THE BLOG
06/29/2007 12:04 pm ET Updated May 25, 2011

Summer of Subpoenas: The Heat Is On

It's going to be a busy summer of spying subpoenas for the Bush White House. We'll soon learn whether the president and Dick Cheney will ever come clean with the American public.

In honor of this long-overdue Subpoena Season, the ACLU has launched a new web page called Subpoena Watch, complete with a check list we'll be filling out as the subpoenas roll in.

But first the news:

Item: The White House is asserting executive privilege and rejecting subpoenas from two Congressional committees probing Alberto Gonzales' firing of the eight U.S. attorneys.

Item: Sen. Patrick Leahy, D-Vt.-- who was repeatedly spurned by the White House as he sought nine times to gain information on the administration's illegal National Security Agency (NSA) spying program -- issued subpoenas to both the White House and the office of Vice President Cheney, as well as Gonzales and the Justice Department. It's hard to imagine, after refusing to produce the information nine times already, that the White House will be handing over much very soon. The deadline is July 18.

Item: And Cheney has apparently retreated from his self-serving claim that his office was not subject to the rules of a National Archives unit, like others in the executive branch, because of his dual role as president of the Senate.

When it comes to sham claims of executive privilege, here's what the ACLU had to say more than 30 years ago:

The President, like other citizens, is not above the law. It is the duty of the courts to determine what the law is and the obligation of every citizen to obey it. The Constitution contains no express privilege or immunity which places the President beyond the reach of compulsory judicial process, nor can one be inferred from the doctrine of separation of powers.

That's what we said in our amicus brief about President Nixon's attempts to hide behind executive privilege when he wanted to withhold the Watergate tapes. And it's the same logic we applied in our strong criticism of President Clinton's decision to invoke executive privilege regarding whether two top aides would testify before the grand jury in the Monica Lewinsky inquiry.

And it's what we're saying right now to President Bush -- especially on the eve of our nation's anniversary. He seems to forget that our nation's Founders established three co-equal branches of government. But the Bush administration has claimed that the executive is supreme over the other two -- the legislative and the judicial.

For too long, the Administration has been able to cudgel a quiescent Congress and courts. But now it looks like one of the "secondary" branches, the legislative, is coming to life. And before this is over, the judicial may well be playing a role.

The Leahy action is especially near and dear to our hearts because of its focus on warrantless NSA spying - the subject of our landmark lawsuit, ACLU v. NSA. We won a major victory in August, when U.S. District Court Judge Anna Diggs Taylor ruled that the spying program - tapping our phones and reading our e-mail without warrants - was unconstitutional. "There are no hereditary Kings in America," wrote Judge Taylor, "and no powers not created by the Constitution."

While the government has appealed the decision, Judge Taylor's "no hereditary Kings" comment is right on the money, and is clearly something about which the president needs constant reminding.

Leahy's action was correctly described by the ACLU's Legislative Director Caroline Fredrickson as "quick and decisive," and one in which Leahy "has come through on his promise to the American people." Leahy and his committee did not issue the subpoenas lightly. They first sought the information through conventional requests -- NINE TIMES - and were rebuffed each time. That the White House is so reluctant to have them see the light of day makes one wonder what is in those documents.

We need to do more than just hold the government accountable. We've also placed nine individuals and the Telecom CEOs -- the ones who handed the government private information on millions of Americans -- on Subpoena Watch.

We've put large blank boxes out to the side of each nominee. We're standing by and looking forward to checking off those boxes as those richly deserved subpoenas come down.