Category: Rule of Law

Unambiguously Clear

Glenn Greenwald, per usual, has been great covering the release of the OLC torture memos and what responses should stem from them.

I think he really makes clear the point I was trying to make yesterday about the imperative for citizens to defend the rule of law in America:

Either we care about the rule of law or we don’t — and if we do, we’ll find the ways to demand its application to the politically powerful criminals who broke multiple laws over the last eight years.  Obama’s release of those torture memos yesterday makes that choice unambiguously clear and enables the right to choice to be made.

In the absence of clear political leadership to ensure that the rule of law is preserved and those who are guilty of crimes during the Bush administration are prosecuted for their actions, it’s up to the public to make up the difference. We must seek to compel elected officials to treat these violations with the seriousness they deserve and not hide behind courses of action that may be popular in the halls of Congress and with the deferential Beltway press corps.

The rights afforded to citizens in the Constitution exist as long as we demand violations of those rights be stopped and the violators held accountable. The same can be said of the rule of law in America. It exists only so long as we care to ensure it exists. The Bush administration – specifically the top lawyers of the OLC, Vice President Cheney and President Bush – acted to actively and persistently subvert our laws. The evidence has never been more clear.

I’ve yet to see activism in response to the OLC memos coalesce. But I hope it’s strong, forceful, and persistent. Every member of Congress should be a target. And people should be judged very critically for their responses when in opposition to the rule of law in America.

Next Steps on Torture

Now that the Obama administration has released what seem to be nearly full records of the OLC memos on torture, the question is what comes next. In his announcement of the release, President Obama said:

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.  …

This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past.

This is incredibly frustrating, especially at first blush. But Senator Russ Feingold notes that Obama leaves some loopholes in his statement on prosecutions.

The president has stated that it is not his administration’s intention to prosecute those who acted reasonably and relied in good faith upon legal advice from the Department of Justice.  As I understand it, his decision does not mean that anyone who engaged in activities that the Department had not approved, those who gave improper legal advice or those who authorized the program could not be prosecuted.  The details made public in these memos paint a horrifying picture and reveal how the Bush administration’s lawyers and top officials were complicit in torture.  The so-called enhanced interrogation program was a violation of our core principles as a nation and those responsible should be held accountable.

I hope that Feingold is right about Obama’s statement and the prospect of accountability for Bybee, Yoo, Bradbury, and obviously former President Bush. I do not think that the intelligence operatives who tortured our nation’s prisoners should be held accountable for the illegal orders that were given to them by the Bush administration. Instead, we must hold these lawyers and the Decider himself accountable.

Peru recently sentenced former president Fujimori to 25 years in jail for his actions as president, including the use of death squads to kill Peruvian citizens. If they can hold their executive accountable for his crimes, there is zero reason that the rule of law is not strong enough to handle the investigation, trial, and potential sentencing of anyone in the Bush administration, including the president, who is reasonable for torture. None. And frankly it’s embarassing that there is even the slightest inclination in our political ruling class to ignore criminal behavior because of political inconvenience. I hope Feingold has the courage to press forward and demand accountability.

Predictable & Infuriating

Today the New York Times reports that since the FISA Reauthorization Act passed last summer, giving the Bush administration after-the-fact authorization for its warrantless wiretapping program, the NSA has nonetheless continued to violate Americans’ civil liberties and conduct unauthorized surveillance of our phones and emails. Risen and Lichtblau use seriously alarming phrases to describe the violation of rights, saying that they were “significant and systemic” and that surveillance “went beyond the broad legal limits.”

The invasion of civil liberties is a malignant behavior. Everything we had seen prior to last year’s FISA legislation suggested that when the executive branch has given license to violate Americans’ liberties, that license is used. The increase in power, along with a decrease in oversight, was certain to lead to other abuses. And now it has.

Glenn Greenwald makes this point clearly:

These widespread eavesdropping abuses enabled by the 2008 FISA bill — a bill passed with the support of Barack Obama along with the entire top Democratic leadership in the House, including Nancy Pelosi and Steny Hoyer, and substantial numbers of Democratic Senators — aren’t a bug in that bill, but rather, were one of the central features of it.  Everyone knew that the FISA bill which Congressional Democrats passed — and which George Bush and Dick Cheney celebrated — would enable these surveillance abuses.  That was the purpose of the law:  to gut the safeguards in place since the 1978 passage of FISA, destroy the crux of the oversight regime over executive surveillance of Americans, and enable and empower unchecked government spying activities.  This was not an unintended and unforeseeable consequence of that bill.  To the contrary, it was crystal clear that by gutting FISA’s safeguards, the Democratic Congress was making these abuses inevitable.

But that these abuses were predictable is not the point. We are still, after all, talking about the behavior of the United States government towards the citizens of the United States. This is no trifling thing. It wasn’t in December of 2005 when Risen and Lichtblau first reported on the Bush administration’s warrantless wiretapping program. It was not a small thing when Chris Dodd’s efforts stalled retroactive immunity and a bad FISA bill for nearly nine months from October 2007 to July 2008. And it isn’t a small thing now. This is a fundamental question of the rule of law and the protection our Constitution and our laws afford citizens from abuses of power.

