"A Fondness For The Quaint Old Constitution"

Entangled Giant
By Garry Wills

George W. Bush left the White House unpopular and disgraced. His successor promised change, and it was clear where change was needed. Illegal acts should cease—torture and indefinite detention, denial of habeas corpus and legal representation, unilateral canceling of treaties, defiance of Congress and the Constitution, nullification of laws by signing statements. Powers attributed to the president by the theory of the unitary executive should not be exercised. Judges who are willing to give the president any power he asks for should not be confirmed.

But the momentum of accumulating powers in the executive is not easily reversed, checked, or even slowed. It was not created by the Bush administration. The whole history of America since World War II caused an inertial transfer of power toward the executive branch. The monopoly on use of nuclear weaponry, the cult of the commander in chief, the worldwide network of military bases to maintain nuclear alert and supremacy, the secret intelligence agencies, the entire national security state, the classification and clearance systems, the expansion of state secrets, the withholding of evidence and information, the permanent emergency that has melded World War II with the cold war and the cold war with the "war on terror"—all these make a vast and intricate structure that may not yield to effort at dismantling it. Sixty-eight straight years of war emergency powers (1941–2009) have made the abnormal normal, and constitutional diminishment the settled order.

The truth of this was borne out in the early days of Barack Obama's presidency. At his confirmation hearing to be head of the CIA, Leon Panetta said that "extraordinary rendition"—the practice of sending prisoners to foreign countries—was a tool he meant to retain.[1] Obama's nominee for solicitor general, Elena Kagan, told Congress that she agreed with John Yoo's claim that a terrorist captured anywhere should be subject to "battlefield law."[2] On the first opportunity to abort trial proceedings by invoking "state secrets"—the policy based on the faulty Reynolds case—Obama's attorney gen- eral, Eric Holder, did so.[3] Obama refused to release photographs of "enhanced interrogation." The CIA had earlier (illegally) destroyed ninety-two videotapes of such interrogations—and Obama refused to release documents describing the tapes.[4]

The President said that past official crimes would not be investigated—certainly not for prosecution, and not even by an impartial "truth commission" just trying to establish a record. He said, on the contrary, that detainees might be tried in "military tribunals." When the British government, trying a terrorist suspect, decided to use some American documents shared with the British government, Obama's attorney general pressured it not to do so. Most important, perhaps, was the new president's desire to end the nation-building in Iraq while substituting a long-term nation-building effort in Afghanistan, run by a government corrupted by drug trafficking and not susceptible to our remolding.

Even in areas outside national security, the Obama administration quickly came to resemble Bush's. Gay military personnel, including those with valuable Arabic-language skills, were being dismissed at the same rate as before. Even more egregiously, the Obama administration continued the defiance of the Constitution's "full faith and credit" clause, which requires states to recognize laws passed by other states, when it defended the Defense of Marriage Act, which lets states refuse to recognize gay marriages legally obtained in another state. Many objected when Dick Cheney would not name energy executives who came to the White House in 2002, though Hillary Clinton, as First Lady, had been forced to reveal which health advisers had visited her. Yet the Obama team, in June 2009, refused to release logs of those who come to the White House. (It later reversed itself, but only in response to a lawsuit.)

Some were dismayed to see how quickly the Obama people grabbed at the powers, the secrecy, the unaccountability that had led Bush into such opprobrium. Leon Panetta at the CIA especially puzzled those who had known him during the Clinton years. A former CIA official told The Washington Post, "Leon Panetta has been captured by the people who were the ideological drivers for the interrogation program in the first place." A White House official told Jane Mayer of The New Yorker, "It's like Invasion of the Body Snatchers."

