Category: Rule of Law

Secrecy and Executive Power

Glenn Greenwald’s description of the common liberal sentiment that “Bush’s secrecy theories and assertions of unchallengeable executive power were grave and tyrannical threats to liberty” is spot-on. But as Greenwald notes, these same assertions of power and privilege are no less grave in the Obama administration. The similarities between the Obama administration’s response to the 9th Circuit Court’s ruling in the Al-Haramain case, requiring the government to turn over classified information and the legal views espoused under the Bush-Cheney administration by the likes of John Yoo and David Addington are simply stunning.

I expect better from the Obama administration. They must be able to make decisions that honor the Constitution. President Obama must not only have, but seek out, counsel that prioritizes the rule of law over the preservation and protection of executive branch powers.

I don’t know if the Obama administration’s response to the 9th Circuit ruling is due to the advice of President Obama, Vice President Biden, AG Eric Holder, dead ender US attorneys from the Bush administration, or a combination of these people.  But to paraphrase John McCain, either President Obama or someone who values the Constitution and isn’t going to like this (Dodd, Feingold & Leahy come to mind), should get his cohort in the room and tell them to stop the bullshit. We didn’t elect President Obama to preserve the Bush administration’s anti-contistutional executive power grab. We elected him to end it.

Update:

Welcome to readers of Glenn Greenwald’s Unclaimed Territory!

Obama & the Rule of Law

I don’t know if there are any civil libertarians or scholars whose views on the rule of law I trust more than Glenn Greenwald’s. Glenn has been one of the most vocal advocates for defending the Constitution throughout the Bush administration and was a key player in bringing pressure to bear on Democrats during the FISA reauthorization fights of 2007 and 2008. That’s why I tend to take his views on how President Obama is handling rule of law questions, such as those raised by Charlie Savage in today’s New York Times, quite seriously.

I agree with Greenwald that Obama has made steps in the right direction, but has generally taken a longer view to resolving problematic powers left to him by the Bush administration. In the first few weeks of his presidency, Obama has issued some positive executive orders pertaining to the rule of law. At the same time, some of his underlings have taken positions on a number of issues that signal they want to continue Bush-era powers unabated. Glenn rightly points out that “Policies become policies when the President adopts them, not when some of his appointees advocate them.”

I would feel a whole lot better had Obama promised on the campaign trail, as Chris Dodd did,  that on the very first hour of his very first day in office, he would sign executive orders to restore the Constitution and the rule of law to America. Obama didn’t make this promise and he hasn’t acted to realize the same ends yet. I hope that he does. But as with Greenwald, we cannot rely on the fact that Obama is a Democrat and someone Democrats supported and thus infinitely better suited to hold the powers of the presidency as George W. Bush as cause to stop pressuring President Obama to restore the rule of law in America. As Glenn writes:

We don’t place faith in the Goodness and kindness of specific leaders — even Barack Obama — to secretly exercise powers for our own Good.  We rely instead on transparency and on constant compulsory limits on those powers as imposed by the Constitution, by other branches, and by law.  That’s what it means to be a nation of laws and not men.  When Obama embraces the same abusive and excessive powers that Bush embraced, it isn’t better because it’s Obama rather than Bush wielding that power.  It’s the same.  And that’s true even if one “trusts” Obama more than Bush.

A genuine reversal of the last eight years — meaning something more than just sand-papering the roughest edges — will come not from having a kinder-hearted and more magnanimous leader, but only from a restoration of the legal and Constitutional framework that makes a President’s magnanimity irrelevant, since his powers are exercised transparently and with real checks and limits.  It remains very much an open question whether that will happen.  There are some preliminary signs that it could, and some much more concrete signs that it won’t — at least not without a very concerted fight.

There really haven’t been any situations were President Obama (or president-elect Obama) asked the civil liberties base to “make him do it,” a la Franklin Delano Roosevelt.  But that doesn’t mean that progressives and people who believe in the importance of the rule of law to the American project should not push to make restoring the Constitution a top priority for Obama. Bush era policies on rendition, torture, wiretapping, state secrets, executive privilege, and habeas corpus must not live on in an Obama presidency. While we can hope that Obama will not misuse these powers as long as he possesses them, we cannot leave it to hope that he will simply do the right thing while keeping the powers for the presidency.

Standing up for the rule of law during an Obama administration is not a stand against Obama. Pointing out the need to recommit our nation to the rule of law is not an attack. And while I personally wish there had been more done on this front already – and that Obama’s appointees were expressing at minimum the same levels of commitment he made as a candidate on this array of issues – I do think, like Greenwald, that the door is still wide open for President Obama to restore the rule of law. I would just propose that Obama can go faster.

