Known Unknowns
My former partner Michael Mukasey was giving a speech at a Federalist Society gathering on November 20. He collapsed towards the end of a remarkable speech, in which he offered extended praise for the Federalist Society and the role it had played in mobilizing the conservative legal revolution that will be the legacy of the Bush Administration. He turned in particular to defend the work of the many conservative legal ideologues in the Justice Department for their work in connection with the war on terror. The press coverage focused on his collapse--and I am encouraged to see that he staged a full and speedy recovery from what hopefully was no more than fatigue from a long work day--and ignored the substance of his speech. But here is a key portion in which he assailed 56 members of Congress for demanding a special prosecutor to investigate the Bush Administration's decision to introduce torture techniques including waterboarding, long-time standing, hypothermia and the use of psychotropic drugs on detainees in the war on terror. Here is Mukasey's response:
Members who signed this letter offered no evidence that these government officials acted based on any motive other than a good-faith desire to protect the citizens of our Nation from a future terrorist attack. Nor did they provide any evidence or indication that these government officials sought to authorize any policy that violated our laws. Quite the contrary: as has become well-known, before conducting interrogations, the CIA officials sought the advice of the Department of Justice, and I am aware of no evidence that these DOJ attorneys provided anything other than their best judgment of what the law required.
It's a remarkable statement because it shows how preposterously weak is the position of the Bush Administration in resisting the charges which have been leveled. His defense all boils down to an assertion that his lawyers acted in good faith, and that they gave the issue their best possible analysis. That's it. The problem, of course, is that the introduction of torture was a violation of a federal criminal statute, and a war crime to boot, and the law knows no "good faith" defense to the crimes which could be charged. Just the contrary, when this species of crime is committed, it is usually the handiwork of people who are committed to act in the zealous defense of their country; only very rarely would the conduct suggest sadism, for instance. Furthermore, Mukasey's claim that the DOJ attorneys gave it their "best judgment" is equally prone to attack. Mukasey has kept the key OLC memoranda secret in the face of demands that they be published, he has also held on to Stephen Bradbury in OLC when the Senate refused to confirm him. The Administration recognizes that it can only sustain its defenses by keeping the public in the dark.
When all the facts are on the table (and I have been researching them for four years now, which is why I am certain that Mukasey's characterizations won't hold water), we will learn that the decision to introduce torture was taken first, and the DOJ lawyers were asked to issue memoranda to provide cover for the decisions taken. Some of it happened in a shockingly casual form over a squash court, as Rumsfeld's lawyer told a DOJ lawyer about some of the techniques used and asked him to provide cover in some written memo. When DOJ lawyers attempted any measure of serious analysis (as happened with Dan Levin, for instance), they were fired, or quickly learned that to protect their own reputation they would have to leave the Department soon. When DOJ lawyers talked with lawyers with actual expertise in the area--at the Department of Defense and State--they were told repeatedly that the proposal was a criminal act. One general, one of the Pentagon's most senior lawyers, recounted to me a meeting with John Yoo in which Yoo described to him the OLC memo on torture. "Your opinion is both incorrect and incompetent" he told him. To this Yoo responded that he wasn't concerned, why he had even gotten the head of the Criminal Division to sign off on it. The general told me this was the point at which he began suspecting that a criminal conspiracy was afoot inside the Justice Department to violate the Anti-Torture and War Crimes Acts. Indeed, I soon learned, that view was widespread within the government, even inside of the Justice Department.
Charles Homans' article in the current Washington Monthly is a must-read for those who will be returning to Washington in January. He has catalogued what Donald Rumsfeld would call the "known unknowns"--the areas where we know something went on that the Bush Administration has struggled to keep in the dark. As he notes, we come to almost identical conclusions after approaching the question from different perspectives. The next step should be to fill in the gaps from the historical narrative. Who did what, when and how. We need to establish the facts and we need to force the publication of the key documents which are still being withheld. That's our right as a democracy.
