The Heat Rises In Washington

(CBS)
Lawyer Andrew Cohen analyzes legal affairs for CBS News and CBSNews.com.
No surprise that it's hot today on the East Coast—it's July, after all, so stop whining about it. But it is a bit of a surprise that during this summer holiday season the Congress and the White House appear eager to continue to duke it out over a handful of vital matters central to the legal war on terrorism. The pols took a few days off last week to wave a few flags and attend a few services but now, like pit bulls, they are after each other once again.

The hottest dispute rages over the U.S. Attorney scandal. The White House this morning refusedeven to turn over to the Congress a log and list of the documents it believes is covered by executive privilege. White House counsel Fred F. Fielding also deliver a warning shot to former White House counsel Harriet E Miers and former White House political direct Sara M. Taylor: don't testify before Congress because your communications about the prosecutor purge while at the White House are covered by the privilege.

No federal judge is likely to permit this level of obfuscation. It is standard procedure in both federal and state court for litigants to share with one another "logs" of privileged documents—just the date of the document, the people to whom and by whom it was written, etc.—so that all sides and the judge understand the universe they are arguing about. The White House says it doesn't need to take this initial step because the Congress knows which documents they are talking about. Not surprisingly, few others are buying that line. But any way you look at it this sort of start to the process presages a bitter middle passage toward an end that probably takes place at the United States Supreme Court.

But the subpoena battle is not the only front in the summer offensive between the branches. The battle over the detention facility at Guantanamo Bay, for example, is about to be rejoined. Everyone, it seems, now agrees that the odious prison that has housed hundreds of terror suspects ought to be closed. But everyone, it seems, is fighting over what ought to happen to the men once Gitmo is shut down. The Democrats in Congress want it done quickly and the men transferred Stateside for trials. The Republicans in Congress aren't so sure. Adding fuel to this fire was a Supreme Court move last week to hear yet another challenge to the government's military tribunal processes.

There's more. Last week, a federal appeals court sided with the White House and blocked a lawsuit brought to challenge the constitutionality of the National Security Agency's domestic surveillance program—a move certain to cause more friction between all three branches about the role Congress can and should play in protecting the rights of individuals from government spying. This week there also are callsupon Congress to change the "state secrets" doctrine to require the executive branch to be more forthcoming about its terror law policies and practices.

And, just to finish where we began, the hapless Attorney General, Alberto R. Gonzales, came under fire Sunday from one of his own subordinates, a brave Justice Department lawyer named John S. Koppel, who risked his own professional career (and more) to speak out about Gonzales' dereliction of duty. Summer lovin'? Not so much. The temperature eventually will cool off but there is no end in sight to the nasty wave of heat and hate swirling inside the Beltway as we begin the second half of 2007.



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