Listen here: http://www.breakthruradio.com/index.php?show=6633.
Citizen Radio discusses Allison’s amazing encounter with former Nixon operative (and prison inmate,) G. Gordon Liddy.
G. Gordon Liddy: Not a fan of Allison.
Next, Allison and Jamie discuss the ongoing Somali pirate standoff, and why the mainstream media is only explaining half the story.
Hope Watch! continues this week with Citizen Radio listing the various Obama promises that our new president has already broken.
Upcoming guests:
* Glenn Greenwald
* Matt Taibbi
* Janeane Garofalo
* Jeremy Scahill
Tell your friends about Citizen Radio!
Join us on Facebook.
Citizen Radio is on BTR every Wednesday. Episodes are archived here.
Glenn Greenwald has written an excellent piece about the AIG bonuses, and the contracts guaranteeing those bonuses that are apparently too sacred and holy to break. Of course, our government stood idly by and let the Big Three shatter all kinds of contracts with the UAW, and nary a word was uttered about the holiness of those contracts. In America, the only contracts that matter are the ones belonging to billionaire CEOs.
An excerpt from Greenwald’s article:
Apparently, the supreme sanctity of employment contracts applies only to some types of employees but not others. Either way, the Obama administration’s claim that nothing could be done about the AIG bonuses because AIG has solid, sacred contractual commitments to pay them is, for so many reasons, absurd on its face.
As any lawyer knows, there are few things more common – or easier — than finding legal arguments that call into question the meaning and validity of contracts. Every day, commercial courts are filled with litigations between parties to seemingly clear-cut agreements. Particularly in circumstances as extreme as these, there are a litany of arguments and legal strategies that any lawyer would immediately recognize to bestow AIG with leverage either to be able to avoid these sleazy payments or force substantial concessions.
Read the rest here.
Note from Allison: I highly recommend reading Roger Cohen’s columns from the past 3 weeks. It’s encouraging, not because Cohen is suddenly a leftist radical when it comes to Israel, but because he’s very much a mainstream voice in a mainstream newspaper. This is a clear indication that the Israel dialogue is shifting to a more sane place.
Read! Middle East Reality Check (March 9), Iran, the Jews, and Germany (March 1), and What Iran’s Jews Say (February 22).
###
Anyone who doubts that there has been a substantial — and very positive — change in the rules for discussing American policy towards Israel should consider two recent episodes: (1) the last three New York Times columns by Roger Cohen; and (2) the very strong pushback from a diverse range of sources against the neoconservative lynch mob trying, in typical fashion, to smear and destroy Charles Freeman due to his critical (in all senses of the word) views of American policy towards Israel. One positive aspect of the wreckage left by the Bush presidency is that many of the most sacred Beltway pieties stand exposed as intolerable failures, prominently including our self-destructively blind enabling of virtually all Israeli actions.
First, the Cohen columns: Two weeks ago, Cohen — writing from Iran —mocked the war-seeking cartoon caricature of that nation as The New Nazi Germany craving a Second Holocaust. To do so, Cohen reported on the relatively free and content Iranian Jewish community (25,000 strong). When that column prompted all sorts of predictable attacks on Cohen from the standard cast of Israel-centric thought enforcers (Jeffrey Goldberg, National Review, right-wing blogs, etc. etc.), Cohen wrote a second column breezily dismissing those smears and then bolstering his arguments further by pointing out that “significant margins of liberty, even democracy, exist” in Iran; that “Iran has not waged an expansionary war in more than two centuries”; and that “hateful, ultranationalist rhetoric is no Iranian preserve” given the ascension of Avigdor Lieberman in Benjamin Netanyahu’s new Israeli government.
Today, Cohen returns with his most audacious column yet. Noting the trend in Britain and elsewhere to begin treating Hezbollah and Hamas as what they are — namely, “organizations [that are] now entrenched political and social movements without whose involvement regional peace is impossible,” rather than pure “Terrorist organizations” that must be shunned — Cohen urges the Obama administration to follow this trend: the U.S. should “should initiate diplomatic contacts with the political wing of Hezbollah” and even “look carefully at how to reach moderate Hamas elements.” As for the objection that those two groups have used violence in the past, Cohen offers the obvious response, though does so quite eloquently:
Speaking of violence, it’s worth recalling what Israel did in Gaza in response to sporadic Hamas rockets. It killed upward of 1,300 people, many of them women and children; caused damage estimated at $1.9 billion; and destroyed thousands of Gaza homes. It continues a radicalizing blockade on 1.5 million people squeezed into a narrow strip of land.
At this vast human, material and moral price, Israel achieved almost nothing beyond damage to its image throughout the world. Israel has the right to hit back when attacked, but any response should be proportional and governed by sober political calculation. The Gaza war was a travesty; I have never previously felt so shamed by Israel’s actions.
No wonder Hamas and Hezbollah are seen throughout the Arab world as legitimate resistance movements.
So absolute has the Israel-centric stranglehold on American policy been that the U.S. Government has made it illegal to broadcast Hezbollah television stations and has even devoted its resources to criminally prosecuting and imprisoning satellite providers merely for including Hezbollah’s Al Manar channel in their cable package. Not even our Constitution’s First Amendment has been a match for the endless exploitation of American policy, law and resources to target and punish Israel’s enemies. But this trilogy of Cohen columns reflects the growing awareness of just how self-destructive is that mentality and, more importantly, the growing refusal to refrain from saying so.
* * * * *
The still-expanding battle over the appointment of Charles Freeman by Obama’s DNI, Adm. Dennis Blair, provides even more compelling evidence. I’m not going to detail all of the facts surrounding this controversy because so many others have done such an excellent job of arguing the case — particularly Andrew Sullivan (all week) and Stephen Walt — and the crux of the matter was summarized perfectly last night by Josh Marshall:
The real rub, the basis of the whole controversy, however, is that [Freeman] has been far more critical of Israeli policy than is generally allowed within acceptable debate in Washington. . .
The whole effort strikes me as little more than a thuggish effort to keep the already too-constricted terms of debate over the Middle East and Israel/Palestine locked down and largely one-sided. . . . But the gist is that campaigns like this are ugly and should be resisted. Not just on general principles, but because the country needs more diversity of viewpoints on this issue right now.
Precisely. The Atlantic‘s James Fallows and Daniel Larison both compellingly document that the real issue here is whether the suffocating prohibition on government officials’ questioning U.S. policy toward Israel will continue, or whether the range of permissive debate on this vital question will finally be expanded. The Freeman appointment is so important precisely because it signals that rejecting the long-standing orthodoxy on Israel is no longer disqualifying when it comes to high level government positions [and, perhaps as importantly, that it’s now even permissible to raise the previously verbotenpoint that perhaps one of the reasons why many Muslims want to attack the U.S. is because the U.S. (both on its own and through Israel) has spentdecades continuously attacking, bombing, invading, occupying and otherwise interfering in Muslim countries].
Ezra Klein argues, persuasively, that even if Freeman ends up being appointed, the lynch-mob smear campaign will still have achieved its purpose:
But for Freeman’s detractors, a loss might still be a win. As Sullivan and others have documented, the controversy over Freeman is fundamentally a question of his views on Israel. Barring a bad report from the inspector general, Chas Freeman will survive and serve. But only because his appointment doesn’t require Senate confirmation. Few, however, will want to follow where he led. Freeman’s career will likely top out at Director of the NIC. That’s not a bad summit by any means. But for ambitious foreign policy thinkers who might one day aspire to serve in a confirmed capacity, the lesson is clear: Israel is off-limits. And so, paradoxically, the freethinking Freeman’s appointment might do quite a bit to silence foreign policy dissenters who want to succeed in Washington.
