South by Southwest: The Rule of Law: A Digest

Citizens of the United States have a basic right to expect their government to operate within the rule of law. But it was not the case under the George W. Bush administration, soon to leave office. Civil libertarians, activists and just plain citizens are saying that "Restore the Constitution" will be one of the themes of President-elect Barack Obama. Potential actions could include closing the prison at Guantanamo, avoiding using national security security as an excuse for a unitary presidency, bringing domestic intelligence gathering back under lawful FISA terms, and restoring the rule of law to the U.S. Justice Department. Today's post is a digest of current news from a number of these arenas, beginning with an article from McClatchy (11/9/08): "Can Obama untangle the tangled legal legacy of the Bush administration?"

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Congress is already taking steps along this line to do its part. The following is from Wired-Threat Level: "Senate Democrats Warn Bush Admin Not to Destroy Records" (11/13). To quote:

Democrats on the U.S. Senate Intelligence and Judiciary Committees sent a letter to the White House last week asking for an accounting of steps the administration plans to take to preserve documents and submit them to the National Archives and Records Administration once President George W. Bush and Vice President Dick Cheney leave office.

According to the Associated Press, the letter was sent from Senators Sheldon Whitehouse (D -- RI), Patrick Leahy (D -- VT), John D. Rockefeller (D -- WV) and Dianne Feinstein (D -- CA) to White House attorney Fred Fielding.

Constitutional lawyer Glenn Greenwald, a longtime advocate for the rule of law, blogged at Salon.com about the current calls against prosecuting Bush administration officials for law breaking in "Post-partisan harmony vs. the rule of law" (11/13). To quote a few of his most salient points:

A Washington Post article today on the need to restore confidence in the Justice Department quotes former high-level Clinton DOJ official Robert Litt urging the new Obama administration to avoid any investigations or prosecutions of Bush lawbreaking.

. . . his reason for that is as petty and vapid as it is corrupt: namely, it is more important to have post-partisan harmony in our political class than it is to hold Presidents and other high officials accountable when they break the law.

How is this anything other than a full-scale exemption issued to political leaders to break our laws? There's nothing unique about circumstances now.

. . . by letting criminal bygones be bygones within the Executive branch (Ford's pardon of Nixon, the Iran-contra crimes, and now Bush lawbreaking), Presidents maintain their gentleman's agreement that they are free to commit crimes in office -- break our laws -- with total impunity.

Another advocacy quarter, upon which we have been able to depend to defend the rule of law, is the American Civil Liberties Union. Glenn Greenwald recently interviewed its director, Anthony Romero. The conversation, about many of the issues listed above, is available at "Salon Radio: Anthony Romero." It is linked to a transcript and video (11/10). Here is what the American Civil Liberties Union focus will be in the coming months, according to my newsletter from Anthony Romero:

We’ve been preparing for this moment for some time. And -- from the day we persuade Barack Obama to close Guantánamo Bay until the day we remove the last vestiges of the Bush administration’s assault on our civil liberties -- the entire ACLU will keep working.
ACLU attorneys who went to court to expose Abu Ghraib, take on the Patriot Act, end warrantless spying and stop the CIA’s involvement in torture won’t stop until every last “war on terror” abuse is ended.

Our legislative advocates who have fought to protect freedom over these last eight years will keep working with members of Congress -- starting with newly-elected ones -- until we’ve built support for decisive action restoring our fundamental freedoms.

ACLU offices all across the nation are organizing grassroots events to demonstrate the breadth of support for immediate action closing Gitmo, shutting down military commissions, and banning torture.
We won’t leave any stone unturned until we convince Barack Obama to spark a global celebration by simply refusing to tolerate the injustice of Guantánamo Bay for a single day of his presidency.

