Passion play

By Capt. Fogg

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...

___________

If you managed to get through grade school, you've read this many times, but it never seems to influence the way Americans act or feel: a syndrome that seems more influenced by mob psychology and sectarian chauvinism than anything else. Of course, it's long been this way and we've long been a xenophobic and gullible nation, but with the advent of round-the-clock swineherds like Fox News, the grunting and squealing of feral-hog America is drowning out the voice of our founding fathers and of decent men and women everywhere. 

[E]ven if the Mufti of Constantinople were to send a missionary to preach Mohammedanism to us, he would find a pulpit at his service. (Ben Franklin) 

The same folks who want to persecute Muslims for their religion and prohibit the free exercise thereof will assert, without twitching their nostrils at the smell of hypocrisy, that this is a Christian nation and that Christian laws, whatever they might be, supersede our national laws about abortion, birth control, spending government funds on Christian activities, and browbeating children into theological submission. It's not okay that a Muslim man doesn't want to drink alcohol or a Jew doesn't want to eat pork, but it's fine that a Christian pharmacist refuses to dispense condoms. Damn the Constitution, we're a Christian nation. The laws of other religions need not apply, and, in fact, although there is no chance whatever that the United States will adopt the Qur'an as a replacement for the Constitution and its body of laws, it's not enough for the grunting pigs of God who would like to make the free exercise of Islam illegal. 

He was despised and rejected of men, a man of sorrows and acquainted with grief. (Isaiah 53:3) 

The latest crusade seems to be about portraying every comment by every Muslim as an example of Sharia, from a cabby in Detroit asking that he not be forced to transport alcohol to someone praying in Arabic in front of the White House. According to one witness, he was asking for a blessing on those "Christians" who seemed oblivious to the staggering irony of a mob mocking and cursing a bearded man, bent in prayer, forgiving them for persecuting him. None of this has anything to do with any effort to replace our laws and courts with Islamic laws or Islamic judges, nor can it since no effort exists. As to the rules of private observance, let's let only Christians do that! The only credible attempt of theocratic pretenders to the throne is of course by self-styled Christians, as the porcine squeals of the glossolalians Palin and Huckabee would prove. 

As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquillity, of Musselmen... (George Washington) 

Perhaps it's fortunate that such people are stupid enough to hoist themselves with their own petty petards. You'll recall, and perhaps with a smile, Oklahoma's attempt to thwart the non-existent Islamic takeover by attempting a tin-foil-hat law banning all religious commands -- which in effect banned the Jewish commandments they had been trying to insert into American life, but we can't afford to depend on their congenital stupidity when so much is at stake. And yes, it takes a stupid man to think that somehow Americans would decide to write Sharia or Islamic tribal practices into American law in open defiance of the Constitution or that the tiny percentage of Muslim Americans would somehow magically or accidentally do it by themselves.

The courts have decisively ruled that the establishment and free exercise clauses forbid the federal and state governments to prefer one religion to another, or religion to irreligion or atheism. The Torah, the Bible, the Qur'an, the Gita, the works of Nietzsche: state or federal government may not adopt any of them as preferable, much less mandatory. But we're a little people, a silly people -- greedy, barbarous, and cruel people, if I might borrow from T.E. Lawrence -- and a cowardly, ignorant, and hateful people as well. "Conservative" legislators continue and will persist in thriving on our traditional sins by inventing threats that must be countered by measures to accelerate our inexorable descent into loserhood. They'll continue to demonize the way their predecessors demonized German, Irish, Italian, Mexican, African, Catholic, Jewish, Chinese, and Indian immigrants, and history will continue to prove them wrong.

(Cross-posted from Human Voices.)

Craziest Republican of the Day: Rex Duncan

By Michael J.W. Stickings

Via Mustang Bobby, a nugget of outright insanity:

Oklahoma State Senator Rex Duncan (R) is pushing for a ballot measure that would prohibit courts from considering international or sharia law when deciding cases. He says the measure is a "preemptive strike" against "liberal judges" who want to "undermine those founding principles" of America.

The "Save Our State" amendment would require Oklahoma courts to use state and federal laws only when ruling, and Duncan explained on MSNBC today that he wants to ensure "that our courts are not used to undermine those founding principles, and turn Oklahoma into something that our founding fathers and our great grandparents wouldn't recognize."

He said that "Oklahomans recognize that America was founded on Judeo-Christian principles," and that his measure "is a pre-emptive strike to make sure that liberal judges don't take to the bench in an effort to use their position to undermine" those principles by considering international or sharia law.

When asked if there was a danger of judges doing this, Duncan maintained that though it hasn't happened yet, "it's not just a danger. It's a reality."

"This is a war for the survival of America," he said.

Well, America was founded on a number of different principles, some of the Judeo-Christian, some of them not. (Last time I checked, Roman republicanism was neither Jewish nor Christian.) But if there's a danger of the imposition of theocratic rule in America today, it comes not from liberals (who, last time I checked, tend to be proponents of civil liberties and the separation of church and state) but from conservatives, from those on the right who seek to impose Christian fundamentalism (akin to Islamic fundamentalism) on the country, if not on the rest of the world.

Furthermore, the opposition to international law, and the fear that America will succumb to some one-world government, stems from pure paranoia. We've heard this sort of thing from a number of crazy right-wingers, including Michele Bachmann, and it's basically one of the drivers of the Tea Party "movement" (as when the teabaggers took over the Maine GOP last month). And yet it's conservatives, not liberals, who promote the de facto rule of multi-national corporations and an international oligarchy of plutocratic insiders, and it is this corporatism that poses a threat to American sovereignty, not some make-believe international liberal cabal.

And if it's un-American activist judges you want, look no further than Republican appointees to the federal bench. They may claim to be defenders of "original intent," of the Founders' principles, but what they really want is to impose their illiberal partisan ideology on the country -- for example, by undermining civil liberties and the separation of church and state, by interpreting the Constitution as a fundamentalist Christian moral code, and by expanding executive authority at the expense of the other branches of government.

But what do you expect from an Oklahoma Republican?

Irony of the day

By Mustang Bobby

Jack Kelley, a columnist for the Pittsburgh Post-Gazette and The Blade in Toledo, and the poor man's William Kristol, is railing against President Obama's "vendetta" against the Bush administration.

Former Justice Department official Shannen Coffin thinks the real reason for a civilian trial is that President Obama hopes KSM and his lawyers will attack the Bush administration.

“The decision to try KSM in civilian court accomplishes indirectly what Obama does not wish to do directly — it puts the Bush administration’s interrogation tactics on trial for all the world to see,” Mr. Coffin said. This would be red meat for the liberal base. But it’s unlikely to be popular with centrists who are already unhappy with Mr. Obama’s economic policies.

