A Little Torture
“There is no such thing as a little torture.” — Alfred M. McCoy, author of A Question of Torture
The Bush administration is really an impressive force of nature. Whenever I was absolutely certain that their dastardly deeds couldn’t possibly get any more nefarious, Dick Cheney shot a family friend in the face, or George W. Bush ordered the U.S. military to invade another country. When they finally left office, I assumed they couldn’t harm America’s reputation ever again.
I was wrong. The Justice Department finally made the infamous memos that sanctioned torture public this week. The details are horrific. Not only are barbaric measures like “walling” (slamming a person into a wall,) and stress positions deemed acceptable by legal experts, but also more inventive interrogation methods like placing live bugs in a confinement box (and telling the prisoner they’ll sting him).
Politicians repeatedly regurgitate the fairy tale that America is a Nation of Laws. Except, the laws get broken all the time, and the archetypes of anarchy usually aren’t held accountable. Barack Obama has sought to reassure CIA operates, who participated in torture, that they can use the same defense Nazis could not use during Nuremberg. Namely, that they were just “following orders.”
This doesn’t bode well for justice enthusiasts, who hoped that maybe (just maybe) the Big Guys would be help accountable this time. That maybe John Yoo, Douglas Feith, Jay Bybee, Dick Cheney, David Addington, George W. Bush, Donald Rumsfeld, and William Haynes would have to stand before the American people and explain why they thought sanctioning torture was acceptable.
That maybe they would finally have to explain why a little torture was okay.
We are a nation of laws only if the people in charge get to benefit from the rulings. We are a nation of laws only up until Lynndie England, but justice stops short of Donald Rumsfeld. We are a nation of laws for thieves and crooks, but justice can’t touch Goldman Sachs CEOs. The hypocrisy is rampant. It infests every facet of the justice system, and has left us with a broken two-tier system of justice.
The debate over torture is frequently aimed at Guantanamo. However, the problem is also domestic, although the victims are still the unprivileged. While the United States is home to just five percent of the world’s population, it contains 25% of the world’s prisoners. More than one in 100 adults are in prison. Most of those prisoners aren’t homicidal sociopaths. They’re nonviolent drug offenders. America is the only western industrialized country to still use the death penalty, but apparently injecting someone will a chemical that paralyzes their organs doesn’t constitute torture, even though the Nazis used the same method. Those that live inside our prison-industrial complex experience a form of torture every day. Prisoners face the threat of rape and are more likely to contract H.I.V., hepatitis and tuberculosis.
This kind of domestic torture is frequently overlooked because it’s the “right people” suffering. Bad guys. Bottom-tier justice types: poor people, immigrants, people of color. And after all, it’s only a little torture. Terrorists and criminals deserve whatever happens to them. Waterboarding doesn’t even count as torture! It’s just a light spritz in the face! (Of course, even Bush’s own legal team knew it was torture and expressed their concern in footnote form.)
This cartoonish, simplified scope of reality would be laughable had it not been the ideologies held by the Bush administration for eight years. Innocent people are accused of crimes all the time. That’s why our smart ancestors put in place that whole “justice system” in the first place. Ya’ know, that thing about being able to face one’s accusers and present evidence to defend one’s self.
If justice is to come to Guantanamo (and it should,) it must also come to the United State’s domestic prisons where draconian drug laws continue case overcrowding and strain stark resources, which then breeds inhumane conditions. If justice is to come to torture victims, it must mean than the archetypes of the torture memos will stand beside the CIA agents that carried out the orders.
The American two-tier justice system must end, and a good start would be for the Obama administration to recognize that a little torture is never okay, no matter who is doing it.
The Culture Warriors Get Laid Off
SOMEDAY we’ll learn the whole story of why George W. Bush brushed off that intelligence briefing of Aug. 6, 2001, “Bin Laden Determined to Strike in U.S.” But surely a big distraction was the major speech he was readying for delivery on Aug. 9, his first prime-time address to the nation. The subject — which Bush hyped as “one of the most profound of our time” — was stem cells. For a presidency in thrall to a thriving religious right (and a presidency incapable of multi-tasking), nothing, not even terrorism, could be more urgent.
When Barack Obama ended the Bush stem-cell policy last week, there were no such overheated theatrics. No oversold prime-time address. No hysteria from politicians, the news media or the public. The family-values dinosaurs that once stalked the earth — Falwell,Robertson, Dobson and Reed — are now either dead, retired or disgraced. Their less-famous successors pumped out their pro forma e-mail blasts, but to little avail. The Republican National Committee said nothing whatsoever about Obama’s reversal of Bush stem-cell policy. That’s quite a contrast to 2006, when the party’s wild and crazy (and perhaps transitory) new chairman, Michael Steele, likened embryonic stem-cell research to Nazi medical experiments during his failed Senate campaign.
What has happened between 2001 and 2009 to so radically change the cultural climate? Here, at last, is one piece of good news in our global economic meltdown: Americans have less and less patience for the intrusive and divisive moral scolds who thrived in the bubbles of the Clinton and Bush years. Culture wars are a luxury the country — the G.O.P. included — can no longer afford.
Not only was Obama’s stem-cell decree an anticlimactic blip in the news, but so was his earlier reversal of Bush restrictions on the use of federal money by organizations offering abortions overseas. When the administration tardily ends “don’t ask, don’t tell,” you can bet that this action, too, will be greeted by more yawns than howls.
Once again, both the president and the country are following New Deal-era precedent. In the 1920s boom, the reigning moral crusade was Prohibition, and it packed so much political muscle that F.D.R. didn’t oppose it. The Anti-Saloon League was the Moral Majority of its day, the vanguard of a powerful fundamentalist movement that pushed anti-evolution legislation as vehemently as it did its war on booze. (The Scopes “monkey trial” was in 1925.) But the political standing of this crowd crashed along with the stock market. Roosevelt shrewdly came down on the side of “the wets” in his presidential campaign, leaving Hoover to drown with “the dries.”
