to Vice President Cheney’s energy task force (the National Energy Policy Development Group—see May 16, 2001). The case is Cheney v. US District Court for the District of Columbia (03-0475) (see December 15, 2003). Two public interest groups, the environmentalist Sierra Club and the conservative government watchdog organization Judicial Watch, have joined to argue for the release of the records, saying that because the task force deliberations included energy industry executives and lobbyists, the task force is subject to the Federal Advisory Committee Act (FACA), which requires disclosure of the work of advisory groups that include non-federal employees. Bush administration lawyers, spearheaded by Solicitor General Theodore Olson, argue that releasing those records would violate the concept of “separation of powers.” The administration also argues that releasing the records, most pertinently the meetings between Cheney, his aides, and officials from energy corporations and lobbying firms, would damage the White House’s ability to receive candid advice. “This case is about the separation of powers and the president’s discretion to receive the opinions of subordinates,” Olson tells the court; Olson has resisted submitting task force documents even to the Court, saying that even that so-called “discovery” process would violate the Constitutional separation of powers. Lawyers for the Sierra Club and Judicial Watch argue that Cheney’s contacts with industry executives and lobbyists were improper while he was developing government policy that benefited their businesses. They are demanding to know whether energy lobbyists helped shape the government’s long-term energy policies. Lower courts agreed with Judicial Watch and the Sierra Club, and Cheney, with the Justice Department, has successfully ramrodded the case into the Supreme Court with unprecedented speed.
Justices Question Breadth of Requests - Justice Antonin Scalia, who refused to recuse himself from deliberations after accompanying Cheney on a duck-hunting trip in January, is one of the justices most favoring the government’s case. But even more moderate justices such as Stephen Breyer and Ruth Bader Ginsburg question whether the information request is too broad and inclusive. As for the White House, it argues that neither the courts nor Congress have any right to make any inquiries into the decisions of federal agencies and officials. Sierra Club lawyer David Bookbinder says the White House appears to have violated laws supporting open government: “What the panel said to energy executives was: Help us decide what the energy policy should be. A line has been crossed because the process should have been transparent. The panel was inordinately influenced by the energy industry.” Cheney has said that the executive branch must defend itself against the “continual encroachment by Congress.” The White House has already turned over some 40,000 documents from the task force after a lower court ruling compelled it to do so (see July 17, 2003), but the lawsuit before the Supreme Court says that another 100,000 potentially relevant documents and files remain secret. [MSNBC, 4/26/2004; New York Times, 4/28/2004; CNN, 6/24/2004]
Cheney 'Beyond the Reach of the Law?' - In a legal analysis of the case, former Nixon White House counsel John Dean calls the case “extraordinary,” and notes that Cheney “contends that he is, in essence, beyond the reach of the law. It began as a set of rather pedestrian discovery matters in two consolidated civil lawsuits. Now, however, because of Cheney’s stance, it could be a landmark Constitutional decision.” Dean sees the case as an opportunity for Cheney, with the assistance of Olson and Scalia, “to expand executive powers.” [FindLaw, 3/26/2004]
Case Sent Back to Lower Court - The Court will vote to send the case back to the District of Columbia Appeals Court for further adjudication (see June 24, 2004). That court will rule in Cheney’s favor (see May 10, 2005).

Entity Tags: Stephen Breyer, Sierra Club, US Department of Justice, Ruth Bader Ginsburg, Theodore (“Ted”) Olson, US Supreme Court, Richard (“Dick”) Cheney, Judicial Watch, Antonin Scalia, David Bookbinder, Bush administration (43), John Dean, Federal Advisory Committee Act, National Energy Policy Development Group

Timeline Tags: US Environmental Record, Civil Liberties

The Supreme Court rules in the case of Cheney v. US District Court for the District of Columbia (03-0475), in which two organizations, Judicial Watch and the Sierra Club, are attempting to force the White House to reveal information about the secret deliberations of Vice President Cheney’s energy task force (see April 27, 2004). Neither side gets what it asks for in the 7-2 ruling, as the Court sends the case back to the US Court of Appeals for further adjudication, with an order for that court to take a second look at its ruling that Cheney must allow a judge to review the task force documents (see August 2, 2002). Five justices—Stephen Breyer, Anthony Kennedy, Sandra Day O’Connor, Chief Justice William Rehnquist, and John Paul Stevens—vote to send the case back to the appeals court. Two justices, Ruth Bader Ginsburg and David Souter, vote to send the case all the way back to the original trial court, concurring with the majority. The Court’s two most conservative justices, Antonin Scalia and Clarence Thomas, vote to resolve the matter entirely in Cheney’s favor. Judge Anthony Kennedy, writing for the majority, instructs the appeals court—and all other courts who might subsequently hear such a case—to use a legal standard far more aligned with the executive branch’s claim of immunity from disclosure. Courts must afford “presidential confidentiality the greatest protection consistent with the fair administration of justice,” Kennedy writes, to protect the executive branch from being sued. Former Nixon White House counsel John Dean will later write that the Court may have avoided making a firm ruling because it did not want to wrangle with the issue of separation of powers, and the privilege of executive branch secrecy, in an election year. While most media and court observers call the decision a “punt” of little import, at least one, former Justice Department official Shannen Coffin, sees it differently. In a column for the National Review, Coffin celebrates the ruling, writing that due to “the vice president’s resolute assertion that he and the president should have the right to receive in confidence the advice necessary to the performance of their duties,” the White House has won a “major victory” in expanding its power to keep its procedures secret, regardless of the appeals court’s eventual ruling (see May 10, 2005). [National Review, 6/25/2004; FindLaw, 7/2/2004; Savage, 2007, pp. 167-168] The appeals court will agree with Thomas and Scalia, and rule in Cheney’s favor (see May 10, 2005).

