On May 30, 2006, the U. S. Supreme Court struck another blow to the First Amendment in the case of Garcetti et al. v. Ceballos.

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The underlying issue was ". . . whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee’s official duties." It seems deterring retaliation for protected speech was never a factor as the Court considered whether the First Amendment should be a source of that protection. Despite the admirable language of their dissents, even our most liberal Justices passed on the opportunity to clearly condemn the punishment of responsible speech
presented by Garcetti. Yet in doing so, the Court did more than avert the fray which Justice Breyer somewhat referenced in noting "the majority’s fears of department management by lawsuit". By leaving the right to speak so tenuous among public employees, our High Court substantially chilled their utterance of anything likely to evoke government wrath.

Ironically after leaving so many at the virtual mercy of public employers and those legislative, administrative, and judicial bodies charged with regulating them, it seems our Supreme Court would
rather not answer to an Inspector General. On April 27, 2006, Senator Charles Grassley (R-Iowa) and House Judiciary Committee Chairman F. James Sensenbrenner (R-Wis) introduced separate proposals for a federal court, Inspector General under the Judicial Transparency and Ethics Enhancement Act (JTEE), S. 2678/H.R. 5219. Days later, Justice Ruth Bader Ginsburg reportedly expressed "concerns . . . about the legislative branch setting up a so-called guardian for the judicial branch."

Chairman Sensenbrenner explained that the ". . . IG will serve as a public watchdog to root out waste, fraud, and abuse and ensure the Third Branch’s taxpayer-funded resources are utilized in an
appropriate manner, just as IGs do throughout the Executive Branch." On May 3, 2006, Gina Holland of the Associated Press quoted Justice Ginsburg as she encouraged members of the American Bar Association to ". . . speak up and ‘say these efforts are wrong’ as . . . Judges cannot lobby on their own behalf."

Halliburton Fraud Lawsuit Details Super Bowl Party
By T. Christian Miller, Times Staff Writer, September 9, 2006

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WASHINGTON — Halliburton Co. executives ordered a big-screen television and 10 large tubs of tacos, chicken wings and cheese sticks delivered to Iraq for last year's Super Bowl, then billed U.S. taxpayers for their party, according to a lawsuit unsealed Friday.

The Houston-based company also defrauded the government by double- and triple-billing for Internet, food and gym services for soldiers, according to the lawsuit by a former employee for KBR, the Halliburton subsidiary that runs dining halls for troops in Iraq.

"The administration is not enforcing the laws against fraud when it comes to contractors in Iraq," said Alan Grayson, the attorney who filed the suit. "When it comes to seeing that the law is executed, the Bush administration is a no-show."

Halliburton denied the allegations, filed under the False Claims Act. Designed to prevent war profiteering, such lawsuits allow citizens to sue on behalf of the government and recover a portion of any damages.

The company did not deny ordering the TV and the food; it set up snack buffets and screenings at military bases throughout Iraq for the 2005 Super Bowl. But KBR noted that its contract allowed the firm to provide recreation and morale-boosting services for its employees and for American soldiers.

"The claims included in this lawsuit clearly demonstrate a complete misinterpretation of facts as well as a lack of understanding of KBR's contractual agreements with its customer, the U.S. Army," Halliburton spokeswoman Melissa Norcross said.

The accusations in the lawsuit are the latest involving Halliburton's controversial multibillion-dollar contract to feed and house American soldiers in Iraq. Democrats have been quick to criticize the company, which was run by Vice President Dick Cheney from 1995 to 2000.

In June, a KBR subcontractor was indicted on kickback charges involving the dining halls, which feed tens of thousands of soldiers a day in camps throughout Iraq and Kuwait. The U.S. Army Corps of Engineers has withheld $55.1 million out of a total of $13.7 billion in payments on the contract as a result of disputed costs.

The Department of Justice chose not to join the lawsuit against Halliburton after conducting an investigation. Justice officials declined to elaborate Friday, but in legal circles such a decision is usually considered indication of a weak case.

Grayson accused the department of shirking its duties in the middle of a political season. Several dozen lawsuits alleging fraud in Iraq are believed to have been filed, but they remain under seal until the department completes its investigations.

Grayson is best known for having won another fraud case, which Justice officials also passed up, against a private security company named Custer Battles. That decision was recently overturned by a federal judge and is now on appeal.

Grayson, who recently lost a primary race for a House seat in Florida running as a Democrat, denied any political motivations in pursuing the case against Halliburton, noting that he had filed it before deciding to run for office.

He said that the whistle-blower in the case, Julie McBride, came forward only after KBR officials ignored her complaints. McBride said in the lawsuit that she was placed under armed guard and then fired after she raised questions about Halliburton's billing practices. She could not be reached for comment Friday.

Justice Department officials "are stonewalling and keeping these cases under seal unnecessarily," Grayson said.

