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Pushing Back on the Executive Branch

No Associated Press content was harmed in the writing of this post

On most issues I am firmly in the liberal camp, but have recently voiced disagreements with some on the left I usually agree with. The responses have been somewhat surprising. There are issues concerning the presidency and the executive branch in general, and Barack Obama should not be above criticism if he contributes to them. Defenders have said he is just getting started so it is too early to make even preliminary evaluations, that relatively minor retreats from Bush administration policies are sufficient concessions to civil libertarians, that the economic mess crowds out consideration of other issues, or that we ought to give him the benefit of the doubt as he works out his stance towards the Constitution in the expectation he will eventually end up in the right place.

I understand he has been in office for just over a month but his decisions on detainees at Bagram and the State Secrets privilege should not be ignored. They are noteworthy in and of themselves; moreover, early decisions give us the best indication of what to expect. If the first ones are hostile towards human rights and transparency what reason is there to expect better? Does it make any sense to say that he has been so busy getting the stimulus bill together that he has not had time to think about how we treat those who have been warehoused for years in extrajudicial limbo? When would that time arrive? What reason is there to expect additional reflection would change his first thoughts? While the broad outlines so far sketched out (such as closing Guantánamo in a year) have been good the early details have not.

Even rolling back Bush’s power grabs all the way to January 20th, 2001 would not be sufficient to restore our traditional honoring of civil liberties and human rights. The environment that Bush inherited was the foundation from which his abuses were launched. Removing them would just leave the platform on which the next Bush (God help us) could rebuild. While you could argue that the Clinton administration’s use of rendition was generally valid - though I do not agree - there can be no question that it operated outside of judicial or Congressional oversight. That in turn forces those defending it to use qualified language, such as saying the Clinton administration “generally used the practice to allow suspects to face criminal prosecutions, rather than solely to undergo interrogation”. The absence of a formalized extradition treaty creates a loophole big enough to rationalize using it for a much wider variety of purposes. You “generally use” it one way, we’ll generally use it another.

If we want to reduce the chance of history repeating itself we should look at our assumptions prior to Bush. We may have had a certain amount of complacency, naïveté or indifference to the precedents that would later be used to justify activities that outraged us. What we know now should make us willing to question items that have long been considered as settled, and two recent developments are greatly encouraging examples of that. In the first Steven Aftergood reports (via) that Judge T.S. Ellis, III has overruled an executive branch classification claim in an ongoing lawsuit. Judges have typically been very deferential towards government classification, allowing it to do so largely unchallenged. Ellis has ruled that not only will he review the documents but so will the jury, and it will decide whether they remain classified. It is an almost astonishing display of good sense: The overwhelming bulk of evidence suggests that secrecy is invoked to quash embarrassing, unethical or criminal behavior. Finding a way for the courts to check these claims instead of accepting them at face value seems several decades overdue.

The second is the announcement by senators Sheldon Whitehouse and Patrick Leahy that a commission on torture during the Bush years may be formed. Now, I have been sorely disappointed by Leahy in the past and thought his unwillingness to play Constitutional Hardball with the Bush administration made him look impotent and clownish. Also, Congressional committees seem to take forever and produce reports instead of action. Those reservations aside it seems possible the Senate will proceed regardless of the White House’s position. Whitehouse said “When push comes to shove, we are the legislative branch of government. We have oversight responsibilities. And we don’t need the executive branch’s approval to look into these things just as a constitutional matter.” If that really is his and the Senate’s position it would mark a welcome return of a kind of principled but adversarial check on the president that has been missing much longer than eight years. Here’s hoping the attitude is contagious.

This Week In Tyranny

No Associated Press content was harmed in the writing of this post


Avedon pointed me to Jane Hamsher’s response to Joe Conason’s call to pardon those involved in torture:  “demanding accountability isn’t part of some partisan victory lap, it’s the duty of a responsible citizenry.”  In fact, let’s just go with a big ol’ chunk of Jane (emphasis hers):

Can we stop casting this as vengeance? Can we stop painting people who believe that something terrible was lost during the last eight years, something moral and decent and good at the core of the American soul, as little more than “angry” and “vindictive?” And can we stop assuming that there is something magnanimous about a “bipartisanship” that exists only when both sides agree to walk into the next room and pretend that the pile of wreckage we leave behind, the one that nobody wants to look, isn’t still on fire?