Entity Tags: Sandra Day O’Connor, Sierra Club, William Rehnquist, US Supreme Court, Stephen Breyer, Ruth Bader Ginsburg, John Paul Stevens, National Energy Policy Development Group, Richard (“Dick”) Cheney, Anthony Kennedy, Clarence Thomas, Bush administration (43), John Dean, Judicial Watch, Antonin Scalia, David Souter

Timeline Tags: US Environmental Record, Civil Liberties

Congress passes an intelligence bill that requires the Justice Department to inform it as to how often and in what situation the FBI is using special “national security” wiretaps on US soil. The bill also requires the Justice Department to give oversight committees copies of administration memos outlining any new interpretations of domestic-spying laws. It contains 11 other sections mandating reports about such issues as civil liberties, security clearances, border security, and counternarcotics efforts. President Bush signs the bill, then issues a signing statement asserting his right to ignore or override every element of it. He can and will withhold information from Congress as he sees fit, he claims in the statement. [Savage, 2007, pp. 238-239]

Entity Tags: US Department of Justice, George W. Bush

Timeline Tags: Civil Liberties

Congress passes a law requiring the director of national intelligence (DNI) to recruit and train women and minorities to be spies, analysts, and translators in order to ensure diversity in the intelligence community. President Bush signs the bill, then issues a signing statement ordering the executive branch—including the DNI—to construe the law in a manner consistent with a constitutional clause guaranteeing “equal protection” for all: a legalistic phrasing designed to sidestep the law. Bush has long been an opponent of any sort of affirmative action program; as recently as 2003, the Supreme Court ruled against the Bush administration’s “equal protection” arguments and in favor of a race-conscious affirmative action program. In his signing statement, Bush advances the “equal protection” argument over affirmative action in spite of the Supreme Court’s rejection of that argument. [Boston Globe, 4/30/2006; Savage, 2007, pp. 240-241]

Entity Tags: Bush administration (43), Office of the Director of National Intelligence, US Supreme Court, George W. Bush

Timeline Tags: Civil Liberties

Congress passes a law forbidding US troops in Colombia, who are there advising the government in its struggle against Marxist rebels funded by drug money, from engaging in any combat against the rebels except in self-defense. The law also caps the number of American soldiers deployed in Colombia at 800. President Bush issues a signing statement that only he, as the commander in chief, can place restrictions on the use of US armed forces. Therefore, the executive branch will construe the law “as advisory in nature.” [Boston Globe, 4/30/2006]

Entity Tags: George W. Bush, Bush administration (43)

Timeline Tags: US International Relations, Civil Liberties

The Senate Judiciary Committee brings in several experts to expand upon the testimony of attorney general nominee Alberto Gonzales (see January 6, 2005 and January 6, 2005). One of the most outspoken critics is Yale Law School dean Harold Koh. Koh had worked in the Justice Department’s Office of Legal Counsel (OLC) under Ronald Reagan, and later served as assistant secretary of state for democracy, human rights, and labor in the Clinton administration. He is a vocal critic of the Bush administration’s detention policies at Guantanamo and elsewhere. Koh had once worked closely with OLC lawyer John Yoo, the author of numerous torture memos (see October 4, 2001, November 6-10, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24-26, 2002, March 13, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and March 14, 2003) and opinions expanding the power of the president (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, October 23, 2001, and June 27, 2002), but now, without explicitly mentioning Yoo by name, he repudiates his former student’s legal positions. Gonzales worked closely with Yoo to craft the administration’s positions on wiretapping, torture, the inherent power of the president, and other issues. “Having worked in both Democratic and Republican administrations, and for more than two years as an attorney in the Office of Legal Counsel, I am familiar with how legal opinions like this are sought and drafted,” Koh states. “I further sympathize with the tremendous pressures of time and crisis that government lawyers face while drafting such opinions. Nevertheless, in my professional opinion, the August 1, 2002 OLC memorandum [drafted by Yoo at Gonzales’s behest—see August 1, 2002] is perhaps the most clearly erroneous legal opinion I have ever read.” The August 1 memo, as well as other opinions by Yoo and Gonzales, “grossly overreads the inherent power of the president” as commander in chief, Koh testifies. The memos raise profound questions about the legal ethics of everyone involved—Gonzales, Yoo, and others in the Justice Department and White House. “If a client asks a lawyer how to break the law and escape liability, the lawyer’s ethical duty is to say no,” Koh testifies. “A lawyer has no obligation to aid, support, or justify the commission of an illegal act.” [Senate Judiciary Committee, 1/7/2005 pdf file; Savage, 2007, pp. 211-212]

Entity Tags: Senate Judiciary Committee, US Department of Justice, Harold Koh, Alberto R. Gonzales, Bush administration (43), John C. Yoo, Office of Legal Counsel (DOJ)

Timeline Tags: Civil Liberties

Attorney general nominee Alberto Gonzales turns in supplementary written answers to expand upon and clarify his testimony before the Senate Judiciary Committee (see January 6, 2005 and January 6, 2005). Buried in the documents is what reporter Charlie Savage will call “an explosive new disclosure.” Gonzales reveals that the Bush administration had secretly decided that the Convention against Torture, an international treaty, only has force on domestic soil, where the US Constitution applies. Noncitizens held overseas have no rights under the treaty, Bush lawyers concluded. Legal scholars from all sides of the political continuum denounce the administration’s position. Judge Abraham Sofaer, who negotiated the treaty for the Reagan administration, will write a letter to Congress informing it that President Reagan had never intended the treaty’s prohibition on torture and brutal treatment to apply only on US soil. However, the Bush administration stands by its position. [Savage, 2007, pp. 213]

Entity Tags: Senate Judiciary Committee, Abraham Sofaer, Alberto R. Gonzales, Bush administration (43), Charlie Savage

Timeline Tags: Civil Liberties

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

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

Timeline Tags: US Environmental Record, Civil Liberties

Congress passes the Energy Policy Act (EPA) of 2005. The EPA is the product of the secret Cheney energy task force (see January 29, 2001 and May 16, 2001). The act provides $14.5 billion in tax breaks for corporate energy providers, primarily oil, coal, and nuclear power companies. It contains an array of odd and obscure provisions helping industrialists, many generated by the lobbyists and corporate executives who helped craft the bill (see May 10, 2005). It does nothing to discourage consumption by raising fuel efficiency standards, and does little to address the sharply rising price of oil. What it does, primarily, is give huge financial and regulatory breaks to the energy industry. [Savage, 2007, pp. 360]