I believe that the commission approach is the way to go forward. I don't deny that Congressional hearings could make some headway. However, I am not persuaded that the Congressional committees have the stamina, the concentration and the expertise to do what is necessary. Over the last year I attended all but two of the hearings the House Judiciary Committee arranged to dig into the torture issue. Bush Administration witnesses used every evasive maneuver known to a wily lawyer to avoid answering the questions raised. And the members did not for the most part know how to ask questions. When a completely dismissive or evasive answer came, they went on to the next question. Questioning needs to be done by a professional interrogator who is focused on building a complete record, not playing to the cameras and the audience in the constituency back home.
Under President Bush, the Constitution took a shellacking. We had the most devious, secretive government in our nation's history. In the end, it was at war with the rule of law itself. But this isn't the time to be talking about indictments and prosecutions, though that may come in the fullness of time. Now is the time to force those dark secrets from the recesses in which they've been hidden and insure that the public fully understands what was done by the most incompetent, corrupt and lawless government we've ever had. Charting those dealings is the first step. Correcting them is the second.
It shows how preposterous the claims are...by the way, when did you stop beating your wife?
November 25, 2008 9:46 AM | Reply | Permalink
Article 4(A) of The Geneva Convention relative to the Treatment of Prisoners of War defines 6 separate classes of persons who are Prisoners of war. Article 4(B) defines an additional 2 classes of persons who "shall likewise be treated as prisoners of war". Article 5; Paragraph 2, in its entirety states:
A President, by his arbitrary and capricious determination alone, does not in any shape or form qualify as a "competent tribunal". All persons detained as unlawful combatants; stripped of their Geneva Conventions protections, who were not first afforded a competent tribunal process determining their status are being held Unconstitutionally.
Notwithstanding this egregious violation of The supreme Law of The Land; the very moment these humans were detained as unlawful combatants, they were being held as criminal actors.
Surely you are not attempting to make the absurd assertion that a US Naval Base, not under immediate threat of being overrun by an enemy is a place that is not subject to the jurisdiction of the United States? Due Process of law controls. The Fifth, Sixth and Eighth Amendments are not Rights bounded by citizenry; they are Natural Rights, preexistent, and preeminent to the State. They apply to all, even to our worst enemies. To claim otherwise, is to fall prostrate onto the ground, and lick the boots of tyranny. Do you stand for as a friend of liberty, or quiver with preponderate abject fear in the face of adversity?The President, and the members of the Executive branch do not exist without the confines of the only document which legitimises their every act. they are not above the law.
November 25, 2008 10:34 AM | Reply | Permalink
Pseudo,
I've warned you before about introducing Law, Logic, Common Sense, and Fact into the thead when using commonplace irrelevant babble is right at hand.
November 25, 2008 2:48 PM | Reply | Permalink
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John...
Good to hear from you. Glad to see you're still hanging in at the Cafe here...
Sorry to besmirch the status of a Sergeant.
But that is what ol' Wally told me that the SFC stood for in his screen name, about two years ago. He stated he spent enough time to have retired from the Army as a Sargent 1st-Class. He even used his Army logo as his avatar back then. On that account, I can only take the man at his word.
Although, from now on I'll defer to your wishes and simply refer to ol' Wally as "the ground pounder" what with me being an old sailor-boy, ya' know.
Cherrio...
~OGD~
November 25, 2008 8:06 PM | Reply | Permalink
Olden says:
I didn't join the Navy or Marines because I got seasick fishing off the New Jersey shore with my dad and uncle a few times. Seeking safety from that affliction, I joined the Army. Little did I know I was going to spend 12 days on a troop ship sailing from NY to Belfast. Worst 12 days of my life.
One thing they fed us was something they called Sea Pie, claiming it was a Navy dish, it looked like creamed spinach.....to this day I'm still suspicious of what that stuff really was.
November 26, 2008 4:23 AM | Reply | Permalink
The Geneva Conventions doesn't omit any "status" or "category" of person, including those which are not speicifically identified by "status" or "category". It protects everyone, status and category notwithstanding.
November 25, 2008 7:30 PM | Reply | Permalink
.
Well well well . . .
If it isn’t ol' Sergeant First Class Non sequitur.