This has been the most political administration in modern times. Ten months after his inauguration, Mr. Obama still behaves more like a candidate than a president. But in pursuing his vendetta against his predecessor at the expense of American security, he may be campaigning to be a one-term president. [Emphasis added.]

I'd like to take up a collection and send Mr. Kelley a get-well card and hope that now that he's recovered from his eight-year coma, someone will bring him up to date on just which has been "the most political administration in modern times." That's an insult to Karl Rove, Dick Cheney, David Addington, Alberto Gonzales, Harriet Miers, and the rest of the people in the Bush administration who worked so tirelessly to try to secure a permanent Republican majority. How Mr. Kelley could ignore their work just to take a cheap shot at President Obama is unconscionable.

But seriously, while it is important to grant the defendants a fair trial, it is also important to recognize that it's going to be that much harder because the Bush administration did everything they possibly could to make it impossible for that to happen. They expected two outcomes: either KSM and his cohorts would be tried in a military tribunal using evidence that could never stand up in a civilian court, or they were going to let them rot away in jail for the rest of their lives without ever bringing them to trial. They never expected the rule of law to be applied, and now the biggest fear they and the rest of the monarchists have is that the Bush administration will be the ones held accountable for throwing the case against the terrorists into the crapper.

Reactions to the upcoming 9/11 trials announced by AG Eric Holder

By Carol Gee

There was strong reaction to the announcement of the 9/11 trial to be held in a New York court. Liberals and civil libertarians were approving and Republican Right-Wingers were deeply disapproving.

What are we to call the widespread upset among Republicans? Today's post is a digest of opinion from writers whom I regularly follow as well as my own conclusions.

Fear Mongering -- Tom Andrews, writing late Friday night for The Huffington Post, said that, ". . . we all know that Right Wing critics will be out, en masse, using their favorite tactic of fear-mongering while relying on ignorance to manipulate the public." Read the whole thing: Khalid Shaikh Mohammad, others to finally face justice in NYC.

Surrender -- Other nations have trials of high level terrorists within their systems of normal justice. But since 9/11/01 we in the U.S. have not. I think Glenn Greenwald put his finger on the problem in his Saturday post. He minced no words, calling it "The Right's textbook 'surrender to the terrorists'." His intro line said, " 'We're too scared to have real trials in our country' is a level of cowardice unmatched in the world." And Greenwald closed with this straight up opinion:

. . . it's hardly surprising that they exude a level of fear of Terrorists that is unmatched virtually anywhere in the world. It is, however, noteworthy that the position they advocate -- it's too scary to have normal trials in our country of Terrorists -- is as pure a surrender to the Terrorists as it gets.

Cowardice -- At emptywheel Marcy Wheeler wrote a pungent little piece that asked, "Why is it that Republicans are such scardey-cats?" I love what Gregg Levine said in "Elephants on Parade" on Friday at Firedoglake, about the difference between Democratic and Republican reaction to the announcement of upcoming 9/11 trials. To quote Levine:

Cowards. Cowards. And again, cowards.

I can’t say that word enough because no one else seems to say it at all.

Contrast what a sampling of Republicans (and Republican wannabe) have to say about today’s decision . . .

Guilt -- Guilt and anxiety/fear are first cousins in the world of emotional motivation. Daily Kos' "thereisnospoon," thinks he has figured out why Republicans are having such a fear mongering fit. The author concluded:

There's a reason Republicans are pissing in their pants. . . they're afraid that their own policies of torture and indefinite detention will get the terrorists acquitted. So, like a stupid criminal, they're upping the ante by doubling down on their original criminal idiocy.

Un-American Demagoguery -- Leaders who make use of popular prejudices or false claims in order to gain power does not deserve followers. Representative Jim Moran used even stronger words than fearfulness in a post by Evan McMorris-Santoro at TPMDC. To quote from the story Friday:

Rep. Jim Moran (D-VA) has strong words for the Republicans opposing Attorney General Eric Holder's plan to bring five 9/11 suspects to New York City to face trial.

"They see this as an opportunity to demagogue," he said. "They will seize on any opportunity to do that, and that means they'll even take a stand that's un-American."

"It's un-American to hold anyone indefinitely without trial," Moran added. "It's against our principles as a nation."

Medieval Romanticism -- These are probably the kindest words I found in my little news survey. Professor Juan Cole at Informed Comment defined the Republican reaction to AG Eric Holder's decision to prosecute as "medieval romanticism." To quote:

Predictably, Republican critics vowed to fight the decision, since they much prefer to hold people forever without trial while torturing them, sort of the way some English kings did in North America before there was that pesky American constitution. . . . its fascination with arbitrary arrest and imprisonment and with torture more recalls the star chambers of yore than the deliberations at Philadelphia over 200 years ago.

Fear is a natural and normal reaction to accurately perceived danger. But the key is using one's whole brain to ascertain just what constitutes a real danger. The terrorists acts in 2001 were very dangerous. Over three thousand people lost their lives as a result. This is 2009, however, and it is important to make distinctions that today's realities warrant. Wiser people than knee-jerk reactionaries are now in charge, thank goodness. The United States government must continue to act out of calculation toward confidence-building, out of justice and healing, out of intelligence and courage, and out of genuine patriotism. It is time.

(Cross-posted at South by Southwest.)

Krazy Bill Kristol, un-American, says Fort Hood killer should be put to death without a trial

By Michael J.W. Stickings

On Fox News the other day -- where else? -- Krazy Kristol, discussing Nidal Malik Hasan and the Fort Hood massacre, came out against due process, the rule of law, the U.S. Constitution, and, well, America herself:

I was very struck also by Janet Napolitano's comment, I hadn't read it before to see her say that, that the number one priority is to bring him to justice is such a knee-jerk comment and such a stupid comment. He's going to be brought to justice. He is not going to be innocent of murder. There are a lot of eyewitnesses to that. They should just go ahead and convict him and put him to death.

This isn't just stupid, it's appalling -- and rather un-American, and hypocritical, coming from someone who wraps himself in the flag the way Krisol does.

But was he kidding? Well, if pressed, he might back down and say he was just making a point that a guilty conviction is inevitable, but he seemed to be speaking seriously.

And it's typical of Kristol, just as it's typical of conservatives generally. They talk up America as the unrivalled peak of human history, as the exception, as a worthy hegemon, and yet they think nothing of tearing down the foundations of American democracy and constitutionalism. So they push for the unitary executive when one of their own is in the White House, dismissing Congress and the Supreme Court as lesser branches. And so they put down the justice system, along with its Constitutional supports, as an inconvenience when they want to put away "terrorists," alleged or not, without a fair trial, or when their bloodlust turns to state-sanctioned killing, or when they just want to impose their will on the people.

