You Can Indefinitely Detain Some of the People Some of the Time

One of the larger problems in my life is that, whenever I want to write about a civil liberties issue, Glenn Greenwald has already beaten me to it. And written it better than I could have. Greenwald is a former civil liberties attorney and number one defender of The Constitution. He is not a Democratic apologist. He heavily criticized President Bush. And he is now heavily criticizing President Obama. In Greenwald’s opinion, suggesting that enforcing our laws is “radical” or “extreme” or “left-wing” is disgusting. When did enforcing the law become a partisan issue? He also writes about the media and how he believes that the media are beholden to the political class in a horrible, symbiotic relationship that ensures that the Fourth Estate will never actually hold our leaders accountable for anything.

And I agree with him on all of it. Absolutely all of it. Darn him! Darn him to heck!

For example, Glenn and I were furious this last week when Sen. Harry Reid kept using a verb that could just as easily have been crafted by Karl Rove. The verb was “release,” as in, “Terrorists from Guantanamo Bay will be released into the U.S.” Many pundits, and even Obama himself, used the verb “release” to describe what the government will do to detainees in Guantanamo Bay now that the administration has re-iterated its desire to close the prison there. “Release” evokes images of terrorists approaching the shore on boats and then merrily skipping off, free of shackles and permitted to wander throughout the country, blowing up whatever they please.

Let it be known: terrorists will not be released into anything. They will be shackled, they will be monitored, they will be in our custody and under guard as they are transported from Cuba to the mainland. And once on the mainland, they will continue to be monitored and under guard as they are moved to whatever prison they will occupy next. Those who believe that terrorists will be “released” in the United States are either negligently ignorant, willfully stupid, or maliciously misrepresentative. One guess as to which one describes Harry Reid.

Prior to September 11, 2001, we believed in something called “due process.” It’s a Fifth Amendment guarantee:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [Emphasis mine.]

The Supreme Court has ruled before that, since the Constitution uses the word “person” and not “citizen”; and since it would have been very easy to use the word citizen, but person was used instead; and since the author of the Bill of Rights, James Madison, was a lawyer by trade and a very smart man and probably not prone to misusing words; that it therefore follows that the Bill of Rights was intended to apply not only to U.S. citizens, but anyone in the United States. This is affirmed in the Fourteenth Amendment, which prohibits a state to “deny to any person within its jurisdiction the equal protection of the laws.” Again, note the use of the word person where citizen could have been used, but wasn’t.

In 1993, the World Trade Center was bombed by a group of terrorists led by Omar Abdel-Rahman, better known as The Blind Sheik. The bomb damaged a parking garage and did kill some people, but it didn’t come close to bringing the building down. Abdel-Rahman and three other accomplices were indicted by civilian prosecutors, accused of breaking publicly-accessible laws, tried in open court inside the United States, under the guidelines of the Constitution and the rules of U.S. civil procedure, and sentenced to U.S. civilian prisons. After 1993, the nation was not less safe because Abdel-Rahman and his accomplices were being imprisoned inside the United States. Abdel-Rahman is housed at the federal Supermax prison in Florence, Colorado.

In 1995, Timothy McVeigh and his accomplice Terry Nichols parked a rental truck containing a homemade fertilizer bomb in front of the Alfred P. Murrah Federal Building in Oklahoma City. The bomb exploded, killing 168 people, injuring 800 others, and destroying the building. Nichols and McVeigh were indicted, again by civilian prosecutors, accused of breaking publicly-accessible (that is, not secret) laws, tried in open court, and sentenced to U.S. civilian prisons. McVeigh was given the death penalty. The nation is not less safe because Terry Nichols is housed inside the United States.

I think you get the point. Eric Rudolph, the 1996 Atlanta Olympics bomber; Wadih el-Hage, accused of involvement in the 1998 U.S. embassy bombings; Ted Kaczynski, the Unabomber; Richard Reid, the “shoe bomber”; Jose Padilla, the “dirty bomber.” All of these people are being held inside the United States right now, and no one — no one! — is arguing that the United States is less safe because of it. To suggest that allowing Dangerous Criminals inside our borders is silly; there are already more dangerous criminals here!