Much as Obama repealed the Bush restrictions on abortion and stem-cell research shortly after pushing through his stimulus package, so F.D.R. jump-started the repeal of Prohibition by asking Congress to legalize beer and wine just days after his March 1933 inauguration and declaration of a bank holiday. As Michael A. Lerner writes in his fascinating 2007 book “Dry Manhattan,” Roosevelt’s stance reassured many Americans that they would have a president “who not only cared about their economic well-being” but who also understood their desire to be liberated from “the intrusion of the state into their private lives.” Having lost plenty in the Depression, the public did not want to surrender any more freedoms to the noisy minority that had shut down the nation’s saloons.
In our own hard times, the former moral “majority” has been downsized to more of a minority than ever. Polling shows that nearly 60 percent of Americans agree with ending Bush restrictions on stem-cell research (a Washington Post/ABC News survey in January); that 55 percent endorse either gay civil unions or same-sex marriage (Newsweek, December 2008); and that 75 percent believe openly gay Americans should serve in the military (Post/ABC, July 2008). Even the old indecency wars have subsided. When a federal court last year struck down the F.C.C. fine against CBS for Janet Jackson’s “wardrobe malfunction” at the 2004 Super Bowl, few Americans either noticed or cared about the latest twist in what had once been a national cause célèbre.
It’s not hard to see why Eric Cantor, the conservative House firebrand who is vehemently opposed to stem-cell research, was disinclined to linger on the subject when asked about it on CNN last Sunday. He instead accused the White House of acting on stem cells as a ploy to distract from the economy. “Let’s take care of business first,” he said. “People are out of jobs.” (On this, he’s joining us late, but better late than never.)
Even were the public still in the mood for fiery invective about family values, the G.O.P. has long since lost any authority to lead the charge. The current Democratic president and his family are exemplars of precisely the Eisenhower-era squareness — albeit refurbished by feminism — that the Republicans often preached but rarely practiced. Obama actually walks the walk. As the former Bush speechwriter David Frum recently wrote, the new president is an “apparently devoted husband and father” whose worst vice is “an occasional cigarette.”
Frum was contrasting Obama to his own party’s star attraction, Rush Limbaugh, whose “history of drug dependency” and “tangled marital history” make him “a walking stereotype of self-indulgence.” Indeed, the two top candidates for leader of the post-Bush G.O.P, Rush and Newt, have six marriages between them. The party that once declared war on unmarried welfare moms, homosexual “recruiters” and Bill Clinton’s private life has been rebranded by Mark Foley, Larry Craig, David Vitter and the irrepressible Palins. Even before the economy tanked, Americans had more faith in medical researchers using discarded embryos to battle Parkinson’s and Alzheimer’s than in Washington politicians making ad hoc medical decisions for Terri Schiavo.
What’s been revealing about watching conservatives debate their fate since their Election Day Waterloo is how, the occasional Frum excepted, so many of them don’t want to confront the obsolescence of culture wars as a political crutch. They’d rather, like Cantor, just change the subject — much as they avoid talking about Bush and avoid reckoning with the doomed demographics of the G.O.P.’s old white male base. To recognize all these failings would be to confront why a once-national party can now be tucked into the Bible Belt.
The religious right is even more in denial than the Republicans. When Obama nominated Kathleen Sebelius, the Roman Catholic Kansas governor who supports abortion rights, as his secretary of health and human services, Tony Perkins, the leader of the Family Research Council, became nearly as apoplectic as the other Tony Perkins playing Norman Bates. “If Republicans won’t take a stand now, when will they?” the godly Perkins thundered online. But Congressional Republicans ignored him, sending out (at most) tepid press releases of complaint, much as they did in response to Obama’s stem-cell order. The two antiabortion Kansas Republicans in the Senate, Sam Brownback and Pat Roberts, both endorsed Sebelius.
Perkins is now praying that economic failure will be a stimulus for his family-values business. “As the economy goes downward,” he has theorized, “I think people are going to be driven to religion.” Wrong again. The latest American Religious Identification Survey, published last week, found that most faiths have lost ground since 1990 and that the fastest-growing religious choice is “None,” up from 8 percent to 15 percent (which makes it larger than all denominations except Roman Catholics and Baptists). Another highly regarded poll, the General Social Survey, had an even more startling finding in its preliminary 2008 data released this month: Twice as many Americans have a “great deal” of confidence in the scientific community as do in organized religion. How the almighty has fallen: organized religion is in a dead heat with banks and financial institutions on the confidence scale.
This, too, is a replay of the Great Depression. “One might have expected that in such a crisis great numbers of these people would have turned to the consolations of and inspirations of religion,” wrote Frederick Lewis Allen in “Since Yesterday,” his history of the 1930s published in 1940. But that did not happen: “The long slow retreat of the churches into less and less significance in the life of the country, and even in the lives of the majority of their members, continued almost unabated.”
The new American faith, Allen wrote, was the “secular religion of social consciousness.” It took the form of campaigns for economic and social justice — as exemplified by the New Deal and those movements that challenged it from both the left and the right. It’s too early in our crisis and too early in the new administration to know whether this decade will so closely replicate the 1930s, but so far Obama has far more moral authority than any religious leader in America with the possible exception of his sometime ally, the Rev. Rick Warren.
History is cyclical, and it would be foolhardy to assume that the culture wars will never return. But after the humiliations of the Scopes trial and the repeal of Prohibition, it did take a good four decades for the religious right to begin its comeback in the 1970s. In our tough times, when any happy news can be counted as a miracle, a 40-year exodus for these ayatollahs can pass for an answer to America’s prayers.
VIDEO: Evil in List Form
Note from Allison: Man, I always forget how evil Karl Rove is until I see his nefarious accomplishments laid out in list form. Then, I revert back to amazement that this little cave troll has (thus far) avoided prison.
Last night on Fox News’ The O’Reilly Factor, former Bush adviser Karl Rove brazenly claimed that he never used his White House position to threaten anyone.
Host Bill O’Reilly caught Rove off-guard with this question: “Now in the Bush White House, did you guys ever threaten anybody who disagreed with you?” Rove hesitated, sputtered, and responded, “Not that — not that — you know — not that I recall.” O’Reilly pressed the point:
O’REILLY: So you never threatened?
ROVE: No.