For the right, neocons included, it's often about power, not principle -- or, rather, power is their principle, and they don't much care for anything that might stand in their way, including the very basis of the American justice system.

What is behind all this hide and seek?

By Carol Gee

Waterboarding techniques were not what made 9/11 mastermind, Khalid Sheikh Mohammad confess. He had already started to talk before the "enhanced interrogation" started. And actually at one point, Dick Cheney ‘fessesd up' that rapport, not torture, got intelligence. Following the most recent revelations about Cheney's larger role in the Bush administration's s0-called "war on terror, he is no longer "fessing up" to anything. He is again hiding at an undisclosed location. His daughter, Liz seems to now be his official spokesperson.

Well before Cheney stopped talking this question for Cheney occurred to a blogger: "How come no attacks after the torture stopped?" Here is another question: Why did the CIA hide Dick Cheney’s role in briefing Congress? As it turns out, former Vice President Cheney's campaign to make sure that interrogations could continue as before, to keep lawmakers in line on torture, started midway in the Bush administration .

So, as we are now finding out, the Vice President, not the President, was apparently in the lead of the administration's efforts to run secret operations that were more often than not, outside of the rule of law. For example the May 10, 2005 Justice Department opinions on combined torture techniques were retrospective, designed to give legal cover to something that has already happened. The effect of a related NYT story that misrepresents James Comey's e-mails, claiming that he approved torture, amounted to a pre-emptive strike on the OPR Report that will come out at some point.

The Geneva Convention failed to assure that U.S. detainees received humane treatment. At an international conference in Italy a few weeks ago, Georgetown lawyers from the Center on National Security and the Law were planning to urge a new Geneva Convention for terrorism. Common article 3, they feel is too vague to guide the government of how to protect the security of the United States while also upholding our basic values about justice. UN Special Rapporteur, Philip Alston, last month called for for transparency and accountability as he presented his report on U.S. policies that have led to unlawful deaths and other abuses.

The case of tortured U.S. citizen, Naji Hamdan tested the Obama Administration on human rights. Did they stand silent, as the man who was himself tortured, went on trial in the UAE? With this and far too many other examples, the Obama administration finds itself "between a rock and a hard place." Rightly focusing on the economy, reforming health care, and tackling other issues is still front and center. Over and over again, to "put this behind us," the President or the Justice Department took the same legal position as the former administration. When it comes to how to come under the rule of law both in fact and in spirit they failed to step up and do the right thing immediately. Opting for secrecy, turning a blind eye, and assigning a low priority to accountability, are no longer working however.

Dragged kicking and screaming, Congress and the administration are being forced little by little to look back, in spite to their most commendable and forward looking policy changes and needed reforms. In some kind of magical way, the current Senate focus on confirmation hearings for Judge Sonia Sotomayor to the Supreme Court reminds us all once again that we are a nation of laws, not men. . . or (thank goodness) women. We will get back into balance with time, and because of how our founders set up the system. We must believe this.

(Cross-posted at South by Southwest.)

What to do, what to do... about Guantanamo?

By Carol Gee

Closing the Guantanamo Bay detention facility will be one of the most difficult challenges of the Obama administration. His own staff has been divided on how to do it. FBI Director Robert Mueller worries about detainees in U.S. prisons. Michele Flournoy, number three at the Pentagon, maintains that the U.S. must set the right example before our allies will accept detainees for repatriation. Rendition has been another matter, entirely, in the past when the Bush administration implemented the practice of rendering U.S. prisoners overseas to other countries where they were interrogated under torture.

How other law abiding countries handle suspected violent extremists offers a contrasting picture of how it is managed by the United States. The legal fallout over this has sent cases to court (in particular the Jeppesen/ACLU case). The Obama DOJ has asked a federal appeals court to block the case, claiming "state secrets" necessitate throwing out the case, taking up the claim of the previous administration. On June 22, federal judge Richard Leon ordered Abd al Rahim Abdul Rassak, a Syrian held by the U.S. for years, released because he was a victim of torture by al-Qaida. He "emphatically rejected the government's claims against Rassak. . . adding that U.S. officials are taking a position that defies common sense."

How will the U.S. continue to handle violent extremists? Earlier this month Glenn Greenwald analyzed the current practices of many countries, contrasting them with the administration's probable call for indefinite detention by the U.S. He concluded that, "numerous other countries are, with their actions, adhering to the values and principles which we, with words, righteously claim to embody." Now the White House has drafted an executive order reasserting presidential authority to incarcerate suspects indefinitely, bypassing Congress, according to The Washington Post's Peter Finn and ProPublica's Dafna Linzer. To quote the lead:

Such an order would embrace claims by former President George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that bypassing Congress could place the president on weaker footing before the courts and anger key supporters, the officials said.

After months of internal debate over how to close the U.S. military prison at Guantanamo Bay, Cuba, White House officials are growing increasingly worried that reaching quick agreement with Congress on a new detention system may prove impossible. Several officials said there is concern in the White House that the administration may not be able to close the facility by the president's January 2010 deadline.

Is Bush precedent Obama precedent? Zachary Roth at TPM Muckraker had this chilling conclusion to the news of the draft memo: "If the last eight years have taught us anything, it's that executive abuses, left to continue unchecked for many years, have a tendency to congeal into precedent." It need not be that way. The Constitution has been a powerful bulwark with plenty of capacity to sustain the rule of law, particularly with a president whose specialty has been Constitutional law.

(Cross-posted at South by Southwest.)

Guantanamo detainee treatment -- truth be told

By Carol Gee

"Dangerous people, detainees, prisoners of war, terrorists, extremists" -- The words we use to describe our adversaries are important. Not only are they important to those people, but they matter all over the world. We must also be accurate when we describe what we have done to detainees says Glenn Greenwald at Salon.com (6/6/09). His post is titled, "The NYT's nice, new euphemism for torture." To quote (his links):

. . . according to the NYT, detainees in CIA black sites were merely subjected to "intense interrogations." That's all? Who opposes "intense interrogations"? This active media complicity in concealing that our Government created a systematic torture regime -- by refusing ever to say so -- is one of the principal reasons it was allowed to happen for so long

. . . The steadfast, ongoing refusal of our leading media institutions to refer to what the Bush administration did as "torture" -- even in the face of more than 100 detainee deaths; the use of that term by a leading Bush official to describe what was done at Guantanamo; and the fact that media outlets frequently use the word "torture" to describe the exact same methods when used by other countries -- reveals much about how the modern journalist thinks.

