The RNC e-mails as one more White House demerit.

The RNC e-mails as one more White House demerit.

The RNC e-mails as one more White House demerit.

The law, lawyers, and the court.
June 21 2007 12:00 PM

Mail Trail

The RNC e-mails represent one more White House demerit.

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In December 2005, the New York Times first revealed the fact of the National Security Agency's warrantless domestic surveillance program that violated FISA. If President Bush had had his way, the secret spying would have remained secret forever. It would never have been subject to congressional or judicial checks. Congressional hearings to learn the spying details (sans sources and methods) have been repeatedly frustrated by claims of executive privilege. Indeed, the Department of Justice has even repeatedly refused to disclose or to discuss advice addressing the legality of the NSA's spying based on the absurd assertion that operational details would be exposed to the enemy by amplifying Supreme Court precedents. During Gen. Michael Hayden's confirmation hearing as director of the Central Intelligence Agency, he refused to answer an inquiry from Sen. Dianne Feinstein as to whether a FISA warrant had ever been sought for a pen register on the theory that an answer would reveal otherwise secret intelligence sources or methods.

President Bush also authorized secret prisons in Eastern Europe to torture or otherwise abuse persons suspected of complicity in terrorism. According to the president, terrorist detainees must be kept in secret dungeons indefinitely because any publicity might clue in al-Qaida that one or more of its cells had been penetrated. In other words, the president is fighting terrorism in part by entirely secret means, a throwback to the Cold War years that witnessed decades of illegal mail openings, illegal telegram interceptions, and years of misuse of the NSA for non-intelligence purposes.


President Bush has asserted executive privilege to prevent Mr. Rove and former White House Counsel Harriet Miers from testifying under oath about the firings of U.S. attorneys. The privilege has further been invoked to conceal relevant Justice Department communications. It has been used to blunt a congressional inquiry into the executive branch's dysfunctional response to Hurricane Katrina.

Vice President Dick Cheney concealed the identities of private business advisers to his Energy Task Force. Visitors for official business are kept secret. Former Attorney General John Ashcroft ordered the closure of removal proceedings for alleged terrorists. The Central Intelligence Agency sought to reclassify declassified information that Chinese intervention in the Korean War had been miscalculated and that the intelligence services of the United States and Great Britain had collaborated during World War II. President Bush has complicated and delayed public access to the papers of former presidents.

The pattern here is clear: The Bush administration treasures secrecy for the sake of secrecy and law evasion. Depend upon it: The RNC e-mail spectacle will not be the last chapter. That should be deeply disturbing.

The history of secret government is a history of oppression and folly. Secrecy invites false allegations or loopy ideas to advance personal vendettas or to gratify racial, religious, ethnic, or other obnoxious biases. President Bush is no exception.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group. He is also chairman of the American Freedom Agenda, a group devoted to restoring checks and balances and protections against government abuses.