Rep. Henry A. Waxman (D-Los Angeles), who has been the leader in Congress in attacking Halliburton, said that the charges were further proof of war profiteering by the oil services giant.

"One former Halliburton employee after another tells the same story of outrageous and intentional overcharging," Waxman said in a statement. "Yet no one in the Bush administration seems to care."

False Claims Act

WHY THE BUSH WHITE HOUSE STAFF WILL HAVE MORE POWER THAN THE BUSH CABINET
By JOHN DEAN, Friday, Jan. 05, 2001

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Pundits who see a return to the Cabinet government of earlier eras are overlooking both the growth of White House staff operations during the past four decades, and the way the staff now functions as a powerful institution in its own right, with its own practices and traditions – not to mention the fact that no modern president has employed Cabinet government. Indeed, it is doubtful that a president could govern through his Cabinet even if he wanted to.

As for the new Vice President's role, it appears that Dick Cheney's activities and responsibilities will be a natural extension of the growing significance of his office that began in 1977. Beginning with the Carter administration, quietly but steadily the office of vice president has grown in operational significance. And no president expanded the role of the vice president more than Bill Clinton did.

A Definitive New Study of White House Staff Operations

A new examination of the workings of the modern White House, including the growing role of the Vice President, is presented in a book by Bradley H. Patterson, Jr., The White House Staff: Inside the West Wing and Beyond. This authoritative study was published by the Brookings Institute in Washington D.C.

Patterson provides a definitive study of the contemporary White House, and he knows what he is talking about. Brad was a consummate White House staff person, a true professional who worked for three presidents: Eisenhower, Nixon and Ford. His book is one that could only have been written by an insider, one who spent fourteen years within the gates at 1600 Pennsylvania Avenue, and a man so highly respected in Washington that he had access to information about all the recent White House staff organizations.

How the White House Runs the Executive Branch

Patterson make clear at the outset of his study that "the 125 offices of the contemporary White House staff constitute the policy center of the executive branch of American government … [and] it is the men and women on the president's personal staff who first channel [presidential] power, shape it, focus it -- and on the president's personal instructions, help him wield it."

Moreover, Patterson finds that "on almost all important foreign and domestic issues today, the formulation, coordination, articulation -- and in some cases, the implementation -- of policy are being drawn away from the line departments and centralized in the White House and in its large and energetic staff."

I agree with Patterson's assessment of Cabinet government, which he describes as the concept of each department managing its own affairs, with the president as merely a general supervisor. As Patterson remarks, this concept "is shibboleth, not reality." Rather, the reality is that "the White House staff … superintends policy development, directly manages policy coordination, governs the flow of information to the president, and monitors the implementation of presidential initiatives."

Column continues below ? There are myriad departments and agencies within the Executive Brach involved with either (and occasionally both) domestic and foreign affairs. Only the White House can coordinate and integrate all this executive activity, and resolve any disputes between the departments and agencies. Thus, without appropriate White House staff to perform these crucial functions, the president could not govern.

A sampling of a few subcategories of the work of the White House examined by Patterson is illustrative: Integrating National Security Policy and Operations, Developing and Overseeing Domestic Policy, Coordinating Foreign and Domestic Economic Policies, Providing Legal Advice to the Chief Executive, Managing Legislative Affairs, Informing the Press, Overseeing Communications, Speechwriting, Building Alliances with Constituency Groups, Scheduling, Collaborating with State and Local Governments, Keeping President and Party in Harmony, Recruiting and Appointing Non-career Officers, and Advancing Presidential Trips.

And if these responsibilities do not seem impressive already, consider the more mundane tasks the White House staff performs: Superintending the President's Paper Flow, Keeping the Bridge Open to the Cabinet, Running the White House Efficiently, and Meeting the President's Hour-to-Hour Needs. In addition, the East Wing operations of the First Lady have been expanded tremendously, and must be closely coordinated with the West Wing.

While presidents often talk of reducing the size of their White House staff, none actually do. I am not sure it is possible given the workload. Patterson's study, which includes the Clinton White House, describes the work outline in the broad categories listed above and notes that performing this work involves almost 6000 men and women who are a part of the White House community – with 700 of them (aided by 100 volunteers, 100 interns and half dozen White House Fellows) focusing only on policy matters.

Reasons the White House Staff Will Remain in Control

Presidential responsibility reaches across the width and breadth of government. No cabinet post shares such a broad-gauged view, but the White House staff must, to assist the president in meeting his duties.

Seldom is any cabinet officer as close to the president's day-to-day thinking as the White House staff. And it has long been understood that Cabinet meetings are good for team building, but otherwise a waste of time. In recent years, the White House Chief of Staff convened cabinet briefings, and the president did not even attend.