The smirk on Rove’s face suggested that even he had a hard time believing his own answer. Watch it here.
Rove — the political architect of dirty tricks — clearly did use his position in the White House to engage in vindictive political attacks against his perceived enemies:
– Punished Iraq war whistleblower Joe Wilson by outing his wife Valerie Plame, who was an undercover intelligence agent
– Drove a politically-charged prosecution of former Democratic Alabama Gov. Don Siegelman
– Orchestrated the political firings of U.S. attorneys
– Threatened the late Michael Connell and demanded he “take the fall” for election fraud in Ohio
– Pressured the Texas Secretary of State to fire an attorney in his office for making comments that reflected poorly on him
All this does not even include Rove’s alleged role in the Swift Boat smears against John Kerry, the whisper campaign against Ann Richards that questioned her sexuality, and the attacks on John McCain’s mental health in South Carolina in 2000.
In 2007, Rove also issued this public threat against House GOP congressmen who dared to criticize Bush on Iraq. “Nobody can risk looking disrespectful to the president without paying a price, and they need to understand that,” he said.
Bush Administration Memos Claimed Vast War Powers
The secret legal opinions issued by Bush administration lawyers after the Sept. 11, 2001, attacks included assertions that the president could use the nation’s military within the United States to combat people deemed as terrorists and to conduct raids without obtaining a search warrant.
That opinion was among nine that were disclosed publicly for the first time Monday by the Justice Department, in what the Obama administration portrayed as a step toward greater transparency. The opinions showed a broad interpretation of presidential authority, asserting as well that the president could unilaterally abrogate foreign treaties, deal with detainees suspected of terrorism while rejecting input from Congress and conduct a warrantless eavesdropping program.
Some of the legal positions had previously become known from statements made by Bush administration officials in response to court challenges and congressional inquiries. But the opinions provided the clearest illustration to date of the broad definition of presidential power that was approved by government lawyers, including John Yoo and Jay Bybee, in the months following the Sept. 11 attacks.
In a memorandum dated Jan. 15, 2009, just before President George W. Bush left office, a top Justice Department official wrote that the earlier memorandums had not been relied on since 2003. But the official, Stephen Bradbury, who headed the Office of Legal Counsel, said it was important to acknowledge in writing “the doubtful nature of these propositions,” and he used the memo to formally repudiate the opinions.
Bradbury said that the earlier memorandums were the product of lawyers confronting “novel and complex questions in a time of great danger and under extraordinary time pressure.”
The opinion authorizing the military to operate on domestic territory was dated Oct. 23, 2001, and written by Yoo, at the time a deputy assistant attorney general, and Robert Delahunty, a special counsel. It was directed to Alberto Gonzales, then the White House counsel, who had asked whether Bush could use the military to combat terrorist activities inside the United States.
“The law has recognized that force (including deadly force) may be legitimately used in self-defense,” Yoo and Delahunty wrote to Gonzales. Any objections based on the prohibition against unreasonable searches in the Fourth Amendment to the Constitution would vanish, he said, because any privacy offense that comes with such a search would be less than any injury from deadly force.
Yoo and Delahunty also said in the Oct. 23 memorandum that “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” They added that the “current campaign against terrorism may require even broader exercises of federal power domestically.”
Yoo said the Posse Comitatus Act, a statute first enacted in 1878 and since renewed, would also not present an obstacle to the use of the armed forces. The Posse Comitatus Act generally forbids the use of military forces in domestic law enforcement.
Yoo and Delahunty asserted that the act’s prohibition against use of the military was only for law enforcement functions and that using soldiers against terrorist suspects would be a national security function.
Yoo, a law professor at the University of California, Berkeley, is widely known as the principal author of a 2002 memorandum that critics said authorized torture. The memorandum, signed by Bybee, was repudiated in 2004.
The memorandum issued by Bradbury in January appears to have been the Bush lawyers’ last effort to reconcile their views with the wide-scale rejection by legal scholars and some Supreme Court opinions of the sweeping assertions of presidential authority made earlier by the Justice Department.
Walter Dellinger, a former head of the Office of Legal Counsel during the Clinton administration who was also a law professor at Duke University, said that Bradbury’s memo “disclaiming the opinions of earlier Bush lawyers sets out in blunt detail how irresponsible those earlier opinions were.” He said it was important that it was now widely recognized that the earlier assertions “that Congress had absolutely no role in these national security issues was contrary to constitutional text, historical practice and judicial precedent.”
Attorney General Eric Holder Jr. said Monday morning before the release of the documents: “Too often over the past decade, the fight against terrorism has been viewed as a zero-sum battle with our civil liberties. Not only is that thought misguided, I fear that in actuality it does more harm than good.”
Holder said that the memorandums were being released in light of the legitimate and substantial public interest.
One of the opinions, issued in March 2002, suggests that Congress lacks any power to limit a president’s authority to transfer detainees to other countries. Other memorandums say that Congress has no authority to intervene in the president’s determination of the treatment of detainees, a proposition that has since been invalidated by the Supreme Court.
Bradbury’s memo repudiating these views said that it was “not sustainable” to argue that the president’s power as commander in chief “precludes Congress from enacting any legislation concerning the detention, interrogation, prosecution and transfer of enemy combatants.”
Keeping the Faith, Ignoring the History
NEARLY everyone now takes for granted the wisdom, constitutionality and inevitability of some form of federal financing for community social services run by religious groups. Who anymore can imagine that the United States managed to exist for over 200 years without the government providing any direct aid to faith and its works?
It is truly dismaying that amid all the discussion about President Obama’s version of faith-based community initiatives, there has been such a widespread reluctance to question the basic assumption that government can spend money on religiously based enterprises without violating the First Amendment. The debate has instead focused on whether proselytizing or religious hiring discrimination should be permitted when church groups take public money. This shows how easy it is to institutionalize a bad idea based on unexamined assumptions about service to a greater good.
In 1996, President Bill Clinton started down the slippery slope toward a constitutionally questionable form of faith-based aid when he signed a welfare reform bill that included a “charitable choice” provision allowing religious groups to compete for grants. Under President George W. Bush, a separate White House Office of Faith-Based and Community Initiatives was established — a significant expansion of “charitable choice.” Mr. Bush, who instituted his faith-based program through executive orders rather than trying to get a bill establishing the office through Congress, quickly put the money to political use.