Entity Tags: Richard (“Dick”) Cheney, National Energy Policy Development Group

Timeline Tags: US Environmental Record

John Roberts.John Roberts. [Source: In These Times]John Roberts is approved by the Senate to become the new chief justice of the US Supreme Court, replacing the recently deceased William Rehnquist (see September 5, 2005). Roberts, who once clerked for Rehnquist while Rehnquist was an associate justice, also served in the Reagan Justice Department and as an associate counsel to then-President Reagan. He was deputy solicitor general in the first Bush administration. George W. Bush appointed him to the DC Circuit Court in 2001. [White House, 9/29/2005] Roberts was originally nominated to succeed the retiring Sandra Day O’Connor, but when Rehnquist died, Bush quickly withdrew the nomination for associate justice and refiled Roberts’s name for chief justice.
Characteristics and History - Roberts appeals to conservatives for a number of reasons; he has a powerful legal intellect, is soft-spoken, personable, and telegenic, and has not been outspoken about his views on issues like abortion and the right to privacy. Law professor Stephen Wermiel, who knows Roberts well, said in July that Roberts is not “somebody who… comes off as gruff or overbearing, which some people will recall was a factor in the [Robert] Bork hearings in 1987” (see July 1-October 23, 1987). Wermiel called Roberts’s nomination “a stroke of brilliance on the White House’s part.” One area of controversy surrounds Roberts’s work with Governor Jeb Bush of Florida during the bitterly contested 2000 presidential election, where Roberts helped construct the strategies used in the Bush v. Gore case that awarded George W. Bush the presidency. Another is Roberts’s membership in the Federalist Society, an organization of conservative activist judges, lawyers, and legal thinkers. A third is his advocacy, during his time with the first Bush administration, for scrapping decades of law providing for the separation of church and state in order to allow prayer in public schools. [National Public Radio, 7/20/2005] Four days before President Bush nominated him to the Court, Roberts voted in favor of upholding the Bush administration’s assertions about its wartime powers in the case of Hamdan v. Rumsfeld (see June 30, 2006), ruling that Bush need not consult Congress before setting up military commissions, and ruling that Bush is not bound by the strictures of the Geneva Convention. Liberals are unhappy with his stance against abortion, his representation as a private attorney of corporate mining interests seeking to dodge environmental regulations and of businesses trying to evade affirmative action requirements, as well as his attempts to curb environmentalists’ efforts to save endangered species. In 2007, reporter Charlie Savage will write that while progressives and liberals busily attacked Roberts for his positions on various “hot-button” issues, “[a]lmost lost amid the hubbub was” Roberts’s “unwavering commitment to the [expansion of] presidential power,” dating back to his 1980-81 clerkship under Rehnquist and his tenure as a White House lawyer under Ronald Reagan (see June-July 1983, October 1983, February 13, 1984, and May 16, 1984). [Savage, 2007, pp. 251-255]
Quick Confirmation - The Senate agreed to expedite Roberts’s confirmation process in order to allow him to preside over the next session of the Supreme Court in October, and so gave its members little time to peruse his record. Roberts sailed through the Senate Judiciary Committee hearings, and is confirmed by a 78-22 vote. Roberts hit a brief snag when he divulged that he had met with Attorney General Alberto Gonzales just six days before hearing oral arguments in the Hamdan case, had met with Vice President Cheney and a select coterie of top White House officials while considering his verdict, and had met with Bush for the president’s final approval on the Court nomination the same day that he handed down his favorable ruling. Though 22 Democrats vote against his confirmation, because Roberts’s ascension to the Court does not change the ideological balance among the nine justices (Roberts is replacing the equally conservative Rehnquist), Senate Democrats decided not to filibuster his nomination. [Dean, 2007, pp. 154-155; Savage, 2007, pp. 252]

Entity Tags: US Department of Justice, Stephen Wermiel, Senate Judiciary Committee, Federalist Society, George W. Bush, Charlie Savage, John G. Roberts, Jr, US Supreme Court

Timeline Tags: Civil Liberties

Congress passes a law requiring the Customs and Border Patrol to relocate its illegal immigrant checkpoints near Tucson, Arizona, every seven days in order to prevent smugglers from being able to avoid those checkpoints. President Bush signs the law, then issues a signing statement saying that the Border Patrol should view the “relocation provision as advisory rather than mandatory” because, in his view, only the president has the constitutional authority to decide how to deploy law enforcement officers. As a result of Bush’s signing statement, Border Patrol authorities disobey the law, and explain to investigators from the Government Accountability Office that the law is not mandatory, but “advisory.” White House spokesman Tony Fratto later says in response to the Border Patrol’s refusal to obey the law: “The signing statements certainly do and should have an impact. They are real.” [Savage, 2007, pp. 242-243; Boston Globe, 6/19/2007]

Entity Tags: US Customs and Border Protection, George W. Bush, Tony Fratto, Government Accountability Office

Timeline Tags: Civil Liberties

A White House document shows that oil company executives lied in recent Senate hearings when they denied meeting with Vice President Cheney’s energy task force (the National Energy Policy Development Group—see May 16, 2001) in 2001. The document, obtained by the Washington Post, shows that officials from ExxonMobil, Conoco (before it merged with Phillips), Shell Oil, and British Petroleum met with the task force (see March 22, 2001). Last week, the CEOs of ExxonMobil, Chevron, and ConocoPhillips denied participating in the task force’s deliberations. Shell Oil’s CEO said his company did not participate “to my knowledge,” and the chief of BP America said he did not know. Though Chevron is not named in the White House document, that firm and others “gave detailed energy policy recommendations” to the task force, according to the Government Accountability Office. Cheney also met separately with John Browne, BP’s chief executive, in a meeting not included in the document. Environmentalists have long stated that they were almost entirely shut out of the deliberations, while corporate interests were heavily represented (see April 4, 2001). The Supreme Court ruled in 2004 that the government could keep the records of the task force secret (see June 24, 2004). Senator Frank Lautenberg (D-NJ) says, “The White House went to great lengths to keep these meetings secret, and now oil executives may be lying to Congress about their role in the Cheney task force.” Since the oil executives were not under oath—a decision by Senate Commerce Committee chairman Ted Stevens (R-AK) protested by committee Democrats—they cannot be charged with perjury. However, they can be fined or imprisoned for up to five years for making “any materially false, fictitious or fraudulent statement or representation” to Congress. After the Washington Post releases the document, former Conoco manager Alan Huffman confirms, “We met [with the task force] in the Executive Office Building, if I remember correctly.” A ConocoPhillips spokesman says that CEO James Mulva had been unaware of the meetings when he testified at the hearing. ExxonMobil says it stands by CEO Lee Raymond’s denials; James Rouse, an Exxon official named in the document (see Mid-February, 2001), denies meeting with the task force, calling the document “inaccurate.” [Washington Post, 11/16/2005]

Entity Tags: Frank R. Lautenberg, Ted Stevens, Chevron, British Petroleum, Alan Huffman, ExxonMobil, Royal Dutch/Shell, US Supreme Court, National Energy Policy Development Group, Government Accountability Office, James Mulva, ConocoPhillips, John Browne, Lee Raymond, Richard (“Dick”) Cheney, James Rouse

