Error: Unable to create directory /home/demockra/public_html/wp-content/uploads/2010/09. Is its parent directory writable by the server? Will He or Won’t He? The Investigation Question
by Liam Frost, Contributing Writer
February 2, 2009
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.
A very good article, but I completely disagree with some of it. I agree that Bush has naturally set the bar very low so that all Obama must do is be competent, and he will exceed Bush’s performance.
However, if the Bush administration is not held accountable for the laws it has broken — and it has broken laws, no doubt about it — then it will only encourage future administrations to break the law. Perhaps Bush and Cheney themselves will never be brought to trial, but certainly someone must be. It’s true that Jefferson never prosecuted Adams for the Alien and Sedition Acts; however, William Marbury did press the issue of his rejected appointment as a Justice of the Peace of Washington, D.C. And thanks to him, we have Marbury v. Madison, perhaps the most important Supreme Court opinion in United States history.
I don’t think the options are mutually exclusive. The Bush administration operated in secrecy for eight years, telling Congress only what Bush thought Congress needed to know (or, at least, the minimum they had to know to keep everything barely legal) about torture, wiretapping, extraordinary rendition, and political firings. He stonewalled Congress at every turn, and even in political death, he rises from the grave to prevent Karl Rove from testifying before Congress due to a misguided and heretofore unchallenged theory of “executive privilege” that would never withstand judicial scrutiny. What is at issue here is P.R; Obama does not want to appear divisive and so he is not being proactive in prosecuting Bush offcials for the crimes they committed.
You have importantly brought up the issue of complicity. Perhaps one reason that investigations are not proceeding at lightning speed is due to the fact that some key Congressional officials were briefed on these programs and let them continue, anyway. To shed light on the Bush administation’s wrongdoings would be to simultaneously shed light on their own sanctioning of these wrongdoings. But this is not an excuse.
We throw the maximum punishment permitted under the law at crack dealers, nonviolent drug offenders, and teenagers who take naked pictures of each other and send them to their girlfriends and boyfriends. What kind of country is this in which all of the above pithy things can happen, but government officials are not prosecuted for torture, for illegal wiretapping, for sending people to foreign countries for the express purpose of being tortured there? A lot has happened of the last eight years, most of it behind a magic curtain of “executive privilege” and “national security.” To let those crimes — which are properly called “crimes” because the actions undertaken were in violation of the law — stand unpunished would be to send a signal to political elites that it’s okay to break the law, as long as it’s done in the “best interests” of the country and with “good faith.” Of course, there’s another phrase that’s not mentioned: “under color of law,” which appears in the Foreign Intelligence Surveillance Act and which is explicitly a crime.
If not Obama, then at least the Senate or House must take the first step in punishing lawbreakers and saying that, under no circumstances will we compromise the values that we are allegedly fighting for, and if there are people who have compromised those values, they will be punished appropriately, regardless of who they are.
Mark – I don’t disagree with you about the egregious, indeed criminal, nature of the last eight years of the Bush administration, and abject failure of the Democratic leadership to hold it accountable. I also see how essential it is to prevent executive abuse in the future. However, whilst it irks me that regular citizens are fully prosecuted for their crimes and presidents seemingly are not, I believe that the opportunity to hold the Bush administration accountable has long since disappeared for a number of reasons.
First, as we have seen recently, intransigent congressional Republicans have stymied Obama’s plans to stimulate the economy. Lets see how they react to a trial of George Bush. During a time of economic catastrophe it would be imprudent, indeed almost impossible, to achieve economic recovery while investigating the Bush administration. And to this extent, I agree that Obama is informed by PR, in that popular support for this administration would be seriously diminished if he were to begin what certainly would be, a momentous investigation during a time of economic catastrophe. People receiving pink slips would rightly feel pretty aggrieved if the administration were to focus its attention on the previous one. And it certainly isn’t that I think the country ‘should move on’, it’s that I think it is politically impossible to achieve. As I mentioned above, an attempt prosecute would be cement that impossibility given that some of the Democratic leadership were well aware of the torture program (one of the many crimes of the Bush administration). This, I feel, is not an excuse but rather a very real obstacle, which would require significant effort from the administration for something that is unlikely to render any significant results in the long run. In this respect I believe that the choice is mutually exclusive; to begin an investigation would not only alienate many Republicans but many of his own party, limiting his administration’s efficacy to direct an economic recovery.
Now that is not to say that I think holding political elites as accountable as the next person is not that important. Indeed, I believe it is essential for a functioning democracy. However, like I mentioned, the time for holding Bush accountable was in 2006 when Democrats could have impeached him, but Pelosi took it off the table. And this is where I feel that Obama can indeed prevent future executive abuse, and also where disagree with you Mark. I don’t believe that to prevent future executive abuse we need to prosecute Bush, Cheney et al. After all, I think that is impossible to achieve given the reasons cited above. We actually have the means to hold the administration accountable in the very opaque form of impeachment. I believe that because of the vague requirements for impeachment, as mentioned in my piece above, it provides limited definition for voters to get behind and pressure congressional Democrats, but more important, the current definitions provide few tools for right-minded representatives to cite. Having a definitive list of crimes for impeachment would give little room for future equivocators, like Pelosi, to dance around the subject. Defining the crimes would effectively empower the rule of law and disempower political interpretation.
I would also like to mention that ultimately, after watching Bush lie to the nation and trample over the constitution, it is difficult for me to advocate not prosecuting him. It’s that I think it is impossible to achieve, and to attempt to do so would be to limit the scope of Obama’s efforts to address the economy. The key is not to let it happen again, and that, I believe, can be achieved by giving teeth to impeachment.
Related to this discussion, you should check out the new Gallup poll that asks about whether these crimes should be investigated. Paul Rosenberg discusses it here:
http://www.openleft.com/showDiary.do?diaryId=11632
Conservatives have both an ideological opposition to government run services and price ceilings so they will oppose both as well. ,