Category: Rule of Law

Obama Threatens Intelligence Oversight Veto

Another day, another way in which the Obama administration is pulling from the Bush administration playbook word for word when it comes to oversight of intelligence and restoring the rule of law in the United States. Oh and the veto is also being threatened because the legislation in question would fund a renewed investigation of the anthrax attacks perpetrated following 9/11, which the FBI recently declared to be neatly solved. The administration doesn’t want to “undermine public confidence” in an FBI probe of the attacks “and unfairly cast doubt on its conclusions.”

I remember when transparency and oversight we promises made by Barack Obama, the candidate. Now they’re punchlines.

Not “You” – “Conservatives”

Glenn Greenwald writes of President Obama’s trend towards caving to conservative fear-mongers who don’t want civil liberties and the rule of law to be preserved whenever terrorism comes:

If, in the face of “GOP demands” that Mohamed be denied a civilian trial, he again reverses himself — this time on the highest-profile civil liberties decision of his administration — he will unmistakably reveal himself, even to his most enamored admirers, as someone so utterly devoid not only of principle but also of resolve: you just blow on him a little and he falls down and shatters into little pieces.

No Glenn, not “you.” Conservatives. President Obama has shown incredible resolve when it comes to resisting the demands, requests, and entreaties of progressives. The pressure on Obama from the right may be slight and he may cave with great consistency, but this is in stark contrast to how he stands up boldly to those on the left who ask him to keep promises he made and beliefs he claims to espouse.

There have been many places where I’ve been disappointed with the Obama administration – war policy, healthcare, and labor reform to name a few. But none is more infuriating than the absolute chickenshittery the administration has put forth when it comes to the rule of law and restoring the Constitution. It’s still early, but a reversal of civilian trials for the 9/11 defendants for purely political reasons (though who can honestly think this is a political calculus that is correct?) would be the nail in the coffin for any hopes I’ve held out that President Obama would fix the damage George W. Bush did to the rule of law in America.

The Patriot Act

Hey look, the Senate just passed another extension of the USA Patriot Act!

Considering this reauthorization was something that during the course of the FISA fight civil liberties activists were told would be an opportunity to restore the rule of law, this is really disheartening. Apparently the reason there were no improvements, revisions or increased safe guards was because Democrats wanted to have Republican support of the bill. Hence, nothing controversial.

You know we’re in trouble when bipartisan comity is more important the defending the Constitution.

Hypocrisy

Working in politics, I’ve become increasingly unimpressed by charges of hypocrisy. When you look at the arguments surrounding how Democrats should strategize on the filibuster and whether there should be vocal pushes for “up or down votes,” it is not convincing to me that one party or the other has no standing to critique a particular course of action because four years ago they held the opposite position.

That said, Glenn Greenwald has identified a truly despicable instance hypocrisy by pro-torture, anti-habeas corpus Republican bloggers in their ginned up outrage over the rule of law in Haiti.  There’s a big difference between political positioning changing with time and applying righteous indignation for the preservation of judicial proceedings if and only if they apply to Christian Americans.

Dodd, Leahy, Feingold, & Merkley to Repeal Retroactive Immunity

It’s about damned time.

Senators Chris Dodd (D-CT), Patrick Leahy (D-VT), Russ Feingold (D-WI), and Jeff Merkley (D-OR) announced today that they will introduce the Retroactive Immunity Repeal Act, which eliminates retroactive immunity for telecommunications companies that allegedly participated in President Bush’s warrantless wiretapping program.

“I believe we best defend America when we also defend its founding principles,” said Dodd. “We make our nation safer when we eliminate the false choice between liberty and security. But by granting retroactive immunity to the telecommunications companies who may have participated in warrantless wiretapping of American citizens, the Congress violated the protection of our citizen’s privacy and due process right and we must not allow that to stand.”

Senator Leahy, Chairman of the Senate Judiciary Committee said, “Last year, I opposed legislation that stripped Americans of their right to seek accountability for the Bush administration’s decision to illegally wiretap American citizens without a warrant. Today, I am pleased to join Senator Dodd to introduce the Retroactive Immunity Repeal Act. We can strengthen national security while protecting Americans’ privacy and civil liberties. Restoring Americans’ access to the courts is the first step toward bringing some measure of accountability for the Bush-Cheney administration’s decision to conduct warrantless surveillance in violation of our laws.”

“Granting retroactive immunity to companies that went along with the illegal warrantless wiretapping program was unjustified and undermined the rule of law,” Feingold said. “Congress should not have short-circuited the courts’ constitutional role in assessing the legality of the program. This bill is about ensuring that the law is followed and providing accountability for the American people.”