It’s also worth noting that, with the exception of Reid and Padilla, all of the above criminals were convicted using the 200-year-old, civilian due process proscribed by the Constitution. Reid and Padilla were held incommunicado in U.S. navy brigs. The government eventually dropped its terrorism charge against Padilla, who was alleged to be making a “dirty bomb” (a traditional bomb filled with radioactive material; it would not cause a nuclear explosion, but it would spread radiation). Since the government didn’t have enough evidence to prosecute the terrorism charge, the charge was dropped. Padilla, nevertheless, was sentenced because even though terrorism is a crime, all the things that terrorists do are already illegal, anyway! Blowing up a building is no more illegal because it was done with a political agenda in mind.

The assertion that Terrorists need to be tried in a special, extra-Constitutional way, held without charge, subjected to torture, and perhaps never afforded a trial is ludicrous. In the paragraphs above, we have ample evidence proving that trying terrorists in civilian courts, using civilian rules, does work. The United States is not less safe. And furthermore, housing convicted terrorists in civilian prisons does work. And furthermore, charging them and trying them does work. For people like Vice President Cheney to suggest that using due process makes us less safe just goes to show us how out of his mind the man is. He would probably be happier living in Iran, where the executive has unlimited power to imprison people for made-up reasons, or no reason at all. Here in the United States, we do not convict people merely on the confidential say-so of the executive branch; that’s the way dictatorships (you know, those countries that we purport to be fighting against — unless your name is “Saudi Arabia”) behave. Here in the United States, it is up to the executive to prove that the accused is guilty. Guilt is never assumed — unless, apparently, you committed a terrorism-related crime after September 11, 2001. Or you were linked to terrorism, no matter how specious the link or how questionable the evidence. Or you associated with terrorists, even if you didn’t know they were terrorists. Or you were planning on committing a terrorism-related crime, even if “terror” wasn’t your goal. Or, as Obama articulated yesterday, the government is afraid you might commit terrorist crimes in the future. Yes, the possibility of future law-breaking is now grounds not only for detaining someone, but for never giving them a trial or even a preliminary hearing to prove that they did what they were accused of doing. As long as the government says “Terrorist,” an individual’s guilt is implicit and that person will never, ever be released. (More likely, as Greenwald observed, you will be imprisoned indefinitely if the government can’t guarantee that it will win a trial. Do show trials sound like the hallmark of a vibrant democracy or a repressive despotism?)

Obama’s plan is definitely a step in the right direction, but it’s not nearly enough. In order to restore the rule of law to this out-of-control country, he must admit that there is no situation in which a person should be held indefinitely; habeas corpus is a right guaranteed to anyone in U.S. custody, and the U.S. Supreme Court has affirmed as much. Obama apologists have used exactly the same rhetoric President Bush used to support Obama’s case; namely, “we are at war.” And these prisoners are prisoners of war; therefore, they do not have the right to contest their detention, and they may be detained until the end of the conflict. Seeing as how we’re waging a war on an abstract idea, it’s hard to see exactly when (or if) this war will be over.

Are we now in the business of imprisoning people indefinitely? What does that say about us as a nation? What will historians say fifty years from now? Today, we regard the internment of Japanese-Americans during World War II as deplorable and appalling, but at the time, it made sense to our political leaders. We have the ability to stop lawlessness right now instead of musing, decades later, about the mistakes we made, and saying, “We’re so sorry. We’ll do better next time.” Unfortunately, every time “next time” comes up, we fail again (we began failing as early as the John Adams administration, with the passage of the Alien and Sedition Acts). Obama offers the promise of actually living up to our ideals as a country. Rather than fumble to attempt to explain and excuse his actions, we must ask, “Is what he is doing right? Is it legal?” And, as Glenn Greenwald wonders, “What would I have said if George Bush and Dick Cheney advocated a law vesting them with the power to preventively imprison people indefinitely and with no charges?”

Please do read Glenn’s article. It is a thorough, lucid, and amazing analysis of Obama’s position on these detainees, with some very tough questions and conclusions that must necessarily follow from that position. I do not believe they are questions that Obama and his supporters want to ask, because they lead to the very same places formerly occupied by previous administrations. At the end of the day, Obama & Co. are saying, “Yes, it is okay to detain some people indefinitely, without the government ever having to prove that they committed a crime.” Not only is that assertion illegal, it’s un-American, and if we continue down that road, it makes this country not only less safe, but less worth defending.

Constitution 7, Limitless Executive Power 0

Every time — every single time — that President Bush asserted some unlimited executive power in the name of “national security” or “terrorism,” a federal court has shot him down. Let’s take a walk down memory lane.