Timeline Tags: US Environmental Record

Supreme Court Chief Justice John Roberts (see September 29, 2005) has his first opportunity to name a judge to the secret Foreign Intelligence Surveillance Court. Judge James Robertson has resigned from the court in protest of the administration’s warrantless wiretapping program (see December 21, 2005). Roberts chooses as his replacement Judge Robert Bates, who voted to dismiss the General Accounting Office’s lawsuit attempting to force Vice President Cheney to release documents surrounding his energy task force (see May 10, 2005). [Savage, 2007, pp. 262]

Entity Tags: John G. Roberts, Jr, Robert Bates, Foreign Intelligence Surveillance Court, US Supreme Court, James Robertson

Timeline Tags: Civil Liberties

Judge James Robertson.Judge James Robertson. [Source: US Courts.gov]US District Judge James Robertson resigns from the Foreign Intelligence Surveillance Court (FISC), a special, secret court set up to oversee government surveillance operations. Robertson refuses to comment on his resignation from FISC, but two of Robertson’s associates say that Robertson’s resignation stems from his deep concerns that the NSA’s warrantless domestic wiretapping program (see Early 2002) is not legal, and has tainted the work of the court. Robertson, formerly one of ten “revolving” members of FISC who periodically rotate in and out of duty on the court, continues to serve as a Washington, DC district judge. Colleagues of Robertson say that he is concerned that information gained from the warrantless surveillance under Bush’s program subsequently could have been used to obtain warrants under the FISA program, a practice specifically prohibited by the court. Robertson, a Clinton appointee selected for FISC by Chief Justice William Rehnquist, has also been critical of the Bush administration’s treatment of detainees at the Guantanamo Bay prison camp, and recently issued a decision that sidetracked Bush’s use of military tribunals for some Guantanamo detainees (see November 8, 2004). Even though Robertson was hand-picked for FISC by the deeply conservative Rehnquist, who expressly selected judges who took an expansive view of wiretapping and other surveillance programs, [Associated Press, 12/21/2005] some conservative critics such as Jim Kouri, a vice-president of the National Association of Chiefs of Police, call Robertson a “left-leaning, liberal” “Clintonista” jurist with ties to “ultra-liberal” civil rights associations and a desire for media attention (though Robertson has refused to speak to the press about his resignation). Critics also demand that less attention be directed at the NSA wiretapping program and more on finding out who leaked the information that led to the New York Times’s recent revelatory articles on the program (see Early 2002). GOP strategist Mike Baker says in response to Robertson’s resignation, “Only the Democrats make confirmations and appointments of people by Republican President [sic] a question of ideology. The news media try to portray [Robertson] as non-partisan. He’s as liberal as they come and as partisan as they come.” [Men's News, 12/23/2005] Presiding judge Colleen Kollar-Kotelly is arranging for a classified briefing of all the remaining FISC judges on the wiretapping program, partly in order to bring any doubts harbored by other justices into the open. Sources say Kollar-Kotelly expects top NSA and Justice Department officials to outline the program for the judges. No one on FISC except for Kollar-Kotelly and her predecessor, Judge Royce Lambeth, have ever been briefed on the program. If the judges are not satisfied with the information provided in this briefing, they could take action, which could include anything from demanding proof from the Justice Department that previous wiretaps were not tainted, could refuse to issue warrants based on secretly-obtained evidence, or, conceivably, could disband the entire court, especially in light of Bush’s recent suggestions that he has the power to bypass the court if he so desires. [Washington Post, 12/22/2005]

Entity Tags: US Department of Justice, Royce Lambeth, William Rehnquist, National Security Agency, Jim Kouri, Mike Baker, Foreign Intelligence Surveillance Court, George W. Bush, James Robertson, Colleen Kollar-Kotelly

Timeline Tags: Civil Liberties

Congress passes a law that says when Congress makes a request, scientific information “prepared by government researchers and scientists shall be transmitted [to Congress] uncensored and without delay.” President Bush contradicts this legal assertion in a signing statement that says he can order researchers to withhold any information from Congress if he decides its disclosure could impair foreign relations, national security, or the workings of the executive branch. [Boston Globe, 4/30/2006]

Entity Tags: George W. Bush

Timeline Tags: Civil Liberties

John Yoo’s ‘The Powers of War and Peace.’John Yoo’s ‘The Powers of War and Peace.’ [Source: University of Maryland]Libertarian law professor Cass Sunstein reviews a recent book by former Bush legal adviser John Yoo, who authored several of the Bush administration’s most controversial legal opinions concerning terrorism and executive power (see September 21, 2001, September 25, 2001, September 25, 2001, October 4, 2001, October 23, 2001, October 23, 2001, November 2, 2001, November 6-10, 2001, November 15, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24, 2002, January 24-26, 2002, March 13, 2002, April 8, 2002, June 27, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and October 11, 2002). Yoo’s book, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11, is a compendium of his pre-9/11 academic writings that landed him his job at the Justice Department’s Office of Legal Counsel. Sunstein notes that Yoo, perhaps more than any other single legal scholar, has reshaped the government’s legal stance on any number of issues. He argued for the president’s unilateral ability to declare war without the approval of Congress, the use of “enhanced interrogation techniques” on suspected terrorists, the withdrawal of essential civil liberties and legal rights from suspected terrorists and enemy collaborators, the right of the administration to electronically eavesdrop on the American citizenry without judicial consent or oversight, the ability to ignore or withdraw from international treaties without congressional approval, and more besides. Sunstein writes: “[T]aken as a whole, the claims of the Bush administration may be properly regarded as an effort to create a distinctive set of constitutional understandings for the post-September 11 era. The White House is attempting to create a kind of 9/11 Constitution. A defining feature of these understandings is a strong commitment to inherent presidential authority over national security, including a belief that in crucial domains the president can act without congressional permission, and indeed cannot be checked by congressional prohibitions.” Yoo is a key figure in that effort. Sunstein calls his work interesting but completely one-sided, simply ignoring “the mountainous counter-evidence” against most of his constitutional claims. “Yoo’s reading would require us to ignore far too many statements by prominent figures in the founding generation,” Sunstein writes. “There are not many issues on which James Madison, Thomas Jefferson, John Marshall, Alexander Hamilton, George Washington, James Wilson, John Adams, and Pierce Butler can be said to agree. Were all of them wrong?” Sunstein concludes: “[W]ith respect to war, there is no reason for a 9/11 Constitution. The old one, read in the light of our traditions, will do just fine.” [New Republic, 1/9/2006; Savage, 2007, pp. 81-82]