“During the previous administration, telecommunications companies were granted retroactive immunity for violating the rights and privacy of millions of Americans,” said Merkley. “I am proud to join Senator Dodd and co-sponsor the Retroactive Immunity Repeal Act to help restore accountability and increase oversight to protect the privacy rights that have been central to our nation since its inception.”

There is more work to be done to roll back the FISA Reauthorization Act of 2008. But this is a key part of that work and is certainly commendable.

Generals Denounce Cheney

In an op-ed in the Miami Herald General Charles C. Krulak, the former Commandant of the Marine Corps, and Joseph P. Hoar, the former Commander in Chief of the United States Central Command, repudiate former Vice President Dick Cheney and his anti-American stance on torture. It is, quite simply, powerful stuff:

[W]e never imagined that we would feel duty-bound to publicly denounce a vice president of the United States, a man who has served our country for many years. In light of the irresponsible statements recently made by former Vice President Dick Cheney, however, we feel we must repudiate his dangerous ideas — and his scare tactics.

We have seen how ill-conceived policies that ignored military law on the treatment of enemy prisoners hindered our ability to defeat al Qaeda. We have seen American troops die at the hands of foreign fighters recruited with stories about tortured Muslim detainees at Guantánamo and Abu Ghraib. And yet Cheney and others who orchestrated America’s disastrous trip to “the dark side” continue to assert — against all evidence — that torture “worked” and that our country is better off for having gone there.

…

To argue that honorable conduct is only required against an honorable enemy degrades the Americans who must carry out the orders. As military professionals, we know that complex situational ethics cannot be applied during the stress of combat. The rules must be firm and absolute; if torture is broached as a possibility, it will become a reality. Moral equivocation about abuse at the top of the chain of command travels through the ranks at warp speed.

Krulak and Hoar close with this hard truth: “Repudiating torture and other cruelty helps keep us from being sent on fools’ errands by bad intelligence. And in the end, that makes us all safer.”

It’s been clear throughout the tenure of the Bush/Cheney administration and in the early months of the Obama administration that the leadership of the US military has, by and large, been one of the biggest opponents to the torture regime instituted under Bush. Retired military leaders in many cases have made strong moral and practical arguments in public against torture.

Unfortunately we can only expect that Krulak and Hoar will be savaged on right-wing blogs for being unpatriotic and disagreeing with the words and deeds of a man who had five deferments during his generation’s war.

Depressing

Glenn Greenwald on what the appointment of a prosecutor to investigate torture by Attorney General really means:

As a practical matter, Holder is consciously establishing as the legal baseline — he’s vesting with sterling legal authority — those warped, torture-justifying DOJ memos.  Worse, his pledge of immunity today for those who complied with those memos went beyond mere interrogators and includes everyone, policymakers and lawyers alike:  “the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.”  Thus, as long as, say, a White House official shows that (a) the only torture methods they ordered were approved by the OLC and (b) they did not know those methods were criminal, then they would be entitled to full-scale immunity under the standard Holder announced today.

This quite likely sets up, at most, a process where a few low-level sacrificial lambs — some extra-sadistic intelligence versions of Lynndie Englands — might be investigated and prosecuted where they tortured people the wrong way.  Those who tortured “the right way” — meaning the way the OLC directed — will receive full-scale immunity.

Fig leafs are all the fashion in DC this summer. Rule of law-shredding, global standing-sinking fig leafs.

Holder’s announcement almost certainly means that the senior level administration officials who thought up, legalized, authorized, and then ordered torture will be immune from investigation and punishment. The people who effectively followed their orders to torture detainees but got slap-happy along the way will shoulder all the blame. As Greenwald notes, this will effectively create a two-tiered system of justice in the  United States and make the Bush administration’s torture policies the accepted law of the US government. Marcy Wheeler describes what is happening as a move to “shift focus away from those that set up a regime of torture and towards those who free-lanced within that regime in spectacularly horrible ways.”

There’s no doubt in my mind that people who exceeded the illegal and immoral guidelines set by John Yoo and other Bush administration lawyers should be punished for what the did. But to limit the Obama administration’s pursuit of justice to these people is to miss the entire point of the need to investigate and prosecute the perpetrators of the torture regime under the Bush administration. It’s not about the operators who did too much, it’s about the top officials who told them to walk down this path at all.

As of now, it looks like Attorney General Holder and likely by extension President Obama simply do not get how damaging this course of action is to the country and the rule of law.