There is, by design, definitely a chilling effect to these smear campaigns. Freeman is being dragged through the mud by the standard cast of accusatory Israel-centric neocons (Marty Peretz, Jon Chait, Jeffrey Goldberg,Commentary, The Weekly Standard‘s Michael Goldfarb, etc. etc., etc.), subjected to every standard, baseless smear, as a warning to others who think about challenging U.S. policy towards Israel in a similar way. Ultimately, though, I think that each time one of these swarming, hate-campaigns is swatted away, they incrementally lose their efficacy, emboldening others to risk their weakening wrath.
Ultimately, the greatest weapon to defeat these campaigns is to highlight the identity and behavior of their perpetrators. Just consider who is behind the attack on Freeman; how ugly and discredited are their tactics and ideology; and, most importantly, how absurd it is, given their disgraceful history, that they — of all people — would parade around as arbiters of “ideological extremism” and, more audaciously still, as credible judges of intelligence assessment. Sullivan compiled a comprehensive time line demonstrating that the attacks on Freeman originated and were amplified by the very same people for whom American devotion to Israel is the overriding if not exclusive priority and who have been so glaringly wrong about so much. Though they have since tried, with characteristic deceit and cowardice, to disguise their agenda by pretending to oppose Freeman on other, non-Israel grounds (such as their oh-so-authentic concern for Chinese human rights), that masquerading effort — as Matt Yglesias notes here — is so transparently dishonest as to be laughable.
Indeed, some of them, early on, were perfectly honest about the fact that Freeman’s views on Israel is what has motivated their opposition, including theIsrael-based “concerns” over the appointment voiced by Sen. Chuck Schumer to Rahm Emanuel. And — demonstrating that these taboos are still formidible — Schumer’s sentiments have since been echoed by unnamed “Democratic leaders.” Chuck Schumer, along with Dianne Feinstein, single-handedly enabled the confirmation of Michael Mukasey as Attorney General despite Mukaseky’s refusal to say that waterboarding was torture (and Schumer evenvoted to confirm Michael Hayden as CIA Director despite his overseeing Bush’s illegal NSA program). Yet Obama appoints someone who is critical of Israel and who questions American policy towards Israel, and Schumer springs into action by calling Rahm Emanuel to express “concern” over the appointment.
It’s not a mystery what is behind this attack on Freeman. As Spencer Ackerman wrote last week:
Basically, Freeman’s major sin is that he doesn’t take a simplistic or blinkered view of the Israeli-Palestinian conflict, and a number of mostly-right-wing Jewish writers at Commentary, the Weekly Standard, the Atlantic and The New Republic have been arguing that he’s not fit to serve.
That’s really the crux of the issue here: are we going to continue to allow these actual extremists to define “extremism” and dictate the acceptable range of views when it comes to Middle East policy?
As Ackerman noted the other day, one of the leading anti-Freeman generals is AIPAC’s Steve Rosen, who has been indicted for passing American secrets onto the Israeli Government. That’s almost satire: an AIPAC official accused of spying for a foreign country purporting to lead the charge against Freeman based on Freeman’s “extremism” and excessive ties to another Middle Eastern country.
Or consider the Washington Post Op-Ed by The New Republic‘s Jonathan Chait railing that Freeman — who opposed the attack on Iraq — is an “ideological fanatic.” That’s the very same Jonathan Chait who spent 2002 and 2003 running around demanding that we invade Iraq and who even went on national television to declare: “I don’t think you can argue that a regime change in Iraq won’t demonstrably and almost immediately improve the living conditions of the Iraqi people.” That’s someone who — after spending years working for Marty Peretz — thinks he’s in a position to demonize others as being “ideological extremists” and unfit to assess intelligence reports and to define the legitimate parameters of the debate over U.S. policy in the Middle East. To describe Chait’s view of himself is to illustrate its absurdity.
Or review the rank propaganda and/or glaring ignorance spread by anti-Freeman crusade leader Jeffrey Goldberg before the Iraq War. Or just read this painfully deceitful, humiliatingly error-plagued 2003 column fromFreeman critic Michael Moynihan of Reason. And that’s to say nothing of the rest of the Weekly Standard and National Review propagandists purporting to sit in judgment of what constitutes mainstream views towards Israel. Just looking at the opponents of Freeman and their reckless history powerfully conveys how disastrous it would be to continue to allow this extremist clique, of all people, to continue to dictate the scope of legitimate debate over Israel, the Middle East and our intelligence policies generally. It’s like allowing Dick Cheney and John Yoo to dictate what constitutes mainstream legal opinion and to reject prospective judges as being “extremists” on Constitutional questions.
Summing up the attacks on Freeman, Andrew Sullivan wrote that he finds “the hysterical bullying of this man to be repulsive.” There’s no question about that. Hysterical bullying — rank character smearing — is what they’ve been doing for many years in an attempt to intimidate people out of dissenting from their so-called “pro-Israel” orthodoxies. But last night, Sullivan made the more important observation about this controversy:
The idea that Obama should not have advisers who challenge some of the core assumptions of the Bush years, especially with respect to Israel-Palestine, seems nuts to me. And the impulse to blackball and smear someone as a bigot is reprehensible.
It’s destructive enough to artificially limit debate on a matter as consequential as U.S. policy towards Israel. We’ve been doing that for many years now. But it’s so much worse that the people who have been defining and dictating those limits are themselves extremists in every sense of that word when it comes to Israel and U.S. policy towards that country. Their demands that no distinctions be recognized between Israeli and Americans interests have been uniquely destructive for the U.S. Few things are more urgent than an expansion of the debate over U.S. policy in this area, which is exactly why this radical lynch mob is swarming with such intensity to destroy Freeman’s reputation and fortify the limitations on our debates which, for so long, they have thuggishly enforced. If someone like Freeman can occupy a position like Chair of the National Intelligence Council — handpicked by Obama’s DNI, an Admiral — the taboos they are so desperate to maintain will erode just that much further.
Bruce Ivins
One of the best and smartest members in the U.S. Congress, Rep. Rush Holt, has rejected the “look to the future – not the past” Orwellian mantra, at least when it comes to the highly consequential though still unresolved anthrax attack:
HOLT INTRODUCES ANTHRAX COMMISSION LEGISLATION
Bill Would Create 9/11 Commission-Style Panel to Investigate
Rep. Rush Holt (NJ-12) today introduced the Anthrax Attacks Investigation Act of 2009, legislation that would establish a Congressional commission to investigate the 2001 anthrax attacks and the federal government’s response to and investigation of the attacks. . . . Holt has consistently raised questions about the federal investigation into the attacks.
“All of us – but especially the families of the victims of the anthrax attacks – deserve credible answers about how the attacks happened and whether the case really is closed,” Holt said. . . .
Under Holt’s legislation. . . [t]he commission would hold public hearings, except in situations where classified information would be discussed. The commission would have to consult the National Academies of Sciences for recommendations on scientific staff to serve on the Commission.
I’ve written repeatedly and at length about the huge questions that still remain with regard to the anthrax attacks, with a particular focus on the early and quite successful efforts (aided by ABC News’ Brian Ross) to blame the attacks in the public’s mind on Saddam Hussein, followed by the extremely unconvincing FBI assertion last year that it was now-deceased U.S. Army research scientist Bruce Ivins, and Ivins alone, who perpetrated that attack. The FBI’s case is riddled with glaring inconsistencies and numerous internal contradictions, enormous evidentiary holes, and pretenses of scientific certainty that are quite dubious (my interview with a scientist specializing in biosecurity over some of the scientific holes in the FBI’s case is here). Doubts about the FBI’s casecontinue to emerge.
