A big question of late is whether Karl Rove will be compelled to testify before Congress on his role in the politicization of the Department of Justice, specifically in the investigation of Don Siegelman.  Rove has claimed an expanded version of executive privilege: "absolute immunity" from congressional subpoena.

Today a big decision undercuts Rove's entire argument.  U.S. District Court judge John Bates (a Republican appointee, notably) ruled against Harriet Miers and Josh Bolten in their claim of executive privilege.  It determines that Bolten and Miers must comply with the subpoenas and appear before Congress.

But the bigger impact may be on Rove.  Bates eviscerates Rove's entire justification for ignoring the congressional subpoena, citing that "absolute immunity" has no basis in case law and was rejected in the case of--you guessed it--U.S. v. [Richard] Nixon.  emptywheel explains further:

And here's the key line and quote from Bates' decision:In other words, the oversight role and strength of Congress has been vindicated, and now they must apply it.  Karl Rove must appear before Congress to testify immediately.  He has offered no justification for his absence that stands up to the rule of law.  And Miers and Bolten must appear immediately, too.*

Congress goes on recess for the whole month of August.  They leave this weekend.  I say: let's do the hearings tomorrow.  The rush home to raise reelection money can wait a day so that we can restore the rule of law here in our democracy, or so one would hope.

We'll have a statement out soon.

*UPDATE (or NOTE): I should note that, frankly, this White House has shown itself masterful at stalling tactics to drag out oversight proceedings. I'd expect nothing less this time. But it's all the more important that Congress show some real urgency in holding these hearings, and fast-track any judicial proceedings and hurdles that the White House throws up. Time is short but the institutional impact of an executive branch that abuses its power and defies the Constitution will be long.

Our intern Grace Campion put together this brief on today's House hearing on state secrets.

At 12:30pm today, the House Subcommittee on the Constitution, Civil Rights and Civil Liberties will be holding a hearing on HR 5607, the State Secret Protection Act of 2008.

Chairman John Conyers (D-MI) and the Judiciary committee members, of late, have kept busy defining and redefining the role they should play in keeping tabs on the Executive Branch.  This is the latest effort put forth by Rep. Nadler (D-NY) along with his three co-sponsors, Rep. Petri (R-WI), Conyers, and Rep. Delahunt (D-MA) to curb the powers the President has abused in the name of national security.

The legal precedent was set by President Jefferson during Aaron Burr's trial for treason.  In contention was a letter between the President and General Wilkinson said to include sensitive information that would be a risk to national security if divulged.

Special thanks to Common Cause intern Grace Campion for attending an important event at the New America Foundation for me this morning on the release of an interesting book by Jane Mayer.  Grace is a rising senior at the College of the Holy Cross in Worcester, MA.  Here is her take on the event and the book below.

 "Zealots, Fools and Monogrammed Towels: News on The Dark Side" 

With The Dark Side, Jane Mayer adds to the growing number of independent investigative reports into the shadowy seven years of the Bush-Cheney Administration.  She focused her reporting on the oft overlooked figure of David Addington, legal counsel to the Office of the Vice President.  Back in July of 2006 Mayer wrote an article for the New Yorker entitled "The Hidden Power: The Legal Mind Behind the White House's War on Terror" which consequently led her, with this book, to delve deeper into the White House chain of command and flesh out the role that Addington played.  She found that Addington meticulously maintained a low profile while becoming "one of the most powerful unelected officials in the government - `Cheney's Cheney.'"  Addington is the new face of unelected American politics and a soon-to-be-household name. 
Moderator Steve Clemons, from The New America Foundation, began the morning's discussion by reading the final sentence of Mayer's book.  Philip Zelikow, executive director of the 9/11 Commission and former Counselor of the US State Department, responds to Mayer's question regarding the historical legacy of the United States' new stance on torture.  He likens it to the internment of Japanese Americans during World War II and sums up the past seven years with one sentence, "Fear and anxiety were exploited by zealots and fools." 

Today there was a House Judiciary subcommittee meeting which has been described by Keith Perine of CQ as "political theater." Douglas J. Feith, former Undersecretary of Defense for Policy, was defending his role in developing the interrogation policies used on detainees by the current administration.

Many critics of the current administration have asserted that the "harsh" interrogation practices are equivalent to torture. This Thursday, there is to be a hearing held by the House Judiciary Constitution, Civil Rights, and Civil Liberties subcommittee to further investigate the legality of the current (and former) techniques.

