The Reaction: Reviving the Rule of Law After a Lawless "War on Terror"

By Carol Gee

Reviving the rule of law, restoring the Constitution's protection of civil liberties, closing Guantanamo, maintaining U.S. national security, improving intelligence gathering . . . could be a full time job for President-elect Barack Obama. The current administration's legal mess is high and wide, and much of the machinery of government will be required to dispose of it. Key elements/leaders include the National Security Council (Ret. General James Jones), the Justice Department (Eric Holder) and the Office of Legal Council (Dawn Johnsen), along with The Directors of National Intelligence (Adm. Dennis Blair), and the Central Intelligence Agency (Leon Panetta). As you can see this group is not overloaded with military people, good news for us all.

A lawless "war on terror" -- Secrecy has been one of the hallmarks of the Bush administration's lawless behavior. It was not just to protect national security that mountains of information was withheld; it was because it would have been the admission of law-breaking, both statutory and constitutional. The latest example is reported by ProPublica: "Bush Admin Still Withholding Key ‘War on Terror’ Memos" (1/9/09). To quote:

The OLC, the most powerful cadre of lawyers in the executive branch, gained fame under this administration for generating the so-called torture memos. Those are the ones that purportedly justified CIA "enhanced interrogation" techniques such as waterboarding. Many of them were not released today. Nor were some two dozen others having to do with surveillance, military commissions and executive power, according to Jameel Jaffer, director of the ACLU’s National Security Project, which has sued to obtain the memos under the freedom of information law.

. . . Pursuing embarrassment and/or criminal liability for senior Bush officials has been a favorite topic of late in liberal legal circles. As Glenn Greenwald recently wrote for Salon, Obama’s pick for OLC chief, Dawn Johnsen, herself has "lambasted" the Bush administration’s interrogation and surveillance stances – and its secrecy – in no less open a forum than Slate.

It looks as if the health of the core elements of U.S. legal system may be in for a revival based on people who have spoken out against the current administration's policies. Time will tell, but McClatchy is optimistic: "Obama's Justice nominees signal end of Bush terror tactics"# (1/5/09). To quote:

In filling four senior Justice Department positions Monday, President-elect Barack Obama signaled that he intends to roll back Bush administration counterterrorism policies authorizing harsh interrogation techniques, warrantless spying and indefinite detentions of terrorism suspects.

The most startling shift was Obama's pick of Indiana University law professor Dawn Johnsen to take charge of the Office of Legal Counsel, the unit that's churned out the legal opinions that provided a foundation for expanding President George W. Bush's national security powers.

Johnsen, who spent five years in the Office of Legal Counsel during the Clinton administration and served as its acting chief, has publicly assailed "Bush's corruption of our American ideals." Upon the release last spring of a secret Office of Legal Counsel memo that backed tactics approaching torture for interrogations of terrorism suspects, she excoriated the unit's lawyers for encouraging "horrific acts" and for advising Bush "that in fighting the war on terror, he is not bound by the laws Congress has enacted."

Holding government officials accountable for their misbehaviors may be an entirely different matter, however. But we must not give up on this need. Many powerful opinion makers are urging that our citizenry continue to demand justice. For example, AlterNet: "Demand That Obama Go After BushCo's 'Gravest Crimes'" (12/30/08). To quote:

for some reason, the . . . allegations of torture by officials in the current administration receive scant attention. I have not heard one question about this during Obama's transition press conferences, and the traveling press corps almost never pressed Obama on the issue during the general election campaign.

One notable exception is The Philadelphia News' Will Bunch. . . Bunch did elicit Obama's April declaration that he would ask the Attorney General to "immediately review" evidence of potential crimes by the prior administration. (That response remains Obama's most thorough statement on the matter; . . . Given the sensitivity and gravity of potential prosecutions against a prior administration, however, an independent special prosecutor is better equipped to make the decision, as many legal experts has observed. Law professor Jonathan Turley recently advocated a special prosecutor appointment, in order to investigate crimes regardless of whether the perpetrators were high-ranking officials.

