Attorney-gate, Democracy & Closed Doors

AS THE BLOSSOMING SCANDAL over the U.S. Attorney firings upstages Washington's annual Cherry Blossom Festival, it is important to view the scandal in its proper context. Attorney-gate, whose genesis can be traced to the administration's first weeks, is a microcosm of all the tensions and contradictions that define the Bush presidency. Ultimately what is truly at issue in Attorney-gate is not the merits of firing any single U.S. Attorney, but rather three key questions that go to the core of the Bush presidency - (i) whether the Bush administration is accountable to anyone (today or decades from now); (ii) does the public or its representatives have a right to truthful information from their government; and (iii) what does the administration have to hide?

Prologue to a Farce or Tragedy

The seeds for the scandal can be traced to the 60th day of the Bush administration when President Bush blocked the scheduled release of President Reagan's papers (presumably to prevent the release of documents contradicting his father's testimony in the Iran-Contra investigation) and later drafted a sweeping Executive Order allowing any former president, vice president or their family to block the release of their records indefinitely - even after their death. The 2001 Executive Order, and Attorney General Ashcroft's imposing a presumption against release of information requested under the Freedom of Information Act ("FOIA"), revealed the administration's intent to strictly control and manage access to information and shield itself from public scrutiny from the outset.

The Executive Order was condemned by historians such as Arthur Schlesinger, Jr. who warned that "secrecy, carried too far, becomes a means by which the executive branch . . . manipulates its citizens, escapes its accountability, and maximizes its power;" and Richard Reeves who invoked James Madison's quote that a "government without popular information . . . is but a prologue to a farce or a tragedy; or perhaps both."

These warnings proved prophetic as six years later the tragedy and farce that is the Bush imperial presidency is in full bloom. In the past weeks, the Bush administration has been faced with the fourth year of a war that it launched based on 237 false or misleading statements (according to a Congressional study); the perjury conviction of the vice president's chief of staff for lying about his role in attempting to discredit someone who dared to reveal the administration's dishonesty about the war; and now the Attorney-gate scandal which has led to the resignation of a senior Justice Department official after she invoked her 5th Amendment right against self-incrimination and the discovery of White House use of a separate RNC email system to circumvent federal record keeping requirements and evade Congressional oversight.

Presidential Contradictions

With Attorney-gate, many of the contradictions and excesses that have defined this administration from the beginning have come to light. While President Bush repeatedly calls for the "rule of law" in Iraq (which the State Department website defines as meaning that "no individual, president or private citizen" is above the law and that governments exercise their authority "subject to law's constraints"), he refuses to allow White House aides to testify under oath before Congress and has appointed and stands behind an Attorney General who has dismissed the obligations of the Geneva Convention as "quaint", played a central role in the president's use of signing statements to unilaterally claim the right to defy over 750 laws and now stands accused of lying to Congress after following the administration's standard procedure of denying everything -- even if it is true.

Similarly, the same president that today expects Americans to relinquish their Fourth Amendment rights to permit him to monitor their private phone calls, emails and mail since "if you are not doing anything wrong, you have nothing to worry about," also has sought from day one to conceal or distort information that the public is entitled to under the law - including creating a shadow email system to escape scrutiny. It is worth noting that our courts have long held that when a party is engaged in suppressing or fabricating evidence "the inevitable conclusion is that he has something to conceal and is conscious of guilt." Attorney-gate begs the question - what are they hiding?

Democracy & Waterloo

While the Judiciary Committees battle with the administration over its withholding documents and refusal to allow White House aides to testify under oath, the House has passed legislation reversing the 2001 Executive Order and FOIA restrictions. Together, this broadens the debate to the issue of presidential accountability and control of information which is precisely what the administration has sought to avoid from day one. Unless Attorney General Gonzales resigns soon, this may escalate into a fight that neither the Democrats nor the administration can afford to back down from since it will set the set the contours of congressional oversight efforts for the remainder of the Bush presidency.

The administration, however, may be forced to take a hard line in order to prevent Attorney-gate from becoming its own political Waterloo, since the discovery of the White House's shadow email system raises numerous questions such as whether or not the system was used to conceal information in the Valerie Plame investigation or other matters. In particular, with reports that the shadow email system was hosted on the same servers used for the 2004 Ohio election results combined with lingering questions about Ohio voting irregularities; last month's sentencing of two election workers from Ohio's largest county for rigging a recount of the 2004 presidential vote; and recent blog reports that Karl Rove and some of his political operatives are under investigation by Italian and Mexican authorities for election tampering, it is conceivable that this investigation could lead to the biggest scandal in American history and reveal that Bush was never legitimately elected.

That is why Attorney-gate is about much more than the firing of any single U.S. Attorney. Ultimately, it is a debate about our core democratic principles - accountability, the rule of law, transparency and possibly even free and fair elections - which are too important for Congress to ignore. Democrats must remain steadfast in pursuing the debate at this level and force Bush apologists to explain why it is unreasonable to expect that White House aides tell the truth when speaking before the people's elected representatives or justify the "shroud of secrecy" imposed by the Bush administration. Let the public judge whether or not their commitment to these fundamental principles is greater than their commitment to preserving power.

The significance of this debate was eloquently articulated by Circuit Judge Damon Keith who, in one of the many decisions rebuking this administration's abuse of power, warned that

democracies die behind closed doors. . . . . When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation Framers . . . did not trust any government to separate the true from the false for us.

Neither should we.

Originally Published on Huffington Post. http://www.huffingtonpost.com/bennet-kelley/attorneygate-democracy-_b_45580.html

Bennet Kelley's clippings are available at http://bennetkelley.com/clippings.html

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