Justice

I'm plenty ticked at the Senate's apparently willingness to put Joe Lieberman back in as member in good standing of the Democratic Caucus and as Chair of the Homeland Security and Governmental Affairs Committee. But you could be optimistic about that and say that maybe he would conduct honest and meaningful reviews of government operations that he did not conduct during the Cheney-Bush years. Constitutional law scholar Sandy Levinson (who would be a good pick for a senior position among government attorneys under Obama) thinks that it would The worst reason in the world to deny Joe Lieberman the Chair of the Homeland Security Committee out of fear that he would conduct decent investigations (Balkinization blog 11/08/08). Unfortunately, it's far more likely that Holy Joe would conduct witch-hunting, Whitewater-type investigations with great vigor against the Obama administration. (Why in the name of Hera would the Senate Dems want to leave that man in such a position?)

But holding war criminals and other major lawbreakers of the Cheney-Bush administration legally culpable for their misdeeds is a far more critical issue. As someone at the 2008 Netroots Nation conference said, it's fine if Obama abides by the law as President for eight years. But, if the Cheney-Bush lawbreakers aren't hold to account, what happens when Jeb Bush becomes President? Or, he might have added, Newt Gingrich? Or Sarah Palin?

One of the many rumors/reports/trial balloons floating out there is described by Mark Benjamin in Obama's plans for probing Bush torture Salon 11/13/08 (accessed 11/12/08). According to "growing talk in Washington" (whatever that means), Bush is preparing to issue blanket pardons to those who broke the law in his service. Of course, we don't need anonymous Washington talk to guess that. I'm thinking that Dick Cheney probably has maybe two of his staff working on last-ditch efforts to start a war with Iran, one on contacting friendly dictators about asylum, and the rest frantically drafting pardons.

But this idea concerns me:

The Obama plan, first revealed by Salon in August, would emphasize fact-finding investigation over prosecution. It is gaining currency in Washington as Obama advisors begin to coordinate with Democrats in Congress on the proposal. The plan would not rule out future prosecutions, but would delay a decision on that matter until all essential facts can be unearthed. Between the time necessary for the investigative process and the daunting array of policy problems Obama will face upon taking office, any decision on prosecutions probably would not come until a second Obama presidential term, should there be one.

The proposed commission -- similar in thrust to a Democratic investigation proposal first uncovered by Salon in July -- would examine a broad scope of activities, including detention, torture and extraordinary rendition, the practice of snatching suspected terrorists off the