A Special Message from

Mary Sparrowdancer

Executive Privilege

Copyright 2002 by Mary Sparrowdancer

The actual phrase, "Executive Privilege," was not a part of the common language until the Eisenhower administration. The first time the term was used occurred in 1954 when Senator Joseph McCarthy was investigating the Eisenhower administration. McCarthy had planned to subpoena Eisenhower's chief of staff, but Eisenhower told his advisers that Congress had no right to ask White House personnel to testify in any manner concerning conversations with the President "at any time on any subject."

Although the phrase "executive privilege" is not directly mentioned anywhere in the Constitution of the United States, the privilege itself stems from the accepted concept of a separation of powers, and it has a long history in presidential politics. Beginning with George Washington, presidents have claimed the right to withhold information from either Congress or the judicial branch. Because this means ultimately withholding information from the entire nation for whom the office of presidency is meant to serve, executive privilege remains a controversial power which strikes at the core of democratic principles. In essence it can be used to nullify the Founding Fathers’ concept of accountability in government.

Although executive privilege is a legitimate presidential power, it is such only when the circumstances under which it is exercised are appropriate. Certain standards of acceptability must certainly be met, otherwise the privilege may be abused for self-serving purposes such as during the Watergate scandal. In that situation, former president Richard Nixon claimed that executive privilege was a power belonging to the entire executive branch, with unlimited scope.

President Washington, however, felt that the withholding of information was a legitimate process only as long as it was done in the service of the public interest. He determined that he could not withhold information merely for the purpose of concealing embarrassing or politically damaging information.

On December 13, 2001, president George W. Bush invoked executive privilege in order to keep Congress from seeing documents of prosecutors’ decision-making in cases ranging from a decades-old Boston murder to the Clinton-era fund-raising probe. This particular instance of withholding information from the nation may be cited as particularly controversial because it appears to block an investigation of grossly unethical practices within the FBI - an investigation that was already underway - and because unethical conduct on the part of any powerful branch of government has the potential to affect the lives of any and all citizens of the United States.

According to MSNBC News, "Representative Dan Burton of Indiana, the Republican House chairman whose committee sought the documents, decried the decision and said it wrongly handicapped Congress for overseeing the government. ‘This is not a monarchy,’ Burton said after hearing of Bush’s block. ‘The legislative branch has oversight responsibility to make sure there is no corruption in the executive branch.’"

Of particular concern regarding this case, is that it stems from revelations that Joseph Salvati of Boston spent 30 years in prison for a murder he did not commit even though the FBI had evidence of his innocence.

Salvati was freed in January 2001 after a judge concluded that FBI agents hid testimony that would have cleared Salvati. They hid the testimony because they wanted to protect an informant. Salvati along with Peter Limone, 66, were in a group of six men found guilty of the underworld murder of Edward "Teddy" Deegan in 1965.

In January of 2001, Superior Court Judge Margaret Hinkle threw out the convictions of both Salvati and Limone for the murder they said they didn't commit, stating that newly

discovered evidence raised doubts about the conduct of the FBI and fairness of their trials.

Justice Department investigators probing corruption in the Boston FBI gave the lawyers of Salvati and Limone FBI informant reports written around the time of Deegan's murder. The reports show that informants not only told FBI agents of plans for the murder beforehand, but they also gave the FBI a list of those involved. Neither Limone’s nor Salvati’s name appeared on the list - nor did two of the other four men also convicted. Two men died in prison.

Adding to the controversy of Bush’s instructions to withhold additional information from Representative Burton and the other government officials attempting to investigate the activities of the FBI, is the timing of the Bush’s decision, which came after members of the House Government Reform Committee apologized to Salvati and his wife, Marie, stating there is no excuse for what the government did, and apologizing for the government’s actions.

"I want to express to both of you how deeply sorry we are for everything that was taken away from you and everything you've had to go through the last 30 years," said Rep. Burton, who happens to be the committee chairman.

