There may be more behind the Condoliar's (non-)testimony before the September 11 Commission than meets the casual eye. All this jibber-jabber about "executive privilege" and "separation of powers" may have less to do with the law as it is, but considerably more with the law as the Bushies would like it to be.
In a post at my blog entitled "The Imperial Presidency Strikes Back," I give a shorter version of Orcinus' lengthy and well-reasoned analysis of the Bushies' constitutional claims with regard to the Cheney energy panel case pending before the Supreme Court. He argues, and I concur, that all the Condoliar machinations about the 9/11 Commission are in support of the BushCoTM theory of executive privilege.
The good news is that the federal court that heard the original case thought that Cheney and the government's case was "untenable." The really, really bad news is the way they'd like to define "executive privilege."
Here's how Emmet Sullivan, the judge in the original case (233 F. Supp. 2d 16 [2002 U.S. Dist.], 63-64) described what we might call the BushCoTM Doctrine of Executive Privilege:
Any action by Congress or the Judiciary that intrudes on the president's ability to recommend legislation to Congress or get advice from Cabinet members in any way would necessarily violate the Constitution. The Freedom of Information Act and other open government laws would therefore constitute an unconstitutional interference with Executive authority. Any action by a court or Congress that infringes on any other Article II power of the President, for example, the President's role as Commander in Chief of the armed forces and the national security concerns that derive from that role, would violate the Constitution. Any congressional or judicial ruling that infringes on the President's role in foreign affairs, would violate the Constitution. Clearly, this is not the law. Such a ruling would eviscerate the understanding of checks and balances between the three branches of government on which our constitutional order depends. (Emphasis in original.)
The ghost of Richard Nixon must surely be smiling. Though, please God, not for long. Meanwhile, I want a very large pitcher of margaritas and a single straw, please. Then I want to go home, crawl into bed, and pull the covers over my head until it's safe to come out again.