The administration provided large grants for projects favored by the Christian right, like Charles Colson’s Prison Fellowship Ministries and Teen Challenge, a drug rehabilitation program that openly pushed religious conversion (even using the phrase “completed Jews” to describe teenage converts from Judaism) as a way of overcoming addiction. John J. DiIulio Jr., the first director of Mr. Bush’s faith-based office, resigned after only eight months and later complained about the politicization of the program.
Throughout Mr. Bush’s second term, the Democratic Party’s “religious left” maintained that the party needed to shed its secular image to attract more religious voters. As far as these Democrats were concerned, the only problem with faith-based programs was that most of the money was going to religious and political conservatives.
Enter Barack Obama, who spoke the language of both faith and secularism — and who promised during the campaign to expand faith-based aid while, at the same time, prohibiting proselytizing and religious hiring discrimination in federally financed programs. Yet earlier this month when the president announced his new faith-based team, headed by a Pentecostal minister, Josh DuBois, Mr. Obama left the Bush orders in place and Mr. DuBois later announced that hiring practices would be vetted by the Justice Department “case by case.”
Some have tried to justify direct, White House-administered faith-based aid by pointing to long-established practices allowing programs like Medicare and Medicaid to pay for services provided to patients in religiously affiliated hospitals. But for these hospitals, nondiscrimination in both hiring and patient admissions was always a condition of eligibility for any federal money.
It is also worth noting that Mr. Obama’s compromise has drawn criticism not only from secularists and civil libertarians but from religious conservatives like R. Albert Mohler Jr., president of the Southern Baptist Theological Seminary, who maintains that the unlimited right to proselytize and to hire members of their own faith is essential if churches are not to compromise their mission. As a thoroughgoing secularist, I consider Mr. Mohler much clearer-minded than Democratic faith-based advocates, who wish to believe that devout proselytizers are somehow going to stifle themselves while providing “secular” social services.
The fact is that many people served by these projects — including children with absent fathers, addicts and prisoners — form a captive audience. It cannot be easy to say no to a proselytizer if saying yes means a warm bed in a homeless shelter, extra help for a child or more privileges while serving jail time. Embrace Jesus as your savior and, who knows, you may get early parole.
Furthermore, as Mr. Mohler points out, there is also a peril to religious independence from government in these programs. What government gives, government can take away. What happens if hard-pressed African-American churches serving poor communities — where enthusiasm for faith-based initiatives has always been high and has only intensified during the current economic crisis — come to rely on government money and the rug is pulled out from under them by a future administration?
Those who argue in favor of more religious involvement in government, and vice versa, always claim that the First Amendment does not mandate separation of church and state but simply prohibits state preference for any church. But even by that religion-infused standard, faith-based aid cannot help but favor some religions over others. For instance, nearly all non-Orthodox Jewish groups and liberal ecumenical religious organizations are opposed to government subsidy. How can it not violate the First Amendment to set up a program that even by default favors those groups eager to jump on the federal gravy train?
The other canker at the heart of faith-based initiatives is the assumption that religiously based programs work better than secular and government efforts. For the faithful, though, the efficacy of these programs is an article of faith, not a conclusion supported by objective evidence.
Back in 2003, there was a flurry of excitement surrounding a study that at first glance seemed to suggest that participants in Mr. Colson’s prison programs in Texas had been rearrested at much lower rates than other released prisoners. There was just one problem: the study excluded everyone who quit the program in prison — two-thirds of the starting group. It is as if the Department of Education were to measure the success of public schools by not counting dropouts. This ought to give pause to Mr. Obama, who has spoken so often about restoring evidence and science to public policy-making.
President Obama might also take a moment to reread the religious freedom act passed by the Virginia General Assembly in 1786, with strong support from both Baptists and freethinkers. That law, which prohibited tax support for religious teaching in public schools, became the template for the establishment clause of the First Amendment and also helped establish our American tradition of government freedom from religious interference and religious freedom from government interference.
Yet we are moving blindly ahead with faith-based federal spending as if it were not a radical break with our past. If faith-based initiatives, first institutionalized by the executive fiat of a conservative Republican president, become even more entrenched under a liberal Democratic administration, there will be no going back. In place of the First Amendment, we will have a sacred cash cow.
VIDEO: Obama and His Economic Plan are Confused
Note from Allison: This is Joseph Stiglitz. He’s the most cited economist in the world, a Nobel Laureate, and the guy who first price-tagged the Iraq war at $3 trillion. As you’ve probably already gathered, he’s a genius. Also, he’s smart, which is different than genius because it means he possesses the gift of “breakin’ it down,” and speaking simply so we mortals can understand him.
He very clearly explains why Obama has devised a plan to help the banks, and not the bankers, and he also details what we need to do in order to change our financial system. Well worth the watching.
Watch the videos here.
Obama’s Efforts to Block a Judicial Ruling on Bush’s Illegal Eavesdropping
(updated below)
The Obama DOJ’s embrace of Bush’s state secrets privilege in the Jeppesen(torture/rendition) case generated substantial outrage, and rightly so. But it’s now safe to say that far worse is the Obama DOJ’s conduct in the Al-Haramaincase — the only remaining case against the Government with any real chance of resulting in a judicial ruling on the legality of Bush’s NSA warrantless eavesdropping program. Here’s the first paragraph from the Wired report on Friday’s appellate ruling, which refused the Obama DOJ’s request to block a federal court from considering key evidence when deciding whether Bush broke the law in how he spied on Americans:
A federal appeals court dealt a blow to the Obama administration Friday when it refused to block a judge from admitting top secret evidence in a lawsuit weighing whether a U.S. president may bypass Congress, as President George W. Bush did, and establish a program of eavesdropping on Americans without warrants.
And here are the two paragraphs from the AP report:
The Obama administration has lost its argument that a potential threat to national security should stop a lawsuit challenging the government’s warrantless wiretapping program. . . .