There’s something really disturbing about the assumption that “magnanimously binding up the nation’s wounds” by fobbing off the responsibility for enforcing our laws onto international courts represents some kind of “greater good.” Or that people who still believe accountability in government is the very foundation of the rule of law simply haven’t moved on to a higher moral plane, where “truth” can be sought without “vengeance.”

The political discourse has become increasingly polarized over the last eight years, but that’s not — as “bipartisan” fetishists found out during the stimulus debate — because all sides are equal and everyone is arguing in good faith, just waiting for a grand unifier to raise them up from their bickering. It’s because the nation was being run like an organized crime syndicate by crooks, and the appropriate response was outrage.

When that lady is on she’s as sharp a political commentator as we have in America.


I nearly fell off my chair when I read this from Charles Schumer:

I do agree with people like Roubini or Mishkin — and I think people would support this — that the government should come in. And what the government would do would be: wipe out the shareholders, put in new management — wipe out the old management and put in new management — and then let the bank run sort of independently without day-to-day government intervention.

That is literally the first time I’ve seen a major politician invoke Roubini’s name and it’s a big deal to me at least.  It means that maybe someone who was right about the whole developing mess is actually being cited as an expert.  To this point the only people who have enjoyed such status have either been perpetrators or were asleep at the switch.  If someone whose advice has demonstrated credibility is being listened to it’s a huge change, and obviously a welcome one.  UPDATE:  Articles like this make me think that exactly 3 months from today - May 22, 4:30 PM - would be the perfect moment to announce which banks will be nationalized.  It’s enough time to do the stress testing, not too long for the market to wait, and if it was announced the minute the markets closed on the Friday before Memorial Day it would give a 3 day weekend for everyone to digest it.  (This is just the speculation of a somewhat close observer of the situation; I claim no expertise or inside information.)


From welcome to unwelcome.  Secretary of State Hillary Rodham Clinton was in China this week and said of Chinese leaders’ record on human rights “we have to continue to press them. But our pressing on those issues can’t interfere” with other issues.  I’ve never been able to come to any definitive position on China.  Its human rights violations domestically and in Tibet are detestable and its aggressive stance towards Taiwan seems to frequently be a source of international tension.  On the other hand it is an the world’s most populous nation and is attempting to industrialize - and generally raise the standards of living of its citizens - without losing control or having another Cultural Revolution.  (And those who think industrialization is evil have probably never tried subsistence farming.)  Whenever I see American officials downplay human rights abuses like Clinton did it sets my teeth on edge.  On the other hand, a destabilized China would likely produce far worse fates for far larger numbers of people.   What the hell are you going to do?

Oh and also, thanks to George Fucking Bush this is all a purely academic exercise.  America is obviously in no position to call out civil or human rights abuses in other nations.


From unwelcome to horrible.  Easily the worst news of the week is that Barack Obama is going to continue Bush’s policy of extrajudicial imprisonment at Bagram Air Force base in Afghanistan.  It’s an explicit embrace of one of Bush’s worst policies.  Terrible policy, terrible decision, but it gives us a much better idea of what to expect from Obama.  Heck of a job, guy.


UNPACKING JANE:  Speaking of detention programs, on pp. 257-8 Mayer writes about the death of Manadel al-Jamadi:

“Is the CIA capable of addressing an illegal killing by its own hands?” asked Thomas Powers, the author of two books on the Agency.  “My guess is not.”

It appeared that in the view of the Bush Administration, the killing of Jamadi broke no laws.  The CIA’s inspector general launched an investigation of the homicide and eventually made a criminal referral to the Justice Department, after finding “the possibility of criminality” in the Agency’s conduct.  But the referral went nowhere.  Former CIA inspector General Fred Hitz, a lecturer in public and international affairs at Princeton University, said “I think they’re just playing stall ball.  They want this case to disappear off the screen.”  Given that both Attorney General John Ashcroft and Alberto Gonzales, as well as the head of the criminal division, Michael Chertoff, had signed off on the CIA’s secret interrogation and detention program, a prosecution would have risked exposure and blame.  As John Sifton, a lawyer for Human Rights Watch, concluded: “It’s hard to imagine the current leadership pursuing these guys, because the Justice Department is centrally implicated in crafting the policies that led to the abuse.”

