US politics: oversight, subpoenas, impeachment - the Bush Administration is about to get it up the ass from a Democratic Congress

1. The Subpoena wars.
House Arrest
by Jeffrey Rosen/The New Republic

On the eve of losing the House, the Republican National Committee sent journalists a frantic e-mail. "Who is Rep. John Conyers (D-MI)?" the missive asked, referring to the man now slated to lead the House Judiciary Committee. "A radical Democrat who would promote an agenda of investigation, obstruction, impeachment and disarmament."

As far as GOP bogeymen go, Conyers has some credibility. During the past two years alone, he has requested investigations of the administration's renditions of suspected terrorists, Condoleezza Rice's possible transgression of Hatch Act prohibitions against campaigning on the job, and Justice Department attempts to obstruct the hydra-headed Jack Abramoff investigation. And, of course, the RNC also pointed to Conyers's proposals for the possible impeachment of President Bush.

But, while Republicans paint a nightmare scenario of subpoena-mad Democrats, they fail to capture its truly melodramatic conclusion. Yes, Democrats will attack hard. As one staffer told me, "[T]he memos I've seen suggest that Congress has strong power to investigate. We'll try to find the best test case, and, if we can show that Republicans are part of a cover-up, it's a good fight for us." But Democrats also insist that they will take care to avoid the errors of Clinton-era Republicans, who were spoiling for impeachment as soon as they seized the House in 1994 (see Michael Crowley, " Subpoena Envy, " November 6).

Restraint, however, may not be enough to prevent a constitutional confrontation that could make Monicagate look tame. That's because any conflict could escalate quickly when the White House, invoking its radical theory of unilateral executive authority, refuses to cooperate with Democratic investigations. Congress may then hold the White House officials in contempt, setting up legal battles that could make their way to the Supreme Court while paralyzing the government in the process. One likely spark for this kind of conflagration is a Democratic investigation into the National Security Agency's (NSA) secret surveillance program.

Here's how a constitutional collision could unfold. After the new Congress begins in January, Chairman Conyers sends letters to the Justice Department and the White House counsel demanding secret documents that cast light on the scope and mechanics of the snooping. The questions might include whether Bush obstructed justice when he denied the security clearances that the Justice Department's Office of Professional Responsibility needed to investigate the program.

True to form, Attorney General Alberto Gonzales and Bush ignore the letters. Conyers responds by issuing subpoenas for documents and testimony. Gonzales then insists that the documents are protected by executive privilege. The Judiciary Committee, followed by the full House, votes to hold Gonzales in contempt of Congress--a federal crime with a punishment of up to a year in prison. After Nancy Pelosi, the speaker of the House, certifies the contempt citation, she then forwards it along to the U.S. attorney for the District of Columbia, demanding that he haul Gonzales before a grand jury.

What happens next? The U.S. attorney might well ignore the request, leading House Democrats to sue in federal court for an order mandating the prosecution of Gonzales. Here, the legal precedents are in the Democrats' favor. During the Teapot Dome scandal in the 1920s, Congress investigated the attorney general's failure to prosecute Harding administration corruption, and executive officials refused to respond to subpoenas. The Supreme Court issued two important decisions, sustaining the arrest of the attorney general's brother for contempt of Congress and upholding the contempt conviction of a witness who refused to answer questions on the grounds that the courts were already investigating Teapot Dome.

The last time the House cited an executive official for contempt was in 1982, when Anne Gorsuch, the administrator of the Environmental Protection Agency, asserted executive privilege and refused to respond to a subpoena from House members investigating the Superfund scandal. A grand jury ultimately declined to intervene in the fight. The White House eventually agreed to provide limited access if Democrats dropped the contempt citation.