Holt’s skepticism about the FBI’s claims is notable for several reasons. It was Holt’s Congressional district from which the anthrax letters were apparently sent, and the attacks imposed a serious disruption on the lives of his constituents. More significantly, Holt, who is a member of the House Intelligence Committee, is a trained physicist. Before entering Congress, he taught physics as a faculty member at Swarthmore College and also headed the State Department’s Nuclear and Scientific Division of the Office of Strategic Forces during the Reagan administration. Both his interest in this matter and his knowledge of it are at least as great as any other member of Congress. That he maintains extreme skepticism over the FBI’s case and vehemently believes in the need for an independent investigation should, by itself, be quite compelling to any rational person (I interviewed Holt about the anthrax case in September of last year — here).
But Holt is hardly alone in the doubts he expresses about the FBI’s claim to have solved the anthrax case. An unusually wide and diverse range of even establishment voices have expressed the same doubts.
One of the two Senate targets of the attack, Sen. Pat Leahy, flatly stated at a Senate hearing last September that he does not believe the FBI’s case against Ivins, and emphatically does not believe that Ivins acted alone. GOP Sen. Arlen Specter, at the same hearing, told the FBI they could never have obtained a conviction against Ivins in court based on their case — riddled, as it is, with so much doubt — and he also demanded an independent evaluation of the FBI’s evidence. GOP Sen. Charles Grassley has been a long-time skeptic of the FBI’s anthrax investigation and has expressed serious doubts about the case against Ivins (see this interview I did with Sen. Grassley last year).
The ultimate establishment organ, The Washington Post Editorial Page, issued numerous editorials expressing serious doubts about the FBI’s case against Ivins and called for an independent investigation. The New York Times Editorial Page echoed those views. Even The Wall St. Journal Editorial Page, citing the FBI’s “so long and so many missteps,” argued that “independent parties need to review all the evidence, especially the scientific forensics” and concluded that “this is an opportunity for Congress to conduct legitimate oversight.”
In the wake of the FBI’s accusations against Ivins, the science journal Nature flatly declared in its editorial headline — “Case Not Closed” — and demanded an independent investigation into the FBI’s case. After the FBI publicly disclosed some of its evidence against Ivins, The New York Times reported “growing doubts from scientists about the strength of the government’s case.” The Baltimore Sun detailed that “scientists and legal experts criticized the strength of the case and cast doubt on whether it could have succeeded.” Dr. Alan Pearson, Director of the Biological and Chemical Weapons Control Program at the Center for Arms Control and Non-Proliferation — representative of numerous experts in the field — expressed many of those scientific doubts and demanded a full investigation.
There may be legitimate grounds for doubting whether an independent, 9/11-type Commission of the type Holt proposes is the ideal tribunal to conduct a real investigation, but it is clearly the best of all the realistic options. The only other plausible alternative — an investigation by Congress itself — is far inferior, as anyone who has observed any so-called “Congressional investigation” over the last decade should immediately recognize (here, as but one example, is the account I wrote about a House hearing last September attempting — with cringe-inducing ineptitude and total futility — to “grill” FBI Director Robert Mueller about the FBI’s case against Ivins). How effective an independent investigative Commission like this will be will depend on the details of its structure — its subpoena powers, punishments for defiance, and the independence of its members. That Rush Holt will play a key role, if not the key role, in overseeing its creation is a reassuring feature that the bill he introduced can be actually productive.
The importance of full disclosure of all facts surrounding the anthrax attacks cannot be overstated. This was the opposite of a run-of-the-mill crime. To the contrary, the anthrax attacks — by design, as everyone acknowledges — had an immense political impact on the country. Contrary to endless claims from Bush supporters that Bush allowed no more terrorist attacks on “the homeland” after 9/11, the anthrax attack was exactly such a terrorist attack.
For reasons I’ve detailed previously, I actually believe that the anthrax attacks played a larger role than the 9/11 attack itself in elevating America’s fear levels to hysterical heights, which in turn put the citizenry into the state of frightened submission that enabled so many of the subsequent events of the Bush presidency. The 9/11 attacks appeared to be a one-time extraordinary event, but it was multi-staged anthrax attacks — coming a mere four weeks later — that normalized and personalized the Terrorist threat. As Atrios put it in his inimitably succinct style:
I’ve long been fascinated by the erasure of the anthrax attacks – which, in their own way, freaked out the country more than 9/11 did* – from our collective memory.
*People object when I suggest this, but while the 9/11 attacks were of course The Big Ones, anthrax was this creepy shit which was KILLING US THROUGH THE MAIL. While most people didn’t expect a plane to fly into their building, the anthrax attacks created a heightened sense of OMIGOD THIS COULD HAPPEN TO ME. 9/11 was terrible, but the anthrax attacks were terrifying to people.
And:
Anthrax was what made things like “mobile chemical weapons labs” sound so scary. Not everyone agrees, but I think more than 9/11 the anthrax freaked the country out. 9/11 was horrible, but the anthrax made it seem like we’d reached a new era where some horrible creepy shit was going to happen every day.
And then it was all forgotten.
Whatever one’s views are on the abstract 9/11-anthrax comparison, there is no question that the anthrax attacks were a major political crime. According to the FBI, the anthrax letters were directed at U.S. Senators (Leahy and Daschle) due to their political views (specifically their opposition to the Patriot Act, their allegedly “soft on terrorism” approach, and their pro-choice views). And perhaps most importantly, the anthrax attacks — again, according to the FBI itself — came from a U.S. Army laboratory, perpetrated by a U.S. Government scientist. As the aforementioned Dr. Pearson put it:
If Ivins was indeed responsible for the attacks, did he have any assistance? Did anyone else at the Army lab or elsewhere have any knowledge of his activities prior to, during, or shortly after the anthrax attacks? . . . .
It appears increasingly likely that the only significant bioterrorism attack in history may have originated from right within the biodefense program of our own country. The implications for our understanding of the bioterrorism threat and for our entire biodefense strategy and enterprise are potentially profound.
Re-read that bolded sentence, which few dispute. The self-evident significance of this case — combined with the extreme doubts being expressed by a wide range of ideologically diverse (and bipartisan!) establishment sources, along with mainstream scientists of all types — should make quick support for Holt’s bill an easy choice. After all, if Ivins wasn’t the culprit and/or didn’t perpetrate the attacks by himself, then it means that those who did are still unidentified.
* * * * *
Speaking of investigations, The New York Times today suggests that yesterday’s release of those nine bluntly authoritarian Bush DOJ memos is increasing the political pressure for an investigation into crimes by Bush officials. One would hope so (see this Andrew Sullivan post from yesterday as to why there those memos create a heightened urgency for such investigations).
This morning, beginning at 10:00 a.m. EST, the Senate Judiciary Committee is holding a hearing on Sen. Leahy’s proposal to create a Truth Commission to investigate detention, interrogation and surveillance crimes of Bush officials. That hearing can be watched here. Unraveling these strings — patiently and methodically, though relentlessly — is how one event can lead to another, how one disclosure can lead to others, and the entire ball can become unwound.
(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).
Some of the most prominent names in progressive politics launched a major new organization on Thursday dedicated to pinpointing and aiding primary challenges against incumbent Democrats who are viewed as acting against their constituents’ interests.