Entity Tags: Bush administration (43), Office of Legal Counsel (DOJ), John C. Yoo, Cass Sunstein

Timeline Tags: Civil Liberties

Speaking to a cheering crowd of military families in Kansas, President Bush declares that he has no intention of following the laws requiring warrants for wiretaps (see December 15, 2005 and December 18, 2005) because Congress authorized the use of military force against terrorists (AUMF—see September 14-18, 2001), and because he has the power to bypass laws at his own discretion in the interest of national security. The Kansas appearance is part of an election-style “blitz” of appearances around the country designed to build support for the warrantless wiretapping program, and to bolster support for Republicans in the midterm elections (see January 20, 2006). “I’m not a lawyer, but I can tell you what [the AUMF] means,” he says. “It means Congress gave me the authority to use necessary force to protect the American people but it didn’t prescribe the tactics.… If [terrorism suspects] are making phone calls into the United States, we need to know why, to protect you.” [Savage, 2007, pp. 203]

Entity Tags: George W. Bush

Timeline Tags: Civil Liberties

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

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

Timeline Tags: Civil Liberties

The Board of Governors of the American Bar Association (ABA) votes unanimously to investigate whether President Bush has exceeded his presidential authority by using signing statements to assert that he can ignore or override laws passed by Congress (see April 30, 2006 and September 2007). ABA president Michael Greco, who served with former Republican govenor William Weld (R-MA), appoints a bipartisan, blue-ribbon panel of legal experts, including former government officials, legal scholars, and retired FBI Director William Sessions, to carry out the inquiry. The ABA Task Force on Presidential Signing Statements and the Separation of Powers Doctrine will work for two months on a report (see July 23, 2006). [Savage, 2007, pp. 244-245]

Entity Tags: Michael Greco, ABA Task Force on Presidential Signing Statements and the Separation of Powers Doctrine, American Bar Association, George W. Bush, William Weld, William S. Sessions

Timeline Tags: Civil Liberties

John Yoo, a former Justice Department official, celebrates the passage of the Military Commissions Act (see October 17, 2006). Yoo writes that Congress has ordered “the courts, in effect, to get out of the war on terror.” The bill is not so much a victory for the presidency, Yoo writes, as it is a loss for the judiciary, a “stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world.” It supersedes the Court’s ruling in Hamdan v. Rumsfeld (see June 30, 2006), which Yoo calls “an unprecedented attempt by the court to rewrite the law of war and intrude into war policy… [a] stunning power grab.” Now, he writes: “Congress and the president did not take the court’s power grab lying down. They told the courts, in effect, to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with the military commissions. It is the first time since the New Deal that Congress had so completely divested the courts of power over a category of cases. It is also the first time since the Civil War that Congress saw fit to narrow the court’s habeas powers in wartime because it disagreed with its decisions. The law goes farther. It restores to the president command over the management of the war on terror. It directly reverses Hamdan by making clear that the courts cannot take up the Geneva Conventions. Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions.” Yoo had previously authored numerous torture memos (see October 4, 2001, November 6-10, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24-26, 2002, March 13, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and March 14, 2003) and opinions expanding the power of the president (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, October 23, 2001, and June 27, 2002). [Wall Street Journal, 10/19/2006]

Entity Tags: Military Commissions Act, John C. Yoo

Timeline Tags: Civil Liberties

The White House finally releases a list of officials and organizations who met with Vice President Cheney’s energy task force (the National Energy Policy Development Group—see May 16, 2001) in 2001. Cheney and the White House have successfully battled for six years to keep virtually all details of the task force secret (see May 10, 2005), and many other documents and files pertaining to the task force remain secret. The list of participants confirms what many have always suspected—that oil, gas, and energy executives and lobbyists were virtually the only ones to have any input in the task force’s policy deliberations. Many of the participants were also heavy donors to the Bush-Cheney campaign, and to the Republican Party in general.
Secrecy - Some participants say they were never sure why the White House fought so hard to keep the information about the task force secret. “I never knew why they fought so hard to keep it secret,” says Charles A. Samuels, a lawyer for the Association of Home Appliance Manufacturers. “I am sure the vast majority of the meetings were very policy-oriented meetings—exactly what should take place.” Others say that their meetings with the task force were routine.
API Input - American Petroleum Institute president Red Cavaney says that when he met with the task force, he and his fellow API officials discussed position papers the organization had given to the Bush-Cheney campaign and to newly elected members of Congress. “We’re in the business of routinely providing advocacy materials,” Cavaney says. “Speaking for myself, I had zero hand in authoring or sitting with anyone from that task force and changing anything.” But Cavaney is seriously downplaying API’s influence (see March 20, 2001).
"Ridiculous" - Representative Henry Waxman (D-CA), chairman of the House Oversight and Government Reform Committee, who has been a driving force behind the effort to reveal the inner workings of the task force to the public, says it is it is “ridiculous” that it has taken six years to see who attended the meetings. He describes the energy task force as an early indicator of “how secretively Vice President Cheney wanted to act.” As to the makeup of the participants, Waxman is not surprised to see the dominance of energy industry groups in the meetings. “Six years later, we see we lost an opportunity to become less dependent on importing oil, on using fossil fuels, which have been a threat to our national security and the well-being of the planet,” he says. Climate expert David Hawkins of the Natural Resources Defense Council says: “Cheney had his finger on a critical issue. He just pushed it in the wrong direction.” [Washington Post, 7/18/2007]

Entity Tags: National Energy Policy Development Group, Bush administration (43), Association of Home Appliance Manufacturers, American Petroleum Institute, Charles A. Samuels, Henry A. Waxman, Natural Resources Defense Council, Richard (“Dick”) Cheney, David Hawkins, Red Cavaney

