International Law Matters - The Middle East Crisis

What's Next, Mr. President? More Secrecy?
Vice President Dick Cheney seems ready to bring about a Constitutional crisis. He is daring the General Accounting Office (GAO) to sue him for refusing to hand over to Congress the names and addresses of all those corporate officers who seemed to have advised him on creating an energy policy for the Bush Administration. Any complaint filed suing Cheney should include President Bush as a defendant. A court may order Bush to require Cheney to comply. The Cheney task force gathered information required to frame an energy policy. This policy was releaseed to the public in May, 2001. It reflected Bush Administration priorities such as degrading environmental policies, drilling for oil in the Artic Wildlife Refuge, and encouraging the waste of precious federal land under the Mining Act of 1892.by allowing private development.These three subjects were clearly taken up by the now bankrupt Enron Company which has confimed that its president had visited the White House six times during the spring of 2001. To the extent Cheney may assert executive privilige with respect to the documents withheld by him, it should be recognized that a vice-president has no executive privilege.. He may act in any matter authorized by the Constitution such as his power to vote in the Senate to resolve a tie there. The 25th Amendment mentions two possibilities not relevant here. Cheney may serve an Acting President. if there is a vacancy in the office of the vice president, the president may appoint a successor who shall take office upon confirmtion by a majority of both Houses of Congress. The Federal Advisory Committee Act (FACA) may also be joined in any suit demanding the release of certain documents. Cheney's task force may be an "advisory committee " subject to this legislation enacted in 1972 and amended in 2001. It provides "advice to the president or a federal officer or agency." However, if a committee reports to a parent advisory committee, contents of the report to its parent it is not subject to FACA. See National Anti-Hunger Coalition v. Executive Committee, 557 F. Supp. 524 (D.D.C.), aff'd 711 F. 2d 1071 (D.C. Cir. 1983). The 2001 Federal Advisory Committee Act Final Rule became effective Aug. 2001. Apparently all the reports under FACA were transferred to the General Service Administration after this date. The Bush Administration seems to have anticipated what Mr. Walker has sued to get in his capacity as Comptroller General of the United States.
David Walker is head of the General Accounting Office (GAO) with a term that does not allow Bush or anyone else to fire him.The GAO is the investigative arm of Congress now holding multiple hearings.Walker was quoted in the New York Times on January 29 as saying: "If all you have to do is create a task force, put the vice-president in charge, detail people from people from different agencies paid by taxpayers, outreach to whomever you want and then you can circumvent Congressial oversight, that's a loophole big enough to drive a truck through." As of January 31, 2002 suits against Cheney and his task force had been filed include: Natural Resources Defense Agency, Sierra Club, Judicial Watch, a public interest law firm that investigates and prosecution public corruption. Its suit was filed before the Final Rule was approved. The Task Force was chaired by Vice President Cheney, a former officer of the Halliburton Company, an oil services corporation with literally dozens of wholly owned subsidiaries, and the Secretary of the Army, Thomas White. White was formerly an officer of Enron's wholly owned subsidiary,-Enron Energy Services responsible for providing energy outsource solutions to commercial and industrial customers throughout the United States. Lawrence Lindsey, Chief Economic Advisor to the Bush Administration, was a hireling of Enron at the close of business in 2000. His salary as reported by the New York Times was $50,000 per year.
Enron and Halliburton do have one thing in common. They were both clients of Arthur Anderson as of December 31, 2000. This fact appears in Enron's Form 10-K as filed with the Securities Exchange Commission (SEC).
If the GAO proceeds with its litigation, Mr. Walker, Comptroller of the United States, should join President Bush as a named defendant and concurrently serve on the president a notice of deposition under Federal Rules of Civil Procedure Rule 26 and sub poena appropriate papers. in his custody or under his control. There is nothing more sobering than a notice of deposition. It will remind the president that he is not immune from suit while in office. See Clinton v.Jones, 520 U.S. 681 (1997). In 1974, another case was decided by the Supreme Court. An appeal to the Supreme Court was taken by the then-President of the United States, Richard Nixon. This litigation presents for review the denial of a motion file on behalf of an unindicted co-conspirator, Richard Nixon to quash a third party sub poena deuces tecum in United States v. Mitchell et al D.C. Crim. No 74-110 the Supreme Court held that Nixon must release the tape recordings. United States v.Nixon, 418 U.S. 683 (1974). Here, Cheney can argue only that he has a generalized interest in the confidentiality of sources that might embarrass him. This is not enough. This case was decided on July 24, 1974. President Nixon resigned on August 9, 1975, and Gerald Ford succeeded to the presidency.