Accountability Now PAC will officially be based in Washington D.C., though its influence is designed to be felt in congressional districts across the country. The group will adopt an aggressive approach to pushing the Democratic Party in a progressive direction; it will actively target, raise funds, poll and campaign for primary challengers to members who are either ethically or politically out-of-touch with their voters. The goal, officials with the organization say, is to start with 25 potential races and dwindle it down to eight or 10; ultimately spending hundreds of thousands on elections that usually wouldn’t be touched.
“Most of the time, regardless of your record in Washington, an incumbent does not have to worry about being challenged in a primary,” explained Jeff Hauser, an online Democratic operative who will serve as the group’s executive director. “This only increases the power of the Washington echo chamber and the influence of lobbyists. We are trying to change that… We think there are potentially talented challengers out there who think the process of mounting a primary challenge is simply too daunting. When you bring to bear the resources of national organizations and the influence of the netroots, you can help these potential candidates.”
It is a concept bound — indeed, designed — to ruffle the feathers of powerful figures in Washington, in part because the names behind it are now institutions themselves. With $500,000 currently in the bank, Accountability Now will be aided, in varying forms, by groups such as MoveOn, SEIU, Color of Change, Democracy for America, 21st Century Democrats and BlogPAC. FireDogLake’s Jane Hamsher and Salon.com’s Glenn Greenwald will serve in advisory roles, while Markos Moulitsas of DailyKos will conduct polling, with analytical help from 538.com’s Nate Silver.
“This will be very much interactive and localized,” said Hamsher. “We are already going out to local state blogs to help us identify well-qualified candidates in their communities. Once those people are identified we will be able to bring the strength of our resources to help them mount primary challenges.”
In a conversation with the Huffington Post, Hauser, Hamsher and Greenwald said that the process by which targeted incumbents were chosen would not constitute an ideological litmus test. The goal, they noted, was simply to follow the numbers: figure out which Members were casting votes that were out of tune, philosophically speaking, with their constituent’s public opinion readings. And then bear the most basic form of political pressure: encourage a primary challenger to run and help him or her campaign. Fundraising will be done by galvanizing online support for specific races — a practice now natural to Accountability Now’s principals.
The overarching premise would be to break down the power of incumbency. But the side effects would be equally lucrative: putting members on notice that their votes have consequences and offering a support structure to aspiring progressives.
“We want to normalize the idea that Democratic incumbents can be challenged…and to the extent that we can legitimize that you can then open up the conversation, causing even the good incumbents in Washington to endorse primary challengers as a means to make the political class more responsive,” said Greenwald. “We want to destroy the taboo against challenging politicians from within their own party.”
And yet, not everyone is bound to be on board, least of all official Washington. Protecting incumbency is, as Accountability Now’s founders are acutely aware, one of D.C.’s foremost operating principles (in 2008, only 23 incumbents lost their House races and only four of those losses came in the primary). And there is a reason for it. Political power comes in the form of numbers and unity. As such, keeping the majority intact often takes precedent over ideological purity. Rep. Donna Edwards’ victory over ethically challenged Al Wynn in 2008 — a template for what Accountability Now seeks to do in 2010 — was one of the few cases that went against the grain.
But in private, some Democrats expressed worry about pushing for progressive change from the outside rather than from within. Would running an election opponent be the best measure of political persuasion? What if, hypothetically, a primary challenger won the nomination only to lose in the general?
These are concerns that Accountability Now does not take lightly. They insist that they will “take district realities into account,” which means that Democrats who represent moderate districts will be forgiven for their moderate votes. But beyond that, they argue, it is the candidate’s responsibility, not theirs, to ensure reelection.
“No incumbent worth their salt should lose in a primary — their advantages are considerable, and so to be vulnerable indicates a considerable focus on K Street, not Main Street,” said Hauser. “A primary is the height of democracy, a two-year job performance review — what is wrong with having to listen to constituents as well as D.C. lobbyists and groupthink.”
During the stimulus debate, President Obama made several overtures to the Republicans, hoping to bring them on board with his plan, to little avail. Not one House Republican voted for the package, and only three moderate Republicans voted with the Democrats in the Senate.
Given that decidedly partisan outcome, should President Obama continue to aim for bipartisanship in carrying out his broader agenda?
Larry Sabato is director of the Center for Politics, and Robert Kent Gooch Professor and University Professor of Politics at the University of Virginia.
Americans love bipartisanship, and it’s easy to understand why. All of us were raised to believe that we should “play nice” and “disagree without being disagreeable.” Also, most of us are inherently suspicious of politics, parties and politicians. While more than 80 percent of Americans have some partisan identification with either the Democrats or the Republicans, just over a third have a strong attachment to one of the parties. The other two-thirds don’t like to be fenced in by a label.
And fairly or unfairly, people despise watching politicians squabble. The assumption is that they are doing so more out of arrogance, entitlement and ego than any real sense of the public good. I have heard hundreds of citizens ask why can’t the politicians just sit down, talk over their differences, and arrive at a reasonable compromise like adults?
If only it were that straightforward and effortless. The two major political parties have fundamental disagreements about a wide variety of economic, social, and foreign policy issues. They are supposed to have them. The men and women who represent the parties in Congress and the executive branch are not average individuals with unformed opinions on many topics, but rather strong partisans who have carefully thought out their world views for decades.
The American system does not lend itself to ‘national unity’ governments like those sometimes formed in parliamentary systems.
They got where they are because they were activists, motivated to make sacrifices of time and money for their principles. Most do not bend easily, and after all, the voters have elected them on the basis of their platforms and beliefs. Elections matter enormously in any democracy.
In addition, the American system does not lend itself to “national unity” governments like those sometimes formed in parliamentary systems — governments that combine the executive and legislative functions into a single dominant elective chamber. The theory that underpins a two-party system in a separation-of-powers arrangement like ours is that the parties turn their principles into practical choices on the great issues of the day.
The electorate considers those distinct options, and picks one at election time. Yes, sometimes one party wins the Presidency and the other party wins Congress — and either compromise or stalemate results. (Usually it is some of both.)
But in other elections, the people decide to put the same party in power in both elective branches. That is what happened in November 2008. The Democrats have a mandate to govern, and the Republicans have the job of suggesting alternatives and preparing to contest the next elections in 2010 and 2012 on the basis of their distinct ideas.
Every system is imperfect. Every system has flaws that reduce efficiency and effectiveness. But over time, the American system has proved itself. Civility and consultation are always welcome, and smart leaders use these courtesies to accomplish their goals. But two parties were not elected to govern in 2008, and it really is that simple.
Steven G. Calabresi, a co-founder of the Federalist Society, is the George C. Dix Professor of Constitutional Law at Northwestern University.
President Obama reached out in his campaign and in his transition to Republicans, and he said that bipartisanship in solving our problems would be a hall mark of the change he wanted to bring to America. The President’s desire for bipartisanship is to be applauded, and it stands in sharp contrast with the behavior of House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid who steamrolled over the Republicans in writing the stimulus bill.
Education and health care reform will need the bipartisan solution of free-market socialism.
I do not blame the president for Speaker Pelosi’s and Senator Reid’s behavior nor do I think it is what he wants to see repeated. We need bipartisanship in many areas, but let me mention two that especially stand out.
In education, we need to move toward a system where public schools are funded out of taxes collected statewide or federally rather than through highly unequal residential property taxes. We also need many, many more charter schools and vouchers for education. The bipartisan solution to our education problems is to reform both the way we fund public schools and the degree to which they compete.