It's difficult to imagine the Bush administration being similarly accommodating. A White House that has insisted that its executive authority gives it the right to stretch or ignore laws with which it disagrees is not likely to fold under threat of congressional contempt. If Gonzales and Bush decide to fight a congressional contempt citation all the way to the Supreme Court, it's hard to predict what the Court would do. In United States v. Nixon in 1974, the Court rejected Richard Nixon's claim of absolute executive privilege and ordered him to turn over the tapes that had been subpoenaed by the Watergate special prosecutor. The Court suggested that it might reach a different result in a case involving "a claim of need to protect military, diplomatic, or sensitive national security secrets." But other cases have held that Congress has broad power to subpoena even confidential information, because courts presume that congressional committees will act responsibly and won't lightly vote to make classified material public--which they're legally free to do. As the Roberts Court's performance in Hamdan v. Rumsfeld suggests, it is not shy about standing up to the president to defend the powers of Congress. And, in a head-to-head judicial conflict with Congress, Bush could plausibly lose.

Regardless of how the Supreme Court ruled in Conyers v. Gonzales, there would be subsidiary legal battles raging for months as the contempt case made its way up to the Supreme Court. Democrats and Republicans would fight about whether to force Gonzales to testify by granting him the necessary immunity--immunity grants require a two-thirds vote by the relevant committee--and the scope of his immunity might provoke lawsuits of its own. All these fires would be raging from a single investigation into the NSA scandal. At the same time, a series of related battles and lawsuits might be erupting from parallel investigations into Iraq war intelligence, Halliburton cronyism, and the misuse of presidential signing statements.

Even if the Supreme Court eventually ruled against Congress in Conyers v. Gonzales , Congress could always enforce contempt citations on its own. In a little-used procedure, Congress has the power to punish recalcitrant witnesses for "inherent contempt." As Morton Rosenberg of the Congressional Research Service points out in an invaluable 1995 report on investigative oversight that House Democrats are now heavily consulting, the defiant witness can be brought before the House or Senate by the sergeant at arms, tried, and locked up in the capitol jail. (In 2004, a citizen-activist was sentenced to a six-month term there for "disrupting Congress" by demanding to testify at a judicial confirmation hearing.) This inherent contempt procedure hasn't been invoked by Congress for more than 70 years, because a cumbersome trial for contempt has the potential to grind Congress to a halt. But, if the White House is obdurate and the courts are unsympathetic, congressional Democrats might decide that a contempt trial--unlike a presidential impeachment--would be good politics as well as good theater. And, of course, the House is always free to impeach Gonzales for his refusal to cooperate, which might be less politically risky than an impeachment of Bush.

The history of congressional investigations suggests that Congress can score political points by challenging a defiant White House, but only when it maintains some sense of proportion. Whitewater, for example, was a gift to Bill Clinton's opponents--until House Republicans embarked on their quixotic pursuit of impeachment. This time around, House Democrats say they will assimilate the lessons of the recent past and provoke Bush into overreacting to their subpoenas while keeping their cool. Of course, this restraint may be undone by a few hotheaded colleagues in the mood for payback. Regardless of who wins this match of constitutional chicken, it may occupy most of Bush's attention until he departs office in January 2009--a moment that the nation, by that point, will greet with exhaustion and relief.

(Jeffrey Rosen is the legal affairs editor at The New Republic.)


2. Exclusive: Charges Sought Against Rumsfeld Over Prison Abuse
A lawsuit in Germany will seek a criminal prosecution of the outgoing Defense Secretary and other U.S. officials for their alleged role in abuses at Abu Ghraib and Gitmo
By ADAM ZAGORIN/Time

Just days after his resignation, former Defense Secretary Donald Rumsfeld is about to face more repercussions for his involvement in the troubled wars in Iraq and Afghanistan. New legal documents, to be filed next week with Germany's top prosecutor, will seek a criminal investigation and prosecution of Rumsfeld, along with Attorney General Alberto Gonzales, former CIA director George Tenet and other senior U.S. civilian and military officers, for their alleged roles in abuses committed at Iraq's Abu Ghraib prison and at the U.S. detention facility at Guantanamo Bay, Cuba.

