No Associated Press content was harmed in the writing of this post
Prairie Weather inspired this week’s post. I have been unsuccessfully trying to write about what may be a vast, unexamined record of wrongdoing from the administration, and a brief exchange started by PW finally got me unstuck. Stuart Taylor Jr. has argued for pardons, Cass Sunstein agrees and Victoria Toensing has added (via) her own dubious logic to the drumbeat. A consensus has developed among political and media elites that no good purpose would be served by enforcing the law(!) and so for the sake of a smooth transfer of power and a calming of the political waters in the capitol we must let it all pass.
On the face of it I am vehemently opposed to ignoring criminality for the sake of comity. There is no position outlined by the pro-pardon group that is the slightest bit compelling to me. Sunstein’s belief that “I don’t think it’s appropriate at this stage to attempt to impeach two presidents consecutively” is completely absurd. At what stage would it be appropriate? If one party impeaches a President in a fit of cheap political grandstanding is his successor inoculated against it? What kind of crime would it take for Sunstein? Has anyone heard specifics? All I’ve heard so far are banalities along the lines of “any crime has to be taken quite seriously” and “are we in favor of immunizing people who worked in the White House in the last eight years from accountability for criminal acts? I don’t think anyone should be in favor of that.” Thanks, professor.
Toensing’s warning that “[i]f we don’t protect these people who are proceeding in good faith, no one will ever take chances” is outrageous as well. “We” do not need to protect people - the law does that. One of the signal achievements of this administration has been successfully advancing the notion of a patriotic duty to break the law. If the President “asks” individuals or businesses to do something plainly illegal out of loyalty to America then they may do so (even if they have access to an entire department of lawyers who could tell them they are breaking the law). A simple appeal by the President trumps the law, plain and simple. This is the concept of good faith that Toensing advances, and is euphemistically reduced to “taking chances”. What she describes is the absolute authority of the dictator. As for Taylor, see Andrew.
The crux of the problem is that the Republican party has come to view the law as entirely political. When Congress passes a law, or a President follows it (or doesn’t), or the Justice Department enforces it (or doesn’t), or the Supreme Court rules on it - these are all political footballs to be kicked around, not fundamental building blocks of a functional society. In other words, lawless, ignorant, contemptible hacks are fine as long as they are OUR lawless, ignorant, contemptible hacks. The collapse of integrity and wholesale politicization at Justice is not a problem in and of itself; it only is a problem if a Democrat does it. (The fact that they vote along party lines on these issues when they don’t walk out entirely should be all the proof you need.)
In an environment like that we will never get a full and satisfactory investigation. Every step of the way some GOP loyalist will cry foul and insist the REAL politicization is the belated enforcement. If we want to bypass all that maybe we should take up PW’s suggestion of “giving the country clotheslines laden with dirty linen and encouraging the voters to smell the stench and make up their own minds.” Or as John Mecklin put it, “[u]ntil we know the entire story of the conduct of the war on terror, a new story — with America reassuming a believable role as a guarantor of human rights — can’t really begin.” We could get a much better idea of the full truth by granting immunity and compelling testimony with a threat of perjury hanging over it.
I have to admit that such a scenario is in a way extremely unpalatable to me. Crimes have already been committed and a good part of me would be outraged if I knew that we were forever giving away the opportunity to see justice for them. But the question may come down to, would you rather have some justice with some truth, or no justice with full truth? And would you rather have maybe a handful of convictions that are forever criticized or a full toxic dump of truth that even the most rabid partisan will not approach? And wouldn’t the existence of such a thing, one way or another, create a justice of its own?
UPDATE: Today is the anniversary of Richard Nixon’s resignation, and the Accountability Now PAC is sponsoring a “Money Bomb” to mark the occasion. Please consider donating and making your voice heard, even if it only seems like a nominal amount. There is a greater difference between zero and one than between one and a million.