While cabinet officers serve at the pleasure of the president, and most try to do just that – fulfilling the president's agenda to the extent that they can – they will inevitably see the world differently than the president does. New cabinet secretaries, and their assistant secretaries, typically begin their service with great fealty to the president, and with hopes of imposing their will and wisdom on the department or agency they command – but those hopes are often disappointed. Those new to the ways of Washington, or the Executive Branch – particularly those from the world of business and commerce – may not truly appreciate the institutional intransigence of the bureaucracy.

The Difficulty of Getting Large Bureaucracies to Change Course

Civil servants, the permanent personnel who watch countless presidential appointees come and go, truly run the government. The career government employees know the ins and outs of their departments or agencies far better than the new presidential appointees, who cannot run the place without them, do.

As a result, slowly but surely presidential appointees start thinking more like the career people. It takes on average about eight months for the bureaucracy to capture the heart and minds of high-level newcomers. Then a kind of Stockholm syndrome comes into play, a survival mechanism that leads presidential appointees to defend and sympathize with their bureaucratic captors. So often within a year of an appointment, the White House staff will notice that the president's policy person in this or that department sounds much like spokespersons for a prior administration.

As the new administration will soon learn, it is not easy to influence the monstrous government departments and agencies, which may have tentacles throughout the country if not the world. These behemoth organizations do not readily react to prodding of presidential appointees, and only slowly, after years of work, do they learn to respond to a president. As the new President, George W. Bush will learn that the Clinton legacy resides in the institutional memory of the departments and agencies that have been prodded and poked for the past eight years by Clinton's White House staff.

Bush's White House will spend many hours trying to implement the president's new policies. And that will mean the Bush team will focus on the president's, not the department's or agency's, thoughts and plans – just another reason that the White House staff's influence will exceed that of the Cabinet heads.

The Increasingly Powerful Role of the Vice President

Obviously, no one is going to be more central to the new administration than Dick Cheney. Vice president John Nance Garner is best remembered for the way he disparaged his own office – as "not worth a bucket of warm spit." But Cheney did not leave his comfortable life in the corporate offices at Haliburton because he was enticed by Nance's characterization. Nor should he have been; today, Garner's spitting image is as out of date as it is gross. As the transition and cabinet selections have already made clear, Dick Cheney is returning to Washington to be a formidable power player.

Brad Patterson's material on the changing role of the vice president within the White House operations is instructive for anyone who has not noticed that under the last four presidents (Carter, Reagan, Bush and Clinton), that job has significantly changed. Today, a vice president's role is far more than simply that of the tie-breaking president of the United States Senate – although in the new administration, that role may be unusually significant, as it gives Republicans control of the Senate.

To find another vice president as deeply involved in the Legislative Branch as Cheney will be, it may be necessary to go far back in history, to John Adams. According to Joseph J. Ellis's current best-seller, Founding Brothers: The Revolutionary Generation, the role of President of the Senate was not to Adams's liking; he wrote his wife Abigail, "[i]t is to be sure a punishment to hear other men talk five hours every day, and not be at liberty to talk at all myself, especially as more than half I hear appears to me very young, inconsiderate, and inexperienced."

Cheney, another seasoned politician, may well concur. Like Adams, Dick Cheney will only be permitted to speak with the unanimous consent of the Senate, and the 50/50 split could keep him in the Chamber for long hours. In addition, an overly divisive Senate will distract Cheney from the expanded Executive responsibilities that have become a part of his office.

Cheney, who was President Ford's White House chief of staff, knows how it all works. He understands that proximity to the president is power, and one of his four offices will be just down the hall from the Oval Office, less than sixty paces door to door. (The other three offices are outside the White House, in the Old (or Eisenhower) Executive Office Building beside the White House, the Dirkson Senate Office Building, and a ceremonial office in the Capitol.) Most importantly, in addition to knowledge, Cheney has the trust of the new president, just as Al Gore did. That alone will make his role integral.

What role might Cheney perform that Bush's personal White House staff might not be up to, at least at the outset? Suppose a heavyweight battle develops – say, between the Washington-savvy Secretary of Defense Don Rumsfield (a former White House chief of staff and former Secretary of Defense) and the equally Washington-savvy Secretary of State Colin Powell (a one-time White House national security adviser to the president, and later chairman of the Joint Chiefs). This type of dispute, between the biggest of big guns, could only be resolved behind the closed doors of the Vice President's office.

Patterson's Handbook Resolves the White House versus Cabinet Debate

President-elect Bush has selected a number of people for government service who are without Washington experience; they would do well to study Brad Patterson's new book, or better yet, to call him in to work for a fourth president. Patterson's book, and information, about the workings of the White House is invaluable. And it leaves no doubt that the days of Cabinet government are as unlikely to return as buggy whips.

John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

Corp Watch: Haliburton
US: GOP Kills Bill to Police Halliburton

See also:

Stevens, Lionbarger v Haliburton