The plaintiffs in the case include 11 Iraqis who were prisoners at Abu Ghraib, as well as Mohammad al-Qahtani, a Saudi held at Guantanamo, whom the U.S. has identified as the so-called "20th hijacker" and a would-be participant in the 9/11 hijackings. As TIME first reported in June 2005, Qahtani underwent a "special interrogation plan," personally approved by Rumsfeld, which the U.S. says produced valuable intelligence. But to obtain it, according to the log of his interrogation and government reports, Qahtani was subjected to forced nudity, sexual humiliation, religious humiliation, prolonged stress positions, sleep deprivation and other controversial interrogation techniques.

Lawyers for the plaintiffs say that one of the witnesses who will testify on their behalf is former Brig. Gen. Janis Karpinski, the one-time commander of all U.S. military prisons in Iraq. Karpinski — who the lawyers say will be in Germany next week to publicly address her accusations in the case — has issued a written statement to accompany the legal filing, which says, in part: "It was clear the knowledge and responsibility [for what happened at Abu Ghraib] goes all the way to the top of the chain of command to the Secretary of Defense Donald Rumsfeld ."

A spokesperson for the Pentagon told TIME there would be no comment since the case has not yet been filed.

Along with Rumsfeld, Gonzales and Tenet, the other defendants in the case are Undersecretary of Defense for Intelligence Stephen Cambone; former assistant attorney general Jay Bybee; former deputy assisant attorney general John Yoo; General Counsel for the Department of Defense William James Haynes II; and David S. Addington, Vice President Dick Cheney's chief of staff. Senior military officers named in the filing are General Ricardo Sanchez, the former top Army official in Iraq; Gen. Geoffrey Miller, the former commander of Guantanamo; senior Iraq commander, Major General Walter Wojdakowski; and Col. Thomas Pappas, the one-time head of military intelligence at Abu Ghraib.

Germany was chosen for the court filing because German law provides "universal jurisdiction" allowing for the prosecution of war crimes and related offenses that take place anywhere in the world. Indeed, a similar, but narrower, legal action was brought in Germany in 2004, which also sought the prosecution of Rumsfeld. The case provoked an angry response from Pentagon, and Rumsfeld himself was reportedly upset. Rumsfeld's spokesman at the time, Lawrence DiRita, called the case a "a big, big problem." U.S. officials made clear the case could adversely impact U.S.-Germany relations, and Rumsfeld indicated he would not attend a major security conference in Munich, where he was scheduled to be the keynote speaker, unless Germany disposed of the case. The day before the conference, a German prosecutor announced he would not pursue the matter, saying there was no indication that U.S. authorities and courts would not deal with allegations in the complaint.

In bringing the new case, however, the plaintiffs argue that circumstances have changed in two important ways. Rumsfeld's resignation, they say, means that the former Defense Secretary will lose the legal immunity usually accorded high government officials. Moreover, the plaintiffs argue that the German prosecutor's reasoning for rejecting the previous case — that U.S. authorities were dealing with the issue — has been proven wrong.

"The utter and complete failure of U.S. authorities to take any action to investigate high-level involvement in the torture program could not be clearer," says Michael Ratner, president of the Center for Constitutional Rights, a U.S.-based non-profit helping to bring the legal action in Germany. He also notes that the Military Commissions Act, a law passed by Congress earlier this year, effectively blocks prosecution in the U.S. of those involved in detention and interrogation abuses of foreigners held abroad in American custody going to back to Sept. 11, 2001. As a result, Ratner contends, the legal arguments underlying the German prosecutor's previous inaction no longer hold up.

Whatever the legal merits of the case, it is the latest example of efforts in Western Europe by critics of U.S. tactics in the war on terror to call those involved to account in court. In Germany, investigations are under way in parliament concerning cooperation between the CIA and German intelligence on rendition — the kidnapping of suspected terrorists and their removal to third countries for interrogation. Other legal inquiries involving rendition are under way in both Italy and Spain.

U.S. officials have long feared that legal proceedings against "war criminals" could be used to settle political scores. In 1998, for example, former Chilean dictator Augusto Pinochet — whose military coup was supported by the Nixon administration — was arrested in the U.K. and held for 16 months in an extradition battle led by a Spanish magistrate seeking to charge him with war crimes. He was ultimately released and returned to Chile. More recently, a Belgian court tried to bring charges against then Israeli Prime Minister Ariel Sharon for alleged crimes against Palestinians.