It is becoming increasingly hard to envision any leadership pursuing these guys.

Barack Obama and the Imperial Presidency

No Associated Press content was harmed in the writing of this post

Although it is still very early into Barack Obama’s presidency it is hard (for me anyway) to avoid frequent comparisons with George Bush. Since I have, to put it mildly, a low opinion of Bush the rule of thumb is that any break from his policies is a good thing. Obama has already shown some big differences, from the SCHIP extension (which passed into law with remarkably little fanfare considering how much attention it got last time around) to the announced plan to withdraw from Iraq to the passing of a stimulus bill that would probably have been vetoed by Bush. There have already been substantive changes, and even though I have been critical of some of Obama’s stances I want to be clear that some important breaks with the past have already been made.

There have been similarities, though, some of them more than skin deep. While something like disciplined campaigning and messaging may be largely superficial (though arguably not), something like scope of ambition is another matter. Barton Gellman’s Angler captures Bush’s fondness for large scale projects through the now greatly irritating phrase “game changer,” as in (p. 37) “[Donald Rumsfeld] appealed to Bush’s fondness for ‘transformation,’ ‘game changers,’ big ideas’”, or (p. 88) “Bush liked game changers, not small ball” or (p. 265) “Why cut the [capital gains] tax, [Bush] asked, when we can abolish it? That would be a game changer, a declaration of principle.” At this point the public might be just a bit wary (and weary) of a president who declares grand visions. So when Obama’s top economic advisor says “this is not a small-ball President. He wants to take on the large issues,” doesn’t anyone in the White House realize such sweeping language might conjure up images of inflexible, bullying leaders launching dogma-driven crusades that do not at any point acknowledge reality? Even assuming perfect good faith - that they truly believe the crisis is as acute as they say, and that their belief is well supported by available evidence - shouldn’t someone make sure they don’t sound like the previous administration when they speak to the public?

The use of language may be a cosmetic issue, but the budget and the nature of presidential authority are not. For the first, think about how budgets have changed over the years. It now seems almost expected that the president will (to use Ronald Brownstein’s phrase) unveil the framework of his budget, at which point Congress gets to work on it. But Congress is responsible for writing and passing the budget. We do not seem to work that way now, but we used to. In 1987 the New York Times wrote: “The President’s budget is both a political statement and an economic manifesto, and in recent years it has been altered so much by Congress that the final product bears little resemblance to what the President proposed.” The Office of Management and Budget would release a budget and Congressional leaders would declare it dead on arrival. There was a sense that the president was encroaching on their territory and was not welcome. To an extent that was an interparty dispute which is obviously not in play now, but even taking that into account it is surprising how much the president now is able to “unveil” his budget as the blueprint for Congress to work from.

(As a side benefit for progressives, stronger pushback from Congress might result in more liberal friendly budgets. Nancy Pelosi seems noticeably to the left of Obama, who seems to be spending a good deal of time establishing his centrist bona fides. Budgets originating in the House would presumably look quite different; it seems to be one of those happy situations where good principles are also good politics.)

The most troubling of the early similarities has to be a certain majestic regard for the prerogatives of the executive branch. John Conyers has subpoenaed Karl Rove for the second time this session for testimony regarding the politicization of the Justice Department. Instead of letting the situation play itself out White House counsel Gregory B. Craig jumped in, saying “the president is very sympathetic to those who want to find out what happened. But he is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency. So, for that reason, he is urging both sides of this to settle.” It is impossible to know what is going on behind the scenes, but on the face of it Craig’s statement seems to put the interests of the office before criminal investigation.

An exalted view of the presidency is a key part of what many people disliked about George Bush. Barack Obama embraces it at his peril.