At the heart of the biggest arguments about what to do about releasing Guantanamo's is the one about whether they remain security risks. Conservatives have exaggerated their level of dangerousness, it turns out. How often do they return to jihad? The story is headlined, "NYT: We made big mistakes on front-page Gitmo story, but we did not get spun," and it is reported by Justin Eliot at TPM Muckraker (6/5/09). "The confirmed category in the Pentagon report claims that just one in 20, not one in seven, former detainees returned to terrorism." To quote further:

The New York Times has published a lengthy "Editors' Note" rolling back key claims in its front-page story on Guantanamo "recidivism" last month, and the paper's Washington bureau chief concedes it wouldn't have been a Page 1 story if the paper realized the errors in the story when it ran.

. . . The editors' note, which is pasted in full below, acknowledges use of terms like "rejoined" and "recidivism" "accepted a premise of the report that all the former prisoners had been engaged in terrorism before their detention."

. . . McClatchy and others have reported on evidence that some detainees may have in fact been radicalized while imprisoned at Gitmo.

The editors' note also acknowledges the story "conflated two categories of former prisoners" -- which were broken up into suspected and confirmed categories in the Pentagon report (which we have posted here).

There are very good reasons why President Obama ordered the closing of Guantanamo as one of his first official acts. Given our Constitution, it was not working, not for foreign policy, not for justice, and not for American values. The story of Guantanamo is a tragic one on several fronts, including detainee suicides: "Death by Detention," by ACLU (6/4/09). "Gitmo detainee dead in 'apparent suicide,' " is from TPM Muckraker (6/2/09). In 2005 the detainee had been on hunger strike and lost down to 86 pounds. This is the 5th suicide at Guantanamo. To quote:

A Guantanamo detainee has died in what the military are calling an "apparent suicide" -- and civil liberties groups are calling for action.

Guards found 31-year-old Muhammad Ahmad Abdallah Salih, known as Al-Hanashi, unresponsive and not breathing in his cell Monday night, U.S. military officials announced, according to the AP.

"Another Club Gitmo guest kills himself," was the ironic post written on this same subject by Glenn Greenwald at Salon.com (6/2/09). His firmly held conclusion,

It's very difficult to know why someone commits suicide, if that's what happened here. And since he had no trial, one can't know what Salih did or didn't do. But what is not hard to see is that it is simply wrong to imprison people for life with no charges. That should not be something that we even have to debate.

Guantanamo Bay's plan for closing, the story of the torture regime that started there, the Constitution and and detainee treatment -- the truth must still be told. Painful as it is, disheartening as it feels as new information comes out, there is no getting around it if we are ever to heal and return to the rule of law.

References to earlier detainee stories:

• Britain responds to the "rule of law" nuisance is by Glenn Greenwald at Salon.com (3/27/09). Regards returned British detainee Binyam Mohamed.


• Britain's bizarre reaction to war crimes allegations: investigations needed is by Glenn Greenwald at Salon.com (3/8/09).
  

(Cross-posted at South by Southwest.)

POTUS vs EX VEEP -- no contest

By Carol Gee

POTUS spoke, literally backed up to the Constitution. EX VEEP spoke and backed into the past. It was no contest; POTUS WON. Our best times are ahead of us. The ex Veep's dark past is just that -- deeply dark and past its prime. The worst time is behind us. America is turning the corner into the future.

What remains from the past? In the National archives, backing up POTUS, are the Constitution with the Bill of Rights, and the Declaration of Independence. These original documents established a set of brilliantly conceived checks and balances among three co-equal branches of government. That system is working again, after being down for the past two presidential terms. America is no longer as deeply bound to its recent dark past.

What does the future hold? Solutions to America' biggest problems are out there waiting to be discovered. Does POTUS have all the answers? Absolutely not, but he believes in the system and trusts what will emerge. Did the EX VEEP's speech have any answers? Absolutely not, because he does not believe in the system. He believes his own dark demons. Now that the system is beginning to rebalance itself without him, his impulses keep him fearful and desperate for power.

What does Constitutional re balancing entail? POTUS gave some clues in his speech. He talked about the lack of foresight in the past administration. And he demonstrates foresight as he leads us into the future. For example, he acknowledged that he expects oversight by Congress and the courts as he picks his way through the Constitutional legal minefield of "prolonged detention" and "military tribunals with rules."

Because the courts were active, even during the dark days, balances were kept in certain instances as courts prohibited Bush administration power grabs. Our new POTUS is also willing to live by court decisions on constitutionality. However, the same cannot yet be said about Congress exerting its proper authority, though there are hints. The Senate's demand for a plan before opening the purse to close Guantanamo was a good first step at reestablishing its prerogatives, though the process has been awkward. What lies in the future for the questionable solutions to the detainee problem? POTUS has been preparing a plan that will be completed in January of next year. It is typical of his operating method.

POTUS' governing style is to state the problem and assign members of the administration to work to find solutions. He announces the outlines of a preliminary plan, letting Congress know what its part is and when he would like to have something to sign. He gets feedback and makes changes. Eventually he realizes it is again time to teach the nation about what the problem and solutions will entail. Working with Congress and signing legislation finally leads to publishing the plan's full details.

EX VEEP's governing style, in contrast was to feel there was a problem, state the solution to his minions in secret, omitting the planning and reporting to Congress. He did not need feedback because the rule was "my way or the highway." Eventually he would be found out, but refused to admit any mistakes. Rather than teach, he worked through maintaining a fear posture and bypassed or deceived Congress whenever possible. He did not need a public plan and did not feel bound by the rule of law. Governing behind closed doors in secret, his loss of power has now produced a starkly contrasting new set of behaviors. He is out front and everywhere -- defending, obfuscating, prevaricating, fear mongering, insulting and angry for the most part.

POTUS is also out front and everywhere -- asserting, explaining, being transparent, truth telling, reassuring, and showing respect to adversaries and a positive demeanor, generally speaking. His ideas will be accepted or not. POTUS feel himself bound by what Congress and the courts decide. He feels that the government must be backed by the Constitution. He is quite willing to take on the EX VEEP because the man is mired in the past. The ex Veep's dark past is just that -- deeply dark and disturbing. The worst of him is gone now because he is powerless, though not without influence. He will eventually sputter out of the limelight. America is looking to the future, and honoring its beginnings. It is no contest; POTUS will win. Our best times have already begun.

(Cross-posted at South by Southwest.)

Rule of Law Issues Explored --

By Carol Gee

Supreme Court Justice David Souter plans to retire after his successor is chosen and confirmed. President Obama has committed to have the new justice in place when the Supreme Court reconvenes. The nomination process will consume an enormous amount of time, media attention and legislative energy between now and October.

[Image: Wordle.net]

Early signs of back to Bush -- By the time the new court convenes, the Obama Justice Department should have its act together. Many of us have been very concerned as we get reports that the new government's lawyers have not stepped aside from many of the questionable Bush Justice Department court arguments.