The same thing applies for health care reform. We need to provide funding for private individuals who do not have and cannot afford health insurance to buy it on the private market. To do this, we need gradually to eliminate the tax deductability of employer-provided health care plans to fund health care tax credits. This will sever the current link between having a job and having health care. It will also lead to control of health care prices because upper income consumers of health care will watch their health care expenses more carefully if they have to pay for them with after tax income rather than with before tax employer provided benefits which are seen as being a freebie.
One bipartisan solution to education and health care policy is for government to, in effect, give all citizens an education or health care credit or voucher and then let them buy education or health care from the provider they like the most. This is the essence of free-market socialism, which is what I think President Obama wants.
Glenn Greenwald, a former constitutional lawyer, is a columnist at Salon.com and the author, most recently, of “Great American Hypocrites: Toppling the Big Myths of Republican Politics.”
The long-standing Beltway cliché is that there is something inherently superior about “bipartisanship” and “centrism.” Those terms are such platitudes that they now lack any real meaning. But in their common usage, they typically designate whatever views happen to appeal to the base of the Republican Party and enough “conservative” Democrats to form a majority.
‘Bipartisanship’ has meant all Republicans joining a minority of Democrats to enact Republican policies.
Over the last eight years, virtually every new law hailed as a shining example of “bipartisanship” has involved all Republicans joining with a substantial minority of Democrats to provide majoritarian support. — i.e., it’s been a mechanism for enacting Republican policies.
A list of the most significant acts of “bipartisan” votes during the Bush presidency compellingly demonstrates how that term is typically employed. It’s a way of eliminating the few differences between the parties and forcing Democrats, even when they are in power, to continue to embrace Republican governing approaches.
In 2006, the Democrats ran on a platform of opposing — not embracing — the Republican agenda, and American voters handed them a resounding, even crushing, victory. In 2008, much the same thing happened: Democrats ran on platform of “change” from the Republican approach to governance — not replicating it — and resoundingly won again.
What possible reason is there, then, to argue that Democrats ought to adopt Republican ideas — regardless of what those ideas are — simply for the sake of “bipartisanship”? Americans elected Democrats to implement Democratic ideas and will hold Democrats responsible for the success or failure of their policies. Democrats should therefore use their majority power to carry out the polices that they think are the best ones for the country, not dilute those ideas and incorporate discredited Republican approaches in order to fulfill some vague bipartisan ideal.
Besides, Republicans have made clear that they consider themselves an opposition party. They don’t want to give President Obama and Democrats political cover by allowing policies to be depicted as the consensus of both parties. Republicans represent millions of Americans who disagree with the Democratic approach and it is more democratic of them to represent those views by operating as an opposition party.
Of course, no party has a monopoly on good ideas and there’s nothing wrong with compromising with the other party when doing so yields superior policies. But bipartisanship for its own sake elevates process over substance, and does nothing but further erode the very few genuine differences that still exist between the two parties.
Ramesh Ponnuru is a senior editor for National Review.
Whether and how President Obama reaches out to Republicans depends on what he wants to accomplish. If his agenda centers on legislation that poses few political risks, then he can afford to pass bills on party-line votes. He would lose some of the aura of a president who wants to move past old divisions, but that aura will probably wane anyway as he comes to be seen more and more as an incumbent.
On issues like entitlement reform and global warming, congressional Democrats may not want to bear the political risks alone.
The stimulus bill was, as legislation goes, low-risk. It has been a long time since anybody has lost a congressional or presidential election for spending or cutting taxes too much. But there are signs that Mr. Obama wants to move in areas that pose greater political risks, and it is hard to imagine that congressional Democrats will want to bear those risks alone.
Health-care reform would almost certainly involve threatening some Americans’ existing arrangements. Entitlement reform would involve either raising taxes, cutting future benefits, or both. Action on global warming could raise energy prices. Tax reform would anger many groups. Would Obama be able to keep his party unified on these issues? If not, he will need to have more than a handful of Republicans on his side. And to get the requisite numbers, he will have to let Republicans have meaningful input in the legislation.
In my view, President Obama could do himself and the country a lot of good by moving early on a bipartisan reform of Social Security. In deciding how much to reach out to Republicans, he will not merely be making a stylistic or tactical choice. He will be figuring out what kind of president he wants to be.
, a senior editor at National Review, is the author of “George Washington on Leadership” and the forthcoming “Right Time, Right Place: Coming of Age with William F. Buckley Jr. and the Conservative Movement.”
Political parties are the bastard children of the founding fathers. They hoped to have a non-partisan political order: George Washington attacked parties in his Farewell Address, and James Madison wrote of them in the Federalist Papers as factions, political bacilli. Yet all the founders quickly involved themselves in the first American party system, Federalists vs. Republicans (ancestor of today’s Democrats).
Nostalgia for prelapsarian non-partisan innocence is always with us, though. In moments of great stress it can take concrete form. Franklin Roosevelt picked two Republicans, Henry Stimson and Frank Knox, to be Secretaries of War and the Navy in 1940, in the early days of World War II. Lincoln tapped the Unionist Democrat Andrew Johnson to be his running mate when he ran for re-election in 1864. Stimson and Knox performed well; Johnson, who became president after Lincoln’s murder, was a catastrophe.
Short of a world war or a civil war, bipartisanship is an empty fantasy. Parties exist for reasons — they express clashing ideas and interests in society. I imagine President Obama knew this all along. He won the White House, and the Democrats control both houses of Congress. They asked for these jobs; let’s see their stuff.
Glenn Beck: Im in ur country, leadin ur revolution
Bill Clinton’s election in 1992 gave rise to the American “militia movement”: hordes of overwhelmingly white, middle-aged men from suburban and rural areas who convinced themselves they were defending the American way of lifefrom the “liberals” and “leftists” running the country by dressing up in military costumes on weekends, wobbling around together with guns, and play-acting the role of patriot-warriors. Those theater groups — the cultural precursor to George Bush’s prancing 2003 performance dressed in a fighter pilot outfit on Mission Accomplished Day — spawned the decade of the so-called “Angry White Male,” the movement behind the 1994 takeover of the U.S. Congress by Newt Gingrich and his band of federal-government-cursing, play-acting-tough-guy, pseudo-revolutionaries.
What was most remarkable about this allegedly “anti-government” movement was that — with some isolated and principled exceptions — it completely vanished upon the election of Republican George Bush, and it stayed invisible even as Bush presided over the most extreme and invasive expansion of federal government power in memory. Even as Bush seized and used all of the powers which that movement claimed in the 1990s to find so tyrannical and unconstitutional — limitless, unchecked surveillance activities, detention powers with no oversight, expanding federal police powers, secret prison camps, even massively exploding and debt-financed domestic spending — they meekly submitted to all of it, even enthusiastically cheered it all on.
They’re the same people who embraced and justified full-scale, impenetrable federal government secrecy and comprehensive domestic spying databases conducted in the dark and against the law when perpetrated by a Republican President — but have spent the last week flamboyantly pretending to be scandalized and outraged by the snooping which Bill Moyers did 45 years ago (literally) as part of a Democratic administration. They’re the people who relentlessly opposed and impugned Clinton’s military deployments and then turned around and insisted that only those who are anti-American would question or oppose Bush’s decision to start wars.
They’re the same people who believed that Bill Clinton’s use of the FISA court to obtain warrants to eavesdrop on Americans was a grave threat to liberty, but believed that George Bush’s warrantless eavesdropping on Americans in violation of the law was a profound defense of freedom. In sum, they dressed up in warrior clothing to fight against Bill Clinton’s supposed tyranny, and then underwent a major costume change on January 20, 2001, thereafter dressing up in cheerleader costumes to glorify George Bush’s far more extreme acquisitions of federal power.