If you can’t dazzle ‘em with eloquence, baffle ‘em with bull****.
Apparently, in the comment to our distinguished visitor someone has employed the ol’ C.S. Lewis Bulverism technique to the thread.
I am not surprised. The ol’ Sarge ought to visit with Mike Woodson for some “commenting” tips…
Just a thought . . .
~OGD~
*Paddlin’ furiously in the Café since June 2005*
November 25, 2008 12:35 PM | Reply | Permalink
Olden,
I was a Sergeant, please don't refer to Wallace as a Sergeant.
November 25, 2008 2:52 PM | Reply | Permalink
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John…
I misplaced my response to your complaint here. Sorry.
If you haven’t seen it, here’s the link
~OGD~
November 25, 2008 9:52 PM | Reply | Permalink
uhh, what are you talking about?
November 25, 2008 1:39 PM | Reply | Permalink
Ours is to be "A system of laws, and not of men" -- Constitutionalist John Adams. (There is no "good faith defense" as concerns the war crime that is torture.)
You reject the foundations of this country in the name of a "patriotism" which is nothing more than a criminal thuggery. Get a clear clue:
Bushit insisted we must [illegally] invade [and occupy] Iraq and overthrow Saddam Hussein because, among other things, Hussein was a "torturer".
By replacing him as Torturer-in-Chief at [as instance] Abu Ghraib, Bushit lowered our country to the exact same level of torturer Saddam Hussein.
Answer the question, America-hater:
How is the destruction of the US's moral standing moral?
But try this time not to sidestep the question into personal attack against the person demanding you be man enough, for the first time, to answer that question head-on.
No more depraved anti-American bullshit, Wallace.
November 25, 2008 7:40 PM | Reply | Permalink
Bring on the war crimes trials! Beyond past time that we bring this renegade regime to the dock for their crimes against the nation and against humanity.
November 25, 2008 9:59 AM | Reply | Permalink
Investigation and prosecution are essential if we are to prevent this level of organized malfeasance in the future. You cannot "reconcile" when the criminal cohort and its crimes are still unrepentant or unidentified.
We need a massive civics lesson on the order of Watergate. The world must see that we are insisting on the kind of responsibility we have imposed on others in the past. Our children need to see that the rule of law is the only defense against vicious tyranny of the kind we have suffered. Anything less is making peace with a rampant evil, which would always threaten to re-emerge.
November 25, 2008 10:04 AM | Reply | Permalink
The quote from Mukasey makes me think that we need a very clear policy on torture and legal advice. It is my understanding that we prosecuting lawyers in the wake of WW2 for providing legal justifications for the holocaust and for torture, and that they were prosecuted for war crimes, and that we did this in order to establish the precedent that lawyers could be prosecuted.
Mukasey is arguing that a "good faith" interpretation of the law that nonetheless finds torture to be legal is acceptable and should be defended. This is one of my huge problems not just with the Bush administration and with torture, but with the law. The law should never have allowed the legal justifications of torture we have seen in the past 8 years, but it did. It allowed the justifications because we operate in an adversarial system in which every claim, no matter how ridiculous, absurd, immoral, unjust, or simply wrong is entitled to be seriously considered and can only be rejected by individuals who oppose that claim summoning the full force of their arguments. We shouldn't have to even think about these things to stop them from occuring, but when things that are ridiculous, absurd, immoral, unjust, and simply wrong occur in secret, no one can even oppose them in the most minimal way. This is a serious flaw in our legal system.
Ok, that aside for a second, how do we fix it? Well, we specifically and clearly outlaw torture, but we must also include something that works against the provision of legal advice that justifies torture. But we can't outlaw the provision of legal advice as that will be struck down by the Supreme Court--you can't stop a lawyer from providing advice about what is legal, and there is, in our system, never something that is absolutely certain and clear no matter how well written the law (another flaw). So, I think there has to be a statement in the law that goes something like this: "It is the belief and intent of Congress and the United States that there is no justification, legal or moral, for acts amounting to torture or cruel and degrading treatment, and that no attempt to provide legal justification for such acts can be made in good faith. Lawyers providing advice justifying such acts must be aware of . . . " And state the cases in which lawyers were prosecuted for war crimes.