The Obama administration, like the Bush administration before it, claimed national security would be compromised if a lawsuit brought by the Oregon chapter of the charity, Al-Haramain Islamic Foundation, was allowed to proceed.
Let’s just pause for a moment to consider how remarkable those statements are. One of the worst abuses of the Bush administration was its endless reliance on vast claims of secrecy to ensure that no court could ever rule on the legality of the President’s actions. They would insist that “secrecy” prevented a judicial ruling even when the President’s actions were (a) already publicly disclosed in detail and (b) were blatantly criminal — as is the case with the NSA warrantless eavesdropping program, which The New York Times described on its front page more than three years ago and which a federal statute explicitly criminalized. Secrecy claims of that sort — to block judicial review of the President’s conduct, i.e., to immunize the President from the rule of law — provoked endless howls of outrage from Bush critics.
Yet now, the Obama administration is doing exactly the same thing. Hence, it is accurately deemed “a blow to the Obama administration” that a court might rule on whether George Bush broke the law when eavesdropping on Americans without warrants. Why is the Obama administration so vested in preventing that from happening, and — worse still — in ensuring that Presidents continue to have the power to invoke extremely broad secrecy claims in order to block courts from ruling on allegations that a President has violated the law?
Obama defenders take note: this is not a case where the Obama DOJ claims more time is needed to decide what to do, nor is it even a case where the Obama DOJ merely passively adopted the Bush DOJ’s already filed arguments. Here, they have done much, much more than that. Obama lawyers have been running around for weeks attempting one desperate, extreme measure after the next to prevent this case from proceeding — emergency appeals, requests for stays, and every time they lose, threats of still further appeals, this time to the U.S. Supreme Court.
During the controversy in the Jeppesen/rendition case, there were actually “defend-Obama-at-all-costs” advocates in the comment section offering the painfully ludicrous excuse that Obama only embraced Bush’s State Secrets theory because Obama secretly hoped and expected to lose the case and thus create good judicial precedent. But in the Al-Haramin case, the Obama DOJ has now lost — twice — in their attempts to invoke secrecy to stop this case from proceeding, but they just keep searching for a court to accept their claims:
Yet government lawyers signaled they would continue fighting to keep the information secret, setting up a new showdown between the courts and the White House over national security. . . .
[H]ours after the appeals court made its decision, government lawyers filed new papers insisting they still did not have to turn over any sensitive information.
”The government respectfully requests that the court refrain from further actions to provide plaintiffs with access to classified information,” said the filing, suggesting the Obama administration may appeal the matter again to keep the information secret and block the case from going forward.
Manifestly, the Obama DOJ has one goal and one goal only here: to prevent any judicial ruling as to whether the Bush NSA warrantless eavesdropping program was illegal. And they’re engaging in extraordinary efforts to ensure that occurs.
To explain why this behavior is so pernicious, so lawless and so dangerous, I’m going to turn the floor over to a long-time, eloquent critic of Bush’s secrecy theories — who just so happens also to be Obama’s soon-to-be-confirmedappointee for Chief of the Office of Legal Counsel, Dawn Johnsen. In March of 2008 — less than a year ago — this is what she said about the Bush administration’s efforts to conceal its FISA-violating eavesdropping activities:
NYT? What’s Bush’s Excuse for Keeping Law Violations Secret?
But I think we do have to name the even more fundamental question: whether the Bush administration itself acted responsibly in keeping secret that same story. What was its legitimate justification in the first place for misleading the NYT into keeping that information secret for more than a year?
I’m afraid we are growing immune to just how outrageous and destructive it is, in a democracy, for the President to violate federal statutes in secret.Remember that much of what we know about the Bush administration’s violations of statutes (and yes, I realize they claim not to be violating statutes) came first only because of leaks and news coverage. Incredibly, we still don’t know the full extent of our government’s illegal surveillanceor illegal interrogations (and who knows what else) — despite Congress’s failed efforts to get to the bottom of it. Congress instead resorted to enacting new legislation on both issues largely in the dark.
Yet here we have the Obama DOJ doing exactly this — not merely trying desperately to keep the Bush administration’s spying activities secret, and not merely devoting itself with full force to preventing disclosure of relevant documents concerning this illegal program, but far worse, doing everything in its power even to prevent any judicial adjudication as to whether the Bush administration broke the law by spying on Americans without warrants. As Obama’s hand-picked OLC chief put it: “I’m afraid we are growing immune to just how outrageous and destructive it is, in a democracy, for the President to violate federal statutes in secret.”
The details of this case (which I’ve recounted in full here) highlight even further how indefensible is the Obama DOJ’s conduct. The Bush administration succeeded in blocking all other judicial challenges to its illegal NSA eavesdropping with the Kafkaesque argument that because (a) nobody knows on whom the Bush administration spied without warrants (precisely because eavesdropping without warrants ensures that the targets are concealed from everyone, including even a court) and (b) that information cannot be disclosed to anyone (including courts) because it’s a “State Secret,” no individual party has “standing” to sue because nobody can prove that they were actually subjected to the illegal eavesdropping (because it was done in the dark).
But this case, from the start, was different. As part of a criminal investigation against the Al-Haramain Islamic Foundation, an Oregon-based charity, the Bush DOJ accidentally turned over to the charity’s lawyers a documentshowing that the Bush NSA eavesdropped without warrants on conversations between the charity and its two lawyers, both U.S. citizens. The charity and its lawyers then sued the Bush administration for illegally eavesdropping on their communications. That document is what distinguished this case from all other NSA cases, because it enables the plaintiffs (the charity and its lawyers) to prove that they were subjected to Bush’s illegal spying program and they therefore have standing to sue.
It is that document — which has been described publicly and which the plaintiffs’ lawyers have already seen — which the Obama DOJ is now desperately attempting to block the court from considering on the grounds that allowing the case to proceed will — somehow — harm America’s national security. Everyone knows the Bush administration spied on Americans without warrants and in violation of the law. Everyone knows that this document reflects that these plaintiffs were among those who were illegally spied on.