Detainees at Gitmo -- Davis Cynamon, an attorney for 4 Gitmo detainees has been fighting for their due process rights, accuses the DoJ of "abandonment of the rule of law," according to TPMMuckraker's post, "Not Just State Secrets: Obama Continuing Bush's Stonewalling On Gitmo Cases, Lawyer Claims," (4/10/09). To quote:

"The Department of Justice has been doing everything in its power to delay and obstruct these cases," said Cynamon, whose clients were picked up in the Afghanistan-Pakistan region in the period after the 2001 U.S invasion of Afghanistan. "They're not doing anything to move the case along, and doing everything to avoid it."

Asked whether he had observed a shift of any kind in the government's approach since the Obama administration came into office, Cynamon flatly replied: "None whatsoever."

This kind of leftover Bush court stance has been difficult for many of us to understand, given the high quality of President Obama's nominees for his key legal positions.

Nominations blocked by Senate -- The nominations of Dawn Johnsen to head the Justice Department’s Office of Legal Counsel and Harold Hongju Koh to serve as Legal Advisor to the State Department are being held up by conservatives in the Senate, says the Firedoglake post, "Legal wrangling: Why the fuss about legal nominees?" (4/9/09). To quote (emphasis mine):

The nominees themselves are so well-qualified, so clearly within the progressive political mainstream, and the attacks against them so frenzied, one is left scratching one’s head and wondering: what on earth is going on here?

. . . [Senator John] Cornyn castigates Johnsen for her “prolific and often strident criticism of the legal underpinnings of the previous administration's counterterror policies.” . . . Johnsen’s criticisms of the legal underpinnings of Bush’s counterrorism policies have been right on the mark. The Bush administration itself was forced to renounce some of the OLC memos Johnsen criticized because they were so profoundly flawed. And let’s not forget that the Supreme Court has had four opportunities to review Bush counterterrorism policies and has struck the policies down each time. That’s because Bush had a tendency to ignore the law. John Cornyn doesn’t care; Dawn Johnsen does.

. . . The bottom line is that the stakes here are thus much higher than whether Obama gets his first choice to fill these slots. And they go beyond how the rule of law will apply at the Justice and State Departments.

Most observers agree: the attacks on Johnsen and Koh are spring training for the coming attacks against Supreme Court and other judicial nominees (Koh himself may be one) who display a similar commitment to the rule of law. That’s why it’s so important to expose what’s behind the current attacks, and defeat them.

We can predict that Republican right-wingers and the like will stage protests in all forms against whomever the President nominates to the Supreme Court. They will get media attention, they will pressure senators, and they will be extremely visible. Those of us on the other side are demanding Constitutional stances from the new administration. We must also support for our opponents' right to speak freely, even if outrageously.

Citizens must act to make our wishes known to our President and to our elected representatives. These fundamentals are beautifully explained in Firedoglake's post, "Peaceable Assembly; Petitioning to Redress Grievances (4/8/09). To quote:

The first ten amendments to the Constitution are called the Bill of Rights and they became law in 1791. Among the first of these are the rights peacefully to assemble, to exercise free speech, and to petition the government to redress grievances. They are first because they are fundamental to the preservation of representative government.

. . . First Amendment rights have a kind of "Use 'em or Lose 'em" quality. We exercise them to protect us against their silent or notorious abridgment. We assert them to remind public officials of their public promises. Most of all, we use them to make our views known and to encourage others to adopt them, Congress and the President included. We do not use them in order to give an unruly government an excuse to abridge them further.

The rule of law was explored in today's post. President Obama will no doubt appoint a person to the highest court in the land of whom we can be proud. And it will inevitable spark a big fight. Between now and then it is my expectation that Attorney General Holder and his stable of lawyers will have gotten a handle on how they can roll back the most dangerous and destructive of the Bush legal positions. If they do not, the Supreme Court will be forced to rule against them over and over until they finally "get it."

(Cross-posted at South by Southwest.)

Tales of torture

By Carol Gee

Reminders of not so long ago

Recommended Reading -- "The Red Cross Torture Report: What it means," by Mark Danner in The New York Review of Books, (pub. 4/30/09). The text of the ICRC Report is linked in Danner's piece, as well as Dick Cheney's statement on the value of torture made on 2/4/09. This is the part of the ICRC report that refers to Abu Zubayda:

Mr. Abu Zubaydah commented that when the collar was first used on him in his third place of detention, he was slammed directly against a hard concrete wall. He was then placed in a tall box for several hours (see Section 1.3.5, Confinement in boxes). After he was taken out of the box he noticed that a sheet of plywood had been placed against the wall. The collar was then used to slam him against the plywood sheet. He thought that the plywood was in order to absorb some of the impact so as to avoid the risk of physical injury.

"They should have listened to Noor al-Deen," is by emptywheel on Abu Zubaydah (3/29/09). Abu Zabaydah and Noor al-Deen were picked up in a Pakistani safe house in 2002. Thinking, mistakenly, that they had members of alQaeda, they were questioned. Al-Deen told the truth, which was eventually corroborated and he was released to Syria. Zubayda was eventually tortured so much that he is now permanently dysfunctional. To quote the conclusion,

So you've got a panicked teenager spilling his guts, insisting that Abu Zubaydah is just a functionary. And at the same time, Abu Zubaydah was saying he was just a functionary (and providing what useful intelligence he had to offer). And the US response to that was ... to make Abu Zubaydah their torture experiment--their test case for what torture techniques did and did not "work."

Yet more reason they destroyed the torture tapes showing Abu Zubaydah's interrogation.

Office of Legal Counsel - Memos upon which torture rested

There are no excuses for ongoing concealment of torture memos," wrote Glenn Greenwald at Salon.com on 4/6/09. The ACLU has been battling in court for two years to get the Steven Bradbury OLC memos released. Greenwald's very interesting post explores why the release has been blocked from a number of different angles. To quote,

They are, in essence, the Rosetta Stone for documenting the war crimes committed not by low-level CIA agents but by the highest-level Bush DOJ officials.

. . . Those are the torture memos that are now at the heart of a growing controversy, as the Obama administration has sought multiple delays . . . the anti-disclosure crusade inside the Obama administration is being led by John Brennan. . . while it is true that Brennan has been aggressively advocating against disclosure, it is the threatened obstructionism [of two Obama appointees, Dawn Johnsen and Harold Koh] from the Senate GOP that is the "principal" cause of concern inside the White House.

"Bradbury Memos: Not Quite Yet," from The ACLU Blog of Rights (4/2/09). The ACLU in its lawsuit agreed to a two week extension of the release deadline so the government can finish its review of three Bradbury memos reportedly providing legal justification for CIA enhanced interrogation methods amounting to torture. The government may also review a Jay Bybee memo. The memos are "critical to understanding the foundations of President Bush's torture program," ACLU said.

