David Iglesias: Bush's executive-privilege claims almost make Watergate look like a fond memory

[DeepModem Mom]

Slate: Out of Bounds
The Bush administration's executive-privilege claims almost make Watergate look like a fond memory.
By David Iglesias
Posted Friday, June 13, 2008

....This brings us to the George W. Bush administration, which, like the Nixon administration of my barely recalled childhood dreams, reflexively claims privilege, even when it doesn't apply. Justice Anthony Kennedy, a Reagan appointee, has noted in another case that "executive privilege is an extraordinary assertion of power 'not to be lightly invoked.' " Kennedy has further stated that "once executive privilege is asserted, coequal branches of the Government are set on a collision course." The current administration seems to have an abundant supply of crash-test dummies that must exist merely for the joy of smashing into things. The assertion of executive privilege looks to be no more and no less than a collision staged to illustrate the infinite reach of this administration's claims to secrecy.

On June 28, 2007, President Bush asserted executive privilege when Congress sought the production of documents from Harriet Miers and former political director Sara Taylor in connection to the U.S. attorney scandal. In shielding those documents, the administration gravely intoned that the president needed to "… receive candid and unfettered advice." That much I agree with, of course. The problem is that President Bush had already stated publicly that he personally had nothing to do with the firing of my former U.S. attorney colleagues and me. The Nixon decision rightly found that Congress shouldn't be able to force presidential aides to report on the advice they gave to the president, especially about diplomatic or military secrets. The Bush administration stretched that privilege like cheap spandex in an attempt to have it cover "free and open discussions and deliberations that occur among his advisors and between those advisors and others within and outside the Executive Branch."

Wait a minute. So now, the qualified privilege carved out in the Nixon decision is supposed to cover discussions among advisers that never even speak to the president, and then beyond that to cover even "others … outside the Executive Branch"? If the president calls his old college buddy at ExxonMobil for a little advice on gasoline prices, the advice he receives is privileged? And if his secretary's secretary calls the same guy, that advice is privileged as well? In fact, the number of conversations both inside and outside the White House that are not covered by such a privilege starts looking awfully close to zero.

Since when did executive privilege cover nondiplomatic and nonmilitary secrets involving advice given by nongovernmental advisers? I'd call this executive privilege on steroids, or maybe even executive carte blanche. Then again, if you subscribe to the unitary executive theory, then the executive branch is always first among equals. The Bush administration last summer claimed executive privilege no less than four separate times in about a one-month period. If that's not a record, I'll offer to clean Bob Woodward's office for free. I wonder if the administration would claim it if Congress asked for a list of the temperature readings in the Rose Garden?...

http://www.slate.com/id/2193365/pagenum/all/#page_start