Krugman on Accountability

The Shrill One is shrill. And right.

Why, then, shouldn’t we have an official inquiry into abuses during the Bush years?

One answer you hear is that pursuing the truth would be divisive, that it would exacerbate partisanship. But if partisanship is so terrible, shouldn’t there be some penalty for the Bush administration’s politicization of every aspect of government?

Alternatively, we’re told that we don’t have to dwell on past abuses, because we won’t repeat them. But no important figure in the Bush administration, or among that administration’s political allies, has expressed remorse for breaking the law. What makes anyone think that they or their political heirs won’t do it all over again, given the chance?

…

Meanwhile, about Mr. Obama: while it’s probably in his short-term political interests to forgive and forget, next week he’s going to swear to “preserve, protect, and defend the Constitution of the United States.” That’s not a conditional oath to be honored only when it’s convenient.

And to protect and defend the Constitution, a president must do more than obey the Constitution himself; he must hold those who violate the Constitution accountable. So Mr. Obama should reconsider his apparent decision to let the previous administration get away with crime. Consequences aside, that’s not a decision he has the right to make.

Holder & FISA

One of the things I would have wanted to ask Attorney General nominee Eric Holder (were I a Senator on the Judiciary Committee) would be if he thought Title II of the FISA modernization legislation passed last July was constitutional. Jon Kyl asked him if he thought the whole bill was constitutional. Holder responded that the law, having been updated by Congress, is constitutional.

As a reminder, Title II of the modernization of FISA was retroactive immunity for telecom companies that helped the Bush administration spy on Americans without warrant.

So either Holder hasn’t read Title II as passed by Congress this summer (and is thus not speaking about it) or he believes retroactive immunity is constitutional. Neither thought is encouraging as far as the rule of law is concerned.

Update:

There’s a caveat here. Holder hasn’t been read into the wiretapping program. He  doesn’t know what happened at the least filtered level, nor does he know the legal justifications that were used to conduct it. It’s possible that he’s withholding judgment on retroactive immunity’s constitutionality until he knows those details. But I think the question of Title II’s constitutionality isn’t one of specifics, but principles. Retroactive immunity for any crime strikes against the rule of law.

Update 2:

Kate Klonick, now of the Washington Independent, has more on Holder and FISA, including an exchange with Russ Feingold in which Holder seems to make clear that the President is not allowed to violate FISA.

Feingold: Is there anything in the FISA statute that makes you believe that the president has the ability under some other inherent power to disregard the FISA statute?

Holder: No, I don’t see that in the FISA statute.

This again is going to have bearing on how the Obama Department of Justice looks on the Bush administration’s actions under FISA.

Retroactive immunity for telecoms for two reasons. First it sets a vicious blow to the rule of law in America, regardless of what it is in regards to. Second, as the Bush administration hid behind national security and executive privilege, discovery in cases against telecoms became the only reliable way to find out what happened under Bush’s warrantless wiretapping program.

If Holder is read into the full wiretapping program and if he believes Bush violated FISA, then the quote above would mean that in the current Attorney General’s opinion Bush illegally wiretapped American citizens. How Bush and his associates would be able to escape prosecution at that point would be beyond me. Or more precisely, in such a scenario the decision to pursue charges against Bush et alia would become a political question and not a legal one.

Update 3:

Here’s video of the exchange between Feingold & Holder.

Important Rule of Law News

I’m traveling for work, so posting is light, but I wanted to be sure you saw these posts from Marcy Wheeler on two cases regarding FISA and illegal wiretapping that are currently under US District Court Judge Vaughn Walker’s consideration.

Vaughn Walker Will Review the al-Haramain Document

Oops! They Pissed Off Judge Walker Before He Finalizes Immunity

The al-Haramain Dates

The short version is that it looks likely that there may now be judicial review of Bush’s illegal domestic wiretapping program, something that the Bush Administration has fought fervently for years. Moreover, because of some of the dates covered in the al-Haramain case, it’s possible for the program to broadly be considered ok, while even still finding Bush at times acted without legal authorization to use it. That is, there is at least one point in time — March 11, 2004 — when Bush lacked Attorney General approval for the domestic wiretapping program. If he did anything then — and the al-Haramain documents charge that he did — then he still violated the law. I’ll be anxiously watching for Judge Walker’s decisions in these cases.

On Dawn Johnsen

Via Glenn Greenwald, President-elect Obama’s pick to head the Office of Legal Counsel, Dawn Johnsen, sounds incredibly impressive. She wrote this last March in response to revelations about the OLC, Dick Cheney, and Maher Arar.

The question how we restore our nation’s honor takes on new urgency and promise as we approach the end of this administration. We must resist Bush administration efforts to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege, and implausible claims that openness will empower terrorists. . . .