Perhaps it should come as no surprise that turning around the huge secret empire built by the National Security State is a hard, perhaps impossible, task. After most of the wars in US history there was a return to the constitutional condition of the pre-war world. But after those wars there was no lasting institutional security apparatus of the sort that was laboriously assembled in the 1940s and 1950s. After World War I, for instance, there was no CIA, no NSA, no mountain of secret documents to be guarded from unauthorized readers, no atomic bomb to guard, develop, deploy, and maintain in readiness on land, in the air, and on (or in) the sea.

Now a new president quickly becomes aware of the vast empire that is largely invisible to the citizenry. The United States maintains an estimated one thousand military bases in other countries. I say "estimated" because the exact number, location, and size of the bases are either partly or entirely cloaked in secrecy, among other things to protect nuclear installations.The secrecy involved is such that during the Cuban Missile Crisis, President Kennedy did not even know, at first, that we had nuclear missiles stationed in Turkey.

An example of this imperial system is the Indian Ocean island of Diego Garcia.[5] In the 1960s, to secure a military outpost without fear of any interference from indigenous peoples, the two thousand Chagossian inhabitants were forcibly expelled, deprived of their native land, and sent a thousand miles away. (It is the same ploy we had used in removing native peoples from the Bikini and Enewetak atolls and Lib Island, so that we could conduct our sixty-eight atomic and hydrogen bomb tests there.) Though technically Diego Garcia is leased from the British, it is entirely run by the United States. It was the United States that expelled the Chagossians and confiscated their property. Diego Garcia has become a vast armory, as well as a storage and staging area and harbor and launch site, from which supplies and air strikes are fanned out over the Middle East, especially to the Persian Gulf and the Afghanistan and Iraq wars. No journalists are allowed to visit it. It was funded on a vast scale by various deceptions of Congress. Even the leasing terms with Great Britain were kept secret, to avoid congressional oversight.

That is just one of the hundreds of holdings in the empire created by the National Security State. A president is greatly pressured to keep all the empire's secrets. He feels he must avoid embarrassing the hordes of agents, military personnel, and diplomatic instruments whose loyalty he must command. Keeping up morale in this vast, shady enterprise is something impressed on him by all manner of commitments. He becomes the prisoner of his own power. As President Truman could not not use the bomb, a modern president cannot not use the huge powers at his disposal. It has all been given him as the legacy of Bomb Power, the thing that makes him not only Commander in Chief but Leader of the Free World. He is a self-entangling giant.

On January 25, 2002, White House Counsel Alberto Gonzales signed a memo written by David Addington that called the Geneva Conventions "quaint" and "obsolete." Perhaps, in the nuclear era, the Constitution has become quaint and obsolete. Few people even consider anymore Madison's lapidary pronouncement, "In republican government the legislative authority necessarily predominates." Instead, we are all, as citizens, asked to salute our commander in chief. Any president, wanting leverage to accomplish his goals, must find it hard to give up the aura of war chief, the mystery and majesty that have accrued to him with control of the Bomb, the awesome proximity to the Football, to the Button.

Nonetheless, some of us entertain a fondness for the quaint old Constitution. It may be too late to return to its ideals, but the effort should be made. As Cyrano said, "One doesn't fight in the hope of winning" (Mais on ne se bat pas dans l'espoir du succès).

— September 10, 2009
Notes


[1]Jane Mayer, "The Secret History," The New Yorker, June 22, 2009.


[2]Charlie Savage, "Obama's War on Terror May Resemble Bush's in Some Areas," The New York Times, February 18, 2009.


[3]John Schwartz, "Obama Backs Off a Reversal on Secrets," The New York Times, February 10, 2009. See also my recent discussion of the Reynolds case, "Why the Government Can Legally Lie," The New York Review, February 12, 2009.


[4]Evan Perez and Siobhan Gorman, "Obama Tilts to CIA on Memos," The Wall Street Journal, April 15, 2009; R. Jeffrey Smith and Joby Warrick, "CIA Fights Full Release of Detainee Report," The Washington Post, June 17, 2009.


