Tag: Rule of Law

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Law National Security Politics The Opinionsphere The War on Terrorism

Liberty is Not Another Word for Anti-Antiterrorism

Eternal vigilance is the price of liberty.

[digg-reddit-me]The Wall Street Journal editorial page is a platform for kings and prime ministers,  presidents and scientists, thinkers and businessmen, who want to speak to the powerful and monied interests of the American elite. And then, there are the crazy right-wingers who run the board and invite their friends to write short propaganistics pieces.

Reading yesterday’s editorial board piece about the “anti-antiterror lobby,” I was tempted to throw around terms like “fascist” and “fear-mongerer” in response. I felt a strong visceral anger as the board described those who insisted laws be followed – the foundational principle of civilization itself – as in league with terrorists (who oddly seek the same freedom from law the Wall Street Journal supports). I was so angry I missed the point of the piece.

But, after a time, a walk in the cold, I was able to tame my anger – to reason with it, to analyze it, and to direct it more appropriately.

Despite the hysteric, trying-too-hard rhetoric, the Wall Street Journal might well have a point when it sided with Ray Kelly in criticizing the “unnecessarily protracted, risk-averse process” that is behind the current technological innovations. They’re probably right in stating that the FISA is flawed. Which is why it’s too bad that the Journal board used their influential platform to “boomerize” ((They politicized the issue along the lines of the Baby Boomer divide, using key words and paradaigms that are designed only to appeal to half of the public.)) the issue instead of actually discussing it in any meaningful way.

I shouldn’t be surprised that the Journal would politicize national security instead of acting responsibly. This is what they do. They represent the worst of Boomerdom. The actual argument they put forth has emotional resonance – touching on themes that were relevant in the 1960s. But it ignores the actual issues at stake here – the rule of law; new technologies; terrorism; checks and balances; liberty; the Constitution; public safety. The Journal doesn’t acknowledge that a balancing test must always be applied – between liberty and security. Instead, they mock those concerned with liberty as pro-terrorists (or to seem less ridiculous, “anti-antiterrorists.”)

The Journal‘s rhetoric is at worst diabolical – as they seek to place political blame on the Democrats for any future attacks because “Democrats and the left” inserted “an unelected judiciary into the wartime chain of command.” But this invocation of wartime is a sleight of hand – unless the Journal considers America itself to be under marital law. The Journal talks about how the executive branch already has “Constitutional authority” to wiretap communications that FISA was explicitly set up to regulate – neatly accepting the most extreme view of executive authority that led the mutiny of the top members of Bush’s Justice Department and almost causing John Ashcroft (Attorney General), Jack Goldsmith (Head of the OLC), James Comey (2nd in Command of the Justice Department), Robert Mueller (FBI Director), as well as scores of their subordinates – Republicans and staunch conservatives all – to nearly resign in protest. Now, these conservatives are lumped in with “Democrats and the left” as “anti-antiterrorists” because they believe in some limits to executive power, even in the field of national security.

The Journal manages to explain away why the conservative attorney general is the one who is telling Ray Kelly he’s wrong – rather than the FISA court which has rejected only a handful of the tens of thousands of applications for warrants to wiretap.  Of course, the attorney general is refusing to even submit Ray Kelly’s requests to be adjudicated – which the Journal acknowledges is a wise move because the “system” is dominated by “anti-antiterrorists.” They blame the attorney general’s actions on the liberals. The Journal insists that the famously prickly judge is just trying to please the liberals because only liberals would insist on laws to restrain the actions of the executive. Apparently, the Journal cannot understand what kind of man could stand up for American values in the face of fear and terror – so they presume he must be pragmatically compromising with liberals.

Thus, the Wall Street Journal has turned a bureacratic struggle between two conservatives into an indictment of the rule of law itself. Apparently, lawfulness is deemed in essence liberal, aka “anti-antiterroristic.” Does that leave us with monarchism? Which laws should the executive obey? What if the law is amended to address concerns? Should we get rid of the Fourth Amendment and that whole idea of “unreasonable searches”? None of these questions are answered – or even addressed. It’s really too bad that the Journal didn’t have any space to let some grown-ups write an op-ed on the issue. They were too busy trying to score clever political points.

