Rule of Law Report

In the wake of 2008 --Reporting on the state of the rule of law in the United States is done as well as anyone by Glenn Greenwald at Salon.com. His (1/1/09) essay, called "2008: The Year That Was . . . Another Brutal Year for Liberty" reveals how little improvement took place under the Bush administration, with the willing consent of a Democratically controlled Congress. Glenn's powerful plea is that the 11th Congress and the Obama administration reverse the trend. To quote:

Befitting an administration that has spent eight years obliterating America's core political values, its final year in power -- 2008 -- was yet another grim one for civil liberties and constitutional protections. . . many of the erosions of 2008 were the dirty work of the U.S. Congress, fueled by the passive fear or active complicity of the Democratic Party that controlled it. The one silver lining is that the last 12 months have been brightly clarifying: It is clearer than ever what the Obama administration can and must do in order to arrest and reverse the decade-long war on the Constitution waged by our own government.

. . .The most intensely fought civil liberties battle of 2008 -- the one waged over FISA and telecom immunity -- ended the way most similar battles of the last eight years have: with total defeat for civil libertarians. Even before Democrats were handed control of Congress at the beginning of 2007, the Bush administration had been demanding legislationto legalize its illegal warrantless NSA eavesdropping program and to retroactively immunize the telecom industry for its participation in those programs. Yet even with Bill Frist and Denny Hastert in control of the Congress, the administration couldn't get its way.

Not even the most cynical political observer would have believed that it was the ascension of Harry Reid and Nancy Pelosi that would be the necessary catalyst for satisfying Bush's most audacious demands, concerning his most brazenly illegal actions. If anything, hopes were high that Democratic control of Congress would entail a legislative halt to warrantless eavesdropping or, at the very least, some meaningful investigation and disclosure -- what we once charmingly called "oversight" -- regarding what Bush's domestic spying had really entailed. After all, the NSA program was the purified embodiment of the most radical attributes of a radical regime -- pure lawlessness, absolute secrecy, a Stasi-like fixation on domestic surveillance. It was widely assumed, even among embittered cynics, that the new Democratic leadership in Congress would not use their newfound control to protect and endorse these abuses.

. . . For the last seven years, Democrats have repeatedly cited GOP political dominance to excuse their wholesale failures to limit, let alone reverse, the devastating war waged by the Bush administration on America's core liberties and form of government. With a new Democratic president and large majorities in both Congressional houses, those excuses will no longer be so expedient. As dark and depressing as these last seven years have been for civil libertarians, culminating in an almost entirely grim 2008, there is no question that the Obama administration and the Democrats generally now possess the power to reverse these abuses and restore our national political values. But as the events of the last 12 months conclusively demonstrate, there
are substantial questions as to whether they have the will to do so.

Torture tales 2009 -- Journalist Joe Klein wrote a searing indictment of our current president for approving torture of detainees in U.S. custody. How it happened with legal sanction is still under investigation by the Office of Professional Responsibility in the Department of Justice. The OPR did not give up and Klein pulled no punches.

1. Time Magazine: "The Bush Administration's Most Despicable Act#," by Joe Klein, (1/8/09) To quote:
   
   

   "This is not the America I know," President George W. Bush said after the first, horrifying pictures of U.S. troops torturing prisoners at the Abu Ghraib prison in Iraq surfaced in April 2004. The President was not telling the truth. "This" was the America he had authorized on Feb. 7, 2002, when he signed a memorandum stating that the Third Geneva Convention — the one regarding the treatment of enemy prisoners taken in wartime — did not apply to members of al-Qaeda or the Taliban. That signature led directly to the abuses at Abu Ghraib and Guantánamo Bay. It was his single most callous and despicable act.
   
   . . . the most definitive official account was released by the Senate Armed Services Committee just before Christmas.
   
   . . . But prisoners held by the U.S. were tortured — first at Guantánamo Bay and later in Afghanistan and Iraq. The Armed Services Committee report details the techniques used . . . There is, I'm told, absolutely no interest on the part of the incoming Obama Administration to pursue indictments against its predecessors. "We're focused on the future," said one of the President-elect's legal advisers.
   
   . . . Still, there should be some official acknowledgment by the U.S. government that the Bush Administration's policies were reprehensible, and quite possibly illegal, and that the U.S. is no longer in the torture business. If Obama doesn't want to make that statement, perhaps we could do it in the form of a Bush Memorial in Washington: a statue of the hooded Abu Ghraib prisoner in cruciform stress position — the real Bush legacy.

   
   

2. The Public Record: "DOJ Watchdog Still Probing Yoo/Bybee Torture Memo*" (1/14/09). To quote:
   
   

   For more than four years, the Justice Department’s Office of Professional Responsibility has been investigating the origins of an Aug. 1, 2002 memo that provided the Bush administration with the legal guidance to authorize interrogators to use brutal tactics against suspected terrorists at Guantanamo Bay.
   