This Week In Tyranny

No Associated Press content was harmed in the writing of this post


Barack Obama seems to be trying to finesse his way out of doing anything about potential criminality or war crimes during the Bush era, but it just comes across as disingenuous dissembling to me.  A statement like “if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen” make me wonder, what would such a clear instance be to him?  To indulge in a little sarcasm, would Dick Cheney have to fall to his knees on Larry King Live and confess “yes, I did it!” for Obama to feel compelled?  There are sufficiently compelling indications right now to justify an investigation.  Quit trying to punt this down the road.  Either say you’re doing nothing or tell Eric Holder to go where the facts take him.  And trust me on this, if you do the former you’re satisfying the wrong people.


On a more positive note it looks like information is slowly starting to leak out on what has been happening in Guantánamo, though it is hard to think of it as good news when it confirms some of our worst fears about what may be happening there:

“In both cases, for example, [prisoners] were handcuffed to fixed objects above their heads in order to keep them awake,” reads the document. “Additionally, interrogations in both incidents involved the use of physical violence, including kicking, beating, and the use of “compliance blows” which involved striking the [prisoners] legs with the [interrogators] knees. In both cases, blunt force trauma to the legs was implicated in the deaths. In one case, a pulmonary embolism developed as a consequence of the blunt force trauma, and in the other case pre-existing coronary artery disease was complicated by the blunt force trauma.”

Also genital slicing, and other acts of torture that make waterboarding “very far down the list of things they did.”


It isn’t just Guantánamo, either. Bagram Air Base in Afghanistan and several locations in Iraq have also been used for large scale civil and human rights abuses.  It is not possible to quarantine disregard for treaty obligations or the law (domestic or international).  Once you start it somewhere it quickly spreads.  And the agents of transmission are at the top.


Please note:  Neither of the preceding items is to be taken as a clear instance of anything.  Thank you.


So Pentagon official Sandra Hodgkinson thinks Guantánamo is being run “fully in accordance with U.S. legal obligations.”  Hardly makes sense to shut it down under those circumstances, yes?  This along with the, um, ambiguous communication policy of the Defense Department policy towards the White House are just the latest indications that the president may not have captured the full attention (or respect) of military leaders.  I wonder if they realize just how destabilizing such an attitude can be if sustained.  Outsized military influence in national politics is more a feature of, say, Pakistan than Canada.  Of course, since it now seems nearly inevitable that sometime in the near future leading lights on the right declare themselves jihadis, perhaps this is by design and not an accident.


A note on our financial troubles.  So now it seems the plan is to give financial institutions lots of money to tide them over until their portfolio of worthless paper recovers some of its value.  Here’s the problem:  That paper is at the moment worth as much as it ever will be.  It will not rally, it will not rebound.  There has been a permanent loss of capital and those who suggest otherwise do so from deep in a well of denial.  This is like telling someone who bought Enron stock at $90 a share in August 2000 to keep hanging on to it after the price collapsed in hopes that it would, say, get back to 50.  (And you technically haven’t lost anything until you sell it!)  The problem with such wishful thinking is that it erects an enormous psychological barrier to moving on.  As long as you keep desperately hoping for some kind of recovery you’ll stay frozen in place.  The first step has to be acknowledging that money ain’t coming back and accepting that painful reality.  Until that happens we will continue to be stuck at a dead end.


UNPACKING JANE:  On page 151 Mayer writes about torture:

It might be banned, but what if the Bush Administration described the psychic stress and physical duress they hoped to exert on captives as something else? Among the euphemisms the President would employ in the years to follow were “enhanced” interrogations, “robust” interrogations, and “special” interrogations.  The redefinition of commonly understood crimes enabled Cheney to describe “waterboarding,” a process of partial drowning and asphyxiation that had been classified as a criminal form of torture in the United States since at least 1901, as “a no-brainer for me,” while at the same time insisting, “We don’t torture.” As William Safire, the conservative language columnist at the New York Times, wrote, “Some locutions begin as bland bureaucratic euphemisms to conceal great crimes.  As their meanings become clear, these collocations gain an aura of horror.  In the past century, the ‘final solution’ and ‘ethnic cleansing’ were phrases that sent a chill through our lexicon.  In this young century, the word in the news…is waterboarding.  If the word torture, rooted in the Latin for ‘twist,’ means anything (and it means the deliberate infliction of excruciating physical or mental pain to punish or coerce), then waterboarding is a means of torture.