Timeline Tags: US Environmental Record, Civil Liberties

President Bush has abused his prerogative to issue “signing statements” that state the White House’s interpretion of Congressionally passed laws (see Early 2005), according to former White House counsel John Dean and constitutional law professor Laurence Tribe.
History - Signing statements have no weight in law, but presidents have traditionally used them to state their belief that a particular legislative provision is unconstitutional, and on rare occasion (before the current president) to state their refusal to enforce that provision. Since Jimmy Carter’s administration, various Justice Department officials have said presidents can refuse to enforce a particular provision of signed, legally binding legislation. [Dean, 2007, pp. 112-116] A group of young conservative lawyers in the Reagan administration decided that signing statements were a powerful, and stealthy, way to expand presidential power.
Dean: Bush's Use of Signing Statements 'Extraordinary' - However, Dean says that Bush has used signing statements far more extensively than any president before him. Dean notes that, while presidential signing statements themselves are not illegal or inherently wrong, “[i]t is Bush’s abuse of them that is extraordinary.” Dean writes there has been no concerted effort to find out if Bush is just saying he will not comply with the inordinate number of legislative provisions he has objected to, or if he is refusing to comply with them in practice. If the latter is the case, Dean writes, “he should be impeached immediately… because it would be an extraordinary breach of his oath” of office.
Tribe: Bush's Signing Statements 'Bizarre,' 'Reckless' - Dean cites Tribe, who said in 2006, “[W]hat is new and distressing [about Bush’s use of signing statements] is the bizarre, frighteningly self-serving, and constitutionally reckless character of those views—and the suspicion that the president either intends actually to act on them with some regularity, often in a manner that won’t be publicly visible at the time, or intends them as declarations of hegemony and contempt for the coordinate branches—declarations that he hopes will gradually come to be accepted in the constitutional culture as descriptions of the legal and political landscape properly conceived and as precedents for later action either by his own or by future administrations.” [Dean, 2007, pp. 112-116; Joyce Green, 2007] Political science professor Christopher Kelley agrees. Kelley, who studied the Bush administration’s use of signing statements, says: “What we haven’t seen until this administration is the sheer number of objections that are being raised on every bill passed through the White House. That is what is staggering. The numbers are well out of the norm from any previous administration.”
Signing Statements Supplanting Vetoes - In another disturbing trend, according to author and reporter Charlie Savage, Bush is using signing statements to supplant the traditional presidential veto. By mid-2007, Bush had vetoed just two bills. In contrast, Bush’s predecessor, Bill Clinton, vetoed 37 bills. George H. W. Bush vetoed 44, and Ronald Reagan vetoed 78. Legal experts studying Bush’s signing statements conclude that Bush and his legal team are using signing statements to function almost as line-item vetoes, a power the president does not have. The Supreme Court ruled in 1998 that the Founding Fathers wanted the president to either accept a Congressional bill or reject it entirely, and if Congress overrode the veto, then the president had no other recourse than to follow the new law. But now, Savage writes, “the Bush-Cheney administration had figured out that if a president signed a bill and then instructed the government to consider selected provisions null (see December 30, 2005), he could accomplish much the same thing. Moreover, it was an absolute power because, unlike when there is a regular veto, Congress had no opportunity to override his legal judgments.” [Savage, 2007, pp. 230-231]

Entity Tags: Laurence Tribe, John Dean, US Department of Justice, George W. Bush, Charlie Savage, James Earl “Jimmy” Carter, Jr., Christopher Kelley

Timeline Tags: Civil Liberties

David Addington and John Yoo before the House Judiciary Committee.David Addington and John Yoo before the House Judiciary Committee. [Source: Washington Post]David Addington, the chief counsel for Vice President Cheney and one of the architects of the Bush administration’s torture policies (see Late September 2001), testifies before the House Judiciary Committee. He is joined by Justice Department lawyer John Yoo, who authored or contributed to many of the legal opinions that the administration used to justify the torture and “extralegal” treatment of terror suspects (see November 6-10, 2001). Addington, unwillingly responding to a subpoena, is, in Washington Post reporter Dana Milbank’s description, “nasty, brutish, and short” with his questioners. [Washington Post, 6/27/2008] He tells lawmakers that the world has not changed much since the 9/11 attacks: “Things are not so different today as people think. No American should think we are free, the war is over, al-Qaeda is not coming.” [Los Angeles Times, 6/27/2008]
Refusing to Define 'Unitary Executive' - Committee chairman John Conyers (D-MI) peppers Addington with questions about the Bush administration and its penchant for the “unitary executive” paradigm, which in essence sees the executive branch as separate and above the other two, “lesser” branches of government. Addington is one of the main proponents of this theory (see (After 10:00 a.m.) September 11, 2001). But instead of answering Conyers’s questions, he slaps away the questions with what Milbank calls “disdain.”
bullet Addington: “I frankly don’t know what you mean by unitary theory.”
bullet Conyers: “Have you ever heard of that theory before?”
bullet Addington: “I see it in the newspapers all the time.”
bullet Conyers: “Do you support it?”
bullet Addington: “I don’t know what it is.”
bullet Conyers (angrily): “You’re telling me you don’t know what the unitary theory means?”
bullet Addington: “I don’t know what you mean by it.”
bullet Conyers: “Do you know what you mean by it?”
bullet Addington: “I know exactly what I mean by it.”
Open Contempt - He flatly refuses to answer most questions, and treats the representatives who ask him those questions with open contempt and, in Milbank’s words, “unbridled hostility.” One representative asks if the president is ever justified in breaking the law, and Addington retorts, “I’m not going to answer a legal opinion on every imaginable set of facts any human being could think of.” When asked if he consulted Congress when interpreting torture laws, Addington snaps: “That’s irrelevant.… There is no reason their opinion on that would be relevant.” Asked if it would be legal to torture a detainee’s child (see After September 11, 2002), Addington answers: “I’m not here to render legal advice to your committee. You do have attorneys of your own.” He offers to give one questioner advice on asking better questions. When asked about an interrogation session he had witnessed at Guantanamo, he replies: “You could look and see mouths moving. I infer that there was communication going on.” At times he completely ignores questions, instead writing notes to himself while the representatives wait for him to take notice of their queries. At other times, he claims an almost complete failure of memory, particularly regarding conversations he had with other Bush officials about interrogation techniques. [Washington Post, 6/27/2008] (He does admit to being briefed by Yoo about an August 2002 torture memo (see August 1, 2002), but denies assisting Yoo in writing it.) [Los Angeles Times, 6/27/2008] Addington refuses to talk more specifically about torture and interrogation practices, telling one legislator that he can’t speak to him or his colleagues “[b]ecause you kind of communicate with al-Qaeda.” He continues, “If you do—I can’t talk to you, al-Qaeda may watch C-SPAN.” When asked if he would meet privately to discuss classified matters, he demurs, saying instead: “You have my number. If you issue a subpoena, we’ll go through this again.” [Think Progress, 6/26/2008; Washington Post, 6/27/2008]
Yoo Dodges, Invokes Privilege - Milbank writes that Yoo seems “embolden[ed]” by Addington’s “insolence.” Yoo engages in linguistic gymnastics similar to Addington’s discussion with Conyers when Keith Ellison (D-MN) asks him whether a torture memo was implemented. “What do you mean by ‘implemented’?” Yoo asks. Ellison responds, “Mr. Yoo, are you denying knowledge of what the word ‘implement’ means?” Yoo says, “You’re asking me to define what you mean by the word?” Ellison, clearly exasperated, retorts, “No, I’m asking you to define what you mean by the word ‘implement.’” Yoo’s final answer: “It can mean a wide number of things.” [Washington Post, 6/27/2008] Conyers asks Yoo, “Could the president order a suspect buried alive?” Yoo responds, “Uh, Mr. Chairman, I don’t think I’ve ever given advice that the president could order someone buried alive.” Conyers retorts: “I didn’t ask you if you ever gave him advice. I asked you thought the president could order a suspect buried alive.” Yoo answers, “Well Chairman, my view right now is that I don’t think a president—no American president would ever have to order that or feel it necessary to order that.” Conyers says, “I think we understand the games that are being played.” Reporter Christopher Kuttruff writes, “Throughout his testimony, Yoo struggled with many of the questions being asked, frequently delaying, qualifying and invoking claims of privilege to avoid answering altogether.” [Human Rights First, 6/26/2008; Truthout (.org), 6/27/2008]