For its part, the Bush Administration has rejected adherence to the International Criminal Court (ICC) on grounds that it could be used to unjustly prosecute U.S. officials. The ICC is the first permanent tribunal established to prosecute war crimes, genocide and other crimes against humanity.


3. A Time For Accounting -- by Joseph L. Galloway/TomPaine.com

Better late than never.

Secretary of Defense Donald H. Rumsfeld is gone, but there's little time for celebration, even for those of us who long ago began calling for his removal. The damage that men do lives after them, and it's time at last for an accounting. The nation's voters have spoken, and it's reasonable to expect that the Congress finally will begin to exercise some oversight of the wars in Iraq and Afghanistan after five years of serving as rubber stamp and doormats.

Can you spell "subpoena?"

For the Democrats who will soon take charge of the House of Representatives and perhaps the Senate, too, here's a preliminary laundry list of some of the things that need doing:

A comprehensive investigation of the pre-war intelligence on Iraq and how it was perverted, how the mine was salted, and by whom.

A thorough investigation of what pre-war advice was offered by senior American military commanders on troop strength, equipment requirements and strategy and tactics. Did even one general ignore the bullying from on high and ask for more troops, and how did Defense Secretary Donald H. Rumsfeld respond?

Why did the Pentagon send American troops into battle without enough armored vests, armored vehicles, rifles, ammunition, food and water? Who's responsible for that debacle which cost so much in blood and money?

Where did our money go? Billions of dollars of taxpayer money disappeared down various rat holes in Iraq, forked over to contractors without even so much as a handwritten receipt. Who got the money? What did they do for it? This is a fertile field that can be drilled for years, with a steady stream of indictments, trials and prison sentences.

What about those no-bid Defense Department contracts that were parceled out to the Halliburtons and KBRs and Blackwaters in Iraq and Afghanistan, and other more costly weapons and equipment contracts that went to big defense industry conglomerates accustomed to writing very generous checks to the Republicans?

Why did an administration that was hell-bent on going to war, with the inevitable and terrible human casualties among our troops, consistently underfund the Veterans Administration, which is charged with caring for our wounded and disabled?

What's been the effect of the grotesque politicization of the selection and promotion system for senior military commanders by the office of the Secretary of Defense? What failures have resulted from that ill-conceived action? What responsibility do those generals and admirals chosen by Donald H. Rumsfeld bear for the failure to prepare for and conduct effective action against an inevitable Iraqi insurgency?

Who at the top bears responsibility for the torture and mistreatment of prisoners and detainees at Abu Ghraib prison and the Guantanamo detention camp? A score of Pentagon investigations got to the bottom of the chain of command but declared that the top, in Rumsfeld's office and the White House, was innocent.

Who's responsible for breaking our understrength Army and Marine Corps with endless combat duty tours in Iraq and Afghanistan? Who refused all suggestions that the force was too small for the mission, and that 50,000 or 100,000 more men and women were needed in uniform? Who stubbornly refused even to consider the inevitable consequences of an Army so tied down trying to man these wars that it no longer could react to an emergency anywhere else in a dangerous world?

Simply put, the jig is up. President George W. Bush, Vice President Dick Cheney and Rumsfeld have come to the end of their free ride. No longer can they act without thought or ignore the boundaries of the Constitution, the law and common sense.

Did they really think they could get away with all of this without ever being called to answer to history and the American people?

They all deserve what's about to descend on their heads. They deserve every subpoena. They deserve every indictment. Most of all, they deserve a reserved place atop the ash heap of history.

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Joseph L. Galloway is former senior military correspondent for Knight Ridder newspapers, columnist for McClatchy Newspapers, and co-author of the national best-seller We Were Soldiers Once ... and Young. Readers may write to him at: P.O. Box 399, Bayside, Texas 78340; e-mail: jlgalloway2@cs.com .


