01/22/2008 06:49 pm ET | Updated May 25, 2011

Delays Have Dangerous Ends

If George Bush were to cast himself as a Shakespearean character, I imagine he might choose Henry V, with his pre-sobriety life tracking the Falstaff period. But Iraq makes a perverse variant on Agincourt, so I'd pick Henry V's son, Henry VI, the feckless monarch whose "faith based" governance cost England the fruits of his father's overseas military success, and whose unpopularity was driven by a breakdown in law and order, corruption, the distribution of royal land to the king's court favorites, and the troubled state of the crown's finances, as well as losses overseas.

Henry VI also provides a nice avatar for the Vice-President, in Shakespeare's eponymous Dick the Butcher. Butcher Dick's most famous line is, "the first thing we do, let's kill all the lawyers." And the Administration has been acting out Vice-President Dick's affinity for lawlessness for the past two weeks, even though Cheney himself has remained behind the curtain. First, there was the refusal to observe the legal deadline on listing polar bears as an endangered species, while proceeding to lease, irrevocably, 30 million acres of prime polar bear habitat on the Chukchi Sea to the oil industry.

The Administration claims that it can't make a decision on the polar bear listing, as required by law, because it does not know enough. "It's not just making the decision, it's making it clear and why," Dale Hall, head of the Fish and Wildlife Service said. So let's see -- there is a legal deadline for listing the polar bear, but the Department of the Interior is missing it because it doesn't have enough staff time to make its logic clear. Meanwhile it has had enough staff time to make a decision to go forward with the oil and gas leasing, which has no deadline.

And while it doesn't know enough yet to decide whether the polar bear is endangered or not, it does know enough to answer the much more complicated question -- will or won't the oil and gas leasing be a problem for the bears? Get it? Was this a Cheney call? We can't be sure, but we do know from extensive media analysis that Cheney has handled the politics of oil and gas leasing all along for the Administration, even taking the lead on these issues from Karl Rove. And this certainly sounds like a line from Shakespeare's Butcher Dick.

And it's hard not to imagine the Vice-President's direct involvement in the latest development in the EPA's refusal to permit California to proceed with its clean car emission standards for carbon dioxide. When Administrator Stephen Johnson was first asked by Congress to provide the documentation for his decision, he assured lawmakers that the documents would be forthcoming.

Then, when Senator Barbara Boxer invited me to testify before the Senate Environment Committee on the waiver along with the EPA, neither the EPA nor any of its promised documents were forthcoming -- she had an empty chair and an empty document box. Now the EPA has provided paper, but clearly one reason Johnson was too busy to attend the hearing was that he was feverishly using a black marker pen to ensure that there was nothing useful and readable in the documents -- almost everything has been "redacted" in lawyer's terms -- to laypeople like you and me "blacked out."

The EPA claimed that in withholding the information it was protecting its employees. "EPA is concerned about the chilling effect that would occur if agency employees believed their frank and honest opinions and analysis expressed as part of assessing California's waiver request were to be disclosed in a broad setting," the EPA's associate administrator, Christopher P. Bliley, wrote. This consideration would be more plausible if many of the documents redacted had not already been leaked to Boxer by the very same agency staff that had drafted them, and that were outraged that their frank and honest opinions were cavalierly ignored by the Administrator.

But in withholding these documents, the Administration was doing something beyond obstructing the ability of Congress to find out what really happened on the waiver. It was also making a breathtaking, and lawless, Cheneyesque expansion of the doctrine of Executive Privilege.

Here's why. Executive Privilege is defined by the Columbia Encyclopedia as "the exemption of the president from disclosing information to congressional inquiries or the judiciary. Claims of executive privilege are usually invoked to protect confidential military or diplomatic operations or to protect the private discussions and debates of the president with close aides."

But here, the privilege is being asserted for a PowerPoint presentation, one prepared as part of a formal regulatory process by EPA staff, and given not to the President or any other members of the White House, but to the Administrator of the EPA. Worse, the EPA does not even claim that the advice offered is privileged -- it is willing to let Boxer and her staff know what the Agency staff told Johnson: "EPA spokesman Jonathan Shradar said Boxer and her aides were welcome to view and take notes on all the documents." What is "privileged" is the actual documents themselves, and the EPA admits they are claiming this privilege to avoid public disclosure -- it is the American people who cannot know why the Agency made its decision, even though the only basis recognized by the Supreme Court for Executive Privilege is the separation of powers between the Congress and the President.

I cannot imagine that the EPA will win this battle. But it may succeed in running out the clock, and slowing judicial scrutiny of its decision. In Henry VI, Butcher Dick was leading a rebellion against the English constitution. Dick Cheney has been orchestrating a similar subversion of the U.S. Constitution. Shakespeare's Dick the Butcher comes to a bad end -- and so does his Henry VI. Cheney and Bush will just get to retire. They're lucky they're not really characters in Shakespeare.