In doing so, they revealed themselves as motivated by no ideological principles or political values of any kind. It was a purely tribalistic movement motivated by fear of losing its cultural and demographic supremacy. In that sense — the only sense that mattered — George Bush was one of them, even though, with his actions, he did everything they long claimed to fear and despise. Nonetheless, his mere occupancy of the White House was sufficient to pacify them and convert them almost overnight from limited-government militants into foot soldiers supporting the endless expansion of federal government power.
But now, only four weeks into the presidency of Barack Obama, they are back — angrier and more chest-beating than ever. Actually, the mere threat of an Obama presidency was enough to revitalize them from their eight-year slumber, awaken them from their camouflaged, well-armed suburban caves. The disturbingly ugly atmosphere that marked virtually every Sarah Palin rally had its roots in this cultural resentment, which is why her fear-mongering cultural warnings about his exotic, threatening otherness — he’s a Muslim-loving, Terrorist-embracing, Rev.-Wright-following Marxist: who is the real Barack Obama? — resonated so stingingly with the rabid lynch mobs that cheered her on.
With Obama now actually in the Oval Office — and a financial crisis in full force that is generating the exact type of widespread, intense anxiety that typically inflames these cultural resentments — their mask is dropping, has dropped, and they’ve suddenly re-discovered their righteous “principles.” The week-long CNBC Revolt of the Traders led by McCain voter Rick Santelli and the fledgling little Tea Party movement promoted by the Michelle Malkins of the world are obvious outgrowths of this 1990s mentality, now fortified by the most powerful fuel: deep economic fear. But as feisty and fire-breathing as those outbursts are, nothing can match — for pure, illustrative derangement — the discussion below from Glenn Beck’s new Fox show this week, in which he and an array of ex-military and CIA guests ponder (and plot and plan) “war games” for the coming Civil War against Obama-led tyranny. It really has to be seen to be believed.
Before presenting that to you, a few caveats are in order: There is nothing inherently wrong or illegitimate with citizens expressing extreme anger towards the Government and the ruling political class. There isn’t even anything wrong or illegitimate with citizens organizing themselves into a movement that — whether by design or effect — is threatening to entrenched elites. If anything, we’ve had too little of that. In fact, it’s only a complete lack of fear of a meek, passive and impotent citizenry on the part of political and financial rulers — a certainty that there will be no consequences no matter what they do — that could have given rise to the endless corruption, deceit, lawbreaking, destruction, and outright thievery of the last eight years. A political and financial elite that perceives itself as invulnerable from threat or consequence will inevitably vest itself with more power and more riches. That’s what we’ve had and, largely, still have.
But this Rush-Limbaugh/Fox-News/nationalistic movement isn’t driven by anything noble or principled or even really anything political. If it were, they would have been extra angry and threatening and rebellious during the Bush years instead of complicit and meek and supportive to the point of cult-like adoration. Instead, they’re just basically Republican dead-enders (at least what remains of the regional/extremist GOP), grounded in tribal allegiances that are fueled by their cultural, ethnic and religious identities and by perceived threats to past prerogatives — now spiced with legitimate economic anxiety and an African-American President who, they were continuously warned for the last two years, is a Marxist, Terrorist-sympathizing black nationalist radical who wants to re-distribute their hard-earned money to welfare queens and illegal immigrants (and is now doing exactly that).
That’s the context for this Glenn Beck “War Games” show on Fox News this week — one promoted, with some mild and obligatory caveats, by Michelle Malkin’s Hot Air. In the segment below, he convened a panel that includes former CIA officer Michael Scheuer and Ret. U.S. Army Sgt. Major Tim Strong. They discuss a coming “civil war” led by American “Bubba” militias — Beck says he “believes we’re on this road” — and they contemplate whether the U.S. military would follow the President’s orders to subdue civil unrest or would instead join with “the people” in defense of their Constitutional rights against the Government (they agree that the U.S. military would be with “the people”):
David Rivkin and Lee Casey are right-wing lawyers and former Reagan DOJ officials who, over the last eight years, have been extremely prolific in jointly defending Bush/Cheney theories of executive power. Today, they have one of their standard Op-Eds, this time in The Washington Post, demanding that there be no investigations or prosecutions of Bush officials. Most of the arguments they advance are the standard platitudes now composing Beltway conventional wisdom on this matter. But there is one aspect of their advocacy that is somewhat remarkable and worth noting.
Rifkin and Casey have long been vigorous opponents of the legitimacy of international tribunals to adjudicate crimes committed by American officials. In February, 2007, they wrote an Op-Ed in the Post bitterly criticizing Italian officials for indicting 25 CIA agents who had literally kidnapped a Muslim cleric from Italy and “rendered” him from Milan to Egypt. In that Op-Ed, the Bush-defending duo argued that Italy had no right to prosecute these agents (h/t reader tc):
An Italian court announced this month that it is moving forward with the indictment and trial of 25 CIA agents charged with kidnapping a radical Muslim cleric. These proceedings may well violate international law, but the case serves as a wake-up call to the United States . . . .
[T]he United States must still vigorously resist the prosecution of its indicted agents. . . . [I]t is up to American, not Italian, authorities to determine whether any offense was committed in the capture and rendition of Nasr.
Unfortunately, the effort to prosecute these American agents is only one instance of a growing problem. Efforts to use domestic and international legal systems to intimidate U.S. officials are proliferating, especially in Europe.Cases are pending in Germany against other CIA agents and former defense secretary Donald Rumsfeld — all because of controversial aspects of the war on terrorism. These follow Belgium’s misguided effort to pursue “universal jurisdiction” claims for alleged violations of international law, which also resulted in complaints against American officials including Vice President Cheney and former secretary of state Colin Powell. That law was amended, but the overall problem is unlikely to go away. The initiation of judicial proceedings against individual Americans is too attractive a means of striking at the United States — and one often not subject to control by the relevant foreign government.
Accordingly, Congress should make it a crime to initiate or maintain a prosecution against American officials if the proceeding itself otherwise violates accepted international legal norms.
So it’s up to the U.S. — not any foreign tribunals — to prosecute war crimes and other felonies committed by American officials (for reasons that, at least in part, I find persuasive). In fact, they argue, international prosecutions are so illegitimate that such proceedings themselves should be declared by the U.S. to be crimes. Indeed, like most of their political comrades, Rivkin and Casey have consistently argued that U.S. jurisdiction over alleged violations of international law and U.S. treaties by U.S. citizens — including our leaders — is exclusive.
They made the same argument when opposing U.S. ratification of the enabling statute of the International Criminal Court (.pdf), arguing that “[t]he question is whether [international] law can, or should, be enforced outside national legal systems that have generally functioned well.” Their answer, of course, is that, when it comes to Americans, international law obligations cannot and shouldn’t be enforced anywhere but America:
There are many problems with the Rome Treaty. The most immediate one, for Americans, is the danger of its being used as a political instrument against us. But the most profound flaw is a philosophical one: The concept of “international” justice underpinning the ICC project is more apparent than real. . . .
The prosecution of political leaders is inherently political, and there are at least two sides to every political conflict. . . . From America’s perspective, the greatest practical danger of joining the ICC regime would be that the court, driven by those who may resent American global preeminence, could seek to restrain the use of U.S. military power through prosecutions of U.S. leaders.
They then went on to call for the Bush administration to vocally and decisively reject the legitimacy of the ICC so that the whole edifice would collapse. This is because American leaders should not be subjected to prosecution in foreign countries for their crimes — only in America.