Bad Timing -- "They picked a bad week to stop sniffing glue," was written by emptywheel (3/7/09). With all the other OLC memos just coming out, the Obama administration had a hard time with its presentation regarding dismissal in the Jose Padilla lawsuit against John Yoo. The judge was not impressed.

"Memos reveal scope of the power Bush sought," is taken from the New York Times (3/3/09). To quote the intro:

The secret legal opinions issued by Bush administration lawyers after the Sept. 11 attacks included assertions that the president could use the nation’s military within the United States to combat terrorism suspects and to conduct raids without obtaining search warrants.

That opinion was among nine that were disclosed publicly for the first time Monday by the Justice Department, in what the Obama administration portrayed as a step toward greater transparency.

. . . The memorandum issued by Mr. Bradbury this January appears to have been the Bush lawyers’ last effort to reconcile their views with the wide rejection by legal scholars and some Supreme Court opinions of the sweeping assertions of presidential authority made earlier by the Justice Department.

To be continued -- The International Red Cross report on torture and the New York Times article on the OLC memos form the bookends of the story that must be told, over and over, so that it is not forgotten or swept under the rug.

(Cross-posted at South by Southwest.)

Cheney's dark deeds come to light

By Carol Gee

Seymour Hersh, perhaps one of the best investigative journalists in the news business, writes for The New Yorker magazine. His revelations about former Vice President Richard Cheney's activities over the years curl the hair of many readers. Hersh has been out and about for the past three weeks, and he is making news as he goes.

Hersh appeared Monday on Andrea Mitchell's news show on MSNBC, discussing his most recent article regarding recent happenings in the Middle East. The main point of his piece is that President Obama will likely be able to change the dynamics there. The headline was revealing "Seymour Hersh: Obama helped end Israel's Gaza offensive," from The Raw Story (3/29/09). Hersh also discussed the very real possibility for an agreement between Syria and Israel over the Golan Heights. And Syria's President Assad might want President to broker the deal. But Cheney could not stand the thought that Obama might have success as a peacemaker. So he tried to poison the new President's chances for deal effectively with Israel. To quote:

When former Vice President Dick Cheney learned that Obama had been putting pressure on the Israelis, he angrily disparaged him as "pro-Palestinian" and described him as someone who would "never make it in the major leagues."

Not content to write a book, join a think tank, or hold forth from his home in Virginia, Cheney has been making the rounds of the cable news shows trying to sabotage President Obama's success as President. And some have suggested that the public activity could be due to his increased concern about recent revelations of what he did as Vice President, i.e., "the best defense is a good offense."

Cheney suggested in recent weeks to CNN's John King that the country is now less safe with Obama as President. According to Glenn Greenwald in, "The outrageous offenses against Richard Cheney" (3/17/09), to quote, "Dick Cheney . . . accused Barack Obama . . . of lying to the public about his domestic politicies, taking advantage of the financial crisis to foist enlarged government on unsuspecting citizens, and leaving us all more vulnerable to slaughter by the Terrorists."

Greenwald's post was mostly about the subsequent media flap about Press Secretary Robert Gibbs' dismissive comments about Cheney's appearance on CNN. Greenwald rightly takes the reporters to task who were offended by Gibbs' Cheney characterization, saying "Of all people, journalists ought to be embarrassed to publicly play the role of decorum enforcers when it comes to how the politically powerful are treated."

Notably King did not ask Cheney anything about Seymour Hersh's most astonishing revelation, made at the University of Minnesota around the middle of the month. AlterNet, ran that story March 11, 2009: "Seymour Hersh: " 'Executive Assassination Ring' Reported Directly to Cheney Office#," To quote: "Under President Bush's authority, they've been going into countries ... finding people on a list and executing them and leaving." Blogger, emptywheel, that same day brought a great deal of clarity to the story with an explanation of how it worked, who in the government participated and where the operations took place. The title is as simple as it is shocking: "Cheney's Assassination Squads."

On the question of whether assassination squads are legal, the pertinent document is perhaps Executive Order 12333 signed by President Ford in 1975 and upheld by President Reagan in 1981 and others since then. It says, “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” There are a couple of exceptions that have to do with armed combat situations, or if specifically authorized by the President. Credit emptywheel for, "Pixie Dust and Cheney's Assassination Squads," (3/13/09). This story explores "pixie dust" as revealed by Senator Sheldon Whitehouse in 2006. "Pixie dust" is the practice of changing EOs without making any public record of the change. The post concluded,

It's all very nice that every President since Ford has upheld the prohibition on assassination in EO 12333. But in the era of pixie dust, that doesn't mean Bush also upheld it, even if it looks like he did.

After the Iran-Contra scandal, legislation was enacted to require that CIA covert operations be authorized via a "Presidential Finding," and that the Gang of Eight in Congress be briefed about the operations and authorize special funding. But similar military operations, according to OLC memos, gave President Bush and the military authority to order such activities under the Authorization to Use Military Force, AUMF. Congress was, thus not told about the actions of the military's Joint Special Operations Command , JSOC. Important details of the history of covert operations since the Reagan administration are in another in the very useful series by emptywheel (3/23/09), "Cheney's Assassination Squads and Iran-Contra Findings." To quote:

I've been talking about how Cheney had clearly integrated lessons learned from all his previous [Iran-Contra] scandals and I'm glad that Hersh has now confirmed that.

But consider what this means in regards to the disclosure that the covert ops going on in Iran and the rest of the Middle East. The "lessons learned" meeting concluded that:

• It is desirable to run covert ops off the books by finding funding from non-congressional sources


• To succeed such ops must avoid any revelations to Congress and most revelations to the CIA and Defense


• Such ops should be run out of the VP's office directly

Richard Cheney, native to my home state of Wyoming, needs to go back to his own home now. His time in the public eye should be over, unless we can observe him getting the justice he is due. Otherwise, he needs to just move on.

(Cross-posted at South by Southwest.)

The truth is going to hurt

By Libby Spencer

Honesty is the best policy but I hope they're prepared for the inevitable Republican caterwauling when the numbers come out.

For his first annual budget next week, President Obama has banned four accounting gimmicks that President George W. Bush used to make deficit projections look smaller. The price of more honest bookkeeping: A budget that is $2.7 trillion deeper in the red over the next decade than it would otherwise appear, according to administration officials.

And this part makes me a little nervous. "The new accounting involves spending on the wars in Iraq and Afghanistan, Medicare reimbursements to physicians and the cost of disaster responses." I really hope that the strategy here is to use the numbers to sell a national health care plan and ending the occupations rather than a plan to further downgrade reimbursements to doctors that are already too artificially low.