2004 marked the first big loss for the Bush administration in the judiciary branch. Hamdi v. Rumsfeld was the first major challenge to President Bush’s self-asserted national security powers. In that case, the Bush administration asserted that Hamdi, an alleged terrorist captured in Afghanistan, had no right to contest his detention. The U.S. Supreme Court disagreed and said that Hamdi, an “enemy combatant,” did have the right to contest his detention before a neutral decisionmaker. In Boumediene v. Bush (2008), the U.S. Supreme Court ruled that prisoners held in Guantanamo Bay did have the right to habeas petitions, and the Military Commissions Act’s hearings were unconstitutional. In Rasul v. Bush (2004), the Court struck down legislation that ostensibly prevented the federal courts from ruling on whether or not Guantanamo detainees were wrongfully imprisoned. Judge Anna Diggs Taylor,of the U.S. District Court for the Eastern District of Michigan, ruled in 2006 that the Bush administration could not use the state secrets privilege to dismiss evidence in a case involving warrantless wiretapping and surveillance of U.S. citizens. In 2006, the Supreme Court ruled, in Hamdan v. Rumsfeld, that Congress did not intend to use the Detainee Treatment Act to strip the Supreme Court of its authority to hear pending habeas petitions from prisoners in Guantanamo Bay. Also in 2006, Judge Vaughn Walker of the U.S. District Court for the Northern District of California, refused to dismiss a civil suit against AT&T for warrantless wiretapping. The Bush administration had again asserted the state secrets privilege.

And now we come back to present day. President Obama’s Justice Department has, much to my chagrin, continued — and in some cases, exceeded — the use of the state secrets privilege. It even wanted to have an entire case dismissed on the grounds that the evidence to be used was classified under the state secrets privilege. The Ninth Circuit Court of Appeals down on Hyde Street in San Francisco — right across the street from the public library — ruled today that Obama could not have the case dismissed due to “state secrets.”

Judge Michael Daly Hawkins, writing the unanimous opinion of the three-judge panel, didn’t buy the Justice Department’s argument that “the very subject matter” of the case was so confidential, and could be so potentially damaging to national security, that it couldn’t even be discussed in court. The “subject matter” was Jeppesen Dataplan’s involvement in the “extraordinary rendition” of terrorism suspects in U.S. custody to CIA “black sites” around the world, where they would be presumably tortured. (Jeppesen Dataplan is an oddly-named subsidiary of Boeing, whose airplanes were used to transport suspects to other countries for torture.)

The Ninth Circuit was quite strong in its affirmation that the Obama administration was making things up (the judges rejected the “very subject matter” argument because “it is unsupported in the case law”; i.e., Justice Department lawyers made it up). It was also strong in its affirmation of the separation of powers principle. The job of the courts is to interpret the law. The job of the executive is to enforce the law. For Obama to assert that there exists a scenario in which the court cannot be allowed to interpret the law is a gross overreach of presidential power that violates the separation of powers principle.

Oh, and they took time out of their busy schedule to say that “arbitrary imprisonment and torture under any circumstance is a ‘gross and notorious … act of despotism.’” (Bonus points: that was part of Justice Scalia’s dissent in Hamdi v. Rumsfeld).

What’s interesting about Obama’s argument here is that he wants to use the state secrets doctrine to prevent even the confirmation or denial of the fact that people were extraordinarily rendered. We’re not even talking secret evidence here; Obama says that it is detrimental to national security to say merely that something happened or not. Judge Hawkins will have none of this: “The state secrets privilege has never applied to prevent parties from litigating the truth or falsity of allegations, or facts, or information simply because the government regards the truth or falsity of the allegations to be secret,” he writes. Sure, the state secrets privilege can be used to suppress evidence, but not to suppress the fact that something happened. To go into the nitty-gritty of how extraordinary rendition works (which would be evidence) might be damaging to national security, but merely stating that it happens is not damaging to national security. (What it is damaging to is the country’s public image, and it opens up the government to litigation. Let’s be clear, here: this has nothing to do with actual national security and everything to do with damage control, something the Ninth Circuit hints at in the opinion.)

Finally, the Ninth Circuit addresses the fine distinction between “classified” and “secret.” Classified information is ipso facto subject to a whole host of laws, many of which give the executive branch the authority to decide what to classify and declassify. The distinction becomes important to this case because the government argues that courts should defer to the executive, per the Freedom of Information Act, regarding what should or should not be “secret,” since all secret things are also necessarily classified. The government cannot seriously argue, says the court, that information that has been made public (as this was; The New York Times reported years ago on the existence of this rendition program) is still “secret,” and by way of “secret,” therefore “confidential.” It does not follow that, because the executive says something is confidential, the courts must necessarily accede and declare that confidential thing to be secret within the scope of a judicial proceeding.