Still, there’s the Obama administration — just like the Bush administration — claiming that we’ll all be slaughtered if a court rules on whether the President broke the law. And, as Marcy Wheeler astutely notes, the lawbreaking here is particularly egregious (and certainly criminal) since some of the warrantless eavesdropping here appears to have occurred in March, 2004 — during the exact period when even the Bush DOJ expressly concluded that the NSA program was so illegal that it refused to certify its legality and top DOJ officials (including John Ashcroft) threatened to resign in protest of its continuation (here’s more from Marcy on some key details in this case, andfrom EFF as well).
Our nation’s most transparent administration in history won’t bother to explainwhy they’re doing any of this: “A Justice Department spokesman declined to comment.” We’ll probably have to wait for one of them to gather up enough courage to anonymously whisper their alleged reasons into Marc Ambinder’s faithful ear. In the meantime, while we wait for that, what is clear is that the Obama DOJ has undertaken exactly the same mission as the Bush DOJ for years so successfully carried out: namely, ensuring that Presidents remain above the law by invoking patently absurd claims of secrecy to argue that our National Security cannot withstand judicial rulings on whether the President’s actions were, in fact, illegal.
* * * * *
On a related note: last week, I interviewed the ACLU’s Jonathan Hafetz about the Obama administration’s March 23 deadline to file a Supreme Court brief in the Al-Marri case, brought by the last person still being held on U.S. soil as an “enemy combatant.” In 2003, Al-Marri (Hafetz’s client), who was in the U.S. legally on a student visa, was about to be tried on various criminal charges when, at the last minute, Bush declared him an “enemy combatant” and ordered him transferred to a military brig, where he has remained ever since with no charges and no trial. In his case, the Fourth Circuit’s Court of Appeals last year largely upheld the power of the President to imprison legal residents (and even U.S. citizens) on U.S. soil in military prison with no criminal charges, and the U.S. Supreme Court had agreed to review that decision.
This week, the Obama DOJ filed criminal charges against Al-Marri, so he will now be transferred back to the civilian court system and have what the U.S. Constitution clearly mandates: a full trial and due process. For Al-Marri, that is a positive step: now, he’ll only remain in prison if he’s convicted of a crime in a real court and (presumably) will be freed if he’s acquitted. That’s how our system is supposed to work.
But whether this is a positive step in a general sense is a different question. In the Jose Padilla case, the Bush administration kept a U.S. citizen in a cage for many years without charges of any kind, and then suddenly filed criminal charges against him right as the Supreme Court was set to rule on the constitutionality of imprisoning U.S. citizens as “enemy combatants” with no trial. Once they finally indicted Padilla, the Bush administration ran and argued that the indictment rendered the questions before the Court moot. The Supreme Court, in essence, agreed and refused to hear the appeal, thus leaving in place the Fourth Circuit’s affirmation that the President has this power.
If that is what the Obama DOJ does here — namely, if it succeeds in its efforts to convince the Supreme Court not to rule on this critical matter because, yet again, the individual who has been encaged for years without charges was, at the last minute, transferred to a civilian court (thus leaving standing the Fourth Circuit’s horrendous ruling) — that will be destructive for all the reasons that Bush critics cited when the same thing was done in the Padilla case.
The Obama DOJ deserves some limited credit for indicting Al-Marri and thus refusing to continue to imprison him with no charges. It’s certainly not Obama’s fault that Al-Marri was imprisoned for years with no charges, and the only fair option was to do what they did: give him a real trial. But if this indictment results in the preservation of the President’s power in the future to similarly detain people without charges — because of the Obama DOJ’s efforts to block the Supreme Court from ruling on this question — then it is worthy of criticisms for the same reasons it was in the Padilla case.
Ultimately, the real question is not whether you think Obama will use these powers the same way Bush did (nobody can know that), but rather: do you want the secrecy and detention architecture built by George Bush, Dick Cheney and David Addington to remain in place so that — even if it remains dormant now — Obama or some future President can decide at any time to revitalize and use it at will? Thus far, Obama’s answer to that question seems to be a resounding “yes.”
UPDATE: I spoke to the annual conference of the ACLU of Massachusetts last month regarding impediments to the restoration of civil liberties under the Obama administration. I posted the link at the end of yesterday’s post, but since that was at the end of the day, and since the speech relates directly to the topic here, I’ll post it again for those interested: the 30-minute speech can be heard on MP3 here and is also available on ITunes here (the video of the speech may or may not be posted at some point in the future).
Court Rejects Obama Bid to Stop Wiretapping Suit
WASHINGTON – The Obama administration has lost its argument that a potential threat to national security is a good enough reason to stop a lawsuit challenging the government’s warrantless wiretapping program.
A federal appeals court in San Francisco on Friday rejected the Justice Department’s request for an emergency stay. The Obama administration, like the Bush administration before it, cited the so-called state secrets privilege as its defense. The government claimed national security would be compromised if a lawsuit brought by the U.S. chapter of an Islamic charity was allowed to proceed.
The case was brought by the Al-Haramain Islamic Foundation, a defunct charity with a chapter in Oregon.
The decision by the three-judge appeals panel is a setback for the new Obama administration as it adopts some of the same positions on national security and secrecy as the Bush administration.
Earlier this month, Attorney General Eric Holder ordered a review of all state secrets claims that have been used to protect Bush administration anti-terrorism programs from lawsuits.
Yet even as that review continues, the administration has invoked the privilege in several different cases, including Al-Haramain.
The case began when the Bush administration accidentally turned over documents to Al-Haramain attorneys. Lawyers for the defunct charity said the papers showed illegal wiretapping by the National Security Agency.
The documents were returned to the government, which quickly locked them away, claiming they were state secrets that could threaten national security if released.
Lawyers for Al-Haramain argued that they needed the documents to prove the wiretapping.
The U.S. Treasury Department in 2004 designated the charity as an organization that supports terrorism before the Saudi government closed it. The Bush administration redesignated it in 2008, citing attempts to keep it operating.
The 9th Circuit eventually agreed that the disputed documents were protected as state secrets. But the court ruled that the Oregon chapter of Al-Haramain could try to find another way to show it had standing to sue the government over domestic wiretapping.
A number of organizations, including the American Civil Liberties Union, tried to sue the government over warrantless wiretapping but were denied standing because they could not show they were targeted.