Furthermore, if this is true and the Obama administration is really trying to kill the email lawsuit against the Bush adminstration -- well -- it's doing nothing to bolster my confidence that we're going to see any real transparency or accountability any time soon. Obama can't just pick and choose what to uncover.

(Cross-posted at The Impolitic.)

Double Binds

By Carol Gee

The question of what to do about the detention facility at Guantanamo Bay has been on the minds of both the previous and current administrations. Shortly after being sworn in President Obama instructed military prosecutors to ask that the proceedings be delayed in order that a full review could take place. This from TPM Muckraker, (2/6/09) explains the most recent events: "Thanks To Obama's Order, Military Drops Charges In Gitmo Trial." It settles the question of whether military tribunals will be the justice method of the Obama administration. At the same time the 9/11 families were not happy about it when they recently met with the President. To quote:

All but one judge complied with the prosecutors' requests. That one, Army Colonel Jame Pohl, declined to do so.

But now, the Associated Press reports, Susan Crawford, the top legal authority for Guantanamo's proceedings, has decided to drop the charges in the case over which Pohl is presiding, thereby bringing the case into compliance with Obama's order.

Shedding additional light on these dilemmas for the administration, are columns at Salon.com, by Glenn Greenwald. In his 2/6/09 piece, "Counter-terrorism logic" (Update section), Glenn debunks the claims that 61 released detainees have returned to the battlefield. In an earlier (2/4/09) column entitled "Various Items," several pertain to today's subject here: Item 3 -- regarding the Obama administration's position on rendition of detainees, Item 5 -- regarding the US Government erecting a wall of secrecy around what it has done to torture detainees, and demands that "other countries [the UK] do the same, upon threat of being punished," and Item 6 regarding an ACLU letter to Secretary of State Clinton regarding the US/UK matter in Item 5 above. (See ACLU Blog for more on the Gitmo Truth Out)

Another illustration of the difficulty in which the administration finds itself is the quandry of a public opposition to torture and secret detentions, colliding with a legal requirement to defend former government employees under certain conditions. John Yoo, Donald Rumsfeld, Paul Wolfowitz and John Ascroft will get help in the Jose Padilla lawsuits over his alleged torture. The story is from Wired - Threat level (2/4/09): "Obama: Reject Torture, defend Torturers." To quote:

The new U.S. president has renounced those Bush administration practices, but government lawyers continue to defend the previous administration's top officials accused of authorizing and carrying out those policies.

. . . Chief among those enjoying a taxpayer-funded defense is John Yoo . . . As a Bush administration lawyer, Yoo wrote the so-called torture memos the previous administration invoked to rationalize torture of enemy combatants.

. . . in federal court in San Francisco, in a lawsuit (.pdf) brought by Jose Padilla. The one-time alleged "dirty bomber," Padilla claims Yoo's internal legal opinions paved the way for his harsh interrogation while he was secretly held without charges at a Navy brig in South Carolina.

Government lawyers are also defending former Secretary of Defense Donald Rumsfeld, former Deputy Secretary of Defense Paul Wolfowitz, former Attorney General John Ashcroft and other Bush administration officials in a second lawsuit by Padilla accusing (.pdf) them of violating his constitutional rights.

Double binds, where we are damned if we do and damned if we don't, appear to be a fact of life for the new administration. That is the inevitable outcome of the Bush administration's failure to adhere to the rule of law. The future will not be easy, but the Constitution stands as bedrock to help solve these double-bound legal dilemmas.

See also a collaborative post today about this same subject called, "Bush Leftovers For Sunday Dinner" at my brand new blog, Behind the Links.

(Cross-posted at South by Southwest.)

Just what is our responsibility?

By Carol Gee

House Judiciary Committee Chairman, John Conyers (D-Mich), posted a must-read at The Huffington Post yesterday titled "Our Responsibility#." In his excellent and important piece he discussed the various possibilities for actions to hold the Bush administration accountable for its misdeeds. Rep. Conyers begins:

. . . the question remains how best to respond to the severe challenge posed to our constitutional structure, and to our national honor . . . and in particular its national security programs. Faced with a record of widespread warrantless surveillance inside the United States, brutal interrogation policies condemned by the administration's own head of the Guantanamo Bay military commissions as torture, and flawed rendition practices that resulted in innocent men being abducted and handed to other countries to face barbaric abuse, what actions will we take to meet our commitment to the rule of law and reclaim our standing as a moral leader among nations?

Closing Guantanamo Bay -- was a very important start to redressing the damage done to the United States during the previous administration. It was one of the first actions taken by President Obama after his inauguration, according to ProPublica: "Obama Begins to Fulfill Gitmo Promise" (1/22/09). To quote:

President Obama has just signed a series of executive orders essentially dismantling the former administration’s detention system for terror suspects. Top among those orders is a directive to close Gitmo "no later than one year from now."

Closing this offshore detention facility will prove to be very difficult, according to those who have been thinking about how to do it. Many on both sides of the question wonder just how much is possible, including Politico.com, who headlined, "Why the Gitmo policies may not change" (1/23/09). To quote the 6 signs seen by skeptical author Josh Gerstein:

1. Everyone has to follow the Army Field Manual -- for now . . . 2. Obama ordered a 30-day review of Guantanamo conditions—by the man currently responsible for Guantanamo. 3. Obama vowed no torture on his watch, but force-feeding and solitary confinement apparently continue at Guantanamo for now. 4. The vast majority of detainees in American custody may see no benefit from Obama’s orders. 5. The orders downplay the possibility that some prisoners might be set free in America. 6. Military commissions are shut down…. for now.

One of the most vexing problems is what to do with all the suspects who seem too dangerous to release. Already many in Congress are saying NIMBY, (not in my back yard). AfterDowningStreet asks, "Should "Homeland Security" Set Up Detention Camps on Military Bases?*" (1/28/09).

Legally speaking -- Another ironic reality has to do with how the new administration will represent the interests of the U.S. government in all of the upcoming court cases involving detainees. Under a change of leadership the government's representations in court may not change as we would have assumed. Politico.com has the story: "Obama's lawyers set to defend Yoo" (1/28/09). To quote:

. . . now President Obama’s incoming crew of lawyers has a new and somewhat awkward job: defending Yoo in federal court. Next week, Justice Department lawyers are set to ask a San Francisco federal judge to throw out a lawsuit brought against Yoo by Jose Padilla, a New York man held without charges on suspicion of being an Al Qaeda operative plotting to set off a “dirty bomb.”