4. Breathing the 'I' Word -- by Elizabeth Holzman/ San Francisco Chronicle

Though Democrats' gains on Tuesday were hard fought, they still pulled one big punch during the campaign. Party leaders chose to refrain from publicly uttering any "i" words -- investigation, immunity, and above all, impeachment -- and to dismiss those who did, for fear of somehow galvanizing disaffected GOP voters.

But whether they admit it or not, with a Democratic Party-led Congress, President Bush could well become the target of congressional investigations, challenges to presidential immunity and eventual impeachment inquiries. Big legislative changes are probably not in the cards, but willingness to use subpoena power and pursue investigations into controversial Bush administration actions and inactions are among the main things that will change under Democratic leadership of Congress.

Even if impeachment is "off the table," according to Democratic leaders such as Nancy Pelosi (who as the new Speaker of the House will be next in line for the presidency after Vice President Dick Cheney), recent national polls and impeachment-ballot initiatives in San Francisco, Berkeley, and two townships in Champaign-Urbana, Ill., and elsewhere, show it is on Americans' table. Leaving aside partisan "gotcha" tactics, such as the impeachment of President Bill Clinton, which fail because they lack public support or constitutional basis, Congress has been historically reluctant to undertake impeachment, including during Watergate. But it has done so when public sentiment reaches a boiling point and demands holding a president accountable, as it did in 1973 after President Richard Nixon fired special prosecutor Archibald Cox.

Today we may be closer to reaching that boiling point again than some may think. The Chronicle's online poll question this week surveyed readers, 77 percent of whom to date thought impeaching President Bush may be constitutionally required if the president were found to have abused the power of his office. A recent Newsweek national poll showed 53 percent of Americans thought impeachment should be on the agenda (either as a "top" or "lower" priority), with 44 percent opposing impeachment outright. Compare these numbers to 1998 polls, where an average of only 26 percent of Americans were open to or favored impeaching Clinton, while an average of 63 percent opposed it outright.

Public sentiment for impeachment is strong, and stands to grow stronger given a thoughtful discussion of constitutional standards and a full and fair inquiry, one that allows the president to explain and defend his conduct fully.

But beyond public opinion, there are legal and constitutional considerations that make impeachment a live concern now. High crimes and misdemeanors, the constitutional standard for impeachment and removal from office, may well apply to President Bush's systemic abuses of power and failures to uphold the law. These include directing illegal domestic wiretapping and surveillance, detainee abuse and torture, indifference to human life in responding to Hurricane Katrina, ill-equipping U.S. soldiers and failing to plan for the Iraq occupation, deceiving Congress and Americans about reasons for the war in Iraq and possibly seeking to cover up those deceptions by leaking misleading classified information. These actions have disturbing parallels with offenses for which Nixon was impeached.

I served on the House Judiciary Committee which voted to impeach him. It did painstaking, bipartisan work in assessing and applying constitutional and legal standards to Nixon's actions. Measured by the same objective standards as were used in Nixon's case, an impeachment inquiry into Bush's actions would be appropriate, and a vote to impeach at the end of that inquiry would not be a surprising outcome.

When checks and balances fail to restrain a president from abuses of power or from subverting the Constitution, impeachment and removal from office is the framers' remedy. It is the tool they gave future generations to protect democracy and the rule of law, and not to explore it now would be a culpable failure to follow their intent. That's why U.S. Rep. John Conyers, D-Mich., in line to chair of the House Judiciary Committee, and some 37 congressional Democrats, already have uttered the "i" word and raised the issue of impeachment before the election, even though the Democratic leaders didn't want to discuss it. Whether out of political strategy or timidity we fail to breathe a word about, much less openly debate, impeaching a president so committed to executive overreach, Americans -- Republicans and Democrats alike -- risk undermining the Constitution and compromising our ability to hold future presidents accountable under the law.