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Law National Security

Why do we care about international standards?

Why do we care about international standards? Because for more than one hundred years, beginning after our own Civil War, the United States has been at the forefront of setting international standards for the conduct of warfare….These are not simply “diplomatic” or”foreign policy” issues; the US military and our Defense Department were at the forefront of developing these standards….Surely one of the most basic rights is the right to be treated humanely and in accordance with legal rules.

John Bellinger, legal advisor to Secretary of State Condoleeza Rice, in a memo to policy-makers in the Bush administration on July 17, 2005, according to Barton Gellman in The Angler.

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Election 2008 Law McCain National Security Obama Politics

Yesterday’s American Heroes, Not Tomorrow’s Leaders

The Washington Post excerpted Barton Gellman’s new book on the Cheney Vice Presidency. Gellman includes the following scene which helps to fill in the gaps in the story that culminated in the infamous showdown in Attorney General Ashcroft’s hospital room. After Ashcroft, Comey, Goldsmith, and Philbin had determined that the Bush administration was breaking the law, they began to take steps to push the administration into compliance, leading to this meeting:

Comey, Goldsmith and Philbin found the titans of the intelligence establishment lined up, a bunch of grave-faced analysts behind them for added mass. The spy chiefs brought no lawyers. The law was not the point. This meeting, described by officials with access to two sets of contemporaneous notes, was about telling Justice to set its qualms aside.

The staging had been arranged for maximum impact. Cheney sat at the head of Card’s rectangular table, pivoting left to face the acting attorney general. The two men were close enough to touch. Card sat grimly at Cheney’s right, directly across from Comey. There was plenty of eye contact all around.

This program, Cheney said, was vital. Turning it off would leave us blind. Hayden, the NSA chief, pitched in: Even if the program had yet to produce blockbuster results, it was the only real hope of discovering sleeper agents before they could act.

“How can you possibly be reversing course on something of this importance after all this time?” Cheney asked.

Comey held his ground. The program had to operate within the law. The Justice Department knew a lot more now than it had before, and Ashcroft and Comey had reached this decision together.

“I will accept for purposes of discussion that it is as valuable as you say it is,” Comey said. “That only makes this more painful. It doesn’t change the analysis. If I can’t find a lawful basis for something, your telling me you really, really need to do it doesn’t help me.”

“Others see it differently,” Cheney said.

There was only one of those, really. John Yoo had been out of the picture for nearly a year. It was all Addington.

“The analysis is flawed, in fact facially flawed,” Comey said. “No lawyer reading that could reasonably rely on it.”

Gonzales said nothing. Addington stood by the window, over Cheney’s shoulder. He had heard a bellyful.

“Well, I’m a lawyer and I did,” Addington said, glaring at Comey.

“No good lawyer,” Comey said.

This story reminds me of something that gets lost in the day-to-day campaign: Attorney General John Ashcroft, Deputy Attorney General James Comey, Deputy Assistant Attorney General Patrick Philbin, Assistant Attorney General Jack Goldsmith, FBI Director Robert Mueller, Air Force Colonel Morris Davis, Army Captain Ian Fishback, General Eric Shinseki, and yes, Senator Chuck Hagel, Senator John McCain, Senator Lindsay Graham, and Secretary of Defense Robert Gates – all of these men, and other unnamed men and women stood against and were able to moderate the Bush administration’s worst impules. Some stood up and insisted that the rule of law applied to all citizens; others stood against and exposed torture and inhuman treatment; others stood against the hubris and arrogance of the Bush administration. Many Democrats were co-opted by the Bush adminisrtation, but more opposed it. But these Democrats never were let on the inside, and so never had the opportunity, never had to face the difficult choice of whether to risk their career and turn against their party for a moral or political principle. These individuals demonstrated courage, and they deserve credit and praise. These individuals, more than anyone, are responsible for preserving what is left of our republic.