[5]See David Vine, Island of Shame: The Secret History of the US Military Base on Diego Garcia (Princeton University Press, 2009). See also the review by Jonathan Freedland, "A Black and Disgraceful Site," The New York Review, May 28, 2009.

White House Counsel Gonzalez Signed Off On Torture?

Tail wags dog; Gonzales approved torture before OLC memos

The timelines have never matched up; the OLC memos were written subsequent to the onset of the reported harsh interrogations of Abu Zubaydah. The obvious question then is with what "legal" (using the term for the sake of argument) justification was waterboarding used on Abu Zubaydah?

New evidence suggests then counsel to the president, Alberto Gonzales, allegedly approved the use of torture well before any hack OLC opinions that justified its use.

An anonymous source told NPR that in April and May of 2002 CIA contractor James Mitchell sought approval on a daily basis for so-called “enhanced interrogation techniques” via top-secret cables to the CIA’s counterterrorism center. The CIA forwarded those cables to the White House, according to National Public Radio, and Gonzales would approve the technique, thus granting a legal basis for Mitchell’s actions – in theory at least.

“I can’t believe the CIA would have settled for a piece of paper from the counsel to the president,” (a) former government official told NPR. “If that were true,” says the former official, “then the whole legal and policy review process from April through August would have been a complete charade.” (Link)

This is what will continue to happen in the absence of any investigation of the Bush Administration interrogation policies. The slow drip of damning evidence that the program was, indeed, a lawless sham.

h/t Jay McDonough

Blame Rummy For Everything

KATRINA REVISITED.... I'm reluctant to highlight just one anecdote from Robert Draper's GQ piece on Donald Rumsfeld, because there's an awful lot of information in the article that deserves to be read, but the story about Rumsfeld during the Hurricane Katrina crisis is remarkable.

As Draper explained, there were search-and-rescue helicopters available for New Orleans, but Rumsfeld refused to approve their deployment, despite the belief from the commander of Joint Task Force Katrina that they were needed.

[T]hree years later, when I asked a top White House official how he would characterize Rumsfeld's assistance in the response to Hurricane Katrina, I found out why. "It was commonly known in the West Wing that there was a battle with Rumsfeld regarding this," said the official. "I can't imagine another defense secretary throwing up the kinds of obstacles he did."

Though various military bases had been mobilized into a state of alert well before the advance team's tour, Rumsfeld's aversion to using active-duty troops was evident: "There's no doubt in my mind," says one of Bush's close advisers today, "that Rumsfeld didn't like the concept."

The next day, three days after landfall, word of disorder in New Orleans had reached a fever pitch. According to sources familiar with the conversation, DHS secretary Michael Chertoff called Rumsfeld that morning and said, "You're going to need several thousand troops."

"Well, I disagree," said the SecDef. "And I'm going to tell the president we don't need any more than the National Guard."

After the president had returned to the White House, he eventually convened a meeting in the Situation Room to discuss the government's response. Bush barked, "Rumsfeld, what the hell is going on there? Are you watching what's on television? Is that the United States of America or some Third World nation I'm watching? What the hell are you doing?"

When Rumsfeld mentioned his concerns about "unity of command" issues, Bush stopped talking to his Defense Secretary and directed all inquiries to Lieutenant General Honore, via video screen, who was on the ground in Louisiana.

But still the troops hadn't arrived. And by Saturday morning, says Honore, "we had dispersed all of these people across Louisiana. So we needed more troops to go to distribution centers, feed people, and maintain traffic." That morning Bush convened yet another meeting in the Situation Room. Chertoff was emphatic. "Mr. President," he said, "if we're not going to begin to get these troops, we're not going to be able to get the job done."

Rumsfeld could see the writing on the wall and had come prepared with a deployment plan in hand. Still, he did not volunteer it. Only when Bush ordered, "Don, do it," did he acquiesce and send in the troops -- a full five days after landfall.

