As the Congress and the Executive Branch move inexorably towards a clash regarding the Executive Branch's refusal to accede to information requests from the Congress and the resulting subpoenas that have been issued, it is worthwhile to review the powers of the Congress in this regard. Fortunately, in 2003, the Congressional Research Service produced a handy report on the subject:

When conducting investigations of the executive branch, congressional committees and Members of Congress generally receive the information required for legislative needs. If agencies fail to cooperate or the President invokes executive privilege, Congress can turn to a number of legislative powers that are likely to compel compliance. The two techniques described in this report are the issuance of subpoenas and the holding of executive officials in contempt. These techniques usually lead to an accommodation that meets the needs of both branches. Litigation is used at times, but federal judges generally encourage congressional and executive parties to settle their differences out of court.

This post is intended to provide some factual background on this subject as there has been much bad information bandied about on this subject. I will be writing a subsequent post on the question of Congressional oversight powers related to its subpoena and information gathering powers. So for the factual background, please follow to the flip.

Michael Iskifoff covers the Scooter Libby sentence commutation in Newsweek today. As to the role Dick Cheney may have played, he writes:

Hanging over his deliberations was Cheney, who had said he was "very disappointed" with the jury's verdict. Cheney did not directly weigh in with Fielding, but nobody involved had any doubt where he stood. "I'm not sure Bush had a choice," says one of the advisers. "If he didn't act, it would have caused a fracture with the vice president." (White House officials and Cheney declined to comment. "As you know, we don't discuss internal deliberations," a Cheney spokeswoman tells NEWSWEEK.)

One of my first thoughts after hearing about the commutation was that it showed Dick Cheney still had a lot of clout. Now I'm wondering how he'll use it to obstruct the Congressional hearings next week. Cheney has a penchant for hiding behind executive privilege.

Update: Josh Marshall adds some thoughts on this.

Crooks and Liars reports that Sen. Charles Schumer said on Face the Nation today that the Committee may call Libby prosecutor Patrick Fitzgerald to testify about Bush and Cheney in the context of the Valerie Plame investigation.

If they do, I hope they ask him whether he and Team Libby had any discussions after Libby's conviction about Libby providing information to the Government on Cheney and Bush's role in PlameGate in exchange for the Government's filing of a Rule 35 motion for sentence reduction.

Rule 35 provides in part:

(1) In General. Upon the government's motion made within one year of sentencing, the court may reduce a sentence if:

(A) the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person;

I can't think of any reason off the top of my head why that information would be privileged. As a federal court in California ruled in a case I cite all the time in discovery motions, almost always with successful results:

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David Dow, the University Distinguished Professor at the University of Houston Law Center who represented a death penalty defendant in Texas while George Bush was Governor, has some questions for the President in this Houston Chronicle Op-Ed about his commutation of Scooter Libby's sentence and his failure to grant the same to his client, Carl Johnson.

Dow writes,

My client, Carl Johnson, committed the worst crime that can be committed against another human being: He killed someone. And Lewis Libby committed the crime that is most injurious to our criminal justice system: He lied. Unlike my client, Libby, who was convicted by a jury of his peers despite being represented by the best lawyers that money can buy, has never shown any public sign of remorse. Nevertheless, despite all that, President Bush did not exceed his authority in commuting Lewis Libby's prison sentence. The Constitution gives him the power to do what he did. But it is possible for actions to be lawful and simultaneously in conflict with other constitutional principles. Last week's pardon deeply offends the constitutional value of equality, the idea that all citizens stand equal before the law.

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The Sixth Circuit's decision last week to dismiss a lawsuit brought over the NSA warrantless wiretapping program doesn't end the litigation in the courts.

At least one other suit is pending, and standing to bring the lawsuit isn't at issue and and thus is unlikely to be the basis for dismissal.

Readers may remember that Albany, NY defense lawyer Terry Kindlon, raised a similar challenge to the wiretapping in United States v. Aref (the so-called "terrorism" case from the Northern District of New York).

In December, 2005, while Aref's case was pending, Terry learned from a New York Times article that his client had been tapped by the NSA. He immediately made some demands, followed up with some motions and, basically, got nowhere (although he did enjoy receiving a Government pleading containing a caption at the top of the first page, a signature at the bottom of the third page, and nothing but blank space (marked CLASSIFIED) in between).