But still, especially in this election year, we must remember that these men were Republicans for a reason – and most have remained Republicans. Jack Goldsmith forced the Justice Department to re-write the torture memos – but he still believes in a unitary executive, with many of its extreme implications. John McCain may have criticized Donald Rumsfeld, but he was always a strong supporter of the Iraq war as well as any other necessary military interventions in the Middle East. John Ashcroft may have heroicly refused to give in to executive pressure on wiretapping while hospitalized, but he also routinely authorized gross violations of civil liberties.

These individuals deserve great credit for keeping their heads about them while the Bush administration sought to seize near unlimited power, but we need more than a more moderate version of George W. Bush from out next president.

Which is why, as much as we should honor these individuals, they do not represent the future, the next step.

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Election 2008 Obama Political Philosophy Politics Reflections

America’s Inherent Fragility

[digg-reddit-me]Without endorsing the report or the think tank, here’s an appropriate quote from the Harry Bradley Foundation’s report on America’s National Identity [pdf] (h/t David Broder):

America is unique among nations in being founded not on a common ethnicity, but on a set
of ideas. A nation based on ethnicity perpetuates itself by the fact of birth. But a nation founded
on an idea starts anew with each generation and with each new group of immigrants. Knowing
what America stands for is not a genetic inheritance. It must be learned, both by the next generation and by those who come to this country. In this way, a nation founded on an idea is inherently fragile. And a nation that celebrates the many ways we are different from one another must remind itself constantly of what we all share

This understanding of the inherent fragility of America represents the essential insight of American conservatism – an understanding that George W. Bush has entirely rejected. I describe this as a conservative insight based on a more traditional view of conservatism that, in Buckley’s phrase, “stands athwart history shouting ‘Stop!’ ”  A conservatism that in the tradition of Edmund Burke and Russel Kirk respects traditions and the status quo.

George W. Bush is not a conservative by any of these standards.  He is instead, a right-winger, divorced from the divorced from the inherent moderate or even reactionary elements of the conservative tradition.  He is not a liberal – as some conservatives now claim, trying to distance themselves from him.  Bush is a radical right-winger whose main focus has been the establishment of an American empire abroad and an elected monarch at home.

What is most perplexing about Bush is that even as he has sought monarchical powers – the ability to imprison people without charge or judicial review indefinitely, the right to be free from the constraints of law, the authority to wage war without checks or balances, and the protection from accountability to the people or other branches of government – he has been relatively restrained in his use of them.  This makes his presidency all the more insidious – as the greatest majority of Americans have not noticed the growing power of the presidency even as it threatens the very idea of America – and idea which is inherently fragile.

This report focuses on how we need to educate America children and citizens in order to enable America to survive.  This is true.  But what this report appears to miss is that the most dire, the most pressing threat to America today is the legal framework and the precedent set by the actions of the Bush administration.

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Domestic issues Election 2008 Foreign Policy Iraq Law McCain Obama Politics

The curmudgeonly conservative columnist questions McCain

George Will, curmudgeonly conservative columnist, pointedly asks John McCain a few worthwhile questions in yesterday’s column:

  1. You say you are not “ready to go to war with Iran,” but you also say the “one thing worse” than “exercising the military option” is “a nuclear-armed Iran.” Because strenuous diplomacy has not dented Iran’s nuclear ambitions, is not a vote for you a vote for war with Iran?
  2. You vow to nominate judges who “take as their sole responsibility the enforcement of laws made by the people’s elected representatives.” Their sole responsibility? Do you oppose judicial review that invalidates laws that pure-hearted representatives of the saintly people have enacted that happen to violate the Constitution? Does your dogmatic deference to popular sovereignty put you at odds with the first Republican president, who nobly insisted that there are some things the majority should not be permitted to do—hence his opposition to allowing popular sovereignty to determine the status of slavery in the territories? Do you also reject Justice Antonin Scalia’s belief that the Constitution’s purpose is “to embed certain rights in such a manner that future generations cannot readily take them away”? Does this explain your enthusiasm for McCain-Feingold’s restrictions on political speech, and your dismissive reference to, “quote, First Amendment rights”? Would you nominate judges who, because they think those are more than “quote … rights,” doubt McCain-Feingold’s constitutionality?
  3. Having raised $95 million in February and March, Barack Obama is reconsidering whether to rely on taxpayer funding in the general election, which would limit him to spending only $84.1 million. You denounce Obama for this, but your adviser Charles Black says, “We could sit down in July or August and say, ‘Hey, we’re raising a lot of money and maybe we should forgo [taxpayer financing].’ We don’t have enough data.” Really, how does your position differ from Obama’s? ((The numbering is my own.))
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Catholicism Domestic issues Election 2008 Environmental Issues Foreign Policy Iraq Law Morality New York City Obama Politics The War on Terrorism