No Associated Press content was harmed in the writing of this post
A very busy week. First up:
Troubling indications are emerging that the government is building a massive, virtually oversight-free domestic surveillance apparatus that could be cataloging private information on untold numbers of innocent Americans all under the guise of fighting terrorism, a new report warns.“Fusion centers” is the new phrase to watch out for, brought to you by the administration’s National Strategy for Information Sharing. Considering the dishonest and Orwellian language they their allies have used in the past this is remarkably restrained language.
Senator Obama has promised to “review every executive order signed by President Bush” if elected. That’s the kind of statement that could be an encouraging indication of his desire to roll back some of the excesses of the current administration or it could just be feel-good blather. Not to seem cynical but I lean towards the latter. Obama is a politician and therefore is sometimes willing to trade positions on issues for different reasons (e.g. his new willingness to consider offshore drilling). I’m not critical of that in general (though there have been issues - FISA and the Iraq war in particular - where a line had to be drawn) and I’m sympathetic to the need to adjust. But that also means, let’s not be naïve either. There will be a lot of pressure to go along and get along, let bygones be bygones, not litigate the past, not criminalize policy differences, etc. A President Obama might be very tempted to let them be as a goodwill gesture to the authoritarians in Washington D.C. Having all those expanded powers at his disposal would just be gravy I’m sure.
I didn’t cover this in my post on Thursday but part of the problem with our current Attorney General is that the press either ignores him or publishes contemptible nonsense that focuses on his personal virtue and ignores the radicalism of his actions as AG. For example, when the department he leads tries to keep challenges to the FISA Amendments Act (FAA) secret I don’t especially care that “[h]e doesn’t do politics, and he doesn’t do popularity contests. He doesn’t do flavor-of-the-month. He does law.” Bullshit.
(The fact that so much attention is focused on officials’ private conduct and so little on the way their actions in office affect the people they represent is generally beyond the scope of Pruning Shears but when it bumps up against a topic here I like to point it out. A lot of reporters are less concerned with what happens from 9 to 5 than what happens from 5 to 9.)
I neglected to point this out last week, but just for future reference: When I write with a low opinion of Cass Sunstein this is the reason why (via).
From the “wouldn’t it be nice” file comes the news that “U.S. District Court Judge John M. Facciola ordered the Bush administration to locate the missing communications on portable devices and individual workstations.” Even if all the emails existed on some combination of devices there probably isn’t a master list of all such devices, and even if there were how would Facciola’s order be enforced? How would even a single device be certified as having been properly searched?
Britain doesn’t trust us? Why on earth not?
Libby pointed to a report that the President is trying to marginalize the CIA. More than any other agency the CIA has produced inconvenient analysis for the administration so it isn’t really a surprise that he wants to squash it like a bug.
The court did note, in several places, that Congress likely has (again, at least in theory) the inherent authority to arrest and detain Executive Branch officials who refuse to comply with their Subpoenas. But they have demonstrated no appetite for exercising that power, and short of something truly threatening like that, it is difficult to envision Bush officials being meaningfully forthcoming in any Congressional investigation.Here’s a comment I left at Marcy’s place this week on another topic:
Sorry, but this kind of crap is a waste of time. Congress needs to enforce existing violations of the law instead of trying to think of every loophole that a creative administration will dream up in the future. That’s a fool’s errand - the problem isn’t that the law is ambiguous, it’s that the administration is contemptuous of laws and the body that creates them. Every time they do one of these “let’s criminalize waterboarding again and then it will be really illegal” exercises they are playing into the administration’s hands. Don’t those guys get tired of being beaten like a drum?Congress doesn’t need more laws. It needs to take action.
On a happier note, see here and here [WHOA! Link broken! - Dan] (via) for two examples of signs of life in the GOP. If Republicans in Congress are becoming willing to challenge the President we may have finally turned a corner. Let’s hope it’s not just a summer mirage.
