The right place to fight

Executive privilege claims in the Pat Tillman case? Is the White House claiming that the President needs to keep confidential the process by which he decided to mislead the public? This is the case to take to court.

The White House is claiming that a Congressional inquiry into how the White House and Defense Department put out false information on the death of Cpl. Pat Tillman would “implicate Executive Branch confidentiality interests.”

No, seriously. This is a Godsend for the Democrats in Congress. The committees shouldn’t compromise at all; this is the case we want to go to war over, in the courts and the court of public opinion. The Tillman cover-up is a far smaller scandal than the U.S. Attorney firings, but it’s much easier to understand.

Most of the country is only vaguely aware of the Tillman case, since the press has been not very interested in advertising how badly it was fooled, and how supinely it participated in the “Wag the Dog” fooling of the public. But if the facts got out there, everyone, including most of the Republican base, would be outraged. Publicity about the fight over documents and testimony is also publicity about Tillman’s “friendly fire” death and the effort to cover it up, so it’s a no-win situation for the White House.

Moreover, even the wingnuts are going to have a hard time claiming with a straight face that the President needs to protect the confidentiality of the process by which he decides to … mislead the public. So this is the weakest possible set of facts for the Bush Conspiracy to take to court. Note that the ranking Republican on House Oversight and Government Reform signed the stiffly-worded demand letter; that will make it harder to paint this as a purely partisan confrontation.

Finally, the fact that BushCo is squirming to avoid full disclosure strongly implies that they have something really nasty to hide. Now, I recall being wrong in applying that logic to Saddam Hussein and WMD; paranoid megalomaniacs who have cut themselves off from reality do some fairly hard-to-explain things. (The current guess seems to be that SH thought that Iraq actually had WMD, because he had ordered the creation of such capacity and everyone around him was afraid to report failure.) So it’s not impossible that the facts, once they emerge, will be only mildly embarrassing to the White House. But that’s not the way to bet. No one thinks Fred Fielding is crazy, and no doubt he’s seen the documents.

We could, of course, lose in the Supreme Court, even on these facts. As far as I can tell Roberts, Alito, Scalia, and Thomas would probably vote to uphold Bush if he ordered the 2008 elections cancelled, as long as he called it an emergency wartime measure and invoked his powers as Commander-in-Chief. But I don’t think Kennedy, though he went along with the lawless decision in Bush v. Gore, would agree. And a set of opinions written with the Tillman facts &#8212 and the White House attempt to cover up the Tillman facts &#8212 in mind will be much more likely to enunciate principles that help us in other Executive Privilege cases than a set of opinions written with the U.S. Attorney scandal in mind.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: