As featured on p. 218 of "Bloggers on the Bus," under the name "a MyDD blogger."
Sunday, June 28, 2009
More Signing Statements
This was a bill, the war supplemental, which the President orchestrated, amended and whipped heavily. One provision, to provide some accountability on the funds delivered to the IMF, didn't meet to his liking. So he essentially nullified it.
The Obama administration announced in the statement it would disregard provisions of the legislation that, among other things, would compel the Obama administration to pressure the World Bank to strengthen labor and environmental standards and require the Treasury department to report to Congress on the activities of the World Bank and International Monetary Fund (IMF).
"Provisions of this bill...would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with international organizations and foreign governments, or by requiring consultation with the Congress prior to such negotiations or discussions," Obama said in a statement.
"I will not treat these provisions as limiting my ability to engage in foreign diplomacy or negotiations," he added.
If this President or future Presidents want a line-item veto, they could ask for one. However, they wouldn't get far since such a law was declared unconstitutional back in 1996. So instead, this signing statement process gets used to nullify certain elements of a statute. Obama has used 5 in his first 5 months or so, and about the only difference from Bush is that he makes the statements public immediately instead of having them discovered later. That's transparency, but not quite the kind I can believe in.
In this case, Congress could probably fashion their desired result better in the legislation than telling the executive what to say to the World Bank. As holders of the purse strings, they could simply set limits if certain labor or environmental targets are not met. Actually, both sides are overstepping their boundaries a bit here. At some point, we need a clearer definition of the roles of the branches of government when it comes to legislation, and so hopefully the courts can provide such a remedy.
This jumped past me last week, but a federal judge ordered John Yoo to testify in a case filed by Jose Padilla, who was held in a Navy brig for years and slowly driven insane under the enemy combatant policies of the last regime. Ady Barkan thinks this could actually provide some accountability.
In 2002, Justice Department lawyer John Yoo wrote a memo recommending that Jose Padilla, arrested in Chicago in the wake of 9/11 and held on suspicion of plotting a dirty-bomb attack, be classified as an enemy combatant. Yoo also wrote memos arguing that American law does not prevent the president from ordering such enemy combatants tortured. This January, after enduring years of abuse in prison, Padilla sued Yoo for violating his constitutional rights.
And a week ago, Judge Jeffrey White ruled that Padilla's allegations were plausible enough to justify denying Yoo's motion to dismiss the lawsuit. White was appointed by George W. Bush the year Yoo was writing his memos.
White's decision is the first of its kind: Until now, although other lawsuits have been brought, no government official has faced personal liability for his role in the torture or deaths of detainees. But it probably won't be the last. These cases are just beginning to address the fraught questions of justice that have emerged in the aftermath of the Bush era—what atrocities were committed in the name of national security, who bears responsibility, and how should they be punished? Although neither the Obama administration nor most members of Congress want to deal with these questions directly, they're even more opposed to letting judges (and juries) take a crack at them. Padilla v. Yoo is an example of a surprising development: a conservative judge putting pressure on the Democrats in Washington to create some system of accountability for the Bush administration. It could help spawn more such rulings.
The Obama Administration actually defended Yoo's plea to skirt testifying in this case, clearly to just close down this issue in the name of moving forwards and not backwards. But White really boxed in the White House now, and every option available to them plausibly leads to more disclosure and more court rulings that would force some measure of accountability. Barkan considers this ruling crucially important, and maybe it is. Remember that Bush lost case after case invalidating his national security procedures, and now Obama has mirrored his predecessor on many of those fronts. Taking the hard line on official secrecy and executive privilege has the benefit of delaying accountability, but as long as there are lawyers willing to seek justice - and there are - they will pursue the avenues made available by favorable rulings. This avalanche may be happening in slow motion, but it's rolling downhill, and even a crafty efforts from the elites to shield themselves from a reckoning may not be enough to stop it.
Jane Hamsher reports that the Lieberman-Graham detainee photo suppression amendment has been dropped from the war funding supplemental, owing to pressure from liberal Democrats, who refused to vote for a bill that would undermine the Freedom of Information Act and increase executive power. They only got into that position because conservatives in the House refused to vote for a war supplemental that included increased funding for the IMF. But progressives took full advantage of the opportunity and struck the first blow against agglomerated executive power that I can remember in a long, long time.
The underlying bill doesn't much send a thrill up my leg either. But progressive Democrats saw a leverage point, picked it, and attacked until the forces supporting increased executive power had to give up. And that's a good thing. Hopefully they'll keep using this muscle.
...Here's how Huckleberry and Holy Joe will respond to this loss - with the equivalent of a temper tantrum:
"We strongly believe that the first responsibilities of government are the nation's security and the protection of those brave Americans who go into harm's way to defend it.
"The President has said that the release of the photos of detainees in US custody would 'put our troops and civilians serving our nation abroad in greater danger.' We agree with the Commander in Chief.
"We will employ all the legislative means available to us including opposing the supplemental war spending bill and attaching this amendment, which was unanimously adopted by the Senate, to every piece of legislation the Senate considers, to be sure the President has the authority he needs not to release these photos and any others that would jeopardize the safety and security of our troops.
"The release of the photos will serve as propaganda and recruiting tool for terrorists who seek to attack American citizens at home and abroad. We should strive to have as open a government as possible, but the behavior depicted in the photos has been prohibited and is being investigated. The photos do not depict anything that is not already known. Transparency, and in this case needless transparency, should not be paid for with the lives of American citizens, let alone the lives of our men and women in uniform fighting on our behalf in Iraq, Afghanistan and elsewhere.
"Let it clearly be understood that without this legislation the photos in question are likely to be released. Such a release would be tantamount to a death sentence to some who are serving our nation in the most dangerous and difficult spots like Iraq and Afghanistan. It is this certain knowledge of these consequences of having the photos released that will cause us to vote against the supplemental and continue our push to turn our important amendment into law."
I didn't know you could actually hear crying in press release form.
I wouldn't slam Graham and Lieberman by the way. It certainly seems to me that they're running interference for the President. Direct the inquiries to 1600 Pennsylvania Ave.
President Obama announced on Tuesday that he will nominate the federal appeals judge Sonia Sotomayor for the Supreme Court, choosing a daughter of Puerto Rican parents raised in Bronx public housing projects to become the nation’s first Hispanic justice.
Judge Sotomayor, who stood next to the president during the announcement, was described by Mr. Obama as “an inspiring woman who I am confident will make a great justice.”
The president said he had made his decision after “deep reflection and careful deliberation,” and he made it clear that the judge’s inspiring personal story was crucial in his decision. Mr. Obama praised his choice as someone possessing “a rigorous intellect, a mastery of the law.”
But those essential qualities are not enough, the president said. Quoting Justice Oliver Wendell Holmes, Mr. Obama said, “The life of the law has not been logic, it has been experience.” It is vitally important that a justice know “how the world works, and how ordinary people live,” the president said.
She isn't Pam Karlan or a darling of the left. She was nominated for her first judgeship by Bush 41, in fact. But in many ways, this is the sharpest pick Obama could have made. The Village tried to Swiftboat her a few weeks ago, and Obama ignored it. Jeffrey Rosen basically called her a dumb broad, and picked up anonymous whispers to do it. And a couple weeks ago, the entire Village got very interested in a New Haven firefighter's case, likely to be reversed, where Sotomayor participated in an opinion striking down a promotions test showed no advancement for African-Americans. Chris Matthews put a figurative hardhat on and imagined himself an Irish tough getting passed over for a job, and we had a weeklong debate about affirmative action in the most empty way possible. Obama dismissed it.
We're going to hear a lot from the right about these two quotes:
Judge Sotomayor has said her ethnicity and gender are important factors in serving on the bench, a point that could generate debate. “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” she said in a 2002 lecture.
She also once said at a conference that a “court of appeals is where policy is made,” a statement that has drawn criticism from conservatives who saw it as a sign of judicial activism. Judge Sotomayor seemed to understand at the time that she was making a controversial statement, adding that, “I know this is on tape, and I should never say that, because we don’t make law.”
It doesn't appear from her case law that she has a liberal record, but on the thin reed of these two quotes, expect a whole mess of shrieking. Obama couldn't care less.
He made his own decision based on his own best belief of who would make the best Justice. He didn't curry favor with anyone, and certainly not the right or the DC establishment. In fact, he really stuck it to the latter. Good for him.
...Sotomayor appears to be an open book when it comes to executive power, sitting on an appeals court that simply didn't hear very many cases of that type. Given that Obama has gone a bit too far, for my taste, in executive power, and the Supreme Court will certainly hear many of such cases, and the Court is closely divided on these issues, it will make a tremendous impact.
...Christy Hardin Smith has more. This Ricci case (the affirmative action case in New Haven) is going to be the MOST IMPORTANT JUDICIAL OPINION EVAH before we're done.
RICE: The president instructed us that nothing we would do would be outside of our obligations, legal obligations under the Convention Against Torture. So that's -- And by the way, I didn't authorize anything. I conveyed the authorization of the administration to the agency, that they had policy authorization, subject to the Justice Department's clearance. That's what I did.
Q: Okay. Is waterboarding torture in your opinion?
RICE: I just said, the United States was told, we were told, nothing that violates our obligations under the Convention Against Torture. And so by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture.
Score one for pop culture, because thanks to the trailer to Frost/Nixon, most of the country understands the insanity of a statement like this.
Cenk Uygur notes that Rice was also questioned about her verbal authorization for waterboarding and other torture techniques to the CIA, and gave a classic answer:
"I didn't authorize anything. I conveyed the authorization of the administration to the agency, that they had policy authorization, subject to the Justice Department's clearance. That's what I did."
Can we ask why she teaches at Stanford at this point, similar to asking why John Yoo remains at Berkeley and Jay Bybee on the federal bench?
Condi Rice's entire career in the White House was marked by a denial of responsibility. "Nobody could have anticipated" should be the epitaph on her gravestone. But I don't know what legal world exists where a conveyance of authorization does not equal an authorization. Uygur concludes:
This is why I say these people don't understand the whole concept behind America. In our system of government, the president is not supposed to be above the law. He is not a king; his word is not the law. The president can violate the law and when he does, he is supposed to be held accountable. That is supposed to be one of the pillars of our democracy.
Look at what she said: "[B]y definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture." Does that mean the president can authorize any kind of torture under the Convention Against Torture?
If someone doesn't do something about this dangerous idea it will do more damage than the torture itself. Yes, the torture damaged our reputation across the world, helped terrorists recruit fighters against us, endangered our soldiers and sullied the name of America. But if this precedent - that the president can authorize anything and make it legal "by definition" - is allowed to stand, then our whole form of government is in jeopardy.
This was not the consensus view of everyone in the government at that time. Not everyone was swept up in 9/11 fever. Military experts warned against using these techniques for a variety of reasons, because it put our soldiers at risk and yielded bad information, setting aside the legal, ethical and moral implications of torture. So the use of these techniques, and the legal theories underpinning them, can only be seen as deliberate and thought-out by the perpetrators. They conspired to break the law for their own reasons, be it their warped beliefs about the Arab Mind, or their desire to expand executive power, or producing the false confessions necessary to assert an Iraq/Al Qaeda link, or whatever. These were sane people who made the decision to torture. And we have courts available to deal with the consequences.
But Rice is now portraying herself as merely being a conduit for approving the CIA's interrogation regime: "I conveyed the authorization of the administration to the agency." Well, there are only two more-senior officials than Rice in this context, and that's Bush and then-VP Dick Cheney. If she hadn't made a decision on the part of the administration for the Abu Zubaydah interrogation plan, only one of these two men would have had the authority to do so. And all of this would have happened before the Justice Department determined the interrogation techniques to be legal.
My impression of the SASC report was that Condi told the CIA they could do ahead and waterboard pending OLC approval. But it'd be nice to haul Rice before a panel and ask her to clarify this.
Russ Feingold released a rule of law report card today, judging the Administration's efforts in restoring core Constitutional principles about justice and executive power. Feingold gave Obama generally good marks, but saved his greatest ire for the Administration's continuing use of the state secrets privilege.
Recommendation (State Secrets): "The new administration should conduct a review of pending cases in which the state secrets privilege has been invoked to assess whether the invocation was proper. It should also support legislative efforts, such as the State Secrets Protection Act (S. 2533/H.R. 5607), to allow more meaningful judicial scrutiny when the privilege is invoked."
Action: The Obama administration has invoked the state secrets privilege in three cases in the first 100 days -- Al Haramain Islamic Foundation v. Obama, Mohammed v. Jeppesen Dataplan, and Jewel v. NSA.
In Al Haramain, the Obama administration reinvoked the privilege in a case originally filed against the Bush administration in which the Al Haramain foundation, whose American branch is based on Oregon, alleged that the Bush administration authorized warrantless wiretaps. In Mohammed v. Jeppesen Dataplan, five individuals once held at Guantanamo Bay prison are accusing Jeppesen Dataplan, a subsidiary of Boeing, of providing logistical support for their “extraordinary rendition” to a foreign country where they were allegedly tortured. In Jewel v. NSA, the Electronic Frontier Foundation is suing the National Security Agency on behalf of AT&T customers for alleged illegal wiretapping surveillance. After Congress granted retroactive immunity to the telecom companies that allegedly participated in the Bush administration’s warrantless wiretapping program, cases in which the government is the defendant are the only legal avenues remaining to potentially test the legality of that program.
Senator Feingold has joined Senators Patrick Leahy, Arlen Specter, Edward Kennedy and others in introducing the State Secrets Protection Act, a bill to provide guidance to federal courts considering cases in which the government has asserted the state secrets privilege. The Obama administration has yet to take a position on the legislation.
Attorney General Holder has indicated that a complete review of all cases in which the state secrets privilege was asserted by the Bush administration is under way and that he hopes to make the result of that review public. Only the glimmer of hope offered by that ongoing review saves the Obama administration from a failing grade on this recommendation.
Today, the 9th Circuit appellate court agreed with Feingold and dealt a rebuke to the efforts to circumvent the rule of law by putting executive power grabs, in this case the Bush Administration's extraordinary rendition program in the Jeppesen case, behind a state secrets firewall:
Today, in a 26-page ruling (.pdf), the appellate court resoundingly rejected the Bush/Obama position, holding that the "state secrets" privilege -- except in extremely rare circumstances not applicable here -- does not entitle the Government to demand dismissal of an entire lawsuit based on the assertion that the "subject matter" of the lawsuit is a state secret. Instead, the privilege only allows the Government to make specific claims of secrecy with regard to specific documents and other facts -- exactly how the privilege was virtually always used before the Bush and Obama DOJs sought to expand it into a vast weapon of immunity from all lawsuits challenging the legality of any executive branch program relating to national security.
In rejecting this radical secrecy theory, the court emphasized how the Bush/Obama doctrine, if accepted, would essentially place the President above and beyond the rule of law.
The court wrote, "According to the government's theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands of the limits of the law." And this, basically, is where the "look forward but not backward" construction totally breaks down. The law requires scrutiny into official actions taken by the government and puts no limits on them for the sake of comity or bipartisanship. The law sees no Democrat or Republican, only the contours of the law. That was true when George W. Bush said that "In our country, when there's an allegation of abuse ... there will be a full investigation, and justice will be delivered," and that "War crimes will be prosecuted, war criminals will be punished and it will be no defense to say, 'I was just following orders,'" and it's just as true today. The power of the state secrets privilege is the power to subvert the belief that no one is above the law by offering the executive branch a tool to block investigation by the other two branches. It is the tool of a cover-up and enables the rampant abuse and lawbreaking that can then be papered over.
The Obama DoJ appealed the ruling on Bagram detainees' habeas rights, and will probably appeal this ruling as well, and we will have to await the ruling of the Supreme Court before determining whether or not we have fully eliminated the most dangerous aspects of the state secrets privilege, or at least the passage of the State Secrets Protection Act by Feingold, America's Next Top Democrat Arlen Specter and the Congress. But as Glenn notes:
...in the meantime, the case will return to the District Court for a document-by-document assessment of what is and is not truly "secret" (and the court today held that a mere decision by the President to classify certain documents is insufficient; the court is required to exercise independent judgment as to whether secrecy is truly warranted). Finally, these 5 torture victims will have their day in court.
And hopefully, not just the victims but the perpetrators will have their day in court as well.
...I maintain that the efforts to get the White House to restore the rule of law will be aided by placing Dawn Johnsen as head of the Office of Legal Counsel, and those efforts got a major boost today when Richard Lugar announced his support. If Specter and Ben Nelson, who are opposed, vote for cloture, I think this ensures her passage.
Sen. Specter is whacking off on the Senate floor about some bills of his on limiting executive power. And yet he refuses to move forward on confirming a Justice Department nominee who would be the leading critic inside the executive branch on executive power, and with the power to limit it besides.
President Barack Obama's nomination of an Indiana University law professor to head the Justice Department's Office of Legal Counsel is meeting stiff resistance in the Senate, stalled for a month by Republicans who say she's a polarizing figure because she aggressively criticized the Bush administration's legal rationale on torturing terrorism suspects and radical in her views on abortion rights.
Dawn Johnsen's nomination made it through the Senate Judiciary Committee on a party-line vote, but the Senate's Democratic leadership has yet to schedule a final floor vote on her confirmation.
"I think she's in real trouble," said Sen. George Voinovich, R-Ohio. "From what I'm picking up from consensus, she's got a problem." [...]
Senior Senate aides say there is no single senator holding up Johnsen's nomination. But they acknowledge that efforts to bring her up for a vote now would likely be blocked procedurally.
Johnsen and her supporters are trying to change that. She's met with Sen. Arlen Specter of Pennsylvania, the Senate Judiciary Committee's ranking Republican. Specter passed on voting for or against moving her nomination out of committee. He said Wednesday that he hasn't decided yet how he would vote if her nomination goes to the floor.
Sheldon Whitehouse, Dawn Johnsen's greatest defender, says he'll be ready if conservatives try to move on a filibuster. But it's people like Specter, claiming to be concerned about executive power while opposing the woman who would be his biggest ally in that fight, that kills me.
What's Cornyn's real beef -- and that of the GOP establishment? That Dawn supports the rule of law. That she takes the job and her responsibilities in it seriously, meaning that she isn't the sort of person who puts shortcuts and shading to further personal ambitions ahead of doing the right thing and following the written precedents.
In other words, unlike some people, Dawn isn't the kind of gal who can be bought off or shut up. And Cornyn no likey that. This is all about GOP CYA and the kabuki to cover it.
Perhaps the most important reason we have government lawyers is to “take care that the laws be faithfully executed” even when laws are ambiguous and especially when no one is looking. If the rule of law is to have any meaning, government lawyers playing an advisory function must take a relatively objective stance....It is critical that government lawyers remember that their “client” is the American people, and not the ephemeral roster of incumbent federal officer holders.
The pressure to kill the Johnsen nomination may become even stronger now that President Obama has released more OLC memos detailing the CIA’s abusive interrogation tactics last week.
After printing excerpts of the Red Cross torture report previously, Mark Danner has now published the entire report, every damning detail, along with a companion article about the contents therein. Scott Shane's article in the New York Times highlights the participation of medical personnel:
Medical personnel were deeply involved in the abusive interrogation of terrorist suspects held overseas by the Central Intelligence Agency, including torture, and their participation was a “gross breach of medical ethics,” a long-secret report by the International Committee of the Red Cross concluded.
Based on statements by 14 prisoners who belonged to Al Qaeda and were moved to Guantánamo Bay, Cuba, in late 2006, Red Cross investigators concluded that medical professionals working for the C.I.A. monitored prisoners undergoing waterboarding, apparently to make sure they did not drown. Medical workers were also present when guards confined prisoners in small boxes, shackled their arms to the ceiling, kept them in frigid cells and slammed them repeatedly into walls, the report said.
Facilitating such practices, which the Red Cross described as torture, was a violation of medical ethics even if the medical workers’ intentions had been to prevent death or permanent injury, the report said. But it found that the medical professionals’ role was primarily to support the interrogators, not to protect the prisoners, and that the professionals had “condoned and participated in ill treatment.”
At times, according to the detainees’ accounts, medical workers “gave instructions to interrogators to continue, to adjust or to stop particular methods.”
The description of medical workers studiously monitoring the pulse or oxygen level of a suspect being tortured, or measuring the swelling in another's leg as he is shackled to the ceiling and forced to stand, seems the very banality of evil.
In a separate report released yesterday, military officials were implicated in and aware of torture techniques at Guantanamo, contrary to their own Congressional testimony.
Today Seton Hall Law delivered a report establishing that military officials at the highest levels were aware of the abusive interrogation techniques employed at the detention camp at Guantánamo Bay (GTMO), and misled Congress during testimony. In addition, FBI personnel reported that the information obtained from inhumane interrogations was unreliable.
Professor Mark Denbeaux, Director of the Seton Hall Law Center for Policy and Research, commented on the findings: "Who knew about the torture at GTMO? Turns out they all did. It's not news that the interrogators were torturing and abusing detainees. We've got FBI reports attesting to this. But now we've discovered that the highest levels knew about the torture and abuse, and covered it up.
"Abu Ghraib was the flashpoint and provoked the FBI to formally hand its reports to the DOD, which in turn forced the DOD to respond with what became known as the Schmidt Report. Schmidt's investigation was essentially a whitewash, but, ironically, the abuse was so pervasive that his team turned up still more incidents. To conceal the problems documented by both the FBI and the military, the DOD published an incomplete, sanitized report, culminating in Schmidt testifying before Congress that there was no torture or abuse at GTMO [...]
FBI personnel stationed at GTMO submitted a series of unsolicited reports describing at least 118 improper interrogation techniques: physical harm to the genitals--to a degree punishable by life imprisonment as sexual assault under military law; forced viewings of homosexual pornography; denial of food and water; disorientation techniques such as sleep deprivation; and religious abuse such as forced "satanic baptisms."
The government censored parts of the records, but enough has been made public that it's clear that the witness, a fellow detainee, was being treated weekly for a serious psychological problem and was questioned about whether he had any suicidal thoughts. The witness provided information in the government's case for detaining Aymen Saeed Batarfi, a Yemeni doctor who the government announced last week it would no longer seek to detain.
In a little-noticed ruling last week, Judge Emmet Sullivan found that the witness's testimony in other cases could be challenged as unreliable.
During a hearing last week, Sullivan castigated the government for not turning over the medical records and ordered department lawyers to explain why he shouldn't cite them for contempt of court.
"To hide relevant and exculpatory evidence from counsel and from the court under any circumstances, particularly here where there is no other means to discover this information and where the stakes are so very high . . . is fundamentally unjust, outrageous and will not be tolerated," Sullivan said, according to a transcript of the hearing.
This sickness, with the kangaroo courts and the cover-ups and the implication of more and more officials, will remain as a black cloud over the head of this government if it's not dealt with properly. It is not enough to "look forward." We tortured multiple prisoners with multiple banned techniques, all in the name of "fighting the war on terror," in actuality making us less safe after their eventual disclosure and providing no intelligence value. As Danner notes, this has been going on for years, and in the absence of a ruling - and punishment - for those who ordered this, we will continue to have corrosive and distorting fights over the efficacy of this violation of American and international law.
It is because of the claim that torture protected the US that the many Americans who still nod their heads when they hear Dick Cheney's claims about the necessity for "tough, mean, dirty, nasty" tactics in the war on terror respond to its revelation not by instantly condemning it but instead by asking further questions. For example: Was it necessary? And: Did it work? To these questions the last president and vice-president, who "kept the country safe" for "seven-plus years," respond "yes," and "yes." And though as time passes the numbers of those insisting on asking those questions, and willing to accept those answers, no doubt falls, it remains significant, and would likely grow substantially after another successful attack.
This political fact partly explains why, when it comes to torture, we seem to be a society trapped in a familiar and never-ending drama. For though some of the details provided—and officially confirmed for the first time—in the ICRC report are new, and though the first-person accounts make chilling reading and have undoubted dramatic power, one can't help observing that the broader discussion of torture is by now in its essential outlines nearly five years old, and has become, in its predictably reenacted outrage and defiant denials from various parties, something like a shadow play.
I agree with President Obama that torture hasn't made us safer, but the continued failure to deal with what the Bush Administration has done CONTINUES to cripple our political influence around the world and our moral capability to lead. John Conyers released a report to little fanfare last week called "Reining in the Imperial Presidency" detailing all the lawlessness enacted, the politicization of justice, the assertion of extreme executive power, the assaults on individual liberty, the retribution against critics, the passing of secret law, all of it. And the committee offers 50 recommendations for how to reverse this challenge to Constitutional government. Right at the top are these two:
Congress should establish a Blue Ribbon Commission or similar panel to investigate the broad range of policies of the Bush Administration that were undertaken under claims of unreviewable war powers, including detention, enhanced interrogation, ghosting and black sites, extraordinary rendition, and warrantless domestic surveillance.
The Attorney General should appoint a Special Counsel, or expand the scope of the present investigation into CIA tape destruction, to determine whether there were criminal violations committed pursuant to Bush Administration policies that were undertaken under unreviewable war powers, including enhanced interrogation, extraordinary rendition, and warrantless domestic surveillance.
It's not just about ending these practices. By refusing to investigate them, and even actively invoking claims like the "state secrets privilege" to shield any possibility of a reckoning, the Administration implicates itself. Because they must use the same extreme claims of executive power, in some cases more so, to facilitate the cover-up. As Danner says:
There is a sense in which our society is finally posing that "what should we do" question. That it is doing so only now, after the fact, is a tragedy for the country—and becomes even more damaging as the debate is carried on largely by means of politically driven assertions and leaks. For even as the practice of torture by Americans has withered and died, its potency as a political issue has grown. The issue could not be more important, for it cuts to the basic question of who we are as Americans, and whether our laws and ideals truly guide us in our actions or serve, instead, as a kind of national decoration to be discarded in times of danger. The only way to confront the political power of the issue, and prevent the reappearance of the practice itself, is to take a hard look at the true "empirical evidence of the last five years, hard years," and speak out, clearly and credibly, about what that story really tells.
In failing to wrestle with this, or letting Spain do it for us, we lose ourselves.
As I've said a few times, the Bush Administration so catastrophically fucked this country in seemingly limitless weighs, that the Obama Administration could be 90% on the side of the angels and still have lots of issues where they are wrong, creating an impression that they are not fulfilling the promise of change. But on the majority of issues, they are! And here's another one: ending the pernicious practice of signing statements that nullify settled Congressional law based on extreme theories of executive power, which was brought to truly epic levels under Bush and Cheney.
In recent years, there has been considerable public discussion and criticism of the use of signing statements to raise constitutional objections to statutory provisions. There is no doubt that the practice of issuing such statements can be abused. Constitutional signing statements should not be used to suggest that the President will disregard statutory requirements on the basis of policy disagreements. At the same time, such signing statements serve a legitimate function in our system, at least when based on well-founded constitutional objections. In appropriately limited circumstances, they represent an exercise of the President's constitutional obligation to take care that the laws be faithfully executed, and they promote a healthy dialogue between the executive branch and the Congress.
With these considerations in mind and based upon advice of the Department of Justice, I will issue signing statements to address constitutional concerns only when it is appropriate to do so as a means of discharging my constitutional responsibilities. In issuing signing statements, I shall adhere to the following principles:
The executive branch will take appropriate and timely steps, whenever practicable, to inform the Congress of its constitutional concerns about pending legislation. Such communication should facilitate the efforts of the executive branch and the Congress to work together to address these concerns during the legislative process, thus minimizing the number of occasions on which I am presented with an enrolled bill that may require a signing statement.
Because legislation enacted by the Congress comes with a presumption of constitutionality, I will strive to avoid the conclusion that any part of an enrolled bill is unconstitutional. In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded.
To promote transparency and accountability, I will ensure that signing statements identify my constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection.
I will announce in signing statements that I will construe a statutory provision in a manner that avoids a constitutional problem only if that construction is a legitimate one.
Obama is essentially saying that he would raise constitutional issues BEFORE a law reached his desk. What the Bush Administration would do is negotiate a bill, and then when it passed nullify with the stroke of the pen any aspect that put a check on his executive power. Obama would give the Congress the benefit of the doubt and act with restraint in issuing signing statements, generally within the accepted practice of the previous 200-odd years. The statements typically would be used as a guideline for the Supreme Court to judge the constitutionality of a provision if it were litigated, as I understand it. That is a far cry from what essentially was a line-item veto, the way Bush used it. And the part where he writes that he would "constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection" would be far different from the boilerplate that Bush used on over one hundred signing statements:
Bush’s postsigning statement declared that he would interpret many sections of the new law “in a manner consistent with the president’s constitutional authority to supervise the unitary executive branch.” In plain English, this means that many of the limits that Congress imposed on Bush’s power – and that he accepted when he took the money Congress appropriated – are null and void. Why? Because the president says so.
And best of all, instead of just looking forward, in this case he's looking backward.
To ensure that all signing statements previously issued are followed only when consistent with these principles, executive branch departments and agencies are directed to seek the advice of the Attorney General before relying on signing statements issued prior to the date of this memorandum as the basis for disregarding, or otherwise refusing to comply with, any provision of a statute.
In other words, Mr. Bush, your signing statements just went poof in the night.
Charlie Savage, who basically uncovered the practice of nullifying law through signing statements during the Bush Administration, has a writeup on this memorandum. And he says that Obama's perspective is consistent with his remarks on signing statements in a questionnaire Savage authored during the campaign.
The good news is that the Supreme Court vacated the lower-court ruling that the President is allowed to indefinitely detain individuals who are legal residents of the United States, like Ali al-Marri. The bad news is that the SCOTUS did not opt to take up the case themselves, and thus set a precedent against indefinite detention, instead approving the transfer of al-Marri to civilian custody awaiting trial.
The ACLU wanted this case to go to the Supreme Court, so we could get a definitive ruling that indefinite detention of this sort is illegal and unconstitutional. Sadly, we won't.
Jonathan Hafetz of the American Civil Liberties Union, Al-Marri’s lead lawyer, called the order vacating the lower court decision an “important step,” and added: “We trust that the Obama Administration will not repeat the abuses of the Bush Administration, having now chosen to prosecute Mr. Al-Marri in federal court rather than defend the Bush Administration’s actions in this case.”
The Justice Department had no immediate comment on the Justices’ order. That order spares the new Administration from having to take a formal position on the detention issue that was at stake.
It would be nice, however, to have that ruling for posterity instead of putting our trust in successive Presidents.
Despite, or in a weird way, because of the troubling return of unitary executive theory in Obama Administration filings in the Al Haramain case, the Justice Department is striving for transparency in releasing many secret OLC memos from the Bush era, as well as the information that the CIA destroyed 92 videotapes of interrogations of terror suspects.
The Justice Department released nine legal opinions showing that, following the Sept. 11, 2001, terrorist attacks, the Bush administration determined that certain constitutional rights would not apply during the coming fight. Within two weeks, government lawyers were already discussing ways to wiretap U.S. conversations without warrants.
The Bush administration eventually abandoned many of the legal conclusions, but the documents themselves had been closely held. By releasing them, President Barack Obama continued a house-cleaning of the previous administration's most contentious policies.
"Too often over the past decade, the fight against terrorism has been viewed as a zero-sum battle with our civil liberties," Attorney General Eric Holder said in a speech a few hours before the documents were released. "Not only is that school of thought misguided, I fear that in actuality it does more harm than good."
The Obama administration also acknowledged in court documents Monday that the CIA destroyed 92 videos involving terror suspects, including interrogations — far more than had been known. Congressional Democrats and other critics have charged that some of the harsh interrogation techniques amounted to torture, a contention President George W. Bush and other Bush officials rejected.
The new administration pledged on Monday to begin turning over documents related to the videos to a federal judge and to make as much information public as possible.
The ACLU has the legal letter acknowledging the destruction of the CIA tapes, and the OLC memos are here. One of the more interesting memos, described by Christy Hardin Smith, is a recent one from October 2008 from the Bush Administration's head of the OLC:
Let me get this straight: we waited all the way to October 6, 2008 -- more than 7 years -- to issue such a memoranda governmentally regarding a fundamental question of posse comitatus? One that the OLC clearly got wrong?
Bradbury goes on to issue a blanket statement that the OLC is not to be used for:
"...broad, hypothetical scenarios involving domestic military contingencies that senior policymakers feared might become a reality in the uncertain wake of the catastrophic attacks of 9/11..."
Which is understandable that there would be hasty errors given the circumstances but, again, why did it take more than 7 years to correct their misperceptions?
I have a theory. The Bush Administration knew these were extra-legal actions, and so to cover their behinds they had their OLC chief make them all inoperative just before they left. I don't think it necessarily would make it harder to prosecute, but considering that the incoming Administration wants to "look forward and not backward," it would certainly push them to conclude that the worst is behind us and at least these theories have been rejected.
Except they have not been rejected. In Al Haramain the Obama White House is still using them. Look at this John Yoo memo on FISA, where he claims that domestic searches and wiretaps would not violate the Fourth Amendment as long as the President is combating terrorism, or the one where Yoo argues that First Amendment speech and press rights may have to be suppressed to protect the nation, and ask yourself what Obama is hiding. Ask yourself why he's relying on similar theories of executive power to hide the truth.
This is why we need a Congress with the insistence to uphold their oversight functions and use the tendency for sunlight on the part of the Justice Department to deliver a full investigation into the crimes of the Bush era. I agree with Nancy Pelosi that prosecutions should result from any violations of federal statute found by those investigations. However, even a Truth Commission would be powerful and paradigm-shifting.
Spearheading Senate efforts to establish a torture commission is Rhode Island Democrat Sheldon Whitehouse. As a member of both the Judiciary Committee and the Intelligence Committee, Whitehouse is privy to information about interrogations he can't yet share. Still, regarding a potential torture commission, he told Salon, "I am convinced it is going to happen." In fact, his fervor on the issue was palpable. When asked if there is a lot the public still does not know about these issues during the Bush administration, his eyes grew large and he nodded slowly. "Stay on this," he said. "This is going to be big."
"We may be faced with the prospect of looking at horror in our own country's deeds." Let's hear about all of it. And let's let the current Administration know that we will not abide by the same horror from their conduct, no matter how noble the intention.
The brief filed by Obama on Friday afternoon (.pdf) has to be read to believed. It is literally arguing that no court has the power to order that classified documents be used in a judicial proceeding; instead, it is the President -- and the President alone -- who possesses that decision-making power under Article II, and no court order is binding on the President to the extent it purports to direct that such information be made available for use in a judicial proceeding. From page 5 of the Obama Brief, filed after its loss on Friday:
"In addition, the relevant Executive Branch official must determine that plaintiffs’ counsel have a “need to know” the information. In this case, the relevant official, the Director of the National Security Agency (“NSA”), has determined that counsel do not have a need to know. This decision is committed to the discretion of the Executive Branch, and is not subject to judicial review. Moreover, the Court does not have independent power, either under its supervisory authority, or under authority analogous to that granted by the Classified Information Procedures Act (“CIPA”), 18 U.S.C. App. 3, to order the Government to grant counsel access to classified information when the Executive Branch has denied them such access."
That's about as clear as it gets. There is only one branch with the power to decide if these documents can be used in this Article III court proceeding: The Executive. What the President decides is final. His decision is unreviewable. It's beyond the reach of the law. No court has the authority to second-guess it or to direct the President to comply with a disclosure order. That's the mentality -- and even the language -- drawn directly from the earliest Yoo Memorandum that created the theoretical foundation for what would be the omnipotent presidency.
Just for a little background on the Al Haramain case - the Islamic charity, in an accidental court filing from the Bush Justice Department, discovered they had been spied upon illegally by the government, without a warrant. Their certainty is due to the transcript of the eavesdropped conversation that the government gave them. Since that time, both the Obama and Bush Administrations have ordered that the document, and therefore the evidence for illegal conduct, is classified and cannot be admitted into court. Despite several rulings to the contrary, this President - like the one before him - is claiming that only the executive can decide what may be done with classified information, with the potential being that any President can just classify whatever compromising information exists about his or her activities and shield it from the view of the Congress, the courts, and the people. It is an expansive and un-American view of the Constitution, used in this case to service a massive cover-up.
There is simply so much that Obama's team has had to overturn from the Bush regime, they're probably getting heartburn from all of the decisions. Yet while, in isolated respects, they've done a decent job, it cannot excuse this conduct. I don't know whether it's foreknowledge of the extent of the lawbreaking, or pressure from the telecoms to save their immunity (which could absolutely be threatened by this ruling, as there's a pending case with the same judge, Vaughn Walker) or what, but Washington is united in really, really not wanting the truth on warrantless wiretapping to come to light. It is despicable that this has become so vital that Obama, a constitutional law professor, would adopt the same unitary executive theory than he actually swore an oath to reject.
Barack Obama is signing the American Recovery and Reinvestment Act in Denver at this hour, and I think the consensus among the progblogs is that this is a positive step for the country, if only a step. There will be a down payment on reinvesting in long-term infrastructure, education, energy and health care while providing a quick boost to the economy through direct payments, increases in unemployment insurance and food stamps, and reduction of withholding. It's a very big legislative victory.
I certainly don't like the rumblings, however, that the White House is seeking changes to the executive compensation rules in the bill, which has now passed both houses of Congress. That after-the-fact maneuvering is very reminiscent of how George Bush would ignore federal statutes and undermine American law.
Facing a stricter approach to limiting executive bonuses than it had favored, the Obama administration wants to revise that part of the stimulus package even after it becomes law, White House officials said Sunday.
While President Barack Obama plans to sign the $787 billion stimulus bill in Denver on Tuesday, his administration will seek changes in the government's approach to executive compensation, senior Obama adviser David Axelrod said in a television interview.
"We all have the same goal. We all have the same sentiment. And we want to do something that's workable, and we'll work with them to get to that point," Axelrod said on "Fox News Sunday."
They are drinking the Kool-Aid that CEOs would flee American companies (like anybody's hiring right now) and that they must be placated, because $500,000 isn't a lot of money or whatever. And they're getting a lot of special interest pressure as well. The Treasury Department could have up to a year to announce the implementation of these pay caps, which would buy time for industry to find a loophole around what is actually a well-conceived provision.
But the actual issue at hand is a side note. It's the process here that deeply concerns me. We have to say no to autocrats deciding outside the legislative process what will be made law and what will not be. Kagro X describes this well.
Whatever the differences, let's be clear about what it means that Congress has passed this set of restrictions, and President Obama is signing them into law tomorrow. Any changes he'd like to see made, he ought to seek to have made legislatively. After two weeks of seeing the stimulus bill watered down and slashed in a futile attempt to "reach out" to Republicans who all eventually gave him the finger, do you think we could maybe, possibly not have the President unilaterally take an axe to a wildly popular provision added to the package by members of his own party?
I'm not a presidential adviser, of course. But I'm thinking that maybe this ought to be approached with a bit more caution, and more signals need to be sent that the President is committed to making any fixes he wants through the legislative process. Any ambiguity isn't likely to help him when it comes time to sell another $2 trillion round of TARP funding in the coming weeks. The constant worry of Obama's most critical allies on the Hill with respect to the TARP is that Congressional oversight not fall by the wayside. If the White House's opening move on oversight is to announce its intention not only to make decisions unilaterally, but to brush aside enacted statute in doing so, we're going to be in for a bumpy ride.
Obama needs to think extremely hard about this. Failing to fulfill constitutional responsibilities to execute the laws would be catastrophic. It would render Congress as irrelevant as they were in the Bush years. We don't elect a king.
For those in Southern California, I'm actually on a panel tonight about civil liberties and the first 100 days of the Obama Administration, with the Pasadena chapter of the ACLU. The location is:
NEIGHBORHOOD UNIVERSALIST CHURCH 301 North Orange Grove Blvd. Pasadena, CA 91103 7:30pm
In general, I think the civil liberties changes in the Administration are shaping up as kind of a mixed bag. I appreciate the quality and character and commitment to justice of many of Obama's nominees for top positions, in particular Dawn Johnsen at the Office of Legal Counsel. At the same time I'm troubled by the lack of concern for past crimes and instead this insistence on "moving forward," as if deterrence is not a part of criminal justice. Yesterday, Obama's transition vowed to order the closure of Guantanamo immediately. Today, we hear that the closure could take up to a year:
But experts say it is likely to take many months, perhaps as long as a year, to empty the prison that has drawn international criticism since it received its first prisoners seven years ago this week. One transition official said the new administration expected that it would take several months to transfer some of the remaining 248 prisoners to other countries, decide how to try suspects and deal with the many other legal challenges posed by closing the camp.
People who have discussed the issues with transition officials in recent weeks said it appeared that the broad outlines of plans for the detention camp were taking shape. They said transition officials appeared committed to ordering an immediate suspension of the Bush administration’s military commissions system for trying detainees.
In addition, people who have conferred with transition officials said the incoming administration appeared to have rejected a proposal to seek a new law authorizing indefinite detention inside the United States. The Bush administration has insisted that such a measure is necessary to close the Guantánamo camp and bring some detainees to the United States.
Mr. Obama has repeatedly said he wants to close the camp. But in an interview on Sunday on ABC, he indicated that the process could take time, saying, “It is more difficult than I think a lot of people realize.” Closing it within the first 100 days of his administration, he said, would be “a challenge.”
Good and bad here as well. There is the power of the symbolism in breaking with the past and ordering closure, as well as rejecting the extra-legal options of indefinitely detaining people on US soil or continuing the flawed shams that Bush has been using as military commissions. However, trying detainees in federal courts and accepting evidence gained through torture that would otherwise be inadmissable is abhorrent. So we still don't know which way he's going to go. As Anthony Romero says in the article, “Just like we need specifics on an economic recovery package, we need specifics on a ‘justice recovery package.”
There is some good news to report, however. Not only is Obama committed to reversing several executive orders made by the Bush regime, he is going to express his legal opinions in public instead of making more secret laws.
Senator Russ Feingold (D-WI) said he’s been informed that President Obama will support his proposed legislation to make public some opinions from the Justice Department's Office of Legal Counsel, which issued some of the Bush Administration's most sweeping claims of executive power. Obama also has promised to limit President Bush's practice of using "signing statements" to amend legislation.
"Every day we get indications that they're serious about reversing the abuses of the Constitution," Feingold, a harsh Bush critic, told Politico. Feingold said he thinks Obama is likely to issue executive orders rapidly reversing Bush policies, and others have indicate that those will likely cover the interrogation and detention of terror suspects, and keeping the records of past presidents secret.
"I don't know in what order or how fast" Obama’s executive orders could come, he said. "It'll be important that a couple of them be done immediately, and I think they will be, to show there's a strong break from the current policy."
It's going to be hard to get an executive to willingly give up power. But if the means by which he seeks to maintain or expand them is public, then pressure can be far more effective in dialing the worst abuses back.
See Greenwald for more on all of this. And see me, if you can, tonight in Pasadena.
Let's Check What Holder Had To Do With Carter's Bungled Iranian Hostage Rescue!
I know that the right is trying to make an example of Eric Holder, but going back to questioning his role in the Elian Gonzales case and his support of the Brady Bill (???) just makes them look completely ridiculous. If the goal is to stop the Holder nomination, or even to paint him as a tool of liberal special interests, dredging up things that are 9 and 10 years old is not going to help. This rebounds back on them more than anything.
However, I think Marcy Wheeler is on to something. The goal is to slow down the Holder nomination with countless challenges enough to delay the time that he gets his hands on the opinions approving torture and warrantless wiretapping produced by the OLC (Office of Legal Counsel). There's a lot of incriminating material in those opinions, which the Bush Administration hasthus far held from the Obama transition team as well as Patrick Leahy, the chair of the Senate Judiciary Committee.
Why would the delay be so important to Bush and company? Maybe to just keep the programs going for a little while longer. Or, maybe to give more time to impress upon Obama that he needs these radical powers:
In an interview with Rush Limbaugh (via Politico), Vice President Dick Cheney predicted that the next president will appreciate the way he and George Bush expanded executive power.
"Once they get here and they're faced with the same problems we deal with every day, then they will appreciate some of the things we've put in place," Cheney said.
"We did not exceed our constitutional authority, as some have suggested," Cheney added. "The President believes, I believe very deeply, in a strong executive, and I think that's essential in this day and age. And I think the Obama administration is not likely to cede that authority back to the Congress. I think they'll find that given a challenge they face, they'll need all the authority they can muster."
Cheney has been practically bursting with pride over invading a country with no real rationale and waterboarding terror suspects. I'm certain he's delusional enough to believe that everyone is as psychotic as he is, and once given supreme unitary executive powers they won't want to relinquish them. Delaying Holder ensures that Obama at least has a few months to test out the new tools. Now, he has repeatedly promised to close Gitmo and end torture (on wiretapping he hasn't been completely clear, and he voted for the awful FISA bill), so I don't think this is such a good bet. But once you give someone powers, it's not always likely that they willingly give them up.
I actually watched this last night, and it was pathetic:
BAYH: I don't think this is about Joe Lieberman, Rachel. I think this is about maximizing our chances of making the changes that we need in America, maximizing the chances that President-elect Obama will meet those expectations you referred to by addressing the challenges that we face that you also reported on just a few moments ago.
And let me explain to you what I mean. If this was just about Joe Lieberman and the things he said in the campaign, well, I'd say we'll let it go. I mean, if people want to settle scores, fine. I mean, he's a big guy, he can live with the consequences of his actions.
But one of two things will be likely to happen if we were to kick him out of his chairmanship. No. 1, he might very well decide to just resign from the Senate. You know, he probably would not want to be a person without a home, wandering the hallways without any influence of any kind. And Connecticut has a Republican governor, who would appoint a pure Republican to that seat, who would vote against the wishes of the president-elect and the Democratic caucus, you know, the vast, vast majority of the time. That's No. 1.
No. 2, Lieberman, Joe Lieberman might decide to stay and be embittered. And what would happen there would be from time to time, we have close votes. You've been reporting on the Alaska race and the Minnesota race and the Georgia race. We could be at 58, 59, maybe even 60 votes. Every two or three or four months, there's going to be a critically important vote, very close, every vote will count. And it might come down to one vote.
Now, if Senator Lieberman has a strong view, he'll vote his conscience, but if he's conflicted, frankly, you know, doesn't really know what to do, and we've exacted revenge on him, I suspect we could probably expect the same in return. That's really not where we want to go. Let's see if we can move this in a better direction.
And the final thing I'd say is, if he does retain his chairmanship, we still exert oversight over him and control over him. He doesn't have the ability to just do whatever he wants. The caucus still has the right to remove him from that position at any time if he starts going off on some kind of tangent.
Shorter Evan Bayh: we're a-feared of Droopy Dog!
If Senate Dems can't defend themselves, I really don't see why I should expend any effort helping to defend them. The danger of Lieberman at Homeland Security, as I see it, is that he'll play "fun with subpoenas" on the Obama Administration. Well, let him. Obama doesn't seem too concerned with it, so why should I be? And under no circumstances should Lieberman be tossed after given the gavel if he does anything untoward. Senate Dems will have had their chance, and stifling Joe after the fact would just be the same instance of using the Congress as a human shield for executive power, much as the Hastert/Frist Congress did from 2001-2006. In fact there's a Constitutional argument to be made that at least a confrontational Joe would be a check on the executive. It'll all be frivolous and based on faulty logic, but at this point any check might be beneficial.
As for appeasing him (Neville Chamberlains!) because he might go ahead and vote against the party, if I'm a sanctimonious windbag like Joe Lieberman I'm probably already embittered by having to fight for my chairmanship, so whether I get to keep it or not I'm going to be a thorn in the side of the Democrats. After all, it's in my nature. And furthermore, important legislation rarely hangs on one vote, and each victory in these remaining races makes Joe that much more irrelevant.
I could tell you to call your Senators but I'm not really interested in helping dupes.
Yesterday's leak that the incoming Obama Administration is seriously drawing plans to close the prison at Guantanamo Bay, Cuba is very welcome news. But it's not uniformly welcome.
There are, of course, problems here. The AP's reporting suggests Obama is considering a "hybrid process" between the military commissions and the full process enjoyed by U.S. citizens. If there's anything the military commissions process should have taught, it's that reinventing the legal system doesn't work, as evidenced by the bevy of military lawyers who have resigned in protest of the commissions. The concern, stripped of euphemism, is that the evidentiary basis for many trials of Guantanamo detainees -- including, in many cases, torture -- would never be admissible in any court worthy of the name. That's the Bush administration's legacy. But it can't be the basis for cheapening our legal system.
This is a very delicate problem that is not of Obama's making. You have hundreds of detainees, many of them tortured, who would clearly be dismissed in a regular trial because the evidence against them would be inadmissable. And yet even the prisoners who were innocent of any terrorism (and there are many) would hold animus against the United States; I mean, who wouldn't?
Yet Obama is showing the right instincts here. Guantanamo defames out country with every day that it's open. As Anthony Romero of the ACLU says, closing it would be a powerful signal on the change in direction for the country.
Our top issue — closing down Gitmo and shutting down the military commissions — can be done as soon as he lifts his left hand, picks up the new presidential pen and signs an executive order closing Gitmo and ending the military commissions once and for all. Call me naive, but I honestly believe he wants to do it. He promised us that on the campaign trail, and I believe it was more than an empty promise. I believe he knows what he needs to do to restore the America we believe in, to get us on back on track, to give us back our America, an America we never stopped believing in but have sorely missed for the past eight years.
With a stroke of his pen on Day One, a good, courageous president can do that — as long as he listens to himself and to our pleas. As long as he doesn't listen to the centrist and DLC types who tell him, "It's too complicated." "It's tougher than it looks." "Take your time." "We need message discipline — you don't want to do what Clinton did with gays in the military. The nation wasn't ready."
The ACLU took out a full-page ad in the New York Times requesting that Obama close gitmo. And they have a new website, CloseGitmo.com, featuring a video from Brave New Films:
The best thing about what closing Guantanamo would signal is that it would be an action to willingly give up some of the power of the executive. This is highly unusual, as the Congress would typically need to take that power back with the force of law. We are living in a time of an imperial Presidency which grows stronger with every Administration, and we've seen how dangerous that imbalance can be.
The assertion and expansion of presidential power is arguably the defining feature of the Bush years. Come January, the current administration will pass on to its successor a vast infrastructure for electronic surveillance, secret sites for detention and interrogation and a sheaf of legal opinions empowering the executive to do whatever he feels necessary to protect the country. The new administration will also be the beneficiary of Congress’s recent history of complacency, which amounts to a tacit acceptance of the Bush administration’s expansive views of executive authority. For that matter, thanks to the recent economic bailout, Bush’s successor will inherit control over much of the banking industry. “The next president will enter office as the most powerful president who has ever sat in the White House,” Jack Balkin, a constitutional law professor at Yale and an influential legal blogger, told me a few weeks ago.
Whether in a time of war or a time of peace, we need a strong tripartite system that respects civil liberties and restrains the power of each branch. We need lawmakers who have self-interest again. We need a court system that is not a rubber stamp. Closing Guantanamo offers an olive branch from the executive to the other two branches, telling them to fulfill their roles. And hopefully, they'll meet the challenge. Otherwise, we'll continue to rely on the judgment of one man to safeguard the moral authority of a nation. That won't work.
The Hill reports that it inquired with both Joseph Biden and Sarah Palin about whether they would consider themselves to be part of the executive branch in the next administration. The Hill’s Kevin Bogardus reports, “Sen. Biden (Del.) believes the office he is seeking is solely in the executive branch, according to his staff. But aides to Alaska Gov. Palin did not answer the question”:
[A] spokesman for the Republican presidential campaign did not answer the question. Instead, he e-mailed remarks Palin gave at a campaign rally in Golden, Colo., on Monday.
Palin did not say what branch of government she believes the vice president’s office is part of in those remarks. Instead, Palin said she and Republican presidential nominee John McCain had discussed what responsibilities she would take on as his second-in-command.
Palin is asserting the same vagueness on the subject as Cheney because she wants to play by the same rules as Cheney, which of course are no rules at all. She has obstructed and intimidated the Alaska State Legislature to the point where they're probably a week away from dropping the entire Troopergate investigation, despite the fact that evidence already exists to show at the very least unethical behavior, if not a total abuse of power, in the form of Frank Bailey's phone call urging Walt Monegan to do all but fire Michael Wooten. The McCain campaign has taken over the investigation, and they're openly harassing reporters at home to get them to drop their unfavorable coverage. And the "First Dude," Todd Palin, is refusing to testify in the probe, just because... he doesn't like it. As he isn't a state employee, there's no way for him to invoke executive privilege. He just doesn't want to testify. And so he's not.
This is very dangerous stuff. This woman who could be Vice President is as devious and secretive and abusive as her predecessor. Check this out:
But those who know her say Palin, 44, is uncommonly deft at something else: sensing the mood of her constituents, shaping her public messages and harnessing a remarkable personal popularity to accomplish what she wants. "She has an incredible pulse on the public will," said Bruce Botelho, a Democrat who is mayor of Juneau, the state capital.
"She tends to . . . create a situation where legislators are cornered -- going against her would be political suicide," said John Bitney, who grew up with Palin, was her campaign policy director and became her first legislative liaison.
That's how Cheney took over the White House. This is happening all over again.
Fortunately, her negatives have jumped up as weeks of relentless attacks have taken their toll. And this ad about aerial wolf hunting really hits people in the gut and moves voters. But we have to be vigilant. The country can't afford four more years of Fourthbranch.
There's quite a lot to say about Sarah Palin. There's actually quite more to say about Barack Obama's magnificent speech, but John McCain kicked the soccer ball and the media herd is chasing it. So we'll go with Palin for now and come back to Obama's speech on the weekend.
What's striking to me is what has happened in Alaska since Palin was swept into office as a reformer. In 2006, sitting governor Frank Murkowski finished third out of four in the primary due to corruption scandals. A good chunk of the Republicans in the state legislature are either under indictment or under suspicion. Ted Stevens will go to court in September. Palin offered a new direction from that culture of corruption.
And then she came into office and did the same thing as every other Republican in Alaska. The most prominent scandal, for which she is currently under an ethics review, concerns her trying to get her sister's ex-husband fired as a state trooper.
Gov. Sarah Palin, a rising young GOP star mentioned as a possible running mate for John McCain, could see her clean-hands reputation damaged by a growing furor over whether she tried to get her former brother-in-law fired as a state trooper.
A legislative panel has launched a $100,000 investigation to determine if Palin dismissed Alaska's public safety commissioner because he would not fire the trooper, Mike Wooten. Wooten went through a messy divorce from Palin's sister.
Palin has denied the commissioner's dismissal had anything to do with her former brother-in-law. And she denied orchestrating the dozens of telephone calls made by her husband and members of her administration to Wooten's bosses.
There's actually tape of a Palin aide pressuring the Public Safety Department to fire Wooten. And when the Public Safety Commissioner wouldn't, she fired him and replaced him with someone who would. Someone who had a history of sexual harrassment and is now the PUBLIC SAFETY commissioner.
That's shades of Archibald Cox and Elliot Richardson and William Ruckleshaus. I understand that the state trooper and her sister had a messy divorce, and he's been alleged to have done all sorts of terrible things to the sister and the kids, but firing people who refuse to carry out your wishes - well, that's good for Woodward and Bernstein's career, but not for the country.
And there's more.
Siun reports that Palin broke the law to ensure that Alaskan water would stay dirty:
It is against the law for the governor to officially advocate for or against a ballot measure; however, Palin took what she calls "personal privilege" to discuss one of this year's most contentious initiatives, which voters will decide Tuesday.
Along with taking a position on the big mine's side, Palin's administration apparently used state Department of Natural Resources resources to lobby for defeat of the Clean Water Initiative under the pretense of creating a state run website to "educate" citizens. The citizen group Alaskans for Clean Water responded by filing “a complaint against DNR for a recently-launched state website meant to clarify the issue for voters. “
The complaint alleges that the Department of Natural Resources (DNR) improperly attempted to influence the outcome of an election by publishing information against the initiative on its website. It also alleges that DNR failed to report to APOC the expenditures, including employee time, related to creation of the information.
“It has become clear to us that the Department of Natural Resources is working hand-in-hand with the industry, and that the state is inappropriately making efforts to influence voters on this ballot initiative,” said Art Hackney, a co-sponsor of Ballot Measure #4.
Now, this reflects Nixon as much as it reflects our current White House resident. When the laws constrain you, use a "personal privilege" or make a signing statement. The point of similarity is contempt for the rule of law and a belief in the expansion of executive power.
Not to mention that she is completely in line with Fourthbranch Cheney and Spiro Agnew and the rest of the Corruptocrats on the issue of abuse of power. The Anchorage Daily News put it best:
She can look you in eye and tell you black is white.
Digby mentioned yesterday the video of Omar Khadr, the first we have of an interrogation at Guantanamo, sobbing uncontrollably as he attempts to tell his story to Canadian investigators. The kid is 16 and he's clearly on the edge of a nervous breakdown.
This is only the most recent in what is now a mountain of information on torture that has slowly seeped out over the past year. Just yesterday Osama bin Laden's driver Ahmed Hamdan discussed his coercive treatment in a Guantanamo military commission. And Jane Mayer's much-anticipated book on torture, rendition, and the policies of the Bush Administration has already revealed enough information to fill several stories, including the news that the CIA knew that significant numbers of prisoners captured "on the battlefield" were innocent of any charges, that the Red Cross had secret knowledge of torture that they wrote up in a classified report to the CIA, which incriminated top Administration officials in war crimes, and much more. Mayer's book, ably reviewed by Tim Rutten, is an account of the battle inside the White House as much as the battle around the world, with the stories of heroes and patriots who tried to preserve American ideals by resisting efforts to rewrite the rules of interrogation and the treatment of prisoners, and their opponents, mostly in the Vice President's office, who stymied them. Anyone who questioned the program, like the Inspector General of the CIA John Helgerson, who in 2004 wrote a very serious report alleging war crimes, mistreatment and homicide, and who received personal visits from Dick Cheney thereafter, was shut down.