Finally, a note on economics and politics. John McCain has released a tax plan that is transparently false and it is being treated like a realistic proposal. Let’s go back to the thoughts of a certain candidate for Senate on the election year reporting in 2000:
[I]n the second debate, Bush said, “By far, the vast majority of my tax cut goes to those at the bottom.” (Actually, only 13 percent of his proposed tax cut went to the bottom 60 percent.) Did the press say anything? No. Why? Because their attitude was, shrug, “He doesn’t know.”When that is the starting point for economic policy reporting don’t be surprised if it leads to disastrous results. Unless you are lazy or of below average intelligence there is no reason to give such dishonesty a free pass.
I have written previously about how the administration will be more concerned with covering its tracks than anything else in its final months, and recently the pace has picked up. Maybe the passage of the new FISA bill kicked it off in the same way Memorial Day informally starts summer in America (and Labor Day ends it - you can keep all your fancy solstices and equinoxes). Whatever the cause though, the effort is underway to run out the clock, cloud the law and excuse the guilty. A key leader is Michael Mukasey. He has already shown a willingness to be a demagogue on terrorism and an apologist for torture. Now he is wants Congress to ignore the Boumediene decision with a leap of logic that would - literally - create the permanent environment of a police state:
[A]ny legislation should acknowledge again and explicitly that this Nation remains engaged in an armed conflict with al Qaeda, the Taliban, and associated organizations, who have already proclaimed themselves at war with us and who are dedicated to the slaughter of Americans-soldiers and civilians alike. In order for us to prevail in that conflict, Congress should reaffirm that for the duration of the conflict the United States may detain as enemy combatants those who have engaged in hostilities or purposefully supported al Qaeda, the Taliban, and associated organizations.
This is a classic administration attempt to take a narrow need and expand it to contain whole new worlds of authority. (Remember, the only fix needed for FISA was a law allowing warrantless surveillance for foreign-to-foreign communication that passed through American infrastructure.) What is needed is for the military in Afghanistan and Iraq to operate prisoner of war camps. Even this is a little bit slippery because there will not be a Missouri or Appomattox moment in these wars, but eventually our soldiers will stop serving in combat roles. At that point we will have reached the closest we will get to a definitive conclusion. With that as a rough guide we could target a final disposition for all enemy combatants.
That isn’t what Mukasey wants, though. He wants anyone “dedicated to the slaughter of Americans-soldiers and civilians alike” to be the target, not those who are actively fighting us (the possession of such dedication would presumably be determined by enlightened souls such as…Michael Mukasey). He wants to set up a system where an unknowable quantity like bad intent is the standard for detaining people. The fact that the administration has been doing so and has suffered four consecutive reversals by the Supreme Court does not seem to trouble him. What he really wants is for Congress to give legal cover for the executive branch’s illegal detention system.
Equally disturbing is the duration of this alternate justice system. The effective suspension of habeas corpus will be “for the duration of the conflict”, which the administration prefers to mean “as long as anyone in the world wants to do America harm.” In other words, permanently. The actual scope of what we are (or should be) doing from a military perspective is very limited: Having soldiers capture or kill the remnants of al Qaeda and their Taliban sponsors somewhere in the remote regions of Afghanistan (and maybe the Pakistan border too). We could probably limit it even more - the Taliban have been routed from power and al Qaeda no longer has training camps from which to plan new attacks. We could just keep watching the area, keep them on the run and disrupt any attempts to settle down and organize. The formal military campaign against the people who attacked us has been over since December 2001.
What is left is tracking those who survived the campaign in those areas and law enforcement efforts elsewhere. John Kerry was derided for making that suggestion in 2004 but he was right. Even formerly reliable allies of the President have begun to concede this obvious point. The bulk of our efforts should focus on intelligence gathering (a substantial part of which can be accomplished by activities as prosaic as reading local newspapers), identifying cells of activity in both friendly and hostile countries, and finding ways to disrupt them. (One more obvious point: Identifying and detaining potential terrorists is easier when the country they operate in has a favorable impression of us.) It is a serious threat but not an existential one, and anyone looking to characterize it as such - as an endless war with no well defined enemy or articulation of victory - may fairly be suspected of ulterior motives. The effort did not require the erosion of civil liberties that have already happened, and our ongoing efforts against those who would do us harm do not require further concessions to extremists like Mukasey.