George, the Worst

By Carol Gee

Was George W. Bush the "Worst. President. Ever?" asks civil liberties blogger, Tom Head at About.com. He concludes, mildly, to quote:

. . . there are some things we do know about Bush. If the Bush record turns out to be exactly what it appears to be, he was primarily a president who panicked when confronted with a national crisis, declared multiple elective wars, and implemented measures that threatened, but did not permanently weaken, the rule of law. He wouldn't be the first president who did this, and he probably won't be the last, but history might remember him as the most banal.

"Restore the Constitution" (image by Wordle.net) -- What of that lofty phrase under the incoming Obama administration? Glenn Greenwald's very important New Year's message to us at Salon.Com is this: "2008: The Year That Was Another brutal year for liberty." In summary, "The good news is that it's clear what the Obama administration must do to end the decade-long war on the Constitution." Greenwald's conclusion, to quote:

For the last seven years, Democrats have repeatedly cited GOP political dominance to excuse their wholesale failures to limit, let alone reverse, the devastating war waged by the Bush administration on America's core liberties and form of government. With a new Democratic president and large majorities in both Congressional houses, those excuses will no longer be so expedient. As dark and depressing as these last seven years have been for civil libertarians, culminating in an almost entirely grim 2008, there is no question that the Obama administration and the Democrats generally now possess the power to reverse these abuses and restore our national political values. But as the events of the last 12 months conclusively demonstrate, there are substantial questions as to whether they have the will to do so.

President-elect Barack Obama was educated to the rule of law at Harvard, and later taught Constitutional law at the University of Chicago. We get some hints about what could be coming legally from a (12/29/08) Politico.com story headlined, "Liberal legal group comes to the fore." The mostly Democratic organization was founded at the beginning of the Bush regime, and was modeled after the conservative Federalist Society. The American Constitution Society for Law and Policy takes no position on individual cases or specific policy proposals but has a broad legal philosophy that is not "constitutionalism." The guiding phrase could be the“lived circumstances of the law, ” and would include the consideration of outside factors in constitutional law cases. Several of its board members are advising the Obama Transition Team. To quote:

Sixteen appointees and advisers helping president-elect Barack Obama's Justice Department transition efforts all recently sat on the board of an organization little known outside legal circles: The American Constitution Society for Law and Policy.

The liberal legal network, which blossomed during eight years of Democratic exile, counts as its veterans Obama’s choice for attorney general, Eric Holder: Vice President-elect Joe Biden's chief of staff, Ron Klain; and future White House Staff Secretary Lisa Brown.

. . . In recent months, the society has become an informal Justice Department in waiting, laying out what some Washington lawyers expect will be the broad contours of the next administration’s legal policy. In his June address before the group, Holder described his vision for reversing what he called the “the disastrous course” set by the Bush administration, advising the next administration to close the Guantanamo Bay military prison, declare that the U.S. does not torture, and end warrantless domestic surveillance - all positions backed by Obama.

The President-elect's legal portfolio remains an important advantage for the future. Given the widespread inquiries into the Blagojevich appointment of the President-elect's Senate successor, it is clear that we expect that OBama and his people will have followed the spirit and the letter of the law in this scandalous matter. Politico.com published "Obama's five rules of scandal response" associated with the 12/23/08 Obama report detailing contacts with the embattled Governor's office. To list them in Politico's words:

"1 - Be transparent, to an extent, 2 - Don't let the news cycle dictate response, 3 - No freelancing, 4 - Aides take hits to protect the boss, and 5 – Shy away from even justified fights."

"Gitmo" is an even more significant legal scandal waiting to be confronted. The full story is here (12/23/08) at ProPublica. In a surprising earlier related matter, the September 11 defendants asked to confess# at the Guantanamo Bay detention facility, according to a Yahoo! News (12/8/08) story, from which I quote:

The judge said he would question the five, including Khalid Sheikh Mohammed, who has already said he planned the September 11 attacks "from A to Z," to ensure they understood the impact of their decision. All five could face the death penalty.

The judge, Army Col. Steven Henley, said he would not accept any guilty pleas during the hearings scheduled this week but did not explain why.

He read from the defendants' note, which began: "We all five have reached an agreement to request from the commission an immediate hearing session in order to announce our confessions ... with our earnest desire in this regard without being under any kind of pressure, threat, intimidations or promise from any party."

The note said all five wished to plead guilty and withdraw all pending motions filed by their military-appointed lawyers, whom they do not trust and have tried to fire.

There are a huge number of issues that just will not go away. What is the legal fallout that remains with the government's warrantless wiretapping program? The Director of National Intelligence is yet to be nominated, though it could still be Adm. Dennis Blair. CQ Behind the Lines David C. Morrison lists a few more that will come up again in the future:

A federal judge who earlier rejected Bush administration claims of exemption from domestic surveillance laws, has been asked to strike down an act of Congress retroactively immunizing illegal wiretappers, the Los Angeles Times’ Carol J. Williams recounts. Speaking of immunity, The New York Times’ Eric Lichtblau has A.G. Michael Mukasey seeing no need for President Bush to issue blanket pardons of officials implicated in controversial counter-terror tactics.

Our current president (OCP) is in office for 15 more days and 11 hours. The Constitution is in place in our nation's capitol. Obama transition team members are spread out all over Washington. Scandals brew. Congress is coming back to town tomorrow. Gitmo is still open for business. And the Obama family is moving to Washington today, so the girls can start to school on time. Things are definitely moving along.

Hat Tip Key: Regular contributors of links to leads are "betmo*" and Jon#.

(Cross-posted at South by Southwest.)