Scores of Legal Experts Demand Bush Prosecution
Guest Blogged by David Swanson of After Downing Street
Only in America can elected officials go on TV and confess to felonies (including torture and warrantless spying, not to mention aggressive war) and the resulting debate focus around the question of whether investigating the “possibility” of wrong-doing would be too radical. This week a coalition of dozens of human rights groups including the Center for Constitutional Rights, the National Lawyers Guild, and the Society of American Law Teachers released a statement, as drafted by The Robert Jackson Steering Committee, cutting to the chase.
It reads in its entirety:
We see no need for these prosecutions to be extraordinarily lengthy or costly, and no need to wait for the recommendations of a panel or “truth” commission when substantial evidence of the crimes is already in the public domain. We believe the most effective investigation can be conducted by a prosecutor, and we believe such an investigation should begin immediately.
I wrote this statement with some helpful tweaks from colleagues and have been screaming the same basic message for about three years, but I sense more than ever right now that more ears are open to it.
While actually enforcing laws and “getting tough on crime” is now considered the radical leftist position and a “truth” commission the reasonable compromise, it is clear that a bipartisan commission would create the bipartisan bickering our elected officials are so eager to avoid. It would also, in Senator Patrick Leahy’s view, investigate the complicity of Democrats as well as Republicans in the crimes of the past 8 years, thus guaranteeing that neither Democrats nor Republicans will support it.
If Congress can’t take the heat and won’t even enforce its own subpoenas, it should leave well enough alone. Statutes of limitations are running out fast, and we don’t have time for another commission. If President Obama wants to distance himself from enforcing the law, he can do what he is supposed to do and leave the matter in the hands of Eric Holder. And if Attorney General Holder wants distance he can do what is required and appoint a truly independent prosecutor. Doing so would please the following organizations. More are signing on every hour, and both organizations and individuals can sign on at ProsecuteBushCheney.org.
Signatorees, as of 2/25/09, include…
- Center for Constitutional Rights
- The National Lawyers Guild
- Society of American Law Teachers – SALT
- Human Rights USA
- After Downing Street
- American Freedom Campaign
- Ann Wright, retired US Army Reserve Colonel and US diplomat, Voices of Conscience
- ANSWER Coalition
- Backbone Campaign
- Boca Peace Corner
- Brad Friedman, The BRAD BLOG
- Chesapeake Citizens
- Cities for Peace
- Citizens for Accountability, Ventura County
- Citizens For Legitimate Government
- CODE PINK: Women for Peace
- Consumers for Peace
- Daniel Ellsberg, Truth-Telling Project
- David Lindorff, Author of “The Case for Impeachment”
- Defending Dissent Foundation
- Delaware Valley Veterans for America
- Democrats.com
- Frank Dorrel, Publisher, Addicted To War
- Glenn Greenwald
- Global Network Against Weapons & Nuclear Power in Space
- Gold Star Families for Peace
- Grandmothers Against the War
- Grassroots America
- High Road for Human Rights Advocacy Project
- Impeach Colorado
- Impeach for Peace
- Indict Bush Now
- Individuals for Justice
- Iraq Veterans Against the War
- Ralph Lopez, author of “Truth in the Age of Bushism,” chairman, Jobs For Afghans
- Justice Through Music
- Marcus Raskin, co-founder of Institute for Policy Studies, member of editorial board of The Nation, member of the special staff of the National Security Council in the Kennedy Administration
- Media Freedom Foundation/Project Censored
- Naomi Wolf, author of End of America: Letter of Warning to a Young Patriot, and Give Me Liberty: A Handbook for American Revolutionaries
- National Accountability Network
- North County Coalition for Peace and Justice
- Northeast Impeachment Coalition
- Op Ed News
- Partnership for Civil Justice (PCJ)
- Patriotic Response to Renegade Government
- Peace Action
- Peace Team
- People for Peace & Justice/St. Augustine, FL
- Peter McLaren, Professor, University of California, Los Angeles
- The Progressive
- Progressive Democrats of America
- PDA/DFA South Jersey
- PDA Rhode Island
- Progressive Democrats of Marin
- The Public Record
- Radio or Not
- Republicans for Impeachment
- Rise Up Tampa Bay
- Save the Bill of Rights
- Smirking Chimp
- Christiane Brown, The Solution Zone
- St. Pete for Peace
- Torture Abolition and Survivors Support Coalition International (TASSC)
- Tulsa Impeachment Committee
- United for Peace and Justice
- Velvet Revolution
- Veteran Intelligence Professionals for Sanity
- Veterans for Peace
- Veterans for Peace 27
- Veterans for Peace 099
- Voters Evolt
- Voters for Peace
- War Crimes Times
- War Is Illegal
- WESPAC Foundation
- Wisconsin Impeachment/Bring Our Troops Home Coalition
- World Can’t Wait
To Investigate or Not: Four Ways to Look Back at Bush
POISON DARTS Senator Frank Church, whose committee looked into intelligence abuses, shows a dart gun from a C.I.A. lab in 1975. (Henry Griffin/AP)
WASHINGTON — Two days after his re-election in 1864, with Union victory in the Civil War assured, Abraham Lincoln stood at a White House window to address a boisterous crowd of supporters. He spoke of the lessons of the nation’s calamitous recent history.
“In any future great national trial, compared with the men of this, we shall have as weak and as strong; as silly and as wise; as bad and as good,” Lincoln said. “Let us, therefore, study the incidents of this as philosophy to learn wisdom from, and none of them as wrongs to be revenged.”
Today there are new calls for such study, not universal but certainly loud enough, directed this time at the Bush administration’s campaign against terrorism. Interrogation techniques that the United States had long condemned as torture, secret prisons beyond the reach of American law and eavesdropping on American soil without court warrants are at the top of a lot of lists.
But as Lincoln knew, one man’s wisdom is another’s vengeance. Repeatedly in American history, and in “truth commissions” in some two dozen countries from Argentina to Zimbabwe since the 1980s, it has turned out to be a tricky business to turn the ferocious politics of recent events into the dispassionate stuff of justice and the rule of law.