November 25, 2008 11:03 AM | Reply | Permalink
I couldn't agree with you more, Reece.
As I've often said, This government does not torture people.
Best regards,
Your President (for the next 56 days)
November 25, 2008 12:56 PM | Reply | Permalink
Oh, Ellen, you know I'm always happy to have your support, specially when your points are obscure and inscrutable.
November 25, 2008 1:32 PM | Reply | Permalink
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Touche . . .
Perfectly stated Reece . . .
~OGD~
*Quacking in the Café since June 2005*
November 25, 2008 1:46 PM | Reply | Permalink
You seem to have misread the President's comment, Reece.
He may "support" you; I'm afraid I can't.
November 25, 2008 1:55 PM | Reply | Permalink
Ellen, you may have misread my comment since that is exactly why your point was obscure and inscrutable.
If you have something to say, feel free to say it. You think the President would support including congressional findings to the effect that torture is unjustified, but you're unwilling to agree? Who do you think Bush is? Who are you?
November 25, 2008 4:51 PM | Reply | Permalink
You perfectly express the frustration most people feel. We THOUGHT torture was already as illegal as it could possibly be. It was against international law and US criminal law. It was strictly prohibited by military doctrine. It was un-American. Yet none of that was a problem for John Yoo, who inexplicably is not behind bars.
November 25, 2008 6:07 PM | Reply | Permalink
The quote from Mukasey makes me think that we need a very clear policy on torture and legal advice.
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We have a clear policy: it is illegal, always and everywhere.
And we have a clear policy re. said legal advice: the Canon prohibits laws assisting in the violation of law.
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It is my understanding that we prosecuting lawyers in the wake of WW2 for providing legal justifications for the holocaust and for torture, and that they were prosecuted for war crimes, and that we did this in order to establish the precedent that lawyers could be prosecuted.
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No matter how clear the "policy" there will always be those who ignore or pervert it to their ends. In view of that reality, each and every instance must be prosecuted in full.
November 25, 2008 7:45 PM | Reply | Permalink
The law should never have allowed the legal justifications of torture we have seen in the past 8 years, but it did.
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No, the law did not do that because the law prohibits torture, always and everywhere. It was lawlessness -- subversion and ultimately ignoring of the actual law by the lawless -- which did it.
November 25, 2008 7:48 PM | Reply | Permalink
I'm sure there are some Bush Administration arguments on some issues that are rock-solid and well-based ...But I can't think of any at the moment. Bush's positions on most of his policy intitiatives have been, in your term, preposterously weak. We invaded Iraq because of "bad intelligence"; we weren't to blame for the bad intelligence indicating Saddam had WMD because "everybody else in the world thought the same thing". We can suspend constitutional guarantees against locking up people in dungeons and throwing away the keys because... they're terrorists. We know they're terrorists... because the Bush Administration tells us they are.
Throughout his terms, Bush and his toadies have never needed to provide solid, logical arguments or evidence for taking counterintuitive, supra-Constitutional action. It has never been demanded - either from Congress or the media.
Or us.
November 25, 2008 11:08 AM | Reply | Permalink
SanFernando,
sad to say, many Democrats went along with the Bush gang.
November 25, 2008 3:00 PM | Reply | Permalink
Sad... but true.
November 25, 2008 4:12 PM | Reply | Permalink
In fact, I would say that not only did Democrats 'go along' with the scheme, but that they were essential to its success.
And they appear, to say the least, to have profited immensely by it, when even William Kristol lauds liberals as 'competent' and 'reasonable.'
The Democrats have shown what a remarkable moderation in the pursuit of justice can accomplish.
November 25, 2008 7:15 PM | Reply | Permalink
It's a remarkable statement because it shows how preposterously weak is the position of the Bush Administration in resisting the charges which have been leveled.
You bet. If I had just come face-to-face with it, hearing it out of my own mouth, I'd black out, too.
But I'm sure he has made a full recovery. That kind of impediment is never more than temporary for them.