The court emphasized that its ruling was limited only to the issue of whether or not the state secrets privilege could be used to dismiss the case wholesale. The case will be remanded back to the district court from whence it came, with the understanding that Obama may use the state secrets privilege to have certain evidence excluded, but he may not have the whole case dismissed. Even then, it will be up to the court to decide whether to actually exclude the evidence or not.

Given that seven cases over five years have all declared absolute executive power to be unconstitutional, you’d think that the executive branch would take the hint. And I’m especially disappointed by Obama, who wrote in a January memorandum to all executive agencies:

The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.

Are they just empty words? We’ll see.

I’ve Seen This Movie Before

I had the most amazing dream last night. Thankfully, Jimmy Kimmel in a diaper wasn’t in this one. Instead, I saw Barack Obama giving a speech about government openness and accountability. He talked about the closure of the U.S. terrorist prison in Guantanamo Bay; he talked about ending extraordinary rendition of U.S. terrorism suspects to other countries where they would be tortured; he talked about ending the use of extra-legal means to spy on Americans under color of law, and he talked about an absolute ban on the use of torture.

Recent events have confirmed that this is only a dream. The candidate of alleged change has instead agreed with George W. Bush on almost every torture and secrecy issue. He ordered the closure of Guantanamo Bay. But, in a brilliant feat of misdirection, none of us ever saw that his Justice Department was working tirelessly to ensure that the same civil liberties that were held to apply to Guantanamo detainees would never apply to detainees held at, for example, Bagram Air Base in Afghanistan.

A Lawless Prison By Any Other Name

Sure, Boumediene v. Bush clearly established that, at a minimum, prisoners in the United States’ Guantanamo Bay facility are entitled to habeas corpus, the 793-year-old doctrine that if a person is to be held in jail, he must be charged with a crime. The Bush administration thought that it had sent 600-some detainees of the War on Terr’ into a “legal black hole” (the Justice Department’s words) where US law did not apply, and therefore, people could be kept there indefinitely without being charged with a crime, without the right to challenge their detention, and without the government having to prove that they were terrorists.

Then the Bush administration relented, wrote the Military Commissions Act, and decided that was good enough. The Act explicitly stripped detainees of their habeas rights and said that the government would create military commissions to evaluate whether or not each detainee should continue to be held. The Supreme Court didn’t like that, either, saying that the MCA process was fundamentally flawed, and furthermore, it was not within Congress’ power to take habeas rights away from anyone.

As soon as he came into office, Obama put a halt to the Military Commissions Act tribunals, recognizing that they were fundamentally flawed. He also said he would close the prison in Guantanamo Bay. While those are both laudable, his next action is, once again, right out of How to Suspend the Constitution Without Really Trying, David Addington’s best-selling Richard P. Cheney thriller. Detainees of the War on Terr’ would instead be moved to Bagram Air Base in Afghanistan. The argument is that, since Afghanistan is still an active war zone, it would be ludicrous to give prisoners there any habeas rights, since they would be prisoners of war. Then again, that was the rationale used to scoop up hundreds of people on the “battlefield” in Afghanistan in 2001 and send them to Cuba.

Wiretapping? What Wiretapping?

A few weeks ago, the Obama Justice Department moved to dismiss a case in federal court involving illegal wiretapping. In spite of his January memoranda committing the Executive Branch to transparency and accountability, Obama’s reasoning vis-a-vis wiretapping remains unchanged from the Bush years; that is, opacity in the extreme, no accountability (i.e., you can knowingly and maliciously break the law, but you won’t be prosecuted for it), and a firm commitment to using the state secrets privilege to cover up illegal government activity.

Earlier this month, the Obama administration filed a petition to have the entire warrantless wiretapping case dismissed under a never-before-seen doctrine of “sovereign immunity” that comes from the USA PATRIOT Act. It’s not the sovereign immunity itself that is at issue (sovereign immunity is a very old legal doctrine which holds that the sovereign — in this case, the government — is immune from criminal prosecution in some instances). It’s that sovereign immunity has never before been used a a defense in these wiretapping cases. To the Obama administration’s credit, it has interpreted into being a sovereign immunity claim based on the fact that Congress had not explicitly waived sovereign immunity when it came to these cases. Therefore, argues the Justice Department, the courts must err on the side of the sovereign. This is, of course, in addition to the standard-issue “state secrets” defense, which consists of, “In order for you to have a case, you need to prove you’ve been harmed. In order for you to prove you’ve been harmed, you need access to classified information. Because giving you that information would compromise national security, we’re not going to give it to you. Since you don’t have that evidence to prove your case, you have no case. So let’s dismiss the case.”