The Bush Administration’s corruption of language had a curiously corrupting impact on the public debate, as well.  It was all but impossible to have a national conversation about torture if top administration officials denied they were engaged in it.  Without access to the details of the CIA’s secret program, neither Congress nor the public had the means to argue otherwise.  The Bush Administration could have openly asked Congress for greater authority, or engaged the public in a discussion of the morality and efficacy of “enhanced” interrogations, but instead it chose a path of tricky legalisms adopted in classified memos.

Who knows, there might even be some clear instances of wrongdoing in those memos.

Changing the Terms of the Debate

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The Obama administration’s position on the state secrets privilege (SSP) this week strikes me as a continuation of last week’s debate over rendition. It has been very surprising to see people who, for example, explicitly argued in favor of a program that runs entirely without judicial or Congressional oversight come out six days later - six days! - with “It’s a big, big mistake for any branch of government to have the power to simply declare that whole subjects are out of bounds, without any check on its veracity.” Unfortunately it looks like the civil libertarian left is once again shying away from a clear articulation of principle, and is therefore once again setting itself up for a quick reversal. Consider the following.

Marc Ambinder defended the decision, writing “Obama certainly never promised Americans that he’d declassify everything, or that the government had to renounce its right to assert a state secrets privilege forever.” Glenn Greenwald dismissed it (“as though there is anyone who actually believes that”), but I’d like to pipe up from my own little lightly trafficked corner of the internet that I DO believe it. The logic that draws distinctions between asserting state secrets to dismiss individual pieces of information as opposed to entire lawsuits is the same one that says extrajudicial extradition programs are fine as long as they don’t lead to torture. These are differences of degree and not kind. Both stem from the belief that suitably earnest assurances are an acceptable substitute for transparency and a legal framework.

This is not about taking a cynical stance towards our leaders but trying to take as detached an assessment of human nature as possible. The more power people have the more they will be inclined to use it. No matter how close or distant the bounds of that power they will push against it. If the president - any president - has unchecked powers, abuse is inevitable. While the SSP requires judicial review, justification can be incompletely or misleadingly presented. Judges might feel pressure to acquiesce and in any event customarily give “utmost deference” to such claims. And once a decision to exclude is made the evidence simply disappears. It does not get stored away for eventual release to the public domain, it just goes away.

The state secrets privilege is just that: a privilege. It is not a Constitutional guarantee or a law, it is a judicial custom. The privilege has been abused, so courts could simply stop recognizing it. It has in all likelihood preserved as many vital state secrets as torture has defused ticking time bombs. As Kevin Poulsen put it several years ago, “the list of cases in which the state secrets privilege has been invoked seems a pantheon of injustice.” The ability to nearly unilaterally exclude evidence is an irresistible temptation; over time the bad far outweighs the good.

In response to Obama’s position Greenwald and others have mentioned The State Secrets Protection Act (SSPA) as the remedy, but the need for such legislation is an implicit admission that the current program is outside the law. The SSPA would create a civil equivalent of the Classified Information Procedures Act (CIPA). It reads: “Secure judicial proceedings and other safeguards that have proved effective under CIPA and the Freedom of Information Act will ensure that the litigation does not reveal sensitive information.” There is no reason - none - for any piece of information to be wiped from the face of the earth. Everything should be recorded. If something truly extraordinary is at stake then keep it secret and assign an expiration date, with the government able to plead for an extension on a case by case basis.

During the Bush years liberals ceded an enormous amount of ideological ground. Whether or not it was necessary is irrelevant now; all that matters is that there is still a tendency to begin debates from a conservative frame of reference. A commentator on the right can simply postulate, say, the necessity of the SSP and the response seems to be to immediately declare no one on the left is taking such an “extreme” position. Why couldn’t the response be, it is not a right, it is a privilege, and it is not for the president to renounce (or continue) but for courts to permit? As Athenae notes we have to be willing to not just trim but entirely override the governing philosophy of the last eight years. That means a fundamental reorientation of our approach: From presuming the executive branch may not be checked to insisting that its activities be subject to truly independent review and made public as soon as possible. That is how a nation of laws operates.