Yet what do these two argue today? That domestic investigations and prosecutions — by American tribunals and American courts — are alsoinappropriate, illegitimate and destructive. Though they acknowledge that “the Justice Department is capable of considering whether any criminal charges are appropriate,” they nonetheless insist that this must not be done:
For his part, President Obama has reacted coolly to calls to investigate Bush officials. Obama is right to be skeptical; this is a profoundly bad idea — for policy and, depending on how such a commission were organized and operated, for legal and constitutional reasons. . . .
Attempting to prosecute political opponents at home or facilitating their prosecution abroad, however much one disagrees with their policy choices while in office, is like pouring acid into our democratic machinery. As the history of the late, unlamented independent counsel statute taught, once a Pandora’s box is opened, its contents can wreak havoc equally across the political and party spectrum. . . .
Obama and the Democratic Congress are entitled to revise and reject any or all of the Bush administration’s policies. But no one is entitled to hound political opponents with criminal prosecution, whether directly or through the device of a commission, and those who support such efforts now may someday regret the precedent it sets.
So no international tribunals or foreign countries have any power to investigate or prosecute American officials for war crimes (even when those war crimes are against citizens of those countries and/or committed within their borders). And, American political officials must also not be prosecuted inside the U.S., by American courts. “Nobody is entitled” to do that either, because “attempting to prosecute political opponents at home or facilitating their prosecution abroad is like pouring acid into our democratic machinery.”
The implication of their argument — which is now the conventional Beltway view — is too obvious to require much elaboration. If our political leaders can’t be held accountable for their war crimes and other serious felonies in foreign countries or international tribunals, and must never be held accountable in the U.S. either (because to do so is to “pour acid into our democratic machinery”), then it means that American political officials (in contrast to mostother leaders) are completely and explicitly exempt from, placed above, the rule of law. That conclusion is compelled from their premises.
At least to me, it’s just endlessly perplexing how anyone — let alone our political class in unison — could actually endorse such absolute lawlessness for political leaders. Didn’t our opinion-making elites learn in eight grade that the alternative to a “nation of laws” was a “nation of men” — i.e., the definition of tyranny? Those are the only two choices. It’s just so basic.
Apparently, though, this is all fine with our political establishment, since none of this is new. Here’s what Iran-contra prosecutor (and life-long Republican official) Lawrence Walsh said in 1992 after George H.W. Bush pardoned Casper Weinberger days before his trial was set to begin:
President Bush’s pardon of Caspar Weinberger and other Iran-contra defendants undermines the principle that no man is above the law. It demonstrates that powerful people with powerful allies can commit serious crimes in high office — deliberately abusing the public trust without consequence.
Weinberger, who faced four felony charges, deserved to be tried by a jury of citizens. Although it is the President’s prerogative to grant pardons, it is every American’s right that the criminal justice system be administered fairly, regardless of a person’s rank and connections.
The Iran-contra cover-up, which has continued for more than six years, has now been completed with the pardon of Caspar Weinberger. . . . Weinberger’s early and deliberate decision to conceal and withhold extensive contemporaneous notes of the Iran-contra matter radically altered the official investigations and possibly forestalled timely impeachment proceedings against President Reagan and other officials. Weinberger’s notes contain evidence of a conspiracy among the highest-ranking Reagan Administration officials to lie to Congress and the American public. . . .
In light of President Bush’s own misconduct, we are gravely concerned about his decision to pardon others who lied to Congress and obstructed official investigations.
Does anyone deny that we are exactly the country that Walsh described: one where “powerful people with powerful allies can commit serious crimes in high office — deliberately abusing the public trust without consequence”? And what rational person could think that’s a desirable state of affairs that ought not only be preserved — but fortified still further– as we move now to immunize Bush 43 officials for their far more serious and disgraceful crimes? As the Rifkin/Casey oeuvre demonstrates, we’ve created a zone of lawlessness around our highest political leaders and either refuse to acknowledge that we’ve done that or, worse, have decided that we don’t really mind.
On Friday in Salon, Joe Conason argued that there should be no criminal investigations of any kind for Bush officials “who authorized torture or other outrages in the ‘war on terror’.” Instead, Conason suggests that there be a presidential commission created that is “purely investigative,” and Obama should “promis[e] a complete pardon to anyone who testifies fully, honestly and publicly.” So, under this proposal, not only would we adopt an absolute bar against prosecuting war criminals and other Bush administration felons, we would go in the other direction and pardon them from any criminal liability of any kind.
I’ve already written volumes about why immunizing political officials from the consequences for their lawbreaking is both destructive and unjust — principally: the obvious incentives which such immunity creates (and, for decades, has been creating) for high-level executive branch officials to break the law and, even worse, the grotesque two-tiered system of justice we’ve implemented in this country (i.e., the creation of an incomparably harsh prison state for ordinary Americans who commit even low-level offenses as contrasted with what Conason calls, approvingly, “the institutional reluctance in Washington to punish political offenders”). Rather than repeat those arguments, I want to focus on an issue that pro-immunity advocates such as Conason simply never address.
The U.S. really has bound itself to a treaty called the Convention Against Torture, signed by Ronald Reagan in 1988 and ratified by the U.S. Senate in 1994. When there are credible allegations that government officials have participated or been complicit in torture, that Convention really does compelall signatories — in language as clear as can be devised — to “submit the case to its competent authorities for the purpose of prosecution” (Art. 7(1)). And the treaty explicitly bars the standard excuses that America’s political class is currently offering for refusing to investigate and prosecute: “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture” and “an order from a superior officer or a public authority may not be invoked as a justification of torture” (Art. 2 (2-3)). By definition, then, the far less compelling excuses cited by Conason (a criminal probe would undermine bipartisanship and distract us from more important matters) are plainly barred as grounds for evading the Convention’s obligations.
There is reasonable dispute about the scope of prosecutorial discretion permitted by the Convention, and there is also some lack of clarity about how many of these provisions were incorporated into domestic law when the Senate ratified the Convention with reservations. But what is absolutely clear beyond any doubt is that — just as is true for any advance promises by the Obama DOJ not to investigate or prosecute — issuing preemptive pardons to government torturers would be an unambiguous and blatant violation of our obligations under the Convention. There can’t be any doubt about that. It just goes without saying that if the U.S. issued pardons or other forms of immunity to accused torturers (as the Military Commissions Act purported to do), that would be a clear violation of our obligation to “submit the [torture] case to [our] competent authorities for the purpose of prosecution.” Those two acts — the granting of immunity and submission for prosecution — are opposites.
And yet those who advocate that we refrain from criminal investigations rarely even mention our obligations under the Convention. There isn’t even a pretense of an effort to reconcile what they’re advocating with the treaty obligations to which Ronald Reagan bound the U.S. in 1988. Do we now just explicitly consider ourselves immune from the treaties we signed? Does our political class now officially (rather than through its actions) consider treaties to be mere suggestions that we can violate at will without even pretending to have any justifications for doing so? Most of the time, our binding treaty obligations under the Convention — as valid and binding as every other treaty — don’t even make it into the discussion about criminal investigations of Bush officials, let alone impose any limits on what we believe we can do.
What was all the sturm und drang about in 2003 over Bush’s invasion of Iraq without U.N. approval, in violation of the U.N. charter? Wasn’t it supposed to be a bad thing for the U.S. to violate its own treaties? What happened to that? Conason himself was actually one of the clearest and most emphatic voices presciently highlighting the deceit on which the pro-war case was based, stridently warning of “ruined alliances and damaged institutions.” Why, then, is it acceptable now to ignore and violate our treaty obligations with regard to torture and other war crimes committed by high-level Bush officials? What’s the argument for simply pretending that these obligations under the Convention don’t exist?