November 25, 2008 11:45 AM | Reply | Permalink
Every time I heard Bush or someone else in his regime argue that they are / were acting out of "a good-faith desire to protect the citizens of our Nation from a future terrorist attack," I was reminded of a painting at the Brandywine Museum, entitled The Nation Makers, which depicted a line of infantry of the Continental Army advancing under fierce fire through a farm field, and the actual oath of office prescribed by the Constitution: to preserve protect and defend the Constitution.
Not defend the homeland, not defend the American people, not defend a particular city or port or facility.
Defend the Constitution.
And what that means is defend the idea embodied in the Constitution of constitutional representative self-government.
But Bush and the Bushites claimed over and over again that their most solemn duty was to defend America from attack.
What made them think that the lives of Americans today are so much more valuable than that line of infantry, The Nation Makers, that we should set aside the Constitution and all that it represents?
If those mere mortals two and a quarter centuries ago were willing to put their lives literally on the line, how can we shrink from the sacred obligation they handed down to us to likewise hold our lives inferior to the Constitution?
November 25, 2008 11:47 AM | Reply | Permalink
Absolutely superb! I can only dream of writing such a perfect comment. Thank you.
November 25, 2008 12:45 PM | Reply | Permalink
Anthony,
excellent observation, pure gold.
November 25, 2008 3:03 PM | Reply | Permalink
Excellent post, Anthony!
In fact, if we surrender our Constitution in the name of protecting ourselves from the terrorists, have we not already lost the fight?
Stated otherwise, just how do you suggest we define victory in the continuance of such a struggle?
I guess it takes a real flag-waving patriot shouting "USA! USA! USA!" to make sense of it all. God knows, it all escapes me.
November 25, 2008 4:00 PM | Reply | Permalink
a real flag-waving patriot shouting "USA! USA! USA!"
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The shorter phrase for which is: voluntarily deaf.
Or in more theopsychological terms: shouting down the doubt.
November 25, 2008 7:53 PM | Reply | Permalink
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Thanks for visiting Mr. Horton
My position has been, and remains: Task the incoming Attorney General with ferreting the criminal acts from this bunch.
Now…
Back in 2006, does anyone remember when the Bush administration fought for and won a change in specific language in the US War Crimes Act of 1996???
I had left a heads up back 2006 in my blog here at the Café …
And lo-and-behold, who were the sponsors in the Senate who wished for this re-write of specific portions of the US War Crimes Act of 1996 ??? Old Maverick Mac himself, John Warner who’s heading out the door, and the always friendly grinning Lindsey Graham…
Also: If anyone takes the time to read the portions that I have selected below, you’ll note a very key statement from our visitor, Scott Horton.
Here is the detailed article from the Nation:
And here are the selected snippets.
The article continues with “The arguments for preserving the War Crimes Act and rejecting the Bush amendments…”
Here’s the link to the entire article again:
I’m sure this whole scenario of changing some words in a standing law was done with the best intentions for the citizen's of, and the country as a whole… Note: Much sarcasm …
~OGD~
*Shaking my feathered head in the Café since June 2005*
November 25, 2008 12:08 PM | Reply | Permalink
Olden says:
There you have it, no opposition party, the Democrats were absolutely irresponsible, choosing to protect their seats rather than protect the Constitution.
November 25, 2008 3:07 PM | Reply | Permalink
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John…
I can see your point from the perspective of finding an easy answer for the possible illogical reasoning of the Dems back in mid 2006, but...
Had the Dem lost seats and no new seats gained to make the house Dem controlled in November 2006, I suspect that there is a very good possibility the presidential vote could have gone very differently this year. And no doubt, a different song would be sung come January 20, 2009 if all the above transpired.
Not that I like it -- but the way things play in the beltway -- Sometimes you just have to eat crap for awhile to get to the filet.
My take is all speculation and just a different perspective.
~OGD~
November 25, 2008 9:42 PM | Reply | Permalink
Given Mukasey's, ahem, tortured argument, one would have to assume that all the prisoners at Guantanamo are being held in 'good faith,' no?