. Nixon resigned rather than face impeachment.
All this history was made in the Watergate Scandal in the years from early1973 to 1974. At various times some defendants were indicted, tried and convicted. Those sent to jail included John Mitchell, then Attorney General of the United States, H. R. Haldeman and John Ehrlichman, both close advisers to the president. Special Prosecutors Leon Jaworski and Phillip Lacovara represented the United States.
Another case also involved the services of a Special Prosecutor, Lawrence Walsh in the Iran-Contra scandal. See United States v. Poindexter 951 F.2d 369 (1991). It illustrates a single point. In the Iran-contra cases, a Congressional committee granted the defendant immunity in exchange for his testimony.As a result, Poindexter and Colonel Oliver North had their convictions reversed. They were both freed. It's really impossible to argue that this scandal damaged the country more than Watergate, with its list of principal actors such as the Attorney Gneral of the United States tgether with at least two high level presidential aides, Haldeman and Ehrlichman..In the Iran-Contra scandal, President Ronald Reagan and a cast of both high level and low level government officials and a few with Cabinet status were all indicted..It even involved litigation appearing before the International Court of Justice, Nicaragua.United States.
In 1984 Congress passed the so-called Boland Amendment which prohibited United States intelligence agencies from providing military support to the rebel "Contras" then attempting to overthrow the "Sandinista" government of Nicaragua.Dozens of CIA operatives were shipping arms to the contras within Nicaragua. One such plane was shot down in 1985. Its only survivor was Eugene Hasenfus who was captured by the Sandinistas and announced his identity as an employee hired by the CIA. Long before the dust settled, North was selling arms to Iran via Israel, inflating the price thereof and using the profits to arm the Contras. Poindexter was head oif the National Security Agency. Both North and Poindexter used the Central Intelligence Agency indiscriminately to ensure the arms were delivered. They also kept President Reagan in the dark except for Findings he had to make to comply with the law. Two findings were made, and both had been falsely obtained from North and Poindexter. This ruse was thought to establish deniability for Reagan. According to James E. Baker III, Reagan might have been impeached for abuse of power
As with Watergate, the Iran-Contra scandal stemmed from the efforts of the White House to free itself from legal and constitutional constraints on the exercise of executive power. These efforts were all held as secrets to be withheld by the co-conspirators North and Poindexter
In 1995, the Republicans made a serious mistake by supporting a Balanced Budget Amendment to the Constitution (BBA). It lost in the Senate by one vote. Ironically, if adopted, the BBA would render impossible the deficits proposed by President Bush on January 29, 2002. While no budget has yet been enacted, Bush's State of the Union address called for a deficit of an estimated $100 billion for all of FY2002. Two years later, the Supreme Court held the Line Item Veto Act, enacted by Congress in 1996, was unconstitutional. Clinton v. New York, 524 U.S. 417 (1998). This decision was a blow to the GOP. It had made the line-item veto a major item in its Contract with America. President Clinton had used it to elimimnate pork barrel spending. Speaker of the House then was Newt Gingrich. He didn't have the votes to pass the Line Item Veto as a constitutional amendment requiring a two thirds vote.
Even more serious is the order he signed after Congress almost unamimously enacted the Intelligence Authorization Act for Fiscal Year 2002. Bush signed this bill on December 28, 2001. However, the very next way he signed an executive order in which he declared he would ignore Section 305. This section is an amendment to the National Security Act of 1947. It would require reports in writing with respect to either "intelligencies activities" or "failures." Evidently, Bush plans to operate in secrecy and not even tell the intelligence oversight committee of Congress where a massive failure has occurred Bush's oath of office requires him to enforce all the laws, not just those he likes. Bush evidently thinks the act encroaches on his authority as president to determine what information Congress is entitled to. Once again, Bush has imposed secrecy. He has already signed an executive order establishing secret tribunals. And Attorney General John Ashcroft has already made it difficult people to obtain clearly innocuous documents using the Freedom of Information Act. (FOIA). This act has served the press well in exposing malfeasance in the executive branch of government.