There has been effort to disrupt the hearing and prevent new information from coming to light, and it has been said that Attorney General Michael B. Mukasey refused a request to appoint a special counsel to investigate the roles of administration lawyers and policy makers.

Last week, Common Cause launched its Recapture the Flag campaign urging congressional and presidential candidates to sign a pledge to:

*End torture, respect human rights and restore America's reputation in the world.
*Respect the rule of law and fiercely challenge anyone who seeks to undermine the Constitution and the Bill of Rights.
*Root out corruption, special interest abuses and partisan prejudice in the administration of justice.
*Hold to account - without exception - anyone who breaks the law or violates the public trust

Failing to investigate the legality of interrogation techniques is an abuse of power. Our system of democracy is based upon the ability to question in order to maintain a healthy balance of power.

Lou Fisher wrote Presidential War Power and is the author of The Constitution and 9/11: Recurring Threats to America's Freedoms (University Press of Kansas), coming out this August.  He also testified in front of the National War Powers Commission.

We asked Lou for his reaction to yesterday's New York Times Op-Ed, "Put War Powers Back Where They Belong," by James A. Baker III and Warren Christopher.  Here is Lou's response to Baker and Christopher's Op-Ed.

1.  They say "Our Constitution ambiguously divides war powers between the president (who is commander in chief) and Congress...."  There was never anything ambiguous about Congress being the only branch that could take the country from a state of peace to a state of war.  No one before President Truman ever argued that the title "commander in chief" empowered the President to commit offensive operations against another country.

2.  They claim the WPR "too narrowly defines the president's war powers to exclude the power to respond to sudden attacks on Americans abroad." In fact, the WPR leaves the door entirely open to anything the President wants to do for the first 60 to 90 days.

3.  They object that the WPR "empowers Congress to terminate an armed conflict by simply doing nothing."  I have never defended the WPR and don't intend to here, but there is nothing unconstitutional about Congress controlling a war power matter by doing nothing.  If the President submits a proposal to use military force abroad and Congress ignores his proposal, that is the end of it.  Congress isn't required to act.  If the President requests funds to continue a war and Congress provides nothing, that is the end of it.

4.  Their proposal would not restrict "covert operations."  We all know that the CIA was very active in Afghanistan and Iraq in 2001-03 and there are reports that it is currently involved in Iran.  We need to be concerned about unilateral paramilitary operations.

5.  The consultative committee would be composed of party leaders and the chairs and ranking members of certain committees.  We remember the role of the Gang of Eight in being briefed about illegal NSA surveillance after 9/11.  Whatever war powers belongs to Congress belongs to the institution as a whole, including its most junior members, not to some consultative committee.

6.  "If the resolution of approval was defeated in either House, any member of Congress could propose a resolution of disapproval" (subject to the President's veto).  First, if a resolution of approval were defeated in either House, that is the end of it.  Congress should not then have to vote for a resolution of disapproval.  If it is vetoed, lawmakers would need a majority of two-thirds in each house for the override.  That means the President could start a war and continue it if he maintained a margin of one-third plus one in a single House.

7.  They say their proposal "is good" because it would force Congress "to take a position on going to war."  Congress, under the Constitution, is not required to take floor votes.  Had Congress ignored the Iraq Resolution in October 2002, that would have been the end of it, constitutionally.

8.  Their proposal "would give Congress access to intelligence, a full-time staff...."  No.  It would give a handful of members (the consultation committee) access to intelligence and staff, quite likely with the admonition (like the Gang of Eight and NSA) not to share this sensitive information with anyone else.  Congress, as an institution, would be handing over its powers to a subgroup.

It's been a tough few years for "we the people."

We've endured repeated abuses of power by the Executive Branch of our government. Time after time, we've watched Congress fail to stand up for what's right. We've seen the very symbols of our democracy tarnished, as our nation's reputation suffers at home and abroad because of these abuses.

So today, Common Cause is launching a campaign to Recapture the Flag and unite us around the promise and hope of America.

Join today by signing our petition!

The Recapture the Flag Petition reads:

Click here to sign the petition today!

America can, and must, hold fast to the values that have made this country great - freedom from tyranny, respect for individual liberty and government based on the rule of law.

Let's make it clear that We The People expect no less from the next President and Congress.

Our goal is to gather 25,000 signatures before 4th of July. You can help us get there. But you have to act now.  Please add your name today.