And here I thought Rumsfeld was a nightmare at the Pentagon before reading the Draper piece.

h/t Political Animal

We Tortured A Clerk And Drove Him Insane

We tortured him, and drove him out of his mind. And he was a lowly clerk.

From the LA Times:

Today, he suffers blinding headaches and has permanent brain damage. He has an excruciating sensitivity to sounds, hearing what others do not. The slightest noise drives him nearly insane. In the last two years alone, he has experienced about 200 seizures.

But physical pain is a passing thing. The enduring torment is the taunting reminder that darkness encroaches. Already, he cannot picture his mother's face or recall his father's name [emphasis mine]. Gradually, his past, like his future, eludes him.

McCain was right: It's about who we are. And we are not people who do this to another human being.

Is this what we've become? We must investigate, and let the investigation take us wherever it leads. It is not only the right thing to do, if we don't, we are in violation of the Geneva Conventions as well as the Torture Conventions. We are, right now, violating international law by not investigating.

Come on Attorney General Holder!

Krugman On America's Soul

In case you haven't read it yet:

Reclaiming America’s Soul
By PAUL KRUGMAN

“Nothing will be gained by spending our time and energy laying blame for the past.” So declared President Obama, after his commendable decision to release the legal memos that his predecessor used to justify torture. Some people in the political and media establishments have echoed his position. We need to look forward, not backward, they say. No prosecutions, please; no investigations; we’re just too busy.

And there are indeed immense challenges out there: an economic crisis, a health care crisis, an environmental crisis. Isn’t revisiting the abuses of the last eight years, no matter how bad they were, a luxury we can’t afford?

No, it isn’t, because America is more than a collection of policies. We are, or at least we used to be, a nation of moral ideals. In the past, our government has sometimes done an imperfect job of upholding those ideals. But never before have our leaders so utterly betrayed everything our nation stands for. “This government does not torture people,” declared former President Bush, but it did, and all the world knows it.

And the only way we can regain our moral compass, not just for the sake of our position in the world, but for the sake of our own national conscience, is to investigate how that happened, and, if necessary, to prosecute those responsible.

What about the argument that investigating the Bush administration’s abuses will impede efforts to deal with the crises of today? Even if that were true — even if truth and justice came at a high price — that would arguably be a price we must pay: laws aren’t supposed to be enforced only when convenient. But is there any real reason to believe that the nation would pay a high price for accountability?

For example, would investigating the crimes of the Bush era really divert time and energy needed elsewhere? Let’s be concrete: whose time and energy are we talking about?

Tim Geithner, the Treasury secretary, wouldn’t be called away from his efforts to rescue the economy. Peter Orszag, the budget director, wouldn’t be called away from his efforts to reform health care. Steven Chu, the energy secretary, wouldn’t be called away from his efforts to limit climate change. Even the president needn’t, and indeed shouldn’t, be involved. All he would have to do is let the Justice Department do its job — which he’s supposed to do in any case — and not get in the way of any Congressional investigations.

I don’t know about you, but I think America is capable of uncovering the truth and enforcing the law even while it goes about its other business.

Still, you might argue — and many do — that revisiting the abuses of the Bush years would undermine the political consensus the president needs to pursue his agenda.

But the answer to that is, what political consensus? There are still, alas, a significant number of people in our political life who stand on the side of the torturers. But these are the same people who have been relentless in their efforts to block President Obama’s attempt to deal with our economic crisis and will be equally relentless in their opposition when he endeavors to deal with health care and climate change. The president cannot lose their good will, because they never offered any.

That said, there are a lot of people in Washington who weren’t allied with the torturers but would nonetheless rather not revisit what happened in the Bush years.

Some of them probably just don’t want an ugly scene; my guess is that the president, who clearly prefers visions of uplift to confrontation, is in that group. But the ugliness is already there, and pretending it isn’t won’t make it go away.

Others, I suspect, would rather not revisit those years because they don’t want to be reminded of their own sins of omission.