Let’s Talk Torture

Yesterday, after years of legal battles led by the American Civil Liberties Union, the Obama administration released four memoranda from the Bush years in which the Office of Legal Counsel — the legal-advice arm of the White House — declared that, yes, “enhanced interrogation techniques” like water-boarding were perfectly legal. In making these documents public, however, Obama added the caveat that CIA employees who engaged in these techniques, which are correctly and properly called torture, will not be prosecuted.

I am of two minds on this particular issue. On the one hand, we have the Nuremberg Defense, used by various strata of Nazi soldiers in the post-World War II Nuremberg trials. The defense amounted to, “I was just following orders,” the implication being that very low-level soldiers who did the actual dirty work of killing 6 million Jews (and millions of others of various non-Nazi-approved races, nationalities, ethnicities, and sexual orientations) were faced with the choice of either doing what they were told, despite their orders being obviously morally and legally wrong, or standing up to their superiors and facing court marshall or death themselves. The outcome of the trials was Nuremberg Principle IV, which states, “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.” This principle was incorporated into the Uniform Code of Military Justice, and now U.S. military personnel may refuse to follow an order that they believe violates the law, with the law including the U.S. Constitution and any treaties to which the U.S. may be a party (including the Geneva Conventions, which explicitly forbid the use of torture).

Then again, these CIA operatives were assured that what they were ordered to do was legal. They were assured by the president — who is their boss — that it was okay to do what they were doing. It’s not an issue of questionable legality; they were told — by lawyers, who are alleged to be experts in the field of law — that it was okay to water-board suspects, deprive them of sleep, and occasionally hit them. Must they then be faulted for their lack of follow-up? Are they expected to then second-guess White House lawyers? The issue is murky. Definitely the people at the top who were responsible for crafting these policies — Bush himself, Vice President Cheney, David Addington, John Yoo, and Alberto Gonzales — must be prosecuted. But what about the people in the field? As Glenn Greenwald observes, the law compels the Justice Department to prosecute everyone who took part in torture. There was a moral choice: CIA operatives could have made the choice not to engage in torture. And if it risked their careers, so be it. They were not themselves ever threatened with death or torture; the loss of one’s job is not morally equivalent to torturing another human being.

It’s certainly true that President Obama has done a number of laudable things in his four months in office. But he can still do better, and all of us need to push him away from the trope of “centrism” (which, in U.S. political discourse in 2009, means “being conservative”). And if he does have a legitimate national security concern, he should let us know. He doesn’t have to go into the gory details, but it would be nice to know why he’s suddenly changed his mind. After eight years of “Trust me, I know what I’m doing,” I voted for a government that doesn’t demand faith from its people.

Will He or Won’t He? The Investigation Question

If it is true that sitting presidents set the political boundaries for future ones, then the recent hand-off of executive power was truly a gift for Barack Obama. When, in modern presidential politics, has a president been provided with so much room to operate? Not only has he enormous public support, his party’s majority in the two houses of Congress, and a huge, urgent financial crisis affording him opportunity for inventive solutions, but most important, he has the George W. Bush administration preceding him. Having Bush brandish executive power over the Constitution like a swinging ax, the boundaries of what is politically acceptable have been pushed so far that, for Obama, it is like playing football on a field the size of Texas.

Within in the context of the last eight years, Obama has been given free reign over an almost full gamut of the political spectrum to execute his ideas. As such, the combination of revulsion toward Bush, and excitement for Obama, causes each conservative move he makes to be acceptable, and any restoration of common sense to be celebrated as progressive.

And this was apparent from the day of the inauguration onward. In his speech, Obama managed set a conservative tone without hardly a whisper of reaction from most progressive commentators. In invoking the Bible to “set aside childish things” (implying collective responsibility for the financial crisis), and adamantly stating that we will not apologize for our way of life, Obama was able to successfully plant conservative memes because they were wrapped in massive progressive celebration. The fact that both The Daily Show and Bill Kristol picked up on this is highly illustrative.