Guantanamo at a glance -- From the Washington Post -- Judge is told 6 Algerians Should Remain Detained (11/7), High Court May Consider Legality of Detention (11/8), Guantanamo Closure Called Obama Priority (11/12). Also, via TPM Muckracker -- Former Guantanamo Prisoners still Struggling (Reuters: 11/12), Rights groups urge Obama to mount Guantanamo probe (McClatchy 11/12).

What about the terrorists at large? What is the national security/intelligence estimate of the current threat coming out of the current administration? CQ Politics - Spy Talk headlines, "CIA Chief on Transition Danger: 'No Chatter' from Qaeda Right Now" To quote:

Considerable anxiety has been expressed about the possibility of al Qaeda taking advantage of the handoff of security agencies from the Bush administration to the incoming Obama team.

But according to CIA Director Michael V. Hayden, all's very quiet on the Western front. . . according to my CQ colleague Tim Starks, who covered Hayden's appearance at The Atlantic Council of the United States, a nonpartisan think tank in Washington. . .

"If asked to stay, I think both of us would seriously consider it," Hayden said of himself and Mike McConnell, the National Intelligence Director.

But Hayden also said both understand they "serve at the pleasure of the president" and that it was important there be a "personal relationship" between the president and his intelligence chiefs.

. . . "Today, the flow of money, weapons, and foreign fighters into Iraq is greatly diminished, and Al Qaeda senior leaders no longer point to it as the central battlefield," Hayden said in his formal remarks.

As for al Qaeda, the terrorist organization has suffered "serious setbacks" but is adapting, Hayden said, and its safe haven in Pakistan's tribal areas "remains the most clear and present danger to the United States today."

More on terrorists at large from CQ Behind the Lines newsletter (11/14/08) -- Over there: Local enforcement aimed at tackling violent extremism has been undermined by a lack of “up to date” grass-roots intelligence on potentially vulnerable individuals, The Financial Times has a Brit report finding. In a first for a Hindu-majority nation of 1.1 billion people, Indian police have arrested suspects accused of being part of a Hindu terrorist cell, The New York Times spotlights. Five Sydney men now on trial for plotting terror attacks “collected large amounts of extremist material that glorified violent jihad,” The Australian cites prosecutors this week.

What about Iraq? What will the future hold for the in-coming Obama administration and the government of Iraq? "Iraq's Cabinet Approves Security Pact" from the (11/16/08) New York Times. To quote:

Iraq's Cabinet on Sunday approved a security pact with the United States that will allow American forces to stay in Iraq for three years after their U.N. mandate expires at the end of the year, the government said.

. . . Al-Dabbagh said the agreement will be submitted to parliament later Sunday, but did not say when the 275-member legislature will vote on the document.

The Cabinet vote came a day after the country's most influential Shiite cleric, Grand Ayatollah Ali al-Sistani, indicated that he would not object to the pact if it is passed by a comfortable majority in parliament. That cleared a major hurdle to the agreement.

The final draft of the agreement, reached after months of negotiatiwons, is designed to meet Iraqi concerns over its sovereignty and its security needs as it continues to grapple with a diminished but persistent insurgency.

It provides for the departure of U.S. forces from Iraq by the end of 2011 and gives Iraq the right to try U.S. soldiers and defense contractors in the case of serious crimes committed off-duty and off-base. It also prohibits the U.S. from using Iraqi territory to attack Iraq's neighbors, like Syria and Iran.

Citizens of the United States, both Democrats and Republicans have been invited by their leaders to stay involved in the political process, to hold officials to operating within the rule of law. "Restore the Constitution" is not too much to ask of President-elect Barack Obama, because it has been shredded. There will be cause to celebrate if Guantanamo closes, and if our next president goes back to "checks and balances," rather than the unitary presidency. Congress and President Obama must bring domestic intelligence gathering back under lawful FISA terms, as well as restore the rule of law to the U.S. Justice Department. By appointing a Attorney General who loves the law, rather than abjures it, we can get back on the right road after 8 years of wandering in the wilderness.

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