The Price of Believing in the Law

Chinese rights attorney Xu Zhiyong is yet another activist who is being prosecuted by the Chinese government for trying to practice the law. The New York Times reports on his detention and arrest, on a bogus charge of tax evasion. The law in China is something that exists as a paper mache facade intended to give the ruling Communist Party cover to do things like host the Olympics. Yet it provides no recourse qua law and indeed the law is a reflection of the rule of the Party over any legal structure. To wit, the Times reports:

Last week, China’s justice minister gave a speech saying lawyers should above all obey the Communist Party and help foster a harmonious society. To improve discipline, the minister said, all law firms in China would be sent party liaisons to “guide their work.”

Certainly any other rights lawyers who disobey the “guidance” of CCP “liaisons” will face a similar fate as Xu, to be disappeared within their own legal system around bogus charges that serve only to further undermine the rule of law these lawyers are striving to uphold.

Sadly, I doubt the international community, from the US on down, will ever do or say anything to encourage the Chinese government to honor the rule of law. And so the Chinese government will continue to get away with the use of law as a means of suppressing dissent.

Glenn Greenwald vs. Chuck Todd

Glenn Greenwald’s interview of the Beltway Conventional Wisdom Chuck Todd is pretty extraordinary. It’s hard to imagine a more vivid illustration of two world views colliding: that of someone who believes in the rule of law and someone who thrives in the Beltway petri dish of insiderism and self-congratulatory hackery. Todd dismisses upholding the rule of law as “idealistic” and any effort to apply US law to the actions of Bush officials as something that isn’t possible, as far as I can tell, because Washington DC wasn’t constructed on the summit of Mount Everest.

Todd espouses a fundamental problem with the notion that any efforts to hold Bush officials to account through investigations and prosecutions would lead to political debates on cable TV. I don’t get this objection. What is wrong with the country hearing a debate between people who want to enforce the law and people that want to sweep lawbreaking under the rug, even if the former tend to be Democrats and the later tend to be Republicans and Beltway journalists like Chuck Todd? Would it be political because the American people would be so repulsed by the GOP desire to establish a separate system of justice for Republican political elites who controlled the country for eight years from the Bush White House, and as a result GOP electoral prospects would be hurt? Todd never really elucidates why a legal process being perceived from the outside as political is actually bad. Glenn asks him what’s wrong with there being a national, nightly debate on torture and the rule of law, but Todd seems to use the word political as a catch-all excuse that is functionally vacuous.

In the end, while Greenwald and Todd have a long conversation, I am left feeling repulsed by the attitudes Todd displays, as one of Washington’s premier political journalists, towards investigating wrongdoing perpetrated by politicians and their staff. It shouldn’t be hard for a journalist to say there should be openness and accountability in government (especially in regards to clearly illegal actions), but Todd utterly resists any of Greenwald’s arguments from having a place in reality. Apparently while Todd can intellectually grasp what should happen in an “ideal” America, he doesn’t believe the America of our ideas exists in “reality.” That one of the biggest names in the DC press has such a low opinion of America as it exists today is simply depressing. As a result, I doubt we’ll ever see Chuck Todd or his peers in the Beltway elite ever endorse the validity of meaningful investigations into the crimes of the Bush administration. This behavior almost certainly reduces the likelihood that such investigations will ever actually exist, as it’s clear the White House is inclined to take significant cues from the Beltway Conventional Wisdom machine on this issue.

You can read the transcript here or listen to the audio here.

Torture and Accountability

The investigation of Bush-era US interrogation policies that include torture shouldn’t be controversial. Nor should the investigation of the illegal surveillance of Americans. But apparently it is because someone told Scott Shane that it would impair the ability for President Obama to have a positive domestic agenda.

Torture took place in our names. Pretending that it didn’t will not improve our standing in the world. But investigating it and holding those who ordered it to account might actually make a difference. We know the evidence exists. We have to have the courage, as a government and as a people to face our actions.

Yes, there are major challenges facing us domestically. We need major healthcare reform, labor law reform, education reform, and a coherent energy policy that helps in the fight against global warming. But we are capable of multitasking. We can look forward while correcting the errors of the past. Hell, that’s the whole point of all of these domestic reform initiatives – that things were done poorly or incorrectly in the past, that we have to learn from them, and now do things better. How is the investigation of Bush-era abuses of the rule of law and rules of war any different?

Only people who wish to protect the perpetrators of these illegal actions on torture, surveillance, extraordinary rendition, and data mining will forward the canard that accountability and investigation will stymie the President’s positive domestic agenda.  It’s a bogus argument and one that has the potential to make permanent the damage the Bush administration did to America’s standing in the world.