(Elizabeth Holtzman represented New York in the U.S. House of Representatives from 1973 to 1981. She is the co-author, with Cynthia L. Cooper, of "The Impeachment of George W. Bush: A Practical Guide for Concerned Citizens”)


5. When is a Crime so Great it Shouldn’t be Acknowledged? -- by Robert Shetterly/commondreams/org

Before the votes were even counted, a strange chorus arose, like toads from the swamp, from every point on the Democratic compass --- so persistent, one might even think it choreographed --- croaking in a dire basso, “Now’s the time to work on fulfilling the Democrats agenda, not the time to hold anyone accountable for the massive corruption or the extraordinary lies that got us into this mess.” Let’s be moderate, let’s be wise, the toads all intoned, let’s don’t disintegrate into partisan bickering about who’s responsible. And, pullleeeease, don’t even utter the word impeachment. No, no, no, let’s repeal the tax cuts for the rich, raise the minimum wage, enact universal health care, raise the mileage on our cars, sign on to the Kyoto Protocol, reduce the debt, fund our schools, fix social security, and work in a bi-partisan way toward an exit strategy from Iraq. All very sensible. Every single one of those things needs to be fought for if we want to have economic and social justice.

But, that’s not enough. I thought one of the corner stones of our democratic republic was the rule of law. Transparency. Accountability. We hold people accountable so every bozo with a zip gun won’t stick up a 7-11 for fifty bucks or start a pre-emptive war by lying to the people. We sent a Japanese soldier to prison for twenty-five years after WW II for waterboarding a United States soldier; we hung Adolph Eichmann. I’m trying to imagine what our response would have been after that war if the Nazis had said, “Look, we lost the war, our cities are rubble, our people starving, we have no infrastructure, don’t waste your money on some stupid, inflammatory trials at Nuremberg about the people who started this war or thought the Holocaust was a cool idea. Sure, mistakes were made, but let’s just get on with re-building.” Very sensible.

Massive crimes have been committed. Our administration has ridden roughshod on our Constitution as though it were a hobbled and blind cow. What-might-have-been looks like a bomb crater. So irresponsible and massive are the crimes that the perpetrators have changed the laws to avoid being held accountable for crimes against humanity. So irresponsible that their failure to act to mitigate global warming endangers the very survival of human life on our planet. Hundreds of thousands of people are unnecessarily dead, many more hundreds of thousands maimed and wounded. The incredible debt undermines our economy and will plague our children. When is a crime so great that it shouldn’t be acknowledged? Or prosecuted? Do we pat Rummy & Dickie & Georgie & Connie on the butt and send them to the bench with a, “Nice game, kids. Let’s all be good sports and let someone else have a go at it”? Live and let live.

Behind all the outrageous events of this era --- Iraq, global warming, the debt, election fraud, war profiteering, failure to create alternative energies, species extinction --- is a culture of non-accountability, cronyism, and obscene profit. How will it stop? Raising the minimum wage by $1.50 over three years might not do it. Arrogance, deceit and blatant crime are responsible for these crises. Not poor execution. Accountability is the way out. There is no reason why we can’t pass fair, life-saving legislation at the same time. We can walk and chew gum. We have grown so accustomed to living in a world of euphemism and double speak, so accustomed to not calling reality by its name, that we think there is no reality except what we can get away with, the reality that sells the product or “develops the resource.” Not true. Nature won’t be fooled. And we only imperil ourselves and our cherished institutions if we don’t hold ourselves accountable. It’s not about partisan revenge, it’s about naming the crime. Some very bad people have broken our laws, dashed our hopes, mortgaged our futures, broken our hearts, and betrayed our country. They need to pay the piper. If we don’t hold them accountable, who will we allow to hold us accountable for making things right?

It’s a platitude to say that political progress is the art of compromise. We compromise in order to share as much justice and opportunity as evenly as we can. But when great crimes have been committed by our elected leaders, we shouldn’t compromise with our sense of justice. It’s hard to admit because as citizens we are responsible, too. But that responsibility demands an accounting, demands an earning back of national integrity by investigating the depth of the crimes. That’s called maturity. Our leaders have inflicted an enormous trauma on Iraq and on us. We will all be much healthier if we heal by inquiry and justice rather than repression.

(Robert Shetterly is a writer and artist who lives in Brooksville, Maine. He is the author of Americans Who Tell the Truth)