November 25, 2008 12:25 PM | Reply | Permalink
Indeed!
But then again, I assume the prisoners being held in Gauntanamo were acting in good faith when they perpetrated whatever acts they are accused of. If they were simply homicidal criminals, after all, wouldn't they be gnawing on each other's ankle bones rather than going out of their way to target Americans and other "infidels?" Having set themselves - rightly or wrongly - on a mission from God, they can hardly be held culpable for their actions, right?
Thanks, Mukasey! You've made all these troubling issues about right and wrong so much simpler for us all to understand. Hell, let's just declare everyone righteous and pure and send everyone home!
November 25, 2008 4:22 PM | Reply | Permalink
Are you out of your mind!?
Many, if not most, of those incarcerated in Gauntanamo were sold for bounties to the US. There never was and clearly is not now any evidence that they were "terrorists" or anything else along the lines you suggest.
Clue: for Bushit to say a person is a "terrorist" doesn't make it so. Any more than his claims that Saddam had WMDs was backed up by E-V-I-D-E-N-C-E.
When will you learn that the substitute "argument" "Trust me" is a red flag alerting you to do the opposite?
November 25, 2008 8:02 PM | Reply | Permalink
Apologies for not making my point clearer, as it seems you and I are in total agreement in our disgust for Bushits assumption of power to "declare" someone to be an enemy combatant, and thus make it so.
Whereas many detainees were undoubtedly innocents who were sold into captivity as you point out, they are in fact being held under charges of being a terrorist simply because Bushit has assumed this authority to define them as such.
My attempt at sarcasm was to point out that even if they were indeed terrorists acting against the US of A, it nevertheless stands to reason that they were "acting in good faith" rather than with criminal intent if we are to accept Mukasey's standard for criminal culpability. Ultimately, therefore, we can certainly not justify detaining these "well-intentioned terrorists" any longer.
I hope this is more clearly stated for your understanding.
November 25, 2008 9:04 PM | Reply | Permalink
When you realize just how corrupt Mukasey is, just based on that speech alone, without even considering the things he has done, you have to wonder why Obama would even consider keeping a single Bush appointee in office - thinking specifically of the Sec of Defense. Bush would not have appointed him if he were not also corrupt.
November 25, 2008 12:47 PM | Reply | Permalink
I think the general idea in keeping Gates for perhaps a year is to engage a Bush Appointee in the process of leaving Iraq. It pre-empts a fairly typical page in the Republican Play Book.
A few of us may remember the uses of the "Who Lost China?" argument back in the late 40's and early 50's -- all of which was part and parcel of the build up of McCarthyism. More of us may remember the debate that continued on into the recent campaign regarding decisions Congress made in the early 1970's to reduce the funding of the Vietnam war, as Nixon was withdrawing troops.
By leaving Gates in place for a year, responsible for the pull-out, or at least the pull-out planning, he becomes a firewall to such a political play come future elections.
November 25, 2008 2:31 PM | Reply | Permalink
Mr. Horton wrote: "The press coverage focused on his collapse--and I am encouraged to see that he staged a full and speedy recovery from what hopefully was no more than fatigue from a long work day."
Why? So Mr. Mucasey can continue to undermine the constitution and support heinous war crimes. Let's all do what the federalist Society members did after his collapse: say a prayer for his speedy recovery.
Dear God, please restore Mr. Mucasey to good health so he can continue undermine the constitution of this country and support the torture of infidels and the killing of infidel children in the middle east.
November 25, 2008 1:17 PM | Reply | Permalink
How about simply having the Bush DOJ declared a criminal organization as was done with the SS and the Gestapo at Nuremberg?
November 25, 2008 1:36 PM | Reply | Permalink
From what I read, Mukasey was defending torture when he collapsed:
Instant karma is a bitch ain't it Mikey? You people are scum. Lucky for Mikey there is no god or he would definitely burn in hell.
November 25, 2008 2:04 PM | Reply | Permalink
Are you quite certain that it wasn't God who struck Mukasey down while he was making the speech? She could well have done that, and it would certainly have been a good faith act on Her part.