Here is a partial answer to my own question of how should we behave, directed especially to the next president and members of his or her administration but also to all of use who will be relieved by the change: We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation’s past transgressions and reject Bush’s corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation’s honor be restored without full disclosure. (Emphasis & excerpts via Greenwald)

I agree with Greenwald when he writes on Johnsen:

I don’t know all that much about her, but anyone who can write this, in this unapologetic, euphemism-free and even impolitic tone, warning that the problem isn’t merely John Yoo but Bush himself, repeatedly demanding “outrage,” criticizing the Democratic Congress for legalizing Bush’s surveillance program, arguing that we cannot merely “move on” if we are to restore our national honor, stating the OLC’s “core job description” is to “say ‘no’ to the President,” all while emphasizing that the danger is unchecked power not just for the Bush administration but “for years and administrations to come” — and to do so in the middle of an election year when she knows she has a good chance to be appointed to a high-level position if the Democratic candidate won and yet nonetheless eschewed standard, obfuscating Beltway politesse about these matters — is someone whose appointment to such an important post is almost certainly a positive sign. (Emphasis in the original)

Hopefully Johnsen will keep her words of March 18, 2008 in mind as she services President Obama at the OLC and her beliefs of that time become grounding for how the Obama administration handles questions of Bush administrations violations of law and the rule of law and what accountability measures are taken over the next four years. Public accountability and investigation into what the Bush administration did and on what legal grounds they did it is an unquestioned necessity to allow our country to move forward. We can’t just forget the last eight years, especially vis a vis the rule of law and illegal actions by the Bush administration. The stakes are too great to forget.

Interrogation Op-Ed

Matthew Alexander, a former Air Force interrogator who worked in Afghanistan and Iraq questioning Al Qaeda suspects, has a powerful op-ed in the LA Times. Alexander makes a convincing argument that torture does not work and must be ended. Alexander writes:

Good interrogation is not an exercise in domination or control. It’s an opportunity for negotiation and compromise. It’s a common ground where the two sides in this war meet, and it’s a grand stage where words become giants, tears flow like rivers and emotions rage like wildfires. It is a forum in which we should always display America’s strengths — cultural understanding, tolerance, compassion and intellect. But that’s not how all interrogators see their role.

According to a recent report from the bipartisan Senate Armed Services Committee, “The abuse of detainees in U.S. custody cannot be attributed to the actions of a ‘few bad apples’ acting on their own.” The effects of the policy that allowed torture to happen at Guantanamo Bay, the report concluded, spread to Iraq through the interrogators who had first been at Guantanamo. The preference for harsh interrogation techniques was extremely counterproductive and harmed our ability to obtain cooperation from Al Qaeda detainees. Even after the old guard interrogators were forced to play by the rules of the Geneva Convention, there was still plenty of leeway for interrogation methods based on fear and control. I believe their continued reliance on such techniques has severely hampered our ability to stop terrorist attacks against U.S. forces and Iraqi civilians.

We will win this war by being smarter, not harsher. For those who would accuse me of being too nice to our enemies, I encourage you to examine our success in hunting down Zarqawi and his network. The drop in suicide bombings in Iraq at two points in the spring and summer of 2006 was a direct result of our smarter interrogation methods.

I used to tell my team in Iraq: “The things that make you a good American are the things that will make you a good interrogator.” We must outlaw torture across every agency of our government, restore our adherence to the American principles passed down to us and, in doing so, better protect Americans from future terrorist attacks.

We are safer when we use intelligent questioning and trust building forms of interrogation. Those work. Torture doesn’t.

Torture

The New York Times editorial board gets shrill:

We can understand that Americans may be eager to put these dark chapters behind them, but it would be irresponsible for the nation and a new administration to ignore what has happened — and may still be happening in secret C.I.A. prisons that are not covered by the military’s current ban on activities like waterboarding.

A prosecutor should be appointed to consider criminal charges against top officials at the Pentagon and others involved in planning the abuse.

I hope that the editors of the Times keep these words in mind as the Obama administration starts. If Obama and AG Eric Holder decide to pursue investigation and prosecution into Rumsfeld, Gonzales, Haynes, Addington, Cheney, and Bush, the Times must remember that they were in favor of it at a time not long ago. And if the Obama administration ends up not having the courage and patriotism to investigate how Bush administration officials strayed so far from the law and the rule of law to do such great damage to our nation, our security, and our reputation abroad, then I hope the Times ed board calls them out for that failure.

You can’t just move past torture policies that originated under the direction of the White House. We cannot let this rotting cut into the American character continue to fester under the bandage of willed ignorance.