Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

17 May 2007

A Tale of Honor and Government by Clique

It is not bad to be proven wrong when the proof provides a germ of hope. A few days ago I wrote that “Not a single act of honor, courage, or personal integrity has diluted the unending flow of disastrous partisan poison” from the Bush Administration. Now we know that I was wrong: there was at least one act of honor and reportedly three.

On Tuesday James B. Comey, the second in command at the Department of Justice during John Aschroft’s tenure as Attorney General, described his own act of honor.

His story, told under oath before the Senate Judiciary Committee, is now widely known. It relates to the president’s ongoing program of secret electronic surveillance of Americans in our own country. The story occurred in 2004, long before the program’s existence was leaked to the press and the public became aware of it.

The Justice Department had authorized the program once, for unexplained reasons, apparently on an emergency basis. Legally required reauthorization was pending. After a thorough review, the Department’s professional staff had concluded that the program was illegal. The reasons for that conclusion are still undisclosed.

Attorney General Ashcroft was in the hospital for emergency gall-bladder surgery, and Comey was Acting Attorney General. Based on the Department’s professional legal review, he refused to reauthorize the program.

A single day remained before the program’s authorization was to expire. Together with Andrew Card (then White House Chief of Staff), then White House Counsel Alberto Gonzales tried to make an end run around Comey. He planned to confront Ashcroft in the hospital, although Ashcroft was still sedated and had been temporarily relieved of duty, and despite Ashcroft’s wife’s insistence that he receive no visitors.

Comey got word of the plan and, with sirens blaring, raced to the hospital where Ashcroft was lying. He arrived minutes before Gonzales and Card and confirmed his previous agreement with a semi-conscious Ashcroft. When confronted, Ashcroft upheld the law and would not bend.

Furious, Card and Gonzales went to the president, who tried to pressure Comey. Comey submitted his resignation. According to Comey, so did Ashcroft and FBI Chief Robert Mueller.

Faced with the threats of three high officials to resign, the president backed down. He modified the secret surveillance program to meet the Justice Department’s objections. Comey, Ashcroft and Mueller had gotten the mule’s attention.

Over two years later, a second standoff with Congress brought the secret surveillance program under a new statutory framework that balanced civil rights and security and made it legal. None of these things would have happened without Comey’s honorable and courageous stand on the night of Ashcroft’s post-operative recovery.

The tale of this “palace revolt” of Justice Department and FBI heads is a wondrous thing to tell. Who would have thought it of John Ashcroft, who did his best to bash a hole through the wall between church and state that has kept us free from pogroms and sectarian tensions for over two centuries? At some level even Ashcroft was a trained and honorable professional who could not abide the president running roughshod over the rule of law.

Yet before we allow this rare story of honor and integrity in the Bush Administration to intoxicate us, we need answers to two questions. First, why did Comey and Ashcroft remain silent for three years?

Robert Mueller is still FBI head, so we can attribute his silence to custom, professional expectations, and putative executive privilege. But Comey and Ashcroft are no longer with the federal government. But for 3,000 votes in Virginia, giving the Democrats control of the Senate by one vote, this encouraging story would have remained secret, certainly until the Bush Administration expired, perhaps for decades.

In late 2005, the public became aware of the secret surveillance program through leaks in the press. The program’s operational details are still secret, as they should be for security’s sake. But once the program’s existence became known and a matter of intense public debate, what reason could there have been to keep secret this tale of honor and steadfastness in defense of the rule of law?

The only credible answer is loyalty, to the president personally and to his political party. While public debate over the program’s legality was hot, Congress and the people should have known what three courageous men had thought of the program initially, and how much they had had to put on the line to keep it legal. Their loyalty kept that knowledge from us.

In the end, the three men kept faith with the rule of law, but not with the principles of democracy. Were it not for change in control of the Senate, “we, the people” might not have known for years how Bush and Alberto Gonzales tried to trample the rule of law and how the best of their colleagues thwarted their destructive impulses.

The second question that needs an answer is what this story reveals about the country’s present chief law-enforcement official, Gonzales himself. Gonzales was White House Counsel, not Bush’s private attorney. His professional obligation was to the office of the president, not the man in it. As a public official paid with public funds, he had a duty to keep an eye on little things like the rule of law, democracy, and history, in addition to the president’s views. No one operating at that level of democratic government should be a lackey.

And what else might you expect? George W. Bush picked Alberto Gonzales out of nowhere in Texas and made him all he is today. Without George W. Bush, Gonzales would be nothing more than a successful partner in an obscure law firm—one of the thousands in our over-lawyered nation.

Under those circumstances, how can anyone expect Gonzales to show the type of independent judgment that every high-level political appointee in a democracy should have? The relationship of mentor to nobody elevates loyalty above all else, undermining democratic government at the highest levels.

Contrast this sorry state of affairs with Abraham Lincoln’s cabinet. To everyone’s surprise, Lincoln appointed his chief political rivals. His reason was not Lyndon Johnson’s rule—better to have them inside the tent pissin’ out than outside the tent pissin’ in. Rather, Lincoln appointed his rivals because, in his words, they were the ablest men available. Each had had a long and distinguished political career, enjoyed great public esteem, and had an independent constituency. Together, they gave Lincoln solid, expert, and independent advice in the runup to our greatest challenge, the Civil War. No lackeys or sycophants for Lincoln.

It is far too late to do anything about the Bush Administration in this regard. Bush seems to like sycophants and to value personal loyalty above all else. He has run the people’s government—our government—like a secret clique, using every excuse to hide our business—and his mistakes—under the veil of executive privilege.

The contrast between men like Comey and men like Gonzales is therefore a cautionary tale. We can—and should—force Gonzales to resign. He has twice demonstrated his lack of the independent judgment that his office requires. But we should not be surprised if Bush appoints another lackey in his place. Already Bush has tried to put one on the Supreme Court.

What we all can do is vet the candidates for 2008 very carefully. It may be too much to ask them to name names. But surely we should press them on their “philosophy” of cabinet appointments. Ultimately, whether a candidate has the vision and strength of character to appoint men and women with their own authority, centers of power and political constituencies may be the most important question we can ask.



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