Pope Endorses Barack Obama in UN Speech

Pope Benedict @ the United Nations

[digg-me]Not quite. But close.

Addressing the United Nations on Friday, Pope Benedict XVI spoke of reducing income inequality; of increasing international cooperation; of respecting the law; of having solidarity with the poor and weak; of opposing (unnecessary) ((I inserted unnecessary here although Pope Benedict did not. Although the pope spoke in this speech of avoiding war, I presume he speaks of this in the context of the “just war” theory that has been accepted by him and the rest of the Catholic Church in the past.)) war; of “giving attention and encouragement to even the faintest sign of dialogue or desire for reconciliation;” of creating “structures capable of harmonizing the day-to-day unfolding of the lives of people;” of the “protection of the environment…and the climate.” And like Barack Obama, though many conservative Catholics are loathe to admit, the previous pope, Pope John Paul II even specifically opposed the invasion of Iraq.

In the past eight years, the Republican party has come to stand for the right of the president to torture prisoners; for rising inequality and acceptance of corporate fraud; for elevating the executive above the Rule of Law and the other constitutionally co-equal branches of government; for ignoring the climate crisis; for refusing to give aid to the poor and weak because of potential “moral hazards” while bailing out big corporations; for preventive war; for refusing to engage in dialogue with our enemies. Pope Benedict’s speech was a direct challenge to the worldview and policies of the Bush administration and an articulation of basic moral principles and basic responsibilities of the state.

Within these principles articulated by the pope, we can easily find the mainstream Democratic agenda, a rejection of the radical policies of George W. Bush, and more specifically, an endorsement of the school of politics that Barack Obama stands for: talking with our enemies; avoiding unnecessary wars and violence; respecting the Rule of Law; reducing income inequality; promoting access to health care; and protecting the environment.

This is the Democratic agenda.

The Pope explained that it is the responsibility of “every generation [to] engag[e] anew in the arduous search for the right way to order human affairs…motivated by hope.” I would call that a pretty good encapsulation of Obama’s appeal – that he represents a new generation striving to find the best way to manage the world and our nation “motivated by hope”.

Jonah Goldberg may call it fascism; Steve Marlsberg may call such efforts to reduce inequality and allow citizens access to basic needs Communism; Rush Limbaugh may call efforts to focus on the real threat of Al Qaeda in the Pakistani/Afghani border “cut-and-run.” But those who listened to Pope Benedict’s address to the United Nations can see that he stands with those the so-called “conservatives” have labeled fascists, communists, and cowards – and the pope understood that the basic moral values he stood for are the essence of what he called “freedom.”

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Domestic issues Law Politics

Attorney-Client Privilege

[reddit-me]In commenting on the Torture Memo scandal (that has incidentally gotten far less attention than Bittergate), Stephen Gillers of The Nation brings up an important point:

The lawyers told the President what he wanted to hear, but the nation was their client, and its sole interest was in thorough and independent legal analysis. Neither the President’s political agenda nor the authors’ views of what the law should say can be allowed to slant the OLC’s work. So maybe the best and brightest lawyers got it so wrong because they forgot whom they served. Maybe they acted politically, not professionally. If so, we are dealing with a perversion of law and legal duty, a betrayal of the client and professional norms, not mere incompetence, which would be bad enough.  Whatever the reason, [H. Marshall Jarrett, counsel for the Justice Department’s Office of Professional Responsibility] should find that this work is not “consistent with the professional standards that apply to Department of Justice attorneys.” Jarrett must hold the lawyers accountable if he means to restore OLC’s reputation and vindicate the rule of law.

