Monthly Archives: April 2007

The Buck Doesn’t Even Stop By For Visits

I know that GW Bush says all kinds of strange stuff, but is this the strangest (I don't mean most mendacious, that's different) remark of his current term in office?

Bush said sympathetic to Tillman family. President Bush hopes someone is held responsible for the U.S. military's mishandling of information about the death of former football star Pat Tillman in Afghanistan, the White House said Wednesday.

That sound you hear is brains leaking out all over America. See, the Tillman case involves many high-ranking people in the Army — Colonels and Generals and perhaps even high-ranking civilian officials — engaged in a knowing and willful conspiracy to cover up and then lie to the public about the circumstances of Pat Tillman's death. There is a chain of command here, and someone is a the top of it, either someone in a uniform or someone in a Pentagon. And either way, they report to one GW Bush.

So if this GW Bush who so vaguely and generally “hopes” that “someone” is held responsible also hopes that the “someone” held responsible is the person who is in fact responsible, all that GW Bush would have to do is pick up the phone and make one — one! — phone call to the current Secretary of Defense, asking for the appropriate head on a plate.

To read this statement from the White House is to be left with the belief that either

  • GW Bush doesn't understand that he can give the Pentagon orders
  • GW Bush thinks we don't understand he is the titular and (should he choose to exercise the role) actual head of government in this country as well as the Commander-in-Chief
  • GW Bush hopes very much that someone is scapegoated for the ongoing Tillman PR disaster, but doesn't want to pick up the phone and order that the actual ringleader who ordered up this unnecessary and destructive piece of propaganda be unmasked because the truth (Rumsfeld? Cheney?) is too embarrassing.
  • The words “someone” and “responsible” should not be used in the same paragraph as “GW Bush”.
Posted in Politics: US: GW Bush Scandals | 34 Comments


Thanks to Eric Muller, I'm it. Responsive post when I have time to make one, which may not be until tomorrow.

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Is the Special Counsel Constitutional? Only Probably.

The Office of the Special Counsel that I wrote about in Office of Special Counsel Stirs from its Torpor is an independent agency headed by an official appointed according to 5 USC § 1211(b):

The Special Counsel shall be appointed by the President, by and with the advice and consent of the Senate, for a term of 5 years. The Special Counsel may continue to serve beyond the expiration of the term until a successor is appointed and has qualified, except that the Special Counsel may not continue to serve for more than one year after the date on which the term of the Special Counsel would otherwise expire under this subsection. The Special Counsel shall be an attorney who, by demonstrated ability, background, training, or experience, is especially qualified to carry out the functions of the position. A Special Counsel appointed to fill a vacancy occurring before the end of a term of office of the Special Counsel’s predecessor serves for the remainder of the term. The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office. The Special Counsel may not hold another office or position in the Government of the United States, except as otherwise provided by law or at the direction of the President.

There's some question as to whether this statute is constitutional; if it isn't, then the whole office is unconstitutional and all its acts could be declared void.

In Morrison v. Olson, 487 US 654 (1988), the Supreme Court considered the office of the other special counsel — the special prosecutors we no longer have because the statute sunsetted and was not renewed. That office differed from this one in two important ways.

First, the old special prosecutor was located in the Justice Department, and nominally responsible to the Attorney General. That fact allowed the Supreme Court to classify the Special Prosecutor as an “inferior officer of the United States” (who if Congress so chooses can be appointed by a court, or by the President alone, or by an Officer of the United States), as opposed to a more important official, like a Cabinet Secretary who, being an “Officer of the United States”, can only be appointed by the President, by and with the consent of the Senate. There's little doubt that the Special Counsel here, the head of a free-standing agency, would count as an “Officer of the United States” — and that since he's appointed in conformity with the Appointments Clause, that's not a Morrison problem.

Rather, the potential problem is the second difference: the two removal clauses.

The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.

Contrast this to the removal provision approved (for an inferior officer) in Morrison:

An independent counsel appointed under this chapter may be removed from office, other than by impeachment and conviction, only by the personal action of the Attorney General and only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel's duties.

(The statute also contemplated possible removal proceedings by the same judicial panel that appointed the Special Prosecutor, but the Supreme Court in Morrison chose to read that power very narrowly — limited to recognizing when others informed it that the job was done — to avoid what the Court thought would otherwise be probable violations of the separation of powers.)