However, the lesson of context is more instructive when considering Obama’s first actions as president. While his executive orders, such as the closure of Guantanamo, the order for the CIA to follow the Army Field Manual for interrogation, and limitations of government secrecy are welcome, are they cause for progressive celebration? A sigh of relief, yes, but the shoots of a progressive agenda? I’m afraid not. After watching Bush spend eight years bending the Constitution to near snapping point, Obama is merely attempting to restore the document to some recognizable form. And more notable, these were the easy moves. In fact, he had to issue these orders. The public outrage over state encroachment of civil liberties had been swelling to bursting point, and was subsequently channeled into the Obama campaign. He had the mandate and the political will to do so, not to mention the founding ideals of the nation on his side. Really, all he has done has been to put back in place what Bush had removed, while at the same time, continuing militarily, very much, in the same vein as his predecessor: bombing Waziristan and killing 14 people. Because the reversals of Bush policy have been rapid, the ones that stayed the same went almost unnoticed.

The great irony of the Bush legacy, though, is that by conducting his office so disastrously, and, by extension, handing Obama so much political breathing space, it is clear that Obama feels he cannot hold Bush accountable, lest that breathing space disappear. The choice between massive political capital and following the Constitution is a very real one, and one with very high stakes. In attempting to bring the former administration to justice, it is very likely, given the tone set by current congressional Republicans, Obama’s agenda would shrink to zero by potentially instigating a political civil war — memories from the nineties, obviously fresh in Obama’s mind. If Obama finds it difficult now, twisting Republican arms in Congress, imagine his options after he attempts to try Bush and Cheney for high crimes and misdemeanors. Then there’s also a massive economic crisis to address, not to mention his own party’s complicity in the waterboarding program, making it not merely difficult to start an investigation, but nigh on impossible.

To prosecute members of the previous administration would be like lighting a match to a partisan war, causing the mechanisms of Congress to jam up, just when we need it to function as efficiently as possible.

It is clear that Obama regards his options less as a balancing act and more mutually exclusive; a choice between principle and pragmatism. And as you would expect, the choice is not without precedent. There is the much-cited example of Lincoln’s magnanimity toward the South before and after the Civil War, but there is also the more appropriate parallel of the Jefferson presidency. After winning the presidency in 1800, Jefferson struck a remarkably conciliatory tone, when he said at his inaugural address that “every difference of opinion is not a difference of principle.” And this, too, was after an incredibly brutal, partisan election, where it followed an administration that severely curtailed both civil liberties and the freedom of the press. Jefferson prosecuted no one for these infractions of the Constitution, including previous president John Adams. In order for him to keep the union together — a very real concern during the nascent United States — Jefferson had to reach out to northern Federalists. For an avid student of history such as Obama, it would seem he seeks to emulate this pragmatic, albeit contradictory, approach to crisis.

It is easy to imagine the president thinking of how he would best like to be remembered: the man who attempted to bring executive malfeasance to justice, or the man who wrested America from an economic free fall. It is clear which one is most politically viable. And given how difficult it would be to investigate Bush, fixing the biggest economic crisis since the Great Depression would be easier.

The problem remains though, what to do to prevent future abuse of the executive office? And this is one area where progressives can press Obama to demonstrate some progressive mettle.

Speaker of the House Nancy Pelosi famously took impeachment off the table due to her own complicity in the CIA torture program and, unfortunately, impeachment was the only opportunity to hold Bush to account. However, if the Obama administration were to propose a framework where the requirements to hold impeachment hearings would be made easier — specifically, more definitive — it would do much to prevent politicians like Pelosi from fudging the issue, and presidents (and vice presidents) from abusing their office. Though this would probably require a constitutional amendment, it would be the only way of protecting the state from future executive abuse. As it currently stands, the definition of crimes tried by impeachment is woefully ill-defined to be effective and consistent:

The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

As then-House Minority Leader Gerald Ford said in 1970, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

By providing clear definitions of the offenses punishable by impeachment, Obama could demonstrate a willingness to address the crimes of the previous administration without having to sacrifice too much goodwill.

For all the celebrations of Obama’s restoring of civil liberties, it is clear that violations of those liberties must not happen again, and this is where the progressive fight to hold those in power accountable should be aimed.

Two Days > Eight Years?

I’m feeling pretty good right now.

Yesterday, on his first full day in office, President Obama issued three memoranda to executive departments reinforcing his commitment to open government and accountability. For one, he directed departments to comply with the Freedom of Information Act and err on the side of disclosing information rather than hiding it. In 2001, former Attorney General John Ashcroft ordered executive departments to comply with FOIA requests only after exhausting all avenues to prevent disclosure of information. He even emphasized that potential embarrassment or liability is not a good reason to withhold information requested under FOIA. That’s tremendous!