For the fact is that officials in the Bush administration instituted torture as a policy, misled the nation into a war they wanted to fight and, probably, tortured people in the attempt to extract “confessions” that would justify that war. And during the march to war, most of the political and media establishment looked the other way.

It’s hard, then, not to be cynical when some of the people who should have spoken out against what was happening, but didn’t, now declare that we should forget the whole era — for the sake of the country, of course.

Sorry, but what we really should do for the sake of the country is have investigations both of torture and of the march to war. These investigations should, where appropriate, be followed by prosecutions — not out of vindictiveness, but because this is a nation of laws.

We need to do this for the sake of our future. For this isn’t about looking backward, it’s about looking forward — because it’s about reclaiming America’s soul.

Monday Cartoon Fun: 2 Wrongs Don't.... Edition

Prosecute The War Crimes

Since we all now know for sure that America tortured detainees, we need to prosecute the torturers. Remember, this is our country, not Bush's, Obama's, or Pelosi's. Its OURS!

Obama: Example For Taliban

Johnathan Turley makes the connection between Obama policy and Taliban policy. In this case they are essentially the same thing!

Leading the World by Example: Obama Legal Position on War Crimes Adopted for Taliban in Pakistan

[Obama's] recent trip to the Middle East to reach out to Muslims appears to have born fruit. A Pakistan leader has adopted the position of the Obama Administration on war crimes. Tehrik-i-Nifaz-i-Shariat-i-Muhammadi chief Sufi Mohammad has announced that Taliban murderers who have been accused of such crimes as burning schools, throwing acid in the faces of school girls, and killings should not be prosecuted because “[w]e intend to bury the past. These things will be left behind and we will go for a new life in peace.” It is the very logic that our President has been trying to advance as an excuse for not allowing an investigation into the torture program. Obama has insisted that “no one is above the law” while immediately guaranteeing that Bush officials are above the law by stating “My orientation’s going to be to move forward . . . getting things right in the future as opposed to looking at what we got wrong in the past.”

War Crimes Trials Ahead II?

Scott Horton reports that indictments of top Bush Administration officials could be handed down in Spain as early as today:

Spanish prosecutors have decided to press forward with a criminal investigation targeting former U.S. Attorney General Alberto Gonzales and five top associates over their role in the torture of five Spanish citizens held at Guantánamo, several reliable sources close to the investigation have told The Daily Beast. Their decision is expected to be announced on Tuesday before the Spanish central criminal court, the Audencia Nacional, in Madrid [...]

The six defendants—in addition to Gonzales, Federal Appeals Court Judge and former Assistant Attorney General Jay Bybee, University of California law professor and former Deputy Assistant Attorney General John Yoo, former Defense Department general counsel and current Chevron lawyer William J. Haynes II, Vice President Cheney’s former chief of staff David Addington, and former Undersecretary of Defense Douglas J. Feith—are accused of having given the green light to the torture and mistreatment of prisoners held in U.S. detention in “the war on terror.” The case arises in the context of a pending proceeding before the court involving terrorism charges against five Spaniards formerly held at Guantánamo. A group of human-rights lawyers originally filed a criminal complaint asking the court to look at the possibility of charges against the six American lawyers. Baltasar Garzón Real, the investigating judge, accepted the complaint and referred it to Spanish prosecutors for a view as to whether they would accept the case and press it forward. “The evidence provided was more than sufficient to justify a more comprehensive investigation,” one of the lawyers associated with the prosecution stated.

...the Obama State Department has been in steady contact with the Spanish government about the case. Shortly after the case was filed on March 17, chief prosecutor Javier Zaragoza was invited to the U.S. embassy in Madrid to brief members of the embassy staff about the matter. A person in attendance at the meeting described the process as “correct and formal.” The Spanish prosecutors briefed the American diplomats on the status of the case, how it arose, the nature of the allegations raised against the former U.S. government officials. The Americans “were basically there just to collect information,” the source stated. The Spanish prosecutors advised the Americans that they would suspend their investigation if at any point the United States were to undertake an investigation of its own into these matters. They pressed to know whether any such investigation was pending. These inquiries met with no answer from the U.S. side [...]