In approving the second removal provision in Morrison, the Supreme Court explained the factors it found relevant:

the real question is whether the removal restrictions are of such a nature that they impede the President's ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light.

Considering for the moment the “good cause” removal provision in isolation from the other parts of the Act at issue in this case, we cannot say that the imposition of a “good cause” standard for removal by itself unduly trammels on executive authority. There is no real dispute that the functions performed by the independent counsel are “executive” in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch. As we noted above, however, the independent counsel is an inferior officer under the Appointments Clause, with limited jurisdiction and tenure and lacking policymaking or significant administrative authority. Although the counsel exercises no small amount of discretion and judgment in deciding how to carry out his or her duties under the Act, we simply do not see how the President's need to control the exercise of that discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at will by the President.[FN31]

[FN31. We note by way of comparison that various federal agencies whose officers are covered by “good cause” removal restrictions exercise civil enforcement powers that are analogous to the prosecutorial powers wielded by an independent counsel. See, e.g., 15 U.S.C. § 45(m) (giving the FTC the authority to bring civil actions to recover civil penalties for the violations of rules respecting unfair competition); 15 U.S.C. §§ 2061, 2071, 2076(b)(7)(A) (giving the Consumer Product Safety Commission the authority to obtain injunctions and apply for seizure of hazardous products).]

Nor do we think that the “good cause” removal provision at issue here impermissibly burdens the President's power to control or supervise the independent counsel, as an executive official, in the execution of his or her duties under the Act. This is not a case in which the power to remove an executive official has been completely stripped from the President, thus providing no means for the President to ensure the “faithful execution” of the laws. Rather, because the independent counsel may be terminated for “good cause,” the Executive, through the Attorney General, retains ample authority to assure that the counsel is competently performing his or her statutory responsibilities in a manner that comports with the provisions of the Act.

In addition to what it called the limited scope, duration, and discretion of the Special Prosecutor, the Court also pointed to two other factors:

…this case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch.

…we do not think that the Act works any judicial usurpation of properly executive functions

How does the removal provision for this Special Counsel stack up to the Morrison test?

I'm going to take it as given that this special counsel's function is no greater an usurpation of the President's powers than that of the special prosecutor in Morrison (without taking a position on how big an usurpation that is — Justice Scalia's Morrison dissent argues passionately that it is enormous). The only argument that I can see for the proposition that the current Special Counsel is a greater threat to the President's powers is that the office is permanent; the Supreme Court noted that the special prosecutor was only temporary. In hindsight, given that Special Prosecutor David Barrett's investigation of Henry Cisneros consumed $21 million dollars and more than ten years' investigation but produced only a misdemeanor conviction (later pardoned), the distinction may seem academic at best. Indeed, the Special Counsel only has a five year term, arguably making his tenure more limited…)

On the one hand, since the Special Counsel is an “Officer,” rather than an “inferior officer” like the Special Prosecutor, the stakes are higher, and the requirement for Presidential control might be higher too. It follows that any removal provision that reduces the President's powers below that which the Attorney General enjoyed in Morrison are very likely to be unconstitutional; indeed even a removal provision as limited as that in Morrison might limit the President's removal power too severely for the Court unless footnote 31 quoted above is seen as controlling approval in dicta. And of course, given how reluctant the court seemed in Morrison, it is hard to imagine that a much a narrower removal provision would pass muster.

So which of these two statutes gives the removing authority less power:

  • removal for “good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel's duties,” or
  • removal “for inefficiency, neglect of duty, or malfeasance in office.”

If you think the top statute, Morrison's, gives more removal power than the second one, then the Special Counsel law is almost certainly unconstitutional. If you think they are about the same, it's a hard call given the different nature of the jobs, but the Special Counsel might be OK. If you think that the second list more greatly empowers the removing authority (i.e. applies to a broader set of circumstances) than the top, then there's probably nothing for the Special Counsel to worry about.

My own view is that the difference between “good cause” and “inefficiency, neglect of duty, or malfeasance in office” is not very great. Thus, given the case law to date, this seems like a hard case to me, but one where the Special Counsel might squeak through on the strength of footnote 31's approving dicta. On the other hand, were the Supreme Court to decide in light of experience that Justice Scalia was right in Morrison — which after Ken Starr and David Barrett is a view now shared by many — this statute (and several others which create independent agencies) might just be for the chop.