Obama’s memoranda also gives the National Archives the authority to declassify whatever presidential records it sees fit, a stark reversal from an administration that had fought tooth and nail to keep everything it did secret. The potential exists for massive declassification of Bush administration records that are being kept secret for no other reason that it might be embarrassing or might disclose political favors.

That’s really terrible, in case you were wondering. The Bush administration’s default position was secrecy over disclosure, which only served to emphasize Bush’s greater message: the U.S. government works for we the representatives first, then for you the people. Obama’s philosophy is exactly the opposite: he has said several times that he and the rest of our representatives are public servants first, and everything they do should be in that vein of serving the public.

It should go without saying that our government is accountable to us, but it’s been a long time since that’s been true. We have been told that we have no right to know what our representatives are doing, and in some cases, we have been told it is unpatriotic to question the things our government does. Thank you, Obama, for bringing us back to normal.

And then this morning, as promised, Obama signed an executive order calling for the closure of the Guantánamo Bay prison within a year. The fate of the 200-some prisoners left there has yet to be decided: prosecutions under the Military Commissions Act have been suspended for 120 days, pending a review of each prisoner’s case. Guantánamo is littered with people who did nothing more than be in the wrong place at the wrong time, including people who were minors when they were arrested in 2001.

But there’s more! Obama signed another order directing the C.I.A. to use only the interrogation techniques specified in the Army Field Manual, a policy that has been in the works for two years, but was ignored by the Bush administration in a signing statement.

Things are looking good for America. After eight long years, it’s refreshing to see accountability, transparency, and the due process of law finally take precedence over narrow political interest.

The Attorney General and the Unitary Executive

The attorney general’s is a strange office. On the one hand, the AG is appointed by the president (with the advice and consent of the Senate, of course). On the other hand, the AG may be required to defy the president, investigate him, or even indict him for criminal acts. It is this duality of the AG role that has put President Bush and Attorney General Alberto Gonzales into hot water over the past four years. As attorney general, it was Gonzales’ job to investigate wrongdoing; however, as a loyal member of the Bush cadre, investigating the boss would have been a capital no-no. So how does the president get away with such obvious nepotism?

Unitary executive.

The phrase has been bandied about for eight years by liberals who have something of an understanding of what it means. “The president has total power” is what they think it means. And that’s the conclusion that the unitary executive theory results in, but it is not the premise.

The unitary executive begins with the president as the head of the executive branch of government. The executive branch encompasses the president, the vice-president (despite what the current vice-president says), the cabinet departments (like the Department of Homeland Security), and the various agencies within those departments (like the Transportation Safety Administration or Immigration and Customs Enforcement, to use the example of Homeland Security). There are also other myriad agencies like the Office of Management and Budget that live under what is called the Executive Office of the President. So far, so good. We’re not entering unknown waters. Of course this is the structure of the executive branch. It makes sense.

The theory of the unitary executive has always been with us, but it was taken to extremes by lawyers from the ultra-conservative Federalist Society. Some of America’s most conservative jurists, including Justice Antonin Scalia, Almost-Justice Robert Bork, and Chief Justice John Roberts, are or were members of the Federalist Society. This is the group responsible for the bogus interpretive theory called “originalism,” which holds that we can divine the intent of the Founding Fathers from the text of the Constitution, and oh, by the way, the Constitution never changes, except and exclusively through the amendment process. (Originalism’s counterpart is the living Constitution or active liberty, which says that the Constitution’s meanings must necessarily change as society changes, otherwise, the Constitution will find itself irrelevant and unenforceable.)

Under the unitary executive theory, the president has complete and total control over every office of the executive branch. The president should be free to fire whomever he wants, for any reason (or no reason at all), at any time. Furthermore, no executive agency should ever defy the president’s wishes, since all executive agencies are, reducto ad absurdum, the president. The president is the Justice Department. The president is the State Department. The president cannot be in conflict with himself; therefore, cabinet departments and agencies cannot be in conflict with the president’s wishes. This theory has been taken to court by the Justice Department, which held that the Environmental Protection Agency cannot sue the U.S. military, since the president would ultimately be the party on both sides, and the president certainly cannot sue himself!

The unitary executive then goes one step further: it declares that the president’s constitutional requirement to “take Care that the Laws [passed by Congress] be faithfully executed” means that the president’s powers cannot be constrained by Congress, since the president has a duty to execute the laws, and any Congressional hindrance of that duty, in the form of statutory limitations on the president’s power, is unconstitutional.