. . . Some journalists do approach torture and war crimes prosecution as a serious, legal issue -- attorneys Glenn Greenwald and Scott Horton have done extensive reporting; The New York Times recently editorialized for a special prosecutor; Jeremy Brecher and Brendan Smith have pressed for war crimes accountability in The Nation, and MSNBC's Rachel Maddow has interviewed senators and experts about the Bush administration's alleged crimes.

Holding lawmakers accountable is also important. Congressional Democrats and Republicans alike have been complicit in allowing the law-breaking to go on. Late last year Glenn Greenwald pointed out the inconsistencies of a couple of senators on their stances on the practive of torture at Salon.com: "Why do Feinstein and Wyden sound much different on the torture issue now?" (12/4/08). To quote:

. . . about Dianne Feinstein's comments concerning torture in yesterday's New York Times, in which the California Senator -- who will replace Jay Rockefeller as Chairperson of the Senate Intelligence Committee -- rather clearly backtracked on what had been her repeated, unequivocal insistence throughout the year that the CIA should be required to comply with the Army Field Manual when interrogating detainees. But Time's Michael Scherer picked up on the same backtracking and did a very good job of highlighting what appears to be Feinstein's (as well as Ron Wyden's) conspicuous, and rather disturbing, reversals.

Restoring the rule of law -- One of the little noticed detrimental legal policies of the Bush administration has been to limit the jurisdictions of various courts, along with diminishing the legal standing of potential litigants. And the Supreme Court has also ruled in several cases against justice because of a perceived lack of legal standing. Slate Magazine has the story: "Revival of Justice"# (1/6/09). To quote:

The Obama administration is taking over the Department of Justice with a distinguished roster of top appointments—Elena Kagan as solicitor general, David Ogden as deputy attorney general, and Dawn Johnsen (a Slate contributor) to head the Office of Legal Counsel. Now that we know who will help attorney general nominee Eric Holder lead the department, it's time to think about priorities. One focus is whether the new DoJ will reverse course on the Guantanamo detainees, whom lawyers for the Bush administration did their utmost to keep out of court.

. . . One group inside the DoJ ought to focus, instead, on a big and basic idea: that the courts are for all of us.

Improving the work of the intelligence community at the same time as restoring constitutional protections for basic civil liberties is another huge national security issue. The qualifications of the nominees to the two top "spy" positions has been the subject of a pile of public pronouncements. Senators and Representatives weighed in as did the Intel community itself. But President-elect Obama rightly stuck to his guns in nominating men who were in no way tainted by the Bush Administration's lawlessness. One of the early stories came from Yahoo! News: "Obama' picks short on direct experience" (1/5/09) . To quote:

President-elect Barack Obama's decision to fill the nation's top intelligence jobs with two men short on direct experience in intelligence gathering surprised the spy community and signaled the Democrat's intention for a clean break from Bush administration policies.

. . . Obama is sending an unequivocal message that controversial administration policies approving harsh interrogations, waterboarding and extraordinary renditions — the secret transfer of prisoners to other governments with a history of torture — and warrantless wiretapping are over, said several officials.

Respected blogger, Josh Marshall concludes with an insightful piece on the so-called inexperience controversy. He headlines at Talking Points Memo: "Really a mystery"* (1/5/09):

I used to do a lot of intelligence reporting. But I haven't really done any to speak of in a few years. So I'm coming at this cold. But I feel instinctively suspicious of the congressional reaction to this appointment. Rockefeller is saying he's not happy. But he was a very poor ranking member and then chairman of the senate committee. So I don't think that means much. If the Obama team really didn't make a courtesy call to Feinstein, who's taking over the overseeing committee, that was a goof -- just because there's enough hard slogging getting this kind of stuff done that you don't get people ticked over stupid things. But let's not let that distract from the substance of the issue. I'm not certain what I think about this appointment yet. But on first blush, the nature of the opposition makes me more inclined to support it.