...the White House was relying on opinions from John Yoo and other authoritarian ideologues in the Office of Legal Counsel who secretly told the president and vice president that they enjoyed inherent powers to overturn any law restraining surveillance, searches and seizures within the United States. As one such memo said, "The government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties. We think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection."
Mayer does a superb job of describing how the trauma of 9/11 all but unhinged Bush and Cheney and predisposed the chief executive to embrace the ready-made unitary executive theory of presidential power, which the vice president and his chief aide, David Addington, had come to Washington prepared to promote. In the opinion of the late historian Arthur Schlesinger, "the Bush administration's extralegal counterterrorism program presented the most dramatic, sustained and radical challenge to the rule of law in American history."
Those who have been paying attention know the consequences of this. Much of the torture and abuse was subjected to people who had no intelligence value and were never credibly charged with any crime. The methods were based on decades-old survival techniques produced by the Navy to resist torture, and a manual from the Chinese that used torture to elicit false confessions. They used psychologists to develop a program of "learned helplessness", reverse-engineered from the SERE techniques. In the end, not one terror suspect has been convicted of anything since 9/11. The "intelligence" gained from the likes of Abu Zubaydah and Khalid Sheikh Mohammed was of the wild goose chase variety. Evidence of torture inflamed the Islamic world and became a recruitment poster for Al Qaeda. And on and on. There's more from Dan Froomkin, Andrew Bacevich, Frank Rich and Daniel Larison.
And any effort to stop this, even in the face of overwhelming evidence of its failure, was squelched, in a bipartisan fashion, because of politicians who wanted to cover their tracks. As Glenn Greenwald puts it:
This is what a country becomes when it decides that it will not live under the rule of law, when it communicates to its political leaders that they are free to do whatever they want -- including breaking our laws -- and there will be no consequences. There are two choices and only two choices for every country -- live under the rule of law or live under the rule of men. We've collectively decided that our most powerful political leaders are not bound by our laws -- that when they break the law, there will be no consequences. We've thus become a country which lives under the proverbial "rule of men" -- that is literally true, with no hyperbole needed -- and Mayer's revelations are nothing more than the inevitable by-product of that choice [...]
If the rule of law doesn't constrain the actions of government officials, then nothing will. Continuous revelations of serious government lawbreaking have led not to investigations or punishment but to retroactive immunity and concealment of the crimes. Judicial findings of illegal government behavior have led to Congressional action to protect the lawbreakers. The Detainee Treatment Act. The Military Commissions Act. The Protect America Act. The FISA Amendments Act. They're all rooted in the same premise: that our highest government leaders have the power to ignore our laws with impunity, and when they're caught, they should be immunized and protected, not punished.
Yes, because the torture program itself, in a sense, was a method to cover up an earlier crime. In the months before 9/11 the White House was completely disinterested in terrorism, dismissing the concerns of the intelligence community and neglecting to address the threat. After 9/11, they swung completely in the other direction, and the programs of torture and indefinite detention and surveillance, which were largely off the shelf from long into, were put into action to prove to the nation that something was being done, that there was a manner of payback being extracted.
After interviewing hundreds of sources in and around the Bush White House, I think it is clear that many of the legal steps taken by the so-called “War Council” were less a “New Paradigm,” as Alberto Gonzales dubbed it, than an old political wish list, consisting of grievances that Cheney and his legal adviser, David Addington, had been compiling for decades. Cheney in particular had been chafing at the post-Watergate reforms, and had longed to restore the executive branch powers Nixon had assumed, constituting what historian Arthur Schlesinger Jr. called “the Imperial Presidency.”
Before September 11, 2001, these extreme political positions would not have stood a change of being instituted—they would never have survived democratic scrutiny. But by September 12, 2001, President Bush and Vice President Cheney were extraordinarily empowered. Political opposition evaporated as critics feared being labeled anti-patriotic or worse. It’s a familiar dynamic in American history—not unlike the shameful abridgement of civil liberties represented by FDR’s internment of Americans of Japanese ancestry. One of the strongest quotes in the book, I think, comes from Philip Zelikow, the former executive director of the 9/11 Commission, former counselor to Secretary of State Condi Rice, and a historian who teaches at the University of Virginia. He suggests in time that America’s descent into torture will be viewed like the internment of the Japanese, because they happened for similar reasons. As he puts it, “Fear and anxiety were exploited by zealots and fools.”
In an interview with "Fresh Air," Jane Mayer talked about how Bush and Cheney were receiving raw, unfilitered intelligence after 9/11, lurid tales of nuclear attacks on the country and massive terrorist bombings, most of it bullshit, but so vivid as to justify, in their minds, whatever depravity they ended up putting into practice. One claim in the book is that Cheney thought he had taken a lethal dose of anthrax, which contributed to his insistence on tough tactics. Incidentally, it was based entirely on a false alarm in the White House Situation Room. That didn't stop Cheney's paranoia. He was completely consumed with this stuff, and I'm sure he believes what he did was necessary to protect the country.
But that's not a legal justification. And no matter how many times John Yoo and David Addington try to rewrite the history of the Constitution, what has been done violates federal law, international treaties and war crimes statutes. In a just world, as Jerrold Nadler said yesterday, Bush and Cheney would be impeached. But this goes well beyond removal from office. This is about indictment for murder and war crimes, by definition. In case you were wondering, however, here is the official Village pronouncement about what we should do with the fact that our leaders, in a complete breakdown of the rule of law, have tortured, detained without charges, and murdered:
Dark deeds have been conducted in the name of the United States government in recent years: the gruesome, late-night circus at Abu Ghraib, the beating to death of captives in Afghanistan, and the officially sanctioned waterboarding and brutalization of high-value Qaeda prisoners. Now demands are growing for senior administration officials to be held accountable and punished. Congressional liberals, human-rights groups and other activists are urging a criminal investigation into high-level “war crimes,” including the Bush administration’s approval of interrogation methods considered by many to be torture.
It’s a bad idea. In fact, President George W. Bush ought to pardon any official from cabinet secretary on down who might plausibly face prosecution for interrogation methods approved by administration lawyers.
That's right. Just shut it down. Those mean old hippies are just too worked up about all of this stuff. We need to just move on and heal the nation's partisan wounds and forget about all this "accountability" nonsense.
As Greenwald said, this is what happens to a country when there is a removal of the rule of law, when the powerful can absolve themselves of blame and the media courtiers serve to protect them. There is no question that top Democrats were briefed about this program, if not the full extent of it. They absolutely voted to immunize any Administration official from prosecution in the Military Commissions Act (funny how "immunity" keeps coming up as a theme of Bush-led legislative initiatives). They want to pardon themselves by vowing never to bring up the word "indictment" in polite company, so leaders of all political stripes can whistle and laugh at Washington cocktail parties at the end of empire.
This "Truth Commission" thing is taking hold throughout the Village, and I understand the impulse to an extent, but it's not like the parties who would be pardoned have even acknowledged any wrongdoing. They're still asserting unitary executive powers, and they're still winning battles in the courts, so why would you instinctively want to pardon people who believe they've done nothing wrong?
President Bush has the legal power to order the indefinite military detentions of civilians captured in the United States, the federal appeals court in Richmond, Va., ruled on Tuesday in a fractured 5-to-4 decision.
The same court ruled that this prisoner has the right to an additional habeas hearing, and additional habeas hearings have been ordered by other judges. But read that above sentence. Indefinite military detentions of civilians captured inside the United States. Why would anyone submit to a Truth Commission when they're winning.
But the real reason I can't abide by a Truth Commission any more, not after the slow drip of illegalities over the last few years, is because of this aspect of the Village mindset. Bradrocket says it best:
"A criminal investigation would only hinder efforts to determine the truth, and preclude any apologies. It would spur those who know the most to take the Fifth. Any prosecutions would also touch off years of partisan warfare."
And this, my friends, is the absolute nightmare of the Village Mindset: years of partisan warfare. Why do evil people like George W. Bush and Dick Cheney feel they can simply break the law with reckless abandon? Because they know that modern American political culture simply does not believe in accountability for its political class. They know that in the end, they’re part of the same Villager club of Special People who are too powerful and too privileged to ever face any consequences for their actions. Prosecute government officials for state-sanctioned torture?? How uncouth!
And that's the racket in Washington. Accountability is just a word people throw around.
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