A USA Today/Gallup poll this month found that 62 percent of Americans favor either a criminal investigation or an independent panel to look into allegations of torture. Still, many people, primarily Republicans, insist the Bush policies were vital to protect the country, and the Obama administration is treading gingerly. When Senator Patrick J. Leahy of Vermont, the Democratic chairman of the Judiciary Committee, proposed a commission to investigate torture and eavesdropping, President Obama didn’t embrace the idea.
Already grappling with two wars and an economic meltdown, Mr. Obama said he was “more interested in looking forward than I am in looking backwards.” But the door was ajar; he also declared that “nobody is above the law.”
Mr. Leahy is undeterred. In an interview, he laughed and described the president’s remarks as “an enthusiastic endorsement.” He said he would work to build support for the idea in Congress.
As a senator under seven presidents, Mr. Leahy said, he has learned that the temptation to abuse powers in a crisis is bipartisan, and the commission’s review should include the role of Democrats in Congress in approving the Bush policies. The work should be done in one year, he added, to avert accusations that it was being dragged out for political gain.
Mr. Obama’s most enthusiastic supporters remain passionate about “looking backwards,” arguing that the Bush policies darkened the United States’ reputation, to Al Qaeda’s benefit. They include Representative John Conyers of Michigan, the House Judiciary chairman, who has sponsored a bill to set up an investigative panel.
Many Republicans, however, say the lofty appeals to justice and history mask an unseemly and dangerous drive to pillory the Bush administration and hamstring the intelligence agencies.
That was precisely the view of an aide in Gerald Ford’s White House named Dick Cheney when a Senate committee led by Frank Church of Idaho looked into intelligence abuses in the mid-1970s. A quarter-century later, as vice president, Mr. Cheney would effectively wreak vengeance on that committee’s legacy, encouraging the National Security Agency to bypass the warrant requirement the committee had proposed and unleashing the Central Intelligence Agency he felt the committee had shackled.
If advocates of looking back have their way, what are the options? Some past inquiries offer models, each with different potential winners and losers.
A CRIMINAL INVESTIGATION (IRAN-CONTRA)
Attorney General Eric H. Holder Jr. said at his confirmation hearing that he, like Mr. Obama, did not want to “criminalize policy differences” by punishing officials for acts they believed were legal. The same language was used in 1992 by President George H. W. Bush when he pardoned six officials charged in the Iran-contra investigation. Mr. Bush called the charges “a profoundly troubling development in the history of our country: the criminalization of policy differences.”
The Iran-contra case illustrates the obstacles to any prosecution that unfolds in a polarized political atmosphere. An independent prosecutor, Lawrence E. Walsh, worked for six years to untangle shady arms deals, defiance of Congress and a cover-up. But because of the pardons and court rulings, the key figures escaped all punishment except large legal fees and damaged reputations.
The sharpest critics of the Bush programs insist that only prosecution can restore the law to its proper place. They note that some 100 terrorism suspects have died in American custody and say a prosecution for conspiracy to torture could target both the high-level officials who approved the likes of waterboarding and lawyers who justified it.
But many legal experts believe that the Justice Department would be hard pressed to prosecute as torture methods that the department itself declared in 2002 not to be torture. And if an important goal is to determine who devised the policies, a push to prosecute might only persuade past officials to lawyer up and clam up.
A CONGRESSIONAL INVESTIGATION (CHURCH)
If there is a close precedent for the investigation now being debated, it is the inquiry led by Senator Church in 1975-76, which recorded in stunning detail some of the darkest chapters in American history. Its reports chronicled the C.I.A.’s bumbling attempts to assassinate foreign leaders; the N.S.A.’s watchlisting of civil rights and antiwar activists; and the F.B.I.’s campaign to drive the Rev. Dr. Martin Luther King Jr. to suicide.
The reports led directly to a series of reforms, including President Ford’s ban on assassinations, the creation of the Foreign Intelligence Surveillance Court to approve national-security eavesdropping and the establishment of Congressional oversight of the intelligence agencies.
But some Republicans saw Mr. Church as a showboat and his committee as overreaching. To Mr. Cheney, the Church legacy was a regrettable pruning of the president’s powers to protect the country — powers he and Bush administration lawyers reasserted after the Sept. 11, 2001, attacks.
A BLUE-RIBBON PANEL (9/11 COMMISSION)
Though Mr. Leahy praised the Church Committee, his own proposal would take the investigation away from Congress in favor of “a group of people universally recommended as fair minded.” He also suggested subpoena power and, perhaps most important, a South Africa-style trade-off: immunity for officials who testify truthfully.
Investigative commissions date at least to 1794, when George Washington used one to negotiate a settlement of the Whiskey Rebellion. The 9/11 commission, a recent example, largely overcame partisanship and drew generally positive reviews.
A commission would free Congress to focus on current problems, including the economic crisis. And promises of immunity might answer concerns expressed last month by the departing C.I.A. director, Michael V. Hayden — that any investigation would discourage intelligence officers from acting boldly for fear of later second-guessing.
DOING NOTHING
Or more accurately, finishing up and rolling out the inquiries already under way. Even if the push for a broad investigation loses momentum, the Bush programs will not soon be forgotten. Among major inquiries expected to conclude soon: a report from the Justice Department’s ethics office on legal opinions justifying harsh interrogations; the criminal investigation of the C.I.A.’s destruction of interrogation videotapes; and a report by the Justice Department inspector general on the N.S.A.’s warrantless eavesdropping.
Meanwhile, thousands of documents relating to secrets of the Bush years are being sought by journalists and advocates. Mr. Obama has directed agencies to lean strongly toward disclosure.
Frederick A. O. Schwarz Jr., who served as chief counsel for the Church Committee and has called for a new commission, said there is no telling what a thorough investigation may turn up. He recalled his shock as he sat in a secure room at the C.I.A. in 1975 and read that the agency had recruited the Mafia in a scheme to kill Fidel Castro.
“It may seem that we already know a lot,” Mr. Schwarz said. “But based on my experience, I’m certain there’s a lot that went on the last eight years that we still don’t know.”
Allison Kilkenny: Unreported 
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