Evidence indicates that not only did the FBI protect informants who helped them bring down top New England mobsters, but they also manipulated testimony in murder trials, as well as permitted mobsters to commit various crimes in exchange for information. Representative Burton called for the hearings after learning of the Salvati case and of federal indictments charging alleged mobsters James "Whitey" Bulger and Stephen "The Rifleman" Flemmi with approximately twenty murders and allegations that FBI agents covered up their crimes to protect their prized informants. Bulger, 71, and Flemmi, 63, allegedly were allowed to conduct crimes, including murders, while informing FBI agents about rival mobsters during a period of time spanning several decades. Flemmi is awaiting trial, and Bulger remains at large and is on the FBI's Ten Most Wanted list. Ex-FBI agent John J. Connolly has been charged with racketeering and obstruction of justice for his handling of Bulger and Flemmi.

"This is a story that needs to be told," Salvati testified. "The government stole more than 30 years of my life." For the two men who died while in prison, the FBI stole their lives.

Rep. Burton’s hearing and investigation included testimony from F. Lee Bailey and one of the two former FBI agents accused of hiding evidence that would have proven Salvati's innocence. Bailey testified that he believes the FBI coached the prosecution's key witness to lie on the witness stand.

"He told me he had quite a bit of help," Bailey said of the key witness. "I believe the testimony was furnished."

Rep. Christopher Shays, R-Conn., also issued an apology to Salvati, saying he was "profoundly sorry" for what happened.

No similar regret was shown by former FBI Agent H. Paul Rico, however. Rico, author of the secret, hidden reports that told of the informants notifying FBI agents beforehand of the Deegan murder, stated that Salvati's ordeal might make "a nice movie." As quoted in the Associated Press, Rico stated, "Remorse - for what? Would you like tears or something? I believe the FBI handled it properly." Rico said he was not convinced of Salvati's innocence until hearing him testify some thirty years after his imprisonment.

It is possible that the outspoken outrage over this case might have played a key role in motivating George W. Bush to halt the investigation thus protecting the FBI. However outspoken it has been, though, it is supremely justified.

"I think you should be prosecuted," Representative Shays reportedly told Rico, "I think you should be sent to jail."

Although the Salvati case was only the first of several hearings Rep. Burton’s committee planned to hold as it investigated the FBI's use of informants and its other unethical and clearly illegal activities, Bush’s announcement to withhold further information from the committee in mid-stream has apparently put a stop to the investigation. That he would block an investigation of government corruption raises numerous questions. That he would do so in mid-stream rather than before the information became publicly known, raises additional questions

Whatever the reasons, outrage over this act, as well as the inappropriate use of "executive privilege" continue to be supremely justified.

When branches of the government secretly take part in murders of the citizens of the United States, when they abuse the judicial system and without moral conscience send innocent victims to prison, when they hide information about known criminals, then that branch is corrupt. Moral principle alone calls for investigation of such activities.

For the president of the United States to announce "executive privilege" for the purpose of blocking investigation, blocking justice, and allowing corruption to carry on unimpeded, is not only morally unprincipled, it is egregious.


Works Cited

AP. The Associated Press. "Wrongly jailed man gets apology." Ken Maguire. Retrieved from http://www.truthinjustice.org/limone-apology.htm on 1/11/02

Hirsen, James L., J.D., Ph.D., "Executive Privilege (Right or Ruse)?" 1999. Retrieved from FirstLiberties.com; http://www.firstliberties.com/exec_privilege.html on 1/10/02

MSNBC. News article. "Bush invokes executive privilege doctrine." December 13, 2001. Retrieved from http://stacks.msnbc.com/news/672144.asp on 1/10/02.

Rozell, Mark J. Professor of Politics, Catholic University of America. Congressional Testimony, November 6, 2001. Retrieved from http://www.house.gov/reform/gefmir/

hearings/2001hearings/1106_presidential_records/rozell.doc on 1/11/02

USA Today. "Bush invokes privilege to keep documents secret." December 2001.

Retrieved from http://www.usatoday.com/news/washdc/dec01/2001-12-13-executive-privilege.htm

on 1/11/02.