Uncovering the Final Secrets of the Bush Administration

By Charles Homans, Washington Monthly. Posted December 1, 2008.

On an afternoon in mid-September, I visited Washington's E. Barrett Prettyman United States Courthouse, where many of the skirmishes of Bush's information war have been fought. The air in the fifth-floor courtroom was stuffy, and Department of Justice attorney Carl Nichols poured himself a glass of water. More than sixty people crowded the rows of seats behind him. As we waited for the panel of three circuit court judges to take the bench, it was quiet enough that you could hear the ice clinking in Nichols's thermos from the back of the room.

At issue was whether Harriet Miers, President Bush's former White House counsel, could be forced to testify under oath in front of the House Judiciary Committee about the firings of nine U.S. attorneys in 2006. A district court judge had ruled two months earlier that she could, and the administration, predictably, had resisted the idea. "It is truly an inter-branch conflict of the utmost degree," Nichols told the judges. "They are asking the EOP" -- the Executive Office of the President -- "to do something it has never done before."

Near the front of the courtroom, Judiciary Committee Chairman John Conyers sat in a high-backed leather chair. Before the Democrats took control of the House in 2006, Conyers had held mock hearings in the Capitol basement, and lamented his lack of subpoena power. Now he had it, but it wasn't doing much good. "There is no American citizen who is exempt from a subpoena!" protested the committee's attorney, Irvin Nathan, when it was his turn to speak. "It is not supposed to be a game of hares and hounds to get a witness to appear before the Congress."

The hearing was one of those Washington events that seem both important and oddly pointless. As they hashed out the hypotheticals of different decisions, both lawyers and all three judges made it clear they knew what was going to happen: eventually Miers would probably be forced to testify, at which point she would invoke executive privilege, which would trigger another lawsuit. That case would end up in the Supreme Court. And even if the Court were to rule in Conyers's favor -- which would be no small victory -- and Miers were forced to testify, she could always pull an Alberto Gonzales. "Witnesses often have amazing lapses in memory," says a former House staffer. "They claim they can't remember anything -- and I'm not sure what can be done to cure that."

This is what the war over information looks like now in Congress: running battles being fought longer and harder, for diminishing returns. (A similar story is playing out in the office of Justice Department Inspector General Glenn Fine, who handed the U.S. attorneys case over to a special prosecutor after he was stonewalled by Miers, Karl Rove, and ex-
Justice Department official Monica Goodling in his own investigation.) Congress has been criticized for not doing a better job of wringing the secrets out of the Bush administration, for shying away from using its heavy artillery -- the power of the purse, the ability to withhold confirmation -- when the White House refused to hand over documents or offer staff for testimony. This is a little unfair; congressional inquiries have actually produced an impressive documentary record of Bush administration malfeasance that now stretches into the thousands of pages, answering all but a few (albeit important) questions about scandals like the U.S. attorney firings. In a sense, this is paradoxically a case of having so much information that the essential storyline is obscured by the details, a dilemma familiar to any journalist or historian. Questions beget more questions, and if those questions can only be answered by Karl Rove or Dick Cheney, you're in trouble.

What's missing now are the key details -- who authorized what, and how and why they did it. These would provide a sense of how all the moving parts fit together, the necessary big picture. The congressional committees that are doing the best work on the administration's wrongdoing -- the House and Senate Judiciary Committees, the House Committee on Oversight and Government Reform, and the Senate Armed Services Committee, among others -- all have narrow jurisdictions that are not well suited to this kind of wide net-casting. The same is true of agency inspectors general. And the long list of disregarded committee subpoenas suggests that more creative approaches to getting testimony are needed.

The last time Congress considered matters of this sweeping scope was 1975. Rattled by Nixon's still-fresh abuses of power and recent reports that the CIA had spied on American dissidents during the Vietnam War, the Senate and House created committees to conduct far-ranging investigations into the covert actions of American intelligence agencies. Over the course of its yearlong inquiry, the Church Committee -- as the Senate panel came to be called, after its chairman, Senator Frank Church of Idaho -- conducted 800 interviews and reviewed 110,000 pages of government records, producing a report that itself sprawled across thousands of pages. Its revelations were damning: the committee confirmed that the CIA had planned the assassinations of leaders in Africa, Latin America, and Asia, had wiretapped Americans and opened their mail, had proposed infiltrating campus antiwar groups, and, Church concluded, had generally behaved like "a rogue elephant rampaging out of control." The committee's report ultimately led to the creation of the Foreign Intelligence Surveillance Court, which fairly successfully straddled the line between secrecy and accountability in intelligence matters until the Bush administration decided to circumvent it.

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Charles Homans is an editor of the Washington Monthly.

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