   . . . The OPR investigation into the Aug. 1, 2002 torture memo was launched in late 2004 after the Abu Ghraib prison abuses were documented. Under Gonzales, the OPR has met some resistance in its attempt to obtain documents and interview officials, people familiar with the probe said, in explaining why the investigation is now in its fourth year.
   
   . . . OPR investigators have also spoken with Jack Goldsmith, the former head of the OLC, who upon arriving at the agency in October 2003 quickly determined that the Aug. 1, 2002 memo was “sloppily written” and “legally flawed” and withdrew the memo.
   
   . . . OPR’s report into the August 2002 torture memo will be “lengthy,” one person familiar with the probe said, but is not expected to be released until after Obama is sworn in.

What to do now?** With President-elect Obama to be inaugurated in a couple of days things are looking up. Even so there is still much for activists to do to support the rule of law. Here is one idea. Sign the petition to President-elect Obama from the ACLU: "Stop Guantánamo child soldier trials and end the military commissions at Guantánamo." (1/15/09)

The War In Iraq -- It is still a mess that will not be cleansed quickly or easily, because of a willingness by the courts to conceal contractor wrong-doing along with an unwillingness by Congress to exercise its Constitutional powers regarding war fighting. See the following articles: The Raw Story: "ACLU: 'Secret Courts' conceal fraud by military contractors*" (1/15/09), as well as from Common Dreams: "Unconstitutional Secrecy Provisions Hide Iraq War Costs And Public Safety Information From The Public*" (1/15/09). BuzzFlash: "Congress Aims To Take Back Constitutional War Powers*" - Maya Schenwar (1/14/09). To quote:

Foremost on the list is one of Bush's most blatant unilateral actions: his recent signing, with Iraqi Prime Minister Nouri al Maliki, of the US-Iraq security pact without consulting Congress. The pact could keep US troops in Iraq until the end of 2011. Rep. Barbara Lee (D-California) has introduced - and soon plans to reintroduce - a resolution that would delegitimize the Bush-Maliki security agreement in the eyes of Congress, according to a spokeswoman for Lee's office. It would also reaffirm Congress's role in the formation of war policy.

Justice denied -- The arrogance of the Bush Department of Justice has been apparent for years. And it is not over. It will be interesting to see what Eric Holder does about these items.

1. The Raw Story: "Bush-appointed U.S. attorneys refuse to leave Justice Dept.*" (1/16/09)


2. Wired - Threat Level: "House Panel to Ask for NSA Spying Probe" (12/8/08) To quote:
   
   

   A congressional panel will ask the National Security Agency's internal watchdog to investigate whether the super-secret spy agency eavesdropped without warrants on a Muslim scholar and later hid that evidence in a 2005 terror prosecution that got him a life sentence.
   
   The House Select Intelligence Oversight Panel and the judge overseeing the case want the NSA's inspector general to find out if the government failed to disclose evidence that might have cleared the name of a Northern Virginia spiritual leader Ali al-Timimi, Rep. Rush Holt (D- New Jersey) told the New York Times.
   
   That sort of investigation would signal a newfound willingness by the NSA's inspector general to look closely at the program and could show that the warrantless wiretapping issue will not be swept under the rug with the arrival of the Obama Administration in January.

In Transition: A digest from CQ Behind the Lines newsletter (1/16/09) by David C. Morrison speaks also to rule of law issues, ending again with expectations that Obama could act differently. To quote:

“Terrorists have not succeeded in striking on U.S. soil since 9/11. But some say the U.S. focus was too much on a military response, regime change, and a ‘with us or against us’ mentality,” The Christian Science Monitor’s Howard LaFranchi writes of the Bush legacy. As to which, Bloomberg’s Holly Rosenkrantz and Catherine Dodge detail the president defending his counterterror record in last night’s farewell address, acknowledging “there are things I would do differently.” . . . The most important “symbolic change” Obama could make is “getting rid of the abhorrently un-American, odiously Teutono/Soviet term ‘Homeland Security,’ and replacing it with something less Gestapo-sounding,” The Atlantic’s James Fallows inveighs.

Reporting on the rule of law has been a challenge for the past eight years. And it has not always been done adequately by the mainstream media. "Restore the Constitution" has been the mantra of civil libertarians. And the struggle will not be over with the Inauguration. Guantanamo is still open, Intelligence must be gathered within the framework of the Fourth Amendment, two wars are active (three with Gaza), and national security must be maintained along side the Constitution's protection against abuse of citizens. We are nowhere near finished.

**Reference: ProPublica: "Gitmo Database Details 779 Prisoners' Cases" (1/15/09)

Hat Tip Key: Regular contributors of links to leads are "betmo*" and Jon#.

View my current slide show about the Bush years -- "Millennium" -- at the bottom of this column.

(Cross-posted at The Reaction.)

My “creativity and dreaming” post today is at Making Good Mondays.

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