November 25, 2008 2:51 PM | Reply | Permalink
hoppy,
Mukasey is a Bush appointee, and as such he fits the mold of John Yoo, David Addington, Dick Cheney, and the rest of the Constitution shredding cretins in this administration.
Republican Party in the 90s; "We are a Nation of laws and the Rule of Law must stand".
'Rule of law' my ass.
November 25, 2008 2:59 PM | Reply | Permalink
Good approach except with the incoming Administration policy seems hear no evil, see no evil, speak no evil. Were Obama to agree with his unnamed senior advisers on taking no action on past illegal acts, the only hope is The Hague, and that is slim. Why would Obama authorize extradition when he doesn't see the need of US justice?
November 25, 2008 4:11 PM | Reply | Permalink
What we need is a Constitutional Amendment that very clearly defines the President's powers. Right now, there are too many ill defined areas, most of which this administration took full advantage of in running roughshod over what we thought were human rights protections in the law. This amendment should:
* Make it illegal to suspend habeas corpus under any circumstances
* Define who an "enemy combatant" is, what legal rights he or she has and how they may be detained
* Clearly define torture and make it an illegal act punishable by law with no exceptions
* Give the Federal courts clear jurisdiction over military prisoners and trials
* Clearly define any military trial or tribunal held under American jurisdiction, including the rules of evidence and appeal
* Make it illegal for the executive branch to invade the privacy of American citizens without a court approved warrant — no exceptions
I'm sure some lawyers in the fray could add more specifics. Nothing short of a Constitutional Amendment will stop another administration from some day following the precedent set by the Bush Administration. However, the question remains how to build political support for such an amendment. The answer must be some sort of spectacular public display of the crimes and misdemeanors this Administration has committed. The Congressional hearings that investigated the Iran Contra affair come to mind, in which each political party hired a special investigator to both investigate the matter and interrogate the witnesses. Too bad Arthur Liman isn't around.
November 25, 2008 4:42 PM | Reply | Permalink
The whole house of cards that the Bush administration used to justify their crimes was build on the "commander in chief" clause in the Constitution. That is the unclear part, not the specifics you cite, all of which are covered very well now. With Bush's toady "lawyers" deciding that the "commander in chief" clause gave Bush unlimited powers over all else in the Constitution he was able to ignore the whole document.
I would like to see an amendment that expands the "commander in chief" clause to make it specific to what the framers intended - that the US military is not an independent branch of government, but a group that must follow the directions given by the President. It has no other meaning. A single sentence amendment would remove any possibility of a future president finding a lawyer to misinterpret it again.
November 25, 2008 5:54 PM | Reply | Permalink
Well, the Framers left the powers allotted to each branch undefined for a reason: They thought each brach would be 'jealous' of its prerogatives and resist encroachments from other branches, creating an artificial analogue of rivalrous classes in England exmplified by the Commons and Lords and Crown.
Unfortunately, this vision was largely a pipe dream from the beginning. There are no incentives to get politicians in Congress to actually do their jobs and check Executive power. In fact, the incentives are all in the opposite direction, to give the Executive unlimited power and then let Congress profit from the vast powers that accrue from it, which plainly contravenes the derivation of powers from the People so eloquently described in the Declaration of Independence.
When corruption and passivity are rewarded, as in our current system, that system is not long for this world. But I doubt Congress realizes how dire its own situation is, or if it does, is too satiated with lobbyists' swill to care.
November 25, 2008 7:30 PM | Reply | Permalink
extremely well said!
(Now, how come I still don't feel any better? :0)
November 26, 2008 3:48 AM | Reply | Permalink
Scott Horton really deserves the Presidential Medal of Freedom!! Not for this essay of course, but for 4 long years of toiling as almost the only national opposition voice to the torture regime. He, and J. Turley, Dean Lawrence Velvel, and Marty Lederman, were prominent opposition voices in the legal community very early on. He has been one of the few voices that had a national following to keep up the good fight against this criminal gang as the national Attention Deficit Disorder kicked in and people were chided for continuing to dwell the incovenient truths on Executive lawlessness and the destruction of the rule of law.