Entity Tags: House Judiciary Committee, John C. Yoo, Al-Qaeda, David S. Addington, Dana Milbank, Christopher Kuttruff, Bush administration (43), John Conyers, Keith Ellison

Timeline Tags: Civil Liberties

Some of the Justice Department memos released today.Some of the Justice Department memos released today. [Source: Los Angeles Times]The Department of Justice releases nine memos written after the 9/11 attacks that claimed sweeping, extraconstitutional powers for then-President Bush. The memos, written primarily by John Yoo of the Office of Legal Counsel (OLC), claim that Bush could, if he desired, order military raids against targets within the US, and order police or military raids without court warrants (see October 23, 2001). The only justification required would be that Bush had declared the targets of such raids to be suspected terrorists. Other powers the president had, according to the memos, were to unilaterally abrogate or abandon treaties with foreign countries, ignore Congressional legislation regarding suspected terrorists in US detention (see March 13, 2002), suspend First Amendment rights to freedom of speech and information dissemination (see October 23, 2001), and conduct a program of warrantless domestic surveillance (see September 25, 2001). In January, an opinion issued by the OLC claimed that the opinions of the earlier memos had not been acted upon since 2003, and were generally considered unreliable (see January 15, 2009). Attorney General Eric Holder, who signed off on the release of the memos, says: “Too often over the past decade, the fight against terrorism has been viewed as a zero-sum battle with our civil liberties. Not only is that thought misguided, I fear that in actuality it does more harm than good.” [American Civil Liberties Union [PDF], 1/28/2009 pdf file; US Department of Justice, 3/2/2009; US Department of Justice, 3/2/2009; New York Times, 3/2/2009]
Memos Laid Groundwork for Warrantless Wiretapping - Though many of the powers said to belong to the president in the memos were never exercised, the assertions led to the warrantless wiretapping of US citizens (see December 15, 2005 and Spring 2004) and the torture of detained terror suspects. [Newsweek, 3/2/2009]
'How To ... Evade Rule of Law' - Senate Judiciary Committee Chairman Patrick Leahy (D-VT) says the memos begin “to provide details of some of the Bush administration’s misguided national security policies” that have long been withheld from public scrutiny. Jennifer Daskal of Human Rights Watch says the memos collectively “read like a how-to document on how to evade the rule of law.” [Washington Post, 3/3/2009] Kate Martin of the Center for National Security Studies says that the memos were part of a larger effort “that would basically have allowed for the imposition of martial law.” [Newsweek, 3/2/2009]
'Tip of Iceberg' - The memos are, according to a former Bush administration lawyer, “just the tip of the iceberg” in terms of what the Bush administration authorized. Jameel Jaffer of the American Civil Liberties Union (ACLU) says the Bush administration memos “essentially argue that the president has a blank check to disregard the Constitution during wartime, not only on foreign battlefields, but also inside the United States.” [Los Angeles Times, 3/3/2009] The ACLU, which has sued to obtain these and other memos, applauds the release of the documents, and says it hopes this is the first step in a broader release. [Reuters, 3/2/2009]

Entity Tags: Eric Holder, Jennifer Daskal, Patrick J. Leahy, Office of Legal Counsel (DOJ), Jameel Jaffer, Kate Martin, John C. Yoo, Bush administration (43), American Civil Liberties Union, US Department of Justice

Timeline Tags: Civil Liberties

Columnist and international law expert Scott Horton writes of his horror and shock at the nine just-released Bush administration memos from the Justice Department designed to grant President Bush extraordinary executive authority (see March 2, 2009).
'Disappearing Ink' - Horton writes: “Perhaps the most astonishing of these memos was one crafted by University of California at Berkeley law professor John Yoo. He concluded that in wartime, the president was freed from the constraints of the Bill of Rights with respect to anything he chose to label as […] counterterrorism operations inside the United States” (see October 23, 2001, and October 23, 2001). Horton continues: “John Yoo’s Constitution is unlike any other I have ever seen. It seems to consist of one clause: appointing the president as commander in chief. The rest of the Constitution was apparently printed in disappearing ink.”
Timing of Repudiation Proves Bush Officials Found Claims Useful - Horton has no patience with the claims of former Office of Legal Counsel chief Steven Bradbury that the extraordinary powers Yoo attempted to grant Bush were not used very often (see January 15, 2009). “I don’t believe that for a second,” Horton notes, and notes Bradbury’s timing in repudiating the Yoo memos: five days before Bush left office. “Bradbury’s decision to wait to the very end before repealing it suggests that someone in the Bush hierarchy was keen on having it,” Horton asserts.
Serving Multiple Purposes - The memos “clear[ly]” served numerous different purposes, Horton notes. They authorized, or provided legal justification for, the massive domestic surveillance programs launched by military agencies such as the Defense Intelligence Agency and the National Security Agency (see September 25, 2001). But the memos went much farther, Horton says: “[T]he language of the memos suggest that much more was afoot, including the deployment of military units and military police powers on American soil. These memos suggest that John Yoo found a way to treat the Posse Comitatus Act as suspended.” They also gave Bush the apparent legal grounds to order the torture of people held at secret overseas sites (see March 13, 2002), and to hold accused terrorist Jose Padilla without charge or due process, even though the administration had no evidence whatsoever of the crimes he had been alleged to commit (see June 8, 2002).
American Dictatorship - Horton’s conclusion is stark. “We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship,” he writes. “The constitutional rights we learned about in high school civics were suspended. That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution. What we know now is likely the least of it.” [Harper's, 3/3/2009]

