When John Ashcroft was asked by Congress to produce documents related to all the awfulness in Abu Ghraib, he said "no." Asked if he was invoking executive privilege, the attorney general said - if memory serves me - that he wasn't invoking anything at all, only that (according to the New York Times) "it was simply not good policy to openly debate what powers a president had in wartime."
Now I'm not a constitutional attorney, but it seems to me that Ashcroft's opinion of good policy does not trump Congress's right to subpoena documents. I can only imagine what would have happened if Janet Reno had refused to disclose any documents related to the Whitewater/Jones/Lewinsky fishing expedition to Al D'Amato's committee, and that was only related to allegations of the president's personal misconduct. We'd have contempt citations and impeachment proceedings against Ms. Reno within hours.
Congress and the American public has a right to know whether anyone in the Bush administration implicitly or explicitly authorized the use of torture against prisoners in Iraq. And certainly Congress has a right to know whether executive branch attorneys tried to find a legal basis for opting out of treaties the United States has ratified.
The point Ashcroft made again and again is that people must understand that the US is at war. But Ashcroft and perhaps others must understand is that a war does not suspend the Constitution. There is no basis in American law - which you'd hope Ashcroft was familiar with - for the executive branch to dispense with checks and balances. Senators Biden and Kennedy were elected by the people of Delaware and Massachusetts (which is more than you can say for Ashcroft, who lost his election to a dead man.)
Whether or not you think Kennedy, Biden et al have a right to ask for these documents in an open session, or whether the documents are relevant to the inquiry they're conducting, or even whether the Geneva Conventions apply; Ashcroft's conduct is reprehensible.
Biden shouldn't have lectured Ashcroft on the purpose of international treaties; he should have scolded him for ignoring the Constitution. A citation for contempt was mentioned; Biden should have asked the Republican senators whether they would go on record supporting the notion that the Attorney General can withhold documents from Congress for reasons of policy.
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