I might not have noticed this one had it not been for reading the "Op-Eds" of the Washington Post and reading an article by Joan A. Lukey about it, called "At the Court, Inflating the White House's Power on Sunday, July 4, 2004; Page B02
http://www.washingtonpost.com/wp-dyn/articles/A25004-2004Jul3.html.
This decision, after all the hoopla leading up to it, was practically ignored by the media. As Joan A. Lukey writes:
"The high court clearly disagreed. In one quiet little line, on the 20th page of a 21-page majority opinion, the seven justices in the majority undid decades of evolving doctrine with this: "[the Court of Appeals] labored under the mistaken assumption that the assertion of executive privilege is a necessary precondition to the Government's separation-of-powers objections." Translation: The administration need not invoke a doctrine that would subject the decision to withhold information to judicial review, even regarding matters of domestic policy.
With a strong majority ruling in favor of the Government, the Supreme Court, making a distinction between Criminal and Civil cases, ruled, basically, that the Executive has an absolute right to secrecy. This thin thesis:
"The distinction between criminal and civil proceedings is not just a matter of formalism in this context. The right to production of relevant evidence in civil proceedings does not have the same "constitutional dimensions" as it does in the criminal context. Id., at 711. Withholding necessary materials in an ongoing criminal case constitutes an impermissible impairment of another branch's "essential functions." Id., at 711. Withholding the information in this case does not hamper such "essential functions" in quite the same way."
But the fact is that, with-holding this information may not hamper such essential functions in "quite the same way" but it does hamper them. The Supreme Court, paying lip service to the Nixon Tapes decision, referring to it repeatedly, completely undermines the legal premise behind it, which is that; no man is above the law, that the executive does not have the right to keep secrets from the legistlature and Judiciary, or to effectively rewrite law, and that legistlatures and courts need to have the power to acquire information if they are going to have any hope of exercising the powers granted to them. In effect it is as she calls it a "transferance" of power from the other two branches to the Executive.
Now this is only the culmination in a chain of abusive rulings that started before Judge Scalia refused to recuse himself from the case on the grounds that, well he could do darn well what he wants to. He justified this on the grounds that:
"The question, simply put, is whether someone who thought I could decide the case impartially despite my friendship with the Vice President would reasonably believe that I cannot decide it impartially because I went hunting with that friend and accepted an invitation to fly there with him on a Government plane. If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined."
http://forests.org/articles/reader.asp?linkid=30316
His knowledge of history must not include an institutional memory of another Supreme Court justice with similar Arrogance; Abe Fortas. That man sold his "partiality" for a mere 20,000 fee back in the sixtiesfrom a foundation controlled by Louis Wolfson. But of course, when you are dealing with public arrogance, precedent doesn't matter unless it is convenient to personal theory. He used even more tortured logic when he decided to stop recounts in Florida. And that may be exactly what they are trying to do.
In an article:http://writ.news.findlaw.com/dean/20020510.html, John Dean warns Carl Rove to ignore Nixon at his own peril. But it appears that this administration is not ignoring the Nixon example. This case was a deliberate effort to redefine the relationship between the executive and the Judiciary, and perhaps Cheney knew this even before he brought the case to the courts -- or went duck hunting with Scalia. In any case, John Dean picks up on the theory behind both the administrations actions and the courts decision, and he notes that Cheney hasn't made any bones about his feelings regarding executive privelage -- or the previous decision of the court:
http://writ.news.findlaw.com/dean/20021011.html
Indeed, Cheney has all but admitted the point. "In thirty-four years, I have repeatedly seen an erosion of the powers and the ability of the president of the United States to do his job," Cheney told ABC's "This Week" in late January.
As he notes, the "thirty four" years he is referring to is the time of the Nixon/Watergate Scandal. And he notes that Nixon had tried to usurp powers belonging to the legistlature in four areas:
Nixon was ignoring Congress in four areas. First, he refused to spend money the Congress had appropriated for programs he didn't believe in, simply impounding the money. Second, he ignored Congress's efforts to get him to cut back or end the war in Vietnam, often increasing and widening the war when they were in recess.
Third, he regularly invoked executive privilege, thus denying Congress information it sought as aid in its job of conducting oversight of the Executive Branch. Fourth, finally, and in what was probably his most offensive act of the four, Nixon implemented a total reorganization of the Executive Branch by executive order. The result was to give Congress no say over departments and agencies that had years earlier been created by Congress.
And he notes that had it not been for Watergate, and the refusal of the Courts to grant him executive privelage, he might have succeeded. Will we see this administration embark on a similar course? He notes that Cheney, when in Congress, was a leading defender of the Reagan Administrations role in that war effort:
"In a telling rebuke, Cheney criticized the administration for letting Congress exert control over Central American policy, and banning the sale of weapons to Nicaraguan rebels."
"Plainly, Cheney thinks presidents should not only execute the laws, but write them as they wish they had been. Never mind that Congress has passed a law the President has not vetoed, or as to which his veto was overrided. It is still up to him whether to abide by that law, Cheney seems to believe."
Watergate seems to haunt us yet. The only good thing about all this is that it keeps alive the real scandal that is this administrations "What is good for Business is Good for America" attitude and that Justice Stevens and the Majority sent the case back to the lower courts where it can be decided more on it's merits.