Presidents of both parties have asserted that the constitutional separation of powers grants the executive branch an "inherent" right to ignore subpoenas issued by Congress or the judiciary through “executive privilege.”
The standard argument is that compliance would reveal the internal deliberations of the president, his Cabinet officers and other government officials who require the presumption of privacy in order to engage in internal debates and deliberations.
The ongoing Fast and Furious debacle is President Obama's first use of "executive privilege" to avoid such subpoenas, but both by historical and current legal standards, the continued use of the tool is a radical overreach. I put "executive privilege" in quotes because, like terms such as "enemy combatant," it does not appear in law.
The closest we have to a definitive word on executive privilege dates to the Watergate scandal when the U.S. Supreme Court ruled against Richard Nixon's attempt to stonewall Congress. As long as a prosecutor could argue that the relevant documents were essential to the justice of a case, and did not compromise national security, Chief Justice Warren Burger said, the president would have to fork over the documents.
Operation Fast and Furious, a law enforcement matter, doesn't qualify under the Burger ruling. Yet, it's hard to imagine making a credible case that national security would be compromised if the details were made public. Since run-of-the-mill Bureau of Alcohol, Tobacco, Firearms and Explosives memos would be covered, the usual top-level internal deliberations justification doesn't apply either.
Once again, Obama is following precedent established by George W. Bush, whose legal advisers seem to have missed the class about how Americans decided not to be ruled by a King. Bush, who promoted another legal fiction, a "unitary executive" branch, invoked executive privilege six times, such as when refusing to release the minutes of Dick Cheney's meetings with corporate energy executives; Karl Rove's refusal to testify in the politically-orchestrated firings of federal prosecutors; and in the cover-up of the "friendly fire" shooting of former football player Pat Tillman in Afghanistan.
Recent presidents are not the only example.
Because the Constitution grants the Senate (but not the House) the right to ratify treaties, George Washington refused to turn over notes about the negotiations of the Jay Treaty with Great Britain to the House, claiming executive privilege. He did give them to the Senate. And the Supreme Court overruled Thomas Jefferson's 1807 claim that providing his private correspondence to Aaron Burr's defense in his treason trial would imperil national security.
In case after case, the whole idea of executive privilege has been made up, used by both parties to protect secrets and cover up malfeasance, yet has little to no constitutional basis. Yet, it's hardly the only example of how the Constitution is routinely ignored. The most glaring, of course, is the way presidents have stolen the exclusive right to declare war from one wimpy Congress after another. By some measures the U.S. has fought hundreds of wars, yet only five have carried the legal standing of an official Congressional declaration of war.
Americans enjoy the presumption of innocence and the right to a fair and speedy trial, by a jury of their peers, under the Sixth and Seventh Amendments. Yet, President Obama—building on a secret assassination program against those deemed terrorists begun under Bush—asserts the right not only to deprive U.S. citizens of these rights, detaining them indefinitely and denying them a trial, but to assassinate them.
The administration subverted more than two centuries of constitutional law with a simple internal memo: "The Justice Department wrote a secret memorandum authorizing the lethal targeting of Anwar al-Aulaqi, the American-born radical cleric who was killed by a U.S. drone strike [on September 30, 2011], according to administration officials," reported The Washington Post. "The document was produced following a review of the legal issues raised by striking a U.S. citizen and involved senior lawyers from across the administration. There was no dissent about the legality of killing Aulaqi, the officials said."
We're not even allowed to look at the text of the secret memo.
Too bad the Tea Party's Constitutional purism is so inconsistent, focusing more on fighting the Democrats than protecting our freedoms. With no one to push back, we lapse into “Might-Makes-Right,” not a nation of laws.
What's worse, most Americans don't care.
Ted Rall is a columnist, cartoonist, author and independent war journalist. He is the winner of numerous awards and a finalist for the Pulitzer Prize. His new book is The Book of Obama: How We Got From Hope and Change to the Age of Revolt.