Late last month, a federal judge in Washington slapped down some of the flimsiest legal arguments yet from the all-chutzpah, all-the-time Bush regime.

The opinion by D.C. District Judge John D. Bates involved subpoenas issued by the U.S. House of Representatives in connection with a probe by the House Judiciary Committee into the administration’s sleazy firings of nine U.S. attorneys in 2006.

After being jerked around by the administration for a year and a half, an exasperated committee finally issued two subpoenas. One orders former Bush White House Counsel Harriet Miers to appear before the committee for questioning. The other orders White House Chief of Staff Joshua Bolten to list the documents that the White House decides to withhold from the committee, along with a detailed explanation of why.

Bolten and Miers refused to comply, citing instructions from the president, and the judiciary committee sued them in District Court. Bolten and Miers asked the court to dismiss the suit.

Bolten/Miers argued – the White House argued – that the committee has no legal standing to bring the suit; that a dispute over a congressional subpoena can’t be resolved by the courts; that it would be radical for a court to rule on executive privilege; and that close presidential advisers are absolutely immune from having to testify before Congress.

Bates rejected it all:

The Supreme Court repeatedly has affirmed Congress’ right to investigate, he wrote, and without the power to compel testimony, that right would be meaningless. Resolving conflicts about subpoenas is a routine court function, he added.

The Supreme Court clearly has established that federal courts bear the ultimate responsibility for deciding disputes over executive privilege, Bates wrote, and the truly radical step would be to dismiss the case. It also would surrender judicial responsibility to the president, he wrote: “That proposition is untenable and cannot be justified by appeals to presidential autonomy.”

As to immunity, Bates wrote simply that “the asserted absolute immunity claim here is entirely unsupported by existing case law.”

I’m intrigued by Bates’ background: He is a Republican and a former deputy independent counsel who worked under Ken Starr on the Whitewater investigation of Bill and Hillary Clinton’s Arkansas land deal.

Bates was appointed to the federal bench by President George W. Bush in 2001. At the end of 2002, Bates ruled in favor of Vice President Dick Cheney and threw out a lawsuit seeking the records of Cheney’s energy task force.

In February 2006, Supreme Court Chief Justice John Roberts appointed Bates to the secret Foreign Intelligence Surveillance Court, and in December 2007, Bates ruled against the American Civil Liberties Union’s effort to make public the FISC’s decisions on the administration’s warrantless spying programs.

The point: If the administration couldn’t get a favorable ruling from Bates, it really must have been firing blanks. Which might be one definition of legal chutzpah.

Another definition might be contempt for the rule of law and the Constitution, and it’s difficult to imagine an American president and an administration demonstrating greater contempt than Bush, Cheney and their cadre of lawyer-enablers have.

In its very first year in office, the Bush administration used legal and administrative wheeling and dealing to undermine lawful enforcement of the Endangered Species Act in Oregon. Not until the effort nearly destroyed Oregon’s salmon industry did a federal judge outlaw the administration’s approach.

Last year, the Supreme Court overruled the Bush position and said that the Clean Air Act requires the Environmental Protection Agency to regulate carbon dioxide emissions. Even so, the administration has all but ignored the ruling.

In July, the Washington Post reported that Bush’s Department of Labor was trying to sneak through new rules that would weaken the protection of workers who handle toxic chemicals. On Tuesday, the Associated Press discovered that the administration was targeting the Endangered Species Act yet again, with the Interior Department proposing rules changes that would eliminate independent scientific reviews of projects that could pose threats to endangered plants and animals.

And all this doesn’t even include the administration’s contamination of government departments and agencies with politics and ideology in the ranks of career public servants, positions that by law are supposed to be filled on the basis of merit and competence. As recent internal reports have demonstrated, the effectiveness of the Department of Justice may have been the most damaged by senior officials’ betrayal of their mission and responsibilities.

And then there is the continuing Bush administration assault on the Constitution, federal laws and binding-law-of-the-land treaties covering war crimes, torture, abusive treatment, imprisonment, due process of law and rules of evidence. Its legal rationales have been ridiculed and discredited when exposed to the light of day, and the Supreme Court repeatedly has invalidated them:

-The administration declared that the military prison on the U.S. Naval base at Guantanamo Bay, Cuba, is not controlled by the United States and therefore is outside the reach of U.S. civilian courts. In its 2004 Rasul decision, the Supreme Court ruled that the United States exercises complete control over the area, giving federal courts jurisdiction.

-The administration declared that prisoners at Guantanamo, including U.S. citizens, have no right to challenge the legality of their confinement. In its 2004 Hamdi decision, the Supreme Court ruled that prisoners have exactly that right.

-The administration declared that the Geneva Conventions don’t apply to alleged members of al-Qaeda and the Taliban and that its military commissions system provides sufficient legal rights to prisoners. In its 2006 Hamdan decision, the Supreme Court ruled that Geneva’s Common Article 3, which prohibits the abuse of prisoners and guarantees them certain minimum legal rights, applies to all prisoners held by U.S. personnel and that the military commissions system fails to meet legal standards.

-The administration insisted that a law it pushed through Congress in 2006 strips the federal courts of any right to hear challenges to Guantanamo prisoners’ confinement. It also declared that a so-called Combatant Status Review Tribunal system provides prisoners with the legal protection to which they’re entitled. In its Boumediene decision in June, the Supreme Court ruled that federal courts do have the power to hear such challenges and that the administration’s concocted CSRTs are no substitute for genuine legal proceedings.

The Bush administration response to the terrorist attacks of 9/11 in New York, Washington and Pennsylvania, should have affirmed the American system that had been assaulted with such barbarity. Instead, Bush and his allies whimpered that the American system of law and justice is too weak and too vulnerable to triumph over such a powerful enemy. To win, they said, the United States had to turn, in Cheney’s words, to “the dark side.”

It is profoundly un-American, and in embracing this view, Bush has embraced barbarism and done violence to the very ideals and principles he professes to defend. We will be a long time mending.

Eric Mink is commentary editor for the St. Louis Post-Dispatch. Readers may write to him at: St. Louis Post-Dispatch, 900 North Tucker Blvd., St. Louis, Mo. 63101, or e-mail him at

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