National Intelligence people have been known to manipulate the media -- And the maintstream media too often allows it to happen. Take the case of the New York Times sitting for a year on its disclosure of the administration's secret warrantless wiretapping program. Here is a less egregious recent example at The Public Record: "The CIA's Handling of the Washington Post"* (1/8/09). To quote:

The Washington Post and the mainstream media for the most part have never understood that the CIA, like other large government entities, are complex organizations and rarely governed by one set of ideas on any issue, particularly the capabilities of their leaders. There are numerous CIA officials who support the nomination of Panetta, just as there are opponents to his candidacy. Reporters need to make sure they canvas the entire community before placing front-page articles in front of the American public. They must know that the overwhelming majority of CIA officers would not talk to the press; therefore, they should be skeptical of those who do.

CQPolitics: "How Will the Obama Team Deal With Electronic Spying?" (12/3/08), by Madison Powers. There were various attempts to amend the FISA law in 2007 and 2008, but they did not succeed until July, 2008. And, in contrast to Obama's supportive positions, Hillary Clinton opposed the FISA law changes. To quote rather extensively:

. . . yesterday’s hearing in the 9th U.S. Circuit Court of Appeals in San Francisco is a reminder that the balance between national security and privacy and other civil liberties concerns is another issue that the new administration must face.

. . . The Electronic Frontier Foundation is arguing against the Foreign Intelligence Surveillance Act (FISA) Amendments Act (FAA) that gives telecommunications companies retroactive civil immunity for their illegal participation in the National Security Agency’s (NSA) massive warrantless wiretapping and electronic surveillance scheme. The suit alleges that FISA Amendments Act “violates the federal government’s separation of powers as established in the Constitution, and robs innocent telecom customers of their rights without due process of law.”

. . . until July of 2008, all [efforts to amend FISA] failed to garner enough support for two reasons. First, the bills contained the retroactive immunity provisions that many Democrats and Republicans alike opposed. Second, the proposed changes in the laws in many respects removed privacy protections and concentrated more power in the executive branch with little accountability to either courts or the Congress.

President-elect Obama has deeply disappointed a number of his civil libertarian supporters with his changing positions regarding the FISA law and his willingness to vote for a bad compromise. Getting back to the CQ Politics December story, I quote further:

. . . In February of 2008, Obama promised to vote against and to filibuster any amendments that provided civil lawsuit immunities to telecommunications corporations that cooperated with the Bush administration’s warrantless surveillance program. However, in July he disappointed his civil libertarian supporters by backing away from his commitment to oppose the immunity provision.

Obama’s statement in support of the compromise, . . . declared his intention to work to strip the offending immunity language so that full accountability for past offenses can be available to the plaintiffs in pending court cases.

Even worse from the perspective of some critics, the new proposal gave the executive branch more surveillance powers and less accountability in practice than currently existed. The American Civil Liberties Union called the amendments Act “an unconstitutional domestic spying bill that violates the Fourth Amendment and eliminates any meaningful role for judicial oversight of government surveillance.“

Obama’s response to this criticism was the suggestion that, unlike President Bush, he could be trusted not to abuse the law and that he would examine what executive order limitations might be needed should he become president in January.

Critics remained unsatisfied with Obama’s argument for the quite obvious reason that few presidents voluntarily surrender powers of any kind. Only the firm restraints of the rule of law are adequate protection of the public from overly zealous members of any future administration who might be tempted to expand the scope of domestic spying under a legal structure in which such activities are largely invisible, even to members of Congress.

. . . How best to deal with FISA and the campaign promises to oppose retrospective immunity and limit the scope of presidential powers will likely prove to be one test of whether the new national security team is a team of rivals or the same old folks reaching the same old conclusions.

Reviving the battered rule of law, restoring the Constitution (by a constitutional law president), supporting Secretary Gates' plans to get rid of the Guantanamo gulag, while maintaining our national security with believable intelligence, will be a full time job for President-elect Barack Obama's key national security team. Just like the rest of his nominees, they will have to "hit the ground running."

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