It’s an important point to make – and one which undermines those who argue that John Yoo and other lawyers who justified explicitly illegal actions were just providing legal advice to their client.  Not only was their advice bad, but they were bowing to the pressure of a third party that wasn’t their client.

At the same time, if the nation itself is their client, rather than the president, they are required to be more independent than the Bush administration’s view of the executive branch allows for.  Unlike in a monarchy, neither the president as an individual nor the presidency as an office is considered to solely represent or speak for the nation.  At least that was what the founders thought.

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Law Politics The War on Terrorism

Yoo are too Clever by a Half

[reddit-me]Dahlia Lithwick, one of my favorite writers, proves that she sees the dangerous precedent set by John Yoo and the current administration: ((This particular post has actually appeared on the site several times before in the past week due to errors on my part. This is the definitive version.))

The Bush administration has proven time and again that the Rule of Law is only as definitive as its most inventive lawyers.

I’ve been watching a lot of Westerns recently – El Dorado, 3:10 to Yuma (the new version), The Man Who Shot Liberty Valance, The Man From Laramie, Winchester ’73. The older of these movies that defined masculinity during the Golden Age of Gender Roles in the 1950s – “the strong, silent type” as Tony Soprano memorably described it, echoing many before him. What these movies are about – at their core and often explicitly – is how the Rule of Law came to the West. It was not always brought through the most ideal means. Often the honorable brigands and hired guns helped the sheriff establish civilization. But it came – and it was fought for – and men and women died so that the Rule of Law might be brought to their small towns, and many died for the lack of it.

Now today, right wing radio talk show hosts from Dennis Miller to Steve Malzberg talk about the Rule of Law as if it were a sissification, as if it were a feminine value, as if it made a civilization weak. They – and those in power – who dodged and pulled strings to avoid military service (another mark against their purported standard of masculinity) malign those who have stood up for the rule of law ((And often did serve.)) – from John Kerry to Max Cleeland – as cowards and traitors and “girly men”.

As I’ve argued before – it is astounding that those who advocate the preemptive surrender of American values in the face of terrorism have been able to portray those who stand for the Rule of Law as effete snobs who want to surrender to terrorists. Yet based on the standard of masculinity that many of these “conservatives” regularly invoke – the 1950s man, the cowboy – they are failures. The cowboys in these old Westerns – these brigands and thieves and hired guns and sheriffs – fought to bring the Rule of Law to the Wild West. The movies are often bittersweet, as the world in which these men thrived – a lawless and vicious yet exciting and new wasteland – is “civilized” and they are made obsolete. But these men – and they are all men in these Westerns – still fight for justice, which is held to be brought about only by the Rule of Law.

What John Yoo and the Bush administration suggest, without saying outright, is that the Rule of Law – the concept that all individuals are equal before the law – is obsolete and dangerous. They believe that the Rule of Law does not need to be upheld when government officials are trying to deal with terrorism. Therefore, telecommunication companies that broke the law should be immunized; CIA officers who have tortured individuals should not be held accountable; neither the president nor his lawyers nor his advisors nor the Secretary of the Defense should be forced to follow the law or to face consequences if they do not. The overwhelming, overriding impulse must be to take any measure necessary to prevent terrorism – even if there is only a 1% chance of an attack, it must be treated as if it were certain, and it must be prevented by any means necessary. ((Though this sounds like an exaggeration, it is precisely what Vice President Dick Cheney articulated and it is what that Ron Suskind demonstrated has informed administration policy since September 11.)) This is a prescription for tyranny. ((Let me be clear – I do not believe we are there. But I think this clearly is the danger we face. The difference between a liberal democracy and a tyranny is the Rule of Law.)) But perhaps worse from the perspective of those “conservatives” who like to dress up their president as a cowboy or Air Force pilot, it is cowardly.

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