Bush plans to expand the imperial presidency first introduced under Ronald Reagan, the movie hero of the 1940s and earlier. What the Reagan Administration did then-at least in the Iran-Contra scandal-appears in an opinion of the International Court of Justice in the Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States) on the Merits June 27, 1986. "The Court finds it clearly established that the United States intended, by its support of the contras to coerce Nicaragua in res[pect of matters in which each State is permitted to decide freely, and that the intention of the contras themselves was to overthrow the present Government of Nicaragua....amounts to an intervention in its internal affairs, whatever the political objective of the state giving support. It therefore finds that the support given by the United States to the military and paramilitary activities of the contras in Nicaragua by breach of non-inbtervention."
"The Court finds that the assistance to the contras, the direct attacks on Nicaraguan ports, oil installations, etc., the mining operations in Nicaraguan ports, and the acts of intervention involving the use of force referred to in the Judgment, which are already a breach of the principle of non-use of force, are also an infringement of the principle of respect for territorial sovereignty. This principle is also directly infringed by the unauthorized overflight of Nicaraguan territory. These acts cannot be justified by the activities in El Salvador attributed to Nicaragua; assuming that such activities did in fact occur, they do not bring into effect any right belonging to the United States. The Court also concludes that, in the context of the present proceedings, the laying of mines in or near Nicaraguan ports constitutes an infringement, to Nicaragua's detriment, of the freedom of communications and of maritime commerce.
"The Court examines the allegations of Nicaragua that the mining of Nicaraguan ports or waters was carried out by United States military personnel or persons of the nationality of Latin American countries in the pay of the United States. After examining the facts, the Court finds it established that, on a date in late 1983 or early 1984, the President of the United States authorized a United States Government agency to lay mines in Nicaraguan ports, that in early 1984 mines were laid in or close to the ports of El Bluff, Corinto and Puerto Sandino, either in Nicaraguan internal waters or in its territorial sea or both, by persons in the pay and acting on the instructions of that agency, under the supervision and with the logistic support of United States agents; that neither before the laying of the mines, nor subsequently, did the United States Government issue any public and official warning to international shipping of the existence and location of the mines; and that personal and material injury was caused by the explosion of the mines, which also created risks causing a rise in marine insurance rates."
Quotations from the opinion issued by the International Court of Justice are by way of introducing the opinion in United States v. Poindexter 951 F.2d 369 (DC Cir. 1991).Its text is also available through 1991 U.S.App.Lexis 26824. In connection with this case, see also Kastigar v. United States, 406 U.S. 441 (1972). The Poindexter case applied Kastigar wherein use use and derivative immunity was granted against a claim of self-incrimination by testifying before a grand jury. The Supreme Court held that "a defendant raising a coerced-confession claim under the Fifth Amendment must first prevail in a voluntariness before his confession and evidence derived from it becomes inadmissible." Judge Abner Mikva writing his dissent in Poindexter stated: "United States v. Kastigar, (citation omitted) requires trial judges to determine whether testimony in court is tainted by immunized testimony before Congress....", In this opinion, he wrote, "In United States v. North (citation omitted) this court changed the standards the special prosecutor had to meet; today we refuse to let him try to meet them." The majority of Judges Ginsburg and Sentelle refused to approve a voluntariness hearing. It would be "pointless" they said. So two high-ranking officials of the Reagan Administration were freed, notwithstanding their indictment and jury verdicts of guilty. Several officials, including Defense Secretary Caspar W. Weinberger were pardonned by the Senior President Bush
Finally, Bush should be pleased that the respose to the terrorists on September 11, 2001 has had some support from Thomas M. Franck who has written a fine article. It appears at 95 American Journal of International Law 839 (2001). Now that the United States is on solid legal ground at least in Afghanistan, the president may wish to consider his domestic agenda.