This is where President Bush’s signing statements come into play. Presidents have always issued signing statements, which are little interpretive blurbs written by the president when he signs a bill into law. The signing statements have, until now, been used to set down guidelines indicating how the president will enforce the particular law.

I say “until now” because Bush has used more signing statements than all other presidents combined, and he has used them most often to indicate that he will selectively ignore the parts of laws that restrict his power. Take this example from the Detainee Treatment Act, which Congress thought was going to be used to reign in Bush’s use of torture:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

In these signing statements, the president has reserved for himself the right to interpret what his constitutional powers are, and in so doing, reserved for himself the right to ignore provisions of laws passed by Congress that he feels are inconsistent with his interpretation of his own powers. This is the unitary executive theory in action (also inaction): whenever Congress attempts to place a check on the president’s power, the president sidesteps Congress, claiming that Congress cannot place any checks on the president’s constitutional duty to enforce the law.

I hope I don’t have to say that this is all highly questionable in terms of constitutionality. The president most certainly does not have the authority, constitutionally or otherwise, to interpret the law. That is the sole responsibility of the judicial branch of government. Chief Justice John Marshall, writing in Marbury v. Madison, put it simply and elegantly 205 years ago: “It is emphatically the province and duty of the judicial department to say what the law is.” No signing statement has ever been taken to federal court, but were that to happen, I can only hope that the court (which would be the D.C. Circuit Court) would refuse to grant the president judicial powers just like it refused to grant President Clinton legislative powers when he tried to use the line-item veto.

Back now to the attorney general. The next attorney general, who may very well be former Deputy Attorney General Eric Holder, knows what his role as AG would be. We know that he’s independent, meaning that, unlike Alberto Gonzales, he does not owe his entire career to the president. We know that he acknowledges that the AG is a unique office that, at times, requires “a closeness at the same time there needs to be distance.”

As Glenn Greenwald reports, though, Holder made some comments after the September 11, 2001 attacks that people who voted for Change should find disturbing. Of the inmates at the Guantanamo Bay prison, he said, “It seems to me that given the way in which they have conducted themselves, however, that they are not, in fact, people entitled to the protection of the Geneva Convention. They are not prisoners of war.” Even the U.S. Supreme Court eventually recognized that prisoners at Guantanamo Bay were entitled to Geneva Convention protections.

Is there no one out there who has a more progressive view of indefinite detentions? The Constitution is quite clear: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” And yet there are still people out there — lots of them, apparently, all in positions of power — who believe that there’s nothing wrong with a little indefinite detention among friends.

Is this the change we voted for?

Who Are the Uighurs, and Why Should You Care?

In China, life is great if you’re a middle-class city-dweller. If you practice a particular religion, things aren’t so great. If you’re not ethnically Chinese, things aren’t so great. And if you’re a Uighur, things really aren’t that great.

The Uighurs live within the borders of present-day China, but like most of the people who live in western China, they aren’t ethnically Chinese; they’re a Turkic people who speak a Turkic language. Oh, and they’re Muslim. If it’s anything the Chinese love, it’s religion!

Seventeen specific Uighurs are being held by the U.S. government at the terrorist detention facility in Guantanamo Bay. Earlier this month, Judge Ricardo Urbina of the U.S. District Court in Washington, D.C. ordered the seventeen Uighurs released and present in his courtroom at 10 A.M. His reasoning was that, since the administration no longer considers them “enemy combatants,” they must be released … to somewhere.

The Bush administration filed an emergency appeal with the D.C. Circuit Court which, predictably, put a halt to the Uighurs’ release. Part of the administration’s argument was that aliens, who may or may not want to engage in terrorism against the United States, should not be released into the country. The D.C. Circuit Court emphasized that it had issued a stay of Judge Urbina’s order only to give it more time to consider the Bush administration’s appeal, and that the stay should not be considered a ruling on the merits.

The Bush administration said it wanted the Supreme Court to hear the case. Interestingly, the government says that they were trained in Afghanistan to fight the Chinese government, not the American government. Furthermore, the administration says that the courts lack the authority to order aliens into the United States, since the determination of whom shall be allowed into the United States rests with Congress and the executive branch.

The issue remains with the D.C. Circuit Court — a traditionally conservative-friendly venue — which has not yet issued a ruling. The case of the Uighurs could be used as precedent when it comes to ruling on the legality of detentions in Guantanamo Bay, which is why the Bush administration is so eager to keep them out of the United States and away from the long arm of adjudication.