The Bush Six labored at length to create a legal black hole in which they could implement their policies safe from the scrutiny of American courts and the American media. Perhaps they achieved much of their objective, but the law of unintended consequences has kicked in. If U.S. courts and prosecutors will not address the matter because of a lack of jurisdiction, foreign courts appear only too happy to step in.

Which is, as Hilzoy says, to our eternal shame. The Bush Six violated our own laws as surely as they violated Spanish law. We are signatories to the same treaties to which Spain is a signatory. We have the duty, actually, the requirement under the Constitution and the Convention Against Torture, to prosecute those who broke these laws and treaty obligations. We shouldn't let Spain do our dirty work. History will not look kindly on it.

h/t dday

My Thoughts Exactly

I couldn't agree more with Jim Horn:

How Obama Became a One-Termer

Continuing the idiocies of the Bush education policy is one thing, but continuing and accelerating the Bush evisceration of the Constitution is quite another kind of thing, one that will not stand with enough of those of us who put Obama where he is. Scrape your bumper--this honeymooner just moved for annulment.

Go read the rest. I am disgusted with this. Obama, listen to those who got you elected: Prosecute war crimes, roll back wiretapping, and nationalize the banks. Or, enjoy your one and only term.

We'll Let You Go If You Lie About Torture, Okay?

This is from Jonathan Turley. He was on Rachel Maddow's show last night talking about this and the Obama/Cheney exchange. His take on the Obama/Cheney thing caught me by surprise; I thought Obama smacked Cheney down. Turley thinks Obama, by even having this dialogue with Cheney, is perpetuating the slide toward changing history instead of vindicating it with war crimes trials. You need to watch the Maddow clip, he is impassioned about it, and you should be too! (in the first graf of Turley's post).

Court: United States Offered to Release Detainee If He Would Not Reveal His Own Torture

Two British High Court judges have released a very disturbing decision that finds that ormer detainee Binyam Mohamed was offered his freedom by the United States in exchange for his promise not to reveal his own torture at Guantanamo Bay. Equally disturbing is the statement from the English government that it cannot release proof of the torture because of objections from the United States government. If the Obama Administration is continuing this position, it is not only blocking prosecution of war crimes but the release of evidence of such war crimes to other nations. I discussed this and other developments on this segment of Rachel Maddow’s show.

Mohamed is an Ethiopian who moved to Britain as a teenager and was arrested in Pakistan in 2002. He claims he was tortured Pakistan and in Morocco. He was then transferred to the United States, which also tortured him.

All charges against him were dropped last year. He refused our Faustian bargain.

Lord Justice John Thomas and Mr. Justice David Lloyd Jones said that there was evidence to show Mohamed was tortured, but that the documents could not be made public because of the objections by the United States. Presumably, if the Obama Administration lifted such objections publicly, the British government would not have a basis to withhold the material.

For the full story, click here and here.

Sacramento's Bushville

I live an hour or two from Sacramento. This HooverBushville is the tip of the iceberg. I think maybe this is my grandfather's depression!

Visit msnbc.com for Breaking News, World News, and News about the Economy

Signing Statements, Shmining Statements!

This is delicious!

In his directive, Mr. Obama said that any signing statement issued before his presidency should be viewed with doubt, placing an asterisk beside all of those issued by Mr. Bush and other former presidents.

“To ensure that all signing statements previously issue are followed only when consistent with these principles, executive branch departments and agencies are directed to seek the advice of the Attorney General before relying on signing statements issued prior to the date of this memorandum as the basis for disregarding, or otherwise refusing to comply with , and provision of a statute,” he wrote.

Sunday Cartoon Fun: A Son Visits His Family Edition