Saturday, June 11, 2005

"The effect of these investigations by the press, the courts, and congressional committees was profound"

The recent revelation that W. Mark Felt, former #2 man at the FBI, was the "Deep Throat" whose information helped Washington Post reporters Woodward and Bernstein on the stories that exposed Nixon for what he always claimed not to be--a crook--might seem a bit far afield from the issue of what kind of ethics members of the federal judiciary rule by. However, the fantastic and historically expansive piece in Newsweek ("A Long Shadow" by Evan Thomas, June 13 edition) on the impact then and the meaning now of Felt's disclosures, puts it quite starkly: "Watergate did not just spell the end of the Nixon presidency. It started a chain reaction of investigations and prosecutions that eventually exposed all manner of secret wrongdoing by the FBI and the CIA: black-bag jobs, illegal mail opening and CIA plots to assassinate foreign leaders. The effect of these investigations by the press, the courts, and congressional committees was profound."

While the article makes clear that in some cases it seems the government intelligence and military branches have become too cautious as a result, it raises the important issue of the treatment of executive privilege, which presidents can and have used as a reason not to share information or evidence with inquiring parties, especially Congress and the judiciary. In the article, Thomas does not shrink from drawing a line between Nixon's tarnishing of executive privilege, which he tried to use to conceal his careerist wrongdoing, and the current administration's determination to assert it: "There is no doubt that Bush wishes to expand executive power, to restore it to pre-Watergate days. Vice President Cheney has been particularly outspoken about guarding the prerogatives of the executive. At press conferences (most recently this week), Bush has shown a kind of casual disdain for Congress and the press, his two main foes in the Washington power game."

One of the questions we raise about the nominees to the federal judiciary concerns their professional ethics. Two nominees who were just confirmed, Pryor and McKeague, have long-standing ties to the Republican party and in particular to its leaders. Would they have the guts to challenge a claim of executive privilege where it is merited? For that has been the basis of, for example, Cheney's refusal to disclose the notes of the meetings he had with former Enron executives about energy policy. Would they support Congress should that body feel it necessary to perform their Constitutional duty to check the Executive Branch's exercise of power through an investigation? Another nominee, Henry Saad, has a record of holding the right of privilege (e.g. between doctors and patients, lawyers and clients) to such a strict standard that even in cases where both the plaintiff and the defendant have already viewed the documents legally, he ruled them inadmissable to prove, for example in a labor-laws dispute, that a nurse was made to perform tasks she should not have been.

Another relevant concern is the fate of various provisions of the P.A.T.R.I.O.T. Act (let's not forget, it's an acronym, not to be confused with actual patriotism). It occurred to me that perhaps the administration is fighting so vigorously because the post-Watergate spotlight made the kind of activities formerly undertaken by the FBI and CIA more difficult--because they were illegal. Their solution: legalize it. Here as well, we will need a judiciary that is independent from the political power brokers, whoever they may be, to protect our Constitutional rights. We all want to be as safe as possible, but at the price of losing our identity as a nation that protects and cherishes the rights enshrined in our founding document? Surely not.


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