Posted in Law: Constitutional Law | 1 Comment

‘Classic Scandal Harmonic Convergence’

“Classic Scandal Hamonic Convergence”! That Joshua Micah Marshall sure has a way with words.

Wasn't it him that invented dingbat kabuki? Yes, it was.

Oh yes, the new scandal. Well, it seems that the new scandal about Rep. Rick Renzi (R-AZ), this week's allegedly corrupt Republican Congressman, is tied to the old scandal of the US Attorney purge. In multiple ways.

My favorite cross-connection is the suggestion that in order to cover up the connection, DOJ failed to release relevant emails to Congress.

Weeks before election day 2006, word leaked to the press in Arizona that Charlton's office was investigating Renzi. Renzi's top aide Brian Murray then called Charlton's office and asked Charlton's spokesman, Wyn Hornbuckle.

Unlike what happened with David Iglesias, Charlton's chief investigator did report the contact to the Department of Justice, as DOJ regs dictate.

Now, here's the key: after all Congress's document and information requests to DOJ, the Justice Department had not revealed the Renzi-Charlton contact. For some reason, they've held that back

That's serious stuff. And it suggests there's more lurking under the rocks.

Posted in Politics: The Party of Sleaze | Leave a comment

Office of Special Counsel Stirs from its Torpor

The US Office of Special Counsel (OSC) is a free-standing agency which should not be confused with the US DOJ Office of Special Counsel.

The OSC is headed by a presidential appointee with a five-year term named Scott J. Bloch. That he has been somnolent in this job is beyond dispute. That he has been positively active in sabotaging investigations that might annoy the Bush administration has been repeatedly alleged, and has even led to a formal complaint charging sabotage of investigations and retaliation against those who sought to pursue them.

Thus, it's a shock to discover the news that the OSC is launching a “high-profile inquiry” into Karl Rove and others — indeed into a number of the scandals that are currently being investigated by Henry Waxman and others in Congress.

One's first reaction might to think, “about time”.

I wonder, though, if one might think again.

As the LA Times notes,

The 106-person Office of Special Counsel has never conducted such a broad and high-profile inquiry in its history. One of its primary missions has been to enforce the Hatch Act, a law enacted in 1939 to preserve the integrity of the civil service.

Back in 2005, the Government Accountability Project was noting serious problems in Bloch's OSC including,

a torrent of criticism over wholesale dismissal of hundreds of whistleblower cases, gag orders he has issued to his own staff, a wave of forced resignations as part of an ill-fated effort to open a Mid-Western Field Office in Detroit, and cronyism in his hiring practices.

I wonder if the purpose of this move isn't to insulate Rove and others. Now, they have an excuse not to answer any questions. If Congress calls, they all take the 5th — “Would love to talk but I'm being investigated by the OSC.” Ditto for the White House press office — “we never comment on pending investigations” (afterwards they say, “we already dealt with that,” but I'm getting ahead of myself).

Is it too paranoid to expect a memo saying that they failed to prove anything beyond reasonable doubt — in Dec 2008? Or maybe just before the Nov 2008 election? After all, the OSC has a record of just closing cases without review in order to be able to report a lower number of backlogged cases.

So far, everything about this administration has been worse than anyone might reasonably have expected. Why should this be any different?

I can see Rove chuckling now, 'Please OSC, don't throw me in that briar patch!'

Posted in Politics: The Party of Sleaze | 1 Comment

My ISP is Green

The ISP hosting this blog is now proudly green.

I don't know how meaningful that is, but it takes a lot of power to run a huge server farm, so it's at least interesting that they're spending the money to purchase the compensating credits.

When we learned that running DreamHost generated as much carbon dioxide as 545 average-size homes we realized we had to do something.

Renewable Energy Credits

Putting a price on carbon output is just one way to help make the world a better place. It's a first step towards true energy sustainability. Organizations large and small are constantly working on reducing their environmental emissions. When they do so a neutral third party then steps in to verify the reduction and issues what are known as “Renewable Energy Credits”.

We've purchased enough of these credits – which are retired after purchase and not resellable – to account for our energy usage. The proceeds of these credit purchases are then put toward funding further emission reduction and renewable energy projects. We are not currently able to actually power our servers with the wind or the sun, but this is the next best thing! Our Renewable Energy Credits (RECs) have been certified by Green-e.

So how many credits would it take to offset a house? In Florida? With air conditioners?

Posted in Science/Medicine | 10 Comments