* * * * *
On a related note, Conason, in the very first paragraph of Friday’s article, plainly misstated the results of a new Gallup poll on the question of whether Bush officials should be prosecuted and/or investigated. I have no doubt it was unintentional, but his error highlights a very important point about how this debate has proceeded. Here’s what Conason wrote in his first paragraph (emphasis added):
More than 60 percent of Americans believe that alleged abuses and atrocities ordered by the Bush administration should be investigated either by an independent commission or by federal prosecutors, according to a poll released yesterday by the Gallup Organization. A significant minority favors criminal sanctions against officials who authorized torture or other outrages in the “war on terror” — yet a considerably larger minority of nearly 40 percent prefers that the Obama administration leave its wayward predecessors be.
That last assertion (the one I bolded) is simply untrue. As Jim White notes here, the Gallup poll asked about three different acts of Bush lawbreaking: (1) politicization of DOJ prosecutions, (2) warrantless eavesdropping on Americans, and (3) torture. For each crime, it asked which of three options respondents favored: (1) a criminal investigation by the DOJ; (2) a non-criminal, fact-finding investigation by an independent panel; or (3) neither. The full results are here.
For all three separate acts of alleged crimes, the option that receives the most support from Americans is criminal investigations (i.e., the exact opposite of what Conason wrote). And the percentage that favor that nothing be done is in every case less than the percentage that want criminal investigations, and the “do-nothing” percentage never reaches 40% or close to it (the highest it gets is 34% — roughly the same minority of pro-Bush dead-enders that continue to support most of what was done).
As White notes, the breakdowns are even more revealing. For all three areas of lawbreaking, majorities of Democrats (which, by the way, is now the majority party) favor criminal investigations. For each of the three areas, more independents favor criminal prosecutions than favor doing nothing, and large majorities of independents — ranging from 59% to 71% — want either a criminal investigation or an independent fact-finding investigation. A Washington Post poll from a couple weeks ago found very similar results: majorities of Americans (and large majorities of Democrats) favor investigations into whether Bush officials broke the law and, by a wide margin, oppose the issuance of pardons to Bush officials.
Imagine what those numbers would be in a world where virtually every establishment political pundit — literally: whether Democratic or Republican, liberal or conservative — weren’t uniting together to oppose prosecutions for torture and war crimes. Even with that unified anti-prosecution stance from a trans-partisan rainbow of Beltway opinion-makers, criminal investigations remain the leading position among Americans generally and among majorities of Democrats specifically. Those are just facts.
As is always the case, the mere fact that majorities of Americans believe X does not mean that X is right or true. But pundits, journalists and politicians should stop claiming that they’re speaking for most Americans when they argue that we should just “move on” — or that the belief in investigations is the province of the leftist fringe — because that claim is demonstrably false.
Recall when opposition to the Iraq War and a demand for a withdrawal timetable was routinely depicted by the Beltway class as a “liberal” or even Far Left position — even though large majorities of Americans held exactly those views. Apparently, the Far Left encompassed more than 60% of the country. Or recall when Time‘s Managing Editor, Rick Stengel, went on national TV andclaimed that Americans don’t want Bush officials and Karl Rove investigated for the U.S. Attorney scandal even when polls showed that large majorities of Americans favored exactly those investigations (a false claim which, to this day, Stengel refuses to retract).
That is the same flagrant distortion of public opinion that one finds here in the debate over investigations. The Washington Post‘s David Ignatius claims that a desire for investigations of Bush crimes is confined to “liberal score-settlers.” Lindsey Graham asserts that only the “hard Left” wants criminal investigations. Newsweek‘s Jon Barry is certain that the desire for investigations is only about “vengeance, pure and simple.”
Apparently, huge numbers of Americans — majorities, actually — are now liberal, vengeance-seeking, score-settlers from the Hard Left. What we actually have is what one finds again and again: establishment journalists who will resort to outright distortions about American public opinion in order to render it irrelevant, by claiming that “most Americans” believe as they believe even where, as here, that claim is categorically false. It’s hardly surprising (except to an insular Beltway maven) that Americans, who know that they will be subjected to one of the world’s harshest and most merciless criminal justice systems if they break the law, don’t want political elites exempted from the rule of law. Imagine that.
* * * * *
Finally, Newsweek‘s Michael Isikoff — echoing a report from John Yoo’s Berkeley colleague, Brad DeLong — reports that an internal DOJ probe (initiated during the Bush administration) has preliminarily concluded that Bush DOJ lawyers who authorized torture (John Yoo, Jay Bybee, Stephen Bradbury) violated their professional duties as lawyers by issuing legal conclusions that had no good faith basis, and that this behavior will be referred to their state bar associations for possible disciplinary action. Those conclusions so infuriated the allegedly honorable Michael Mukasey that he refused to accept the report until changes were made. Now it is up to Eric Holder to accept and then release that report.
The implications of this event can’t be overstated. One of the primary excuses offered by Bush apologists and those who oppose investigations is that Bush DOJ lawyers authorized the torture and opined that it was legal. But a finding that those lawyers breached their ethical obligations would mean, by definition, that the opinions they issued were not legitimate legal opinions — i.e., that they were not merely wrong in their conclusions, but so blatantly and self-evidently wrong that they were issued in bad faith (with the intent to justify what they knew the President wanted to do, rather than to offer their good faith views of what the law permitted).
The Convention Against Torture explicitly prohibits the domestic legalization of torture, and specifically states that it shall not be a defense that government officials authorized it. So whether or not these legal opinions were issued in good faith is irrelevant to our obligations under that treaty to investigate and prosecute. But a finding that these legal opinions were issued in bad faith — with the deliberate intent to knowingly legalize what was plainly criminal behavior — will gut the primary political excuse for treating Bush officials differently than common criminals.
UPDATE: Citing numerous leading international law authorities, Valtin has an excellent discussion of the obligations the U.S. has to criminally investigate Bush crimes, not only under the Convention Against Torture but also under the Geneva Conventions. If we don’t consider ourselves bound by the treaties we sign, we should just say so and abrogate them. Those demanding criminal immunity for Bush officials are advocating that we can and should violate our treaty obligations; they really ought to be honest about it.
UPDATE II: On June 28, 2004, George Bush commemorated the U.N. Day to Support Torture Victims and vowed that the U.S. “will investigate and prosecute all acts of torture and undertake to prevent other cruel and unusual punishment in all territory under our jurisdiction.” In doing so, he specifically cited the U.S.’s binding obligation under the Convention to do so (h/t leftydem):
To help fulfill this commitment, the United States has joined 135 other nations in ratifying the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. America stands against and will not tolerate torture. We will investigate and prosecute all acts of torture and undertake to prevent other cruel and unusual punishment in all territory under our jurisdiction. American personnel are required to comply with all U.S. laws, including the United States Constitution, Federal statutes, including statutes prohibiting torture, and our treaty obligations with respect to the treatment of all detainees. . . .
The United States also remains steadfastly committed to upholding the Geneva Conventions, which have been the bedrock of protection in armed conflict for more than 50 years. . . . [W]e will not compromise the rule of law or the values and principles that make us strong. Torture is wrong no matter where it occurs, and the United States will continue to lead the fight to eliminate it everywhere.
If George Bush, citing our obligations under the Convention Against Torture and the Geneva Conventions, can publicly vow that “we will investigate and prosecute all acts of torture,” why can’t Democratic politicians and liberal pundits simply cite the same treaty obligations and make the same commitment?
Allison Kilkenny: Unreported 
leave a comment