If I were President Obama after being inaugurated I would invite Mr Horton and the other names I mentioned to the White House as soon as possible.
November 25, 2008 5:40 PM | Reply | Permalink
In the end, it was at war with the rule of law itself.
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As it began, so it continued, and so it will end.
The Bushit criminal enterprise got into office by means of lying, bullying, stealing, and subversion by the SC 5. Whoever thought they would then govern honestly and lawfully is a fool, a fellow criminal, or a nut.
November 25, 2008 7:28 PM | Reply | Permalink
Scott,
Excellent to see you on TPM, I greatly your articles and blogging for Harpers.
I won't include the links here, but Michelle Malkin has some interesting background to Mukasey's collapse at the Federalist Society. The wingers have been enraged that Mukasey would have been heckled, and have been furiously trying to find out who it was that shouted out "tyrant" in the middle of the speech.
Turns out that a former mentor of Malkin - so presumably, not someone of a liberal disposition - a judge called Richard Sanders, has identified himself as the "heckler". Here's his version of events:
In his speech, Attorney General Mukasey justified the Bush administration’s policies in the War on Terror, which included denying meaningful hearings for prisoners in Guantanamo, and other questionable tactics, all in the name of national security. Mr. Mukasey said those who criticize the Administration for abandoning provisions of the Geneva Conventions fail to recognize that “… Al Qaeda [is] an international terrorist group, and not, the last time I checked, a signatory to the Conventions.” Although the United States is a signatory, and these Conventions prohibit torture, the audience laughed. Attorney General Mukasey received a standing ovation. I passionately disagree with these views: the government must never set aside the Constitution; domestic and international law forbids torture; and access to the writ of habeas corpus should not be denied.
The program provided no opportunity for questions or response, and I felt compelled to speak out. I stood up, and said, “tyrant,” and then left the meeting. No one else said anything. I believe we must speak our conscience in moments that demand it, even if we are but one voice.
As mentioned, I am not providing the links, just one of us visiting Malkin's site is probably one too many. And whilst heartening to see that some on the right and in the legal profession recognize the recent mauling of the Constitution, there's a helluva lot of work to put things right.
The issue that struck me was that it was the standing ovation Mukasey received from the Federalist Society that set Sanders off. Whilst we might want to regard Yoo, Bybee and co as radical aberrations and anti-Constitutional to the core, the right-wingers within the legal profession do not. Or at least very few of them do. I guess we shouldn't be shocked at the scale of the task ahead, but we shouldn't be deluded about the degree of opposition Obama will face should he decide to confront it.
November 26, 2008 7:23 AM | Reply | Permalink
Eddie george,
We shall find common cause with moderate conservatives when we - finally do confront this ongoing criminal conspiracy aka gwb43. Witness moderates such as Chris Buckely , David Brooks, and former Senator Hagel , all having decried the abomination that bushcheney has become-and how we all need a return to the "Rule of Law ".
If the new attorney general is Eric Holder -we will all be pleasently surprised by the DOJ's willingness to go after the criminals in gwb43.
Therefore it is incumbent upon we the people to build the political firewall to protect the DOJ , commission, special prosecutor , and or whomever else will be bringing charges against Addington et al -we cannot allow this to become a partisan fight ala the 'blue dress'. This is far more important then lying to a grand jury about consensual sex (though that is also a breach of trust ) - this is about preserving our Heart & Soul- its about protecting our Constitution .
We all of us must now act as Americans -to restore full faith & confidence in our Country -both here and Abroad. Our part in this-is to individually & collectively build a broad based movement to restore best practices to our governance by making sure that criminal prosecutions flow from the illegal activies that gwb43 committed .We all must find the Richard Sanders in our immediate community and make common cause to save our Country, Constitution, and our American Values.
And maybe that is why Team Obama decided to rehabilitate Lieberman- we need as many in this coalition as possible- now is the time for pragmatism & clarity as we recover ourselves from eight long years of bushcheney ...
November 29, 2008 8:22 AM | Reply | Permalink