. . . That’s not all. On Thursday, Justice Department lawyers are slated to be in Charleston, S.C., to ask a federal magistrate there to dismiss another lawsuit charging about a dozen current and former government officials with violating Padilla’s rights in connection with his unusual detention on U.S. soil, without charges or a trial

Torture -- is probably the easiest to see as outrageous, unlawful, not what the United States is about, etc. The world is not shy about pointing this out to us. For example, from Buzz Flash: comes the report that "Bush, Rumsfeld should be pursued for torture: UN rappporteur*" (1/20/09). See also, The Raw Story#. To quote:

"Judicially speaking, the United States has a clear obligation" to bring proceedings against Bush and Rumsfeld, the United Nations Special Rapporteur on Torture Manfred Nowak said, in remarks to be broadcast on Germany's ZDF television Tuesday evening.

And the majority of professional interrogators are not shy, at least not since January 20, in telling us that torture simply does not work well in obtaining credible intelligence information. Here is a good illustration from Yahoo! News: "Obama says no to torture; interrogators say yes to Obama#" (1/23/09). The story explores the fact that many professional interrogators welcome President Obama's decision.

Intelligence gathering -- is necessary in order to protect the citizens of the United States from its enemies. During the period before the attacks of 9/11/01 the intelligence gathered may not have been well analyzed or well shared among those who needed it to keep us safe. According to The Raw Story, "PBS [said]: NSA could have prevented 9/11 hijackings#" (1/27/09). To quote:

The super-secretive National Security Agency has been quietly monitoring, decrypting, and interpreting foreign communications for decades, starting long before it came under criticism as a result of recent revelations about the Bush administration's warrantless wiretapping program. Now a forthcoming PBS documentary asks whether the NSA could have prevented 9/11 if it had been more willing to share its data with other agencies.

Intelligence gathering has, up until the summer of last year, been covered by the civil liberties protections of the Fourth Amendment of the U.S. Constitution. Because the Foreign Intelligence Surveillance Act was changed, and the companies assisting the government to spy on its own citizens were immunized from suit, we are not guaranteed protection from unreasonable search and seizure of much of our private information. Recent revelations are covered in this piece from The Raw Story: "Whistleblower: NSA spied on everyone, targeted journalists#" (1/21/09) To quote:

Sen. Rockefeller believes NSA may have spied on him; Ex-NSA analyst believes program a remnant of 'Total Information Awareness' . . .

Former National Security Agency analyst Russell Tice, who helped expose the NSA's warrantless wiretapping in December 2005, has now come forward with even more startling allegations. Tice told MSNBC's Keith Olbermann on Wednesday that the programs that spied on Americans were not only much broader than previously acknowledged but specifically targeted journalists.

. . . "In one of the operations that I was in, we looked at organizations, just supposedly so that we would not target them," Tice told Olbermann. "What I was finding out, though, is that the collection on those organizations was 24/7 and 365 days a year -- and it made no sense. ... I started to investigate that. That's about the time when they came after me to fire me."

Senator, now President, Barack Obama voted for the FISA bill that granted immunity to the telecoms and that stripped much of the civil liberties protection out of the surveillance statutes. I had hoped that his election would remind him that he is an expert in constitutional law, and that the warrantless domestic surveillance now in place is, in my opinion, unlawful. But it does not appear to be the case. CQ Politics reported that, "Blair backs retroactive immunity for companies under FISA overhaul." To quote:

President Obama’s choice for director of national intelligence says he supports continuing Bush administration efforts to provide retroactive legal immunity to companies being sued for their alleged role in the National Security Agency’s warrantless surveillance program. . . . Blair was unequivocal in answers posted on the committee Web site to written questions after the hearing.

“Do you believe that those private partners who assisted the government should be given civil liability protection?” Christopher S. Bond of Missouri, the ranking Republican on the panel, asked Blair in the written questions.

“Yes,” Blair answered. “The terms and conditions of that civil liability protection are spelled out in the FISA Amendments Act.”

. . . Although Blair could hold sway over the matter, [Attorney General Eric] Holder is the official who would take any court action on retroactive immunity.

CQ - Behind the Lines has more on these issues:

(1/22/09) -- As one of its last acts, the Bush administration asked a federal judge late Monday night to stay enforcement of a ruling that would keep alive a lawsuit testing presidential authority to eavesdrop on Americans without warrants, Threat Level’s David Kravets recounts.
. . . In narrowly affirming the constitutionality of warrantless surveillance, a secret intel court relied on an incomplete and likely misleading factual record, Secrecy News has Sen. Russell Feingold, D-Wis., alleging.

(1/26/09) The Obama administration “fell in line with the Bush administration” last week when it urged a federal judge to set aside a ruling in a closely watched domestic wiretap case, Threat Level’s David Kravets recounts.

Unitary Executives and secrecy -- make for the kind of lawlessness that worries a lot of people, including Chairman John Conyers (above). But our new President is operating in a much more open style than former President Bush. Transparency has been his watchword. Perhaps a combination of pragmatism, determination to gather usable intelligence, and a willingness to commit to transparency explains his FISA stance. He may be thinking that, since he is having to have everything out in the open (transparency) then we citizens should be willing to live that way, also. But that means that we are forced to trust the government (even his good government) with all of our private information. That includes credit card records, library records, phone conversations, e-mails, and medical records. And as a civil libertarian, my responsibility is not to give up on this fight. On this one the President is wrong and I will remain a member of the loyal opposition regarding these issues.

Do not get me wrong, on balance I am delighted that we have such a wonderful new President. So I will go back and remind myself of the way it was until he came into office. ProPublica:"Obama reverses Bush's executive privilege claim over documents" (1/21/09), making open records advocates very happy. ProPublica has the story regarding "Bush’s Secret Counterterrorism Law Book—and the Demands to Release It" Related: "The missing Memos."

Reference: The Missing Memos," a comprehensive interactive list (1/28/09). To quote the list description:

The Bush administration’s controversial policies on detentions, interrogations and warrantless wiretapping were underpinned by legal memoranda. While some of those memos have been released (primarily as a result of ACLU lawsuits), the former administration kept far more memos secret than has been previously understood. At least three dozen by our count. The decision to release them now lies with President Obama. To help inform the debate—and inject an extra dose of accountability—we’re posting the first comprehensive list of the secret memos. (The ACLU first compiled a list, which ProPublica verified and expanded on.

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

(Cross-posted at South by Southwest.)

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."

Related References:

1. SpyTalk - CQ Politics: "SpyTalk's Writes and Wrongs for 2008"


2. BuzzFlash: "ER doctors suspect excessive police force"* (1/7/09)


3. BuzzFlash: "Judge says US hid evidence in case"* (1/7/09)


4. AlterNet: "How the U.S. Army's Field Manual Codified Torture -- and Still Does"* (1/7/09)

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

(Cross-posted at South by Southwest.)