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Clark Hoyt, Public Editor of the New York Times, writes:

Why Bush and the military are emphasizing Al Qaeda to the virtual exclusion of other sources of violence in Iraq is an important story. So is the question of how well their version of events squares with the facts of a murky and rapidly changing situation on the ground. But these are stories you haven’t been reading in The Times in recent weeks as the newspaper has slipped into a routine of quoting the president and the military uncritically about Al Qaeda’s role in Iraq — and sometimes citing the group itself without attribution.

The answer is simple. The leadership at the New York Times is lacking. The editorship has gone from bad to worse with the departure of the awful Howell Raines to be replaced by the awful Bill Keller. The Times' leadership simply will not rein in the Judy Milleresque elements in its news operations. Perhaps this wake up call from the Public Editor can help change things.

I watched Live Earth non-stop from the opening of Sydney to the after Rio concert replays.

Here are links to videos of some of my favorite performances:

John Colson, writing in the Aspen Times, supports one emerging theory of the Scooter Libby commutation: Bush and Cheney couldn't let a caged Scooter sing:

Cheney, better than anyone, knows what a weak link Libby is. All you have to do is look at the guy to know, without any doubt, that within two weeks of incarceration he would sing like a lark on a bright spring morning. And the notes of his song would not be good for Cheney, Bush or the entire construct of deceit and destruction that the Bush presidency has become.

Libby certainly knows who decided Plame’s identity should be leaked to the media. He certainly knows who was in on the discussions leading to that decision. And he undoubtedly knows where the papers are that could prove any assertions of those points, although it’s entirely possible that Cheney is smarter than Richard Nixon was and already has shredded, electronically scrubbed and otherwise obliterated all the evidence.

The question then becomes:

Bill Clinton spoke at the Aspen Ideas Festival Saturday night, suggesting that if Hillary is elected President, an appropriate title for him would be "First Laddy."

He also spoke of terrorists and made a point that too few acknowledge:

Terrorism highlights the problem of identity, Clinton said. The suspects in the Britain bombing plot did not feel like they belonged in the world they were in, he said.

An appropriate foreign policy to address those issues, he said, includes a security policy and a policy "to make more partners and fewer terrorists." The world's poor and disenfranchised are "just as good as we are and need to be given a chance to feel that life has more meaning," Clinton said.

And yes, Bill Clinton is enough of a celebrity that even those in star-jaded Aspen gawk when he passes by.

The New York Times in an editorial today says we have to begin redeployment of troops from Iraq and end the war.

It is time for the United States to leave Iraq, without any more delay than the Pentagon needs to organize an orderly exit.

It's a sobering piece. The Times opines it's not as simple as just coming home. Logistics won't be easy and we may need to use other country's bases to effectuate it. It's a process that will take months. Which is why the Times says we have to set a date now.

The Times is justifiably harsh in its criticism of Bush:

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(Scroll down for continual updates)

Friday 8:00 pm MT: The Live Earth concert has begun in Australia. Blue King Brown is up, to be followed by Toni Collette. News coverage here.

You can watch all the concerts here.

Next up is Japan at 3:00 GMT and then China at 11:00 GMT.

Scroll down for updates.

The internet connection seems jumpy, maybe it's just mine. Television listings are here.

Update: 7:00 a.m. MT: You can now watch on Sundance and Bravo. The end of the Sydney concert was strange. Crowded House was on but there was no light on stage or in the audience, they were singing in the dark. Sundance just changed coverage to London Hamburg. There are almost no chirons so its difficult to tell where they are or who's playing if you don't know.

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In a very good post, MissLaura discusses Harry Reid's determination to end the war in Iraq, as reported by the NYTimes:

Democratic voters are not the only ones bitter over their party’s failure to use new Congressional power to force a withdrawal of troops from Iraq. Senator Harry Reid, the occasionally obstreperous Democratic leader, is upset as well. “We haven’t done enough,” said Mr. Reid, a onetime moderate who has evolved into one of the party’s most fervent critics of the war.

That view captures not only Mr. Reid’s sentiment but also the shifting political dynamic on the war, as public frustration remains high, the conflict dominates the presidential campaign landscape and senior Republicans have chosen to break with President Bush even as the administration has urged patience.

Sensing momentum from the new Republican defections, Mr. Reid and other leading Democrats intend to force a series of votes over the next two weeks on proposals to withdraw troops and limit spending. Democrats are increasingly confident they can assemble majority opposition to administration policies.

There is political gamesmanship in Reid's words here. I do not imagine he expects Republicans to rally to the cause of ending the Debacle, as his comments regarding Pete Domenici made clear, but he must invite them to join Democrats in the drive to end the Debacle.