Entity Tags: National Security Agency, US Department of Justice, Office of Legal Counsel (DOJ), Scott Horton, Steven Bradbury, George W. Bush, Jose Padilla, Bush administration (43), Defense Intelligence Agency, John C. Yoo

Timeline Tags: Civil Liberties

Former Justice Department lawyer John Yoo, who authored numerous legally untenable memos authorizing torture and the preeminence of the executive branch (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, November 6-10, 2001, and January 9, 2002), writes that in the nomination of Sonia Sotomayor to the Supreme Court (see May 26, 2009), “empathy has won out over excellence in the White House.” Yoo, who calls the Justice she is replacing, David Souter, an equally “weak force on the high court,” writes that President Obama “chose a judge distinguished from the other members of [his list of potential nominees] only by her race. Obama may say he wants to put someone on the Court with a rags-to-riches background, but locking in the political support of Hispanics must sit higher in his priorities.” Sotomayor’s record is “undistinguished,” Yoo writes, and “will not bring to the table the firepower that many liberal academics are asking for.” She will not be the intellectual and legal equal of conservatives Antonin Scalia and Clarence Thomas, he says. “Liberals have missed their chance to put on the Court an intellectual leader who will bring about a progressive revolution in the law.” Conservatives should challenge her nomination, Yoo writes, because the Court is “a place where cases are decided by a faithful application of the Constitution, not personal politics, backgrounds, and feelings. Republican senators will have to conduct thorough questioning in the confirmation hearings to make sure that she will not be a results-oriented voter, voting her emotions and politics rather than the law.” [American Enterprise Institute, 5/26/2009]

Entity Tags: US Supreme Court, Barack Obama, David Souter, Sonia Sotomayor, John C. Yoo

Timeline Tags: Domestic Propaganda

Law professor John Yoo, who during his tenure at the Justice Department wrote memos defending torture and the right of the executive branch to conduct its business in secret (see March 1996, September 25, 2001, September 25, 2001, October 4, 2001, October 23, 2001, October 23, 2001, November 2, 2001, November 5, 2001, and November 6-10, 2001), co-authors an article for the far-right American Enterprise Institute that attacks the Obama administration for considering the idea of an executive order to require government contractors to disclose their political contributions (see April 20, 2011 and May 26, 2011). The article, by Yoo and lawyer David W. Marston, is entitled “Overruling Citizens United with Chicago-Style Politics,” a reference to some of the unsavory and often-illegal political machinations undertaken by Chicago Democrats. The article repeatedly compares the Obama administration to the Nixon administration’s attempts to “use the available federal machinery to screw [their] political enemies,” as Yoo and Marston quote from a 1971 Nixon White House memo. Yoo and Marston say that the Obama administration, in an effort to recoup its losses from the Citizens United decision (see January 21, 2010]), “is making an unprecedented assault on free speech” by considering the executive order and by pushing the DISCLOSE Act (see July 26-27, 2010). (Yoo and Marston claim that the DISCLOSE Act, if passed into law, “would have forced all those doing business with the government to give up their ability to participate in the political process, as is their right under the First Amendment, aside from just voting on Election Day.”) They write: “Under the guise of ‘transparency’ and ‘accountability,’ the order curtails constitutionally protected speech rights and opens the door for retaliation against those not supporting the administration politically,” and go on to observe that in their opinion, this “assault on free speech” (see January 21, 2010 and January 22, 2010) is being joined by “the media [and] defenders of free speech.” Yoo and Marston claim that the Founding Fathers intended for corporations and other entities to be able to involve themselves in politics entirely anonymously, citing the example of Alexander Hamilton, John Jay, and James Madison publishing the Federalist Papers under the nom de plume “Publius.” Indeed, Yoo and Marston write, “disclosure of political contributions may be a prelude to the thuggish suppression of political speech by harassment and intimidation,” and they cite the instances of boycotts, vandalism, and death threats against people in California who donated money in support of Proposition 8, which declared gay marriage illegal. “Mandated disclosure of financial support for a political viewpoint can become the springboard for lawless retaliation against citizens for holding unpopular views,” the authors write. “Disclosure” and “transparency,” the “wonder drugs du jour,” are already “being used to silence core First Amendment speech rights and to threaten America’s long protection of anonymous political speech,” they contend, and claim that “thugs” are attempting to use violence and intimidation to nullify the Citizens United decision, force the issuance of the Obama executive order, and push the Federal Election Commission (FEC) to expand disclosure requirements. Only allowing financial donors to remain secret, the authors say, protects their rights to free speech and political involvement. “[D]isclosure invites retaliation,” they argue; only secrecy can protect free speech. The authors even cite a case brought on behalf of the NAACP, in which the organization was allowed to keep its membership lists secret for fear of attacks on its members or their families by white supremacists. [American Enterprise Institute, 7/20/2011] Ian Millhiser, a legal expert for the liberal news Web site Think Progress, angrily rebuts Yoo and Marston’s claims. Millhiser, referencing Yoo’s opinions issued during his stint in the Bush administration, writes, “If there is anyone in the universe who should think twice before criticizing a government lawyer for enabling a president to break the law, it is John Yoo.” He goes on to criticize Yoo’s legal thinking in the article, noting that the Citizens United ruling held that “disclosure could be justified based on a governmental interest in ‘provid[ing] the electorate with information’ about the sources of election-related spending.” Millhiser writes: “President Obama’s proposed executive order provides the electorate with information about the sources of election-related spending. So Yoo’s entire argument can be rebutted in exactly two sentences.” After rebutting other portions of Yoo and Marston’s arguments, Millhiser concludes, “Yoo’s defense of corporate America’s power to secretly buy elections is weak even by his own tragically incompetent standards.” [Think Progress, 7/22/2011]

Entity Tags: Ian Millhiser, American Enterprise Institute, DISCLOSE Act of 2010, Federal Election Commission, Nixon administration, US Department of Justice, John C. Yoo, David W. Marston, Obama administration

Timeline Tags: Civil Liberties

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