Digby writes, “The safeguards were so confusing they caused them to “inadvertently” do even more unconstitutional spying than before. Awesome.” Yes, the bad FISA bill that was passed last summer augured this behavior by removing most of the minuscule check on intelligence gathering powers within the US and of American citizens. But that the NSA found a way to violate even the remnants of FISA limitations is appalling. There must be recourse and it has to go beyond the administration’s assurances to the Times that the NSA’s actions have been stopped and corrected.

One of the only things that gives me the slightest hope that something will actually done, publicly and through legislation, by Congress is that the NSA actually illegally wiretapped a sitting US Congressman. Even feckless members of Congress should be able to be righteously indignant at the violations of civil liberties of one of their colleagues.

The NSA’s behavior is unacceptable. It’s infuriating. And it shouldn’t be accepted by anyone today any more than we accepted the Bush administration’s illegal warrantless wiretapping program.

Republican Obstructionism

Christy’s right, now is not the time for Republican obstructionism over key executive branch legal appointments. The Republican Party’s opposition to Harold Koh and Dawn Johnsen are a fine balance between pro-forma culture war flash backs and the latest manifestation of opposition to constitutional checks and balances and the rule of law. In either event, it’s political obstructionism at best and the reanimation of zombie Bush/Cheney-ism at its worst.

Koh and Johnsen should be confirmed swiftly. Republicans who obstruct should be lambasted in the public, by the public, by the press, and by Democrats.

The Alaska Comedy Brigade

The stand up comedians of the Alaska Republican Party were out in force.

AK GOP Chair Randy Ruedrich:

The Alaska Republican Party further believes that current Senator Mark Begich should resign his position to allow for a new, special election, so Alaskans may have the chance to vote for a Senator without the improper influence of the corrupt [Bush] Department of Justice.

The only reason Mark Begich won the election in November is because a few thousand Alaskans thought that Senator Ted Stevens was guilty of seven felonies. Senator Stevens has maintained his innocence and now, even the Department of Justice acknowedges [sic] it’s [sic] wrong doing.

A special election will allow Alaskans to have a real, non-biased, credible process where the most qualified person could win, without the manipulation of the Department of Justice.

“We’ll look forward to the complete story presenting itself and clearing Senator Stevens name.,” Ruedrich said.

Gov. Sarah Palin:

Gov. Palin is with Ruedrich. “I absolutely agree,” she said in a written statement through a spokeswoman.

Shorter Alaska Republicans:

Thanks to the Obama administration’s commitment to honoring the rule of law by voiding the indictment of Ted Stevens, it is only right and fair that Senator Mark Begich ignore the rule of law, void his election and resign.

The really funny thing? Even Alaska’s Republican senior Senator Lisa Murkowski disagrees with Palin and Ruedrich’s laugh-lines. She responded to these statements: “that is not an option.”

Releasing Secret Documents

As I’ve been intermittently critical of the Obama administration’s course of action on rule of law questions, I think it’s important to note that the release of secret legal documents yesterday is a huge step in the right direction and a meaningful signifier of the sort of change that is possible with Obama in the White House. Glenn Greenwald’s look at “Authority for Use of Military Force to Combat Terrorist Activities Within the U.S.” is particularly instructive of where we are today, less than two months after the conclusion of the Bush administration.

The essence of this document was to declare that George Bush had the authority (a) to deploy the U.S. military inside the U.S., (b) directed at foreign nationals and U.S. citizens alike; (c) unconstrained by any Constitutional limits, including those of the First, Fourth and Fifth Amendments.  It was nothing less than an explicit decree that, when it comes to Presidential power, the Bill of Rights was suspended, even on U.S. soil and as applied to U.S. citizens.  And it wasn’t only a decree that existed in theory; this secret proclamation that the Fourth Amendment was inapplicable to what the document calls “domestic military operations” was, among other things, the basis on which Bush ordered the NSA, an arm of the U.S. military, to turn inwards and begin spying — in secret and with no oversight — on the electronic communications (telephone calls and emails) of U.S. citizens on U.S. soil.

Clearly the task in front of the Obama administration to unwind and rollback extreme, anti-constitutional executive branch legal positions like this is great. It is up to Obama and his legal counsel to take all that was wrong and cut it out, swiftly and with no hesitation. If Obama’s team proves slow or even unwilling to do this, the onus must fall out congressional leaders to do what they failed to do over the last eight years: be an assertive check on the executive branch.

Greenwald points out the the military operations authorized were not abstract, but were actualized by NSA warrantless wiretapping of Americans on U.S. soil. Understanding the sort of legal doctrines the Bush administration used to justify these actions is a necessary, but not sufficient, step for restoring the rule of law in America. We also must know what specifically was done following the establishment of these legal positions. We must know who was spied upon, who tortured our prisoners, and who was sent abroad to be tortured. We must know how wide a net the federal government cast in their suspicions of innocent Americans. Knowing what secret laws were and are in place is a step in the right direction, but it is by no means a meaningful accounting of the assault on the Constitution under the Bush administration.

Via Greenwald, Scott Horton writes:

 We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship. The constitutional rights we learned about in high school civics were suspended. That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution. What we know now is likely the least of it. [Greenwald’s emphasis]

This is the imperative the Obama administration faces: how do we have such an accounting of the Bush “dictatorship” so as to restore the Constitution, while simultaneously instilling in the American public a degree of outrage and skepticism that will ensure that such actions are never again deemed acceptable by anyone serving in the federal government? Looking at our past is precisely what will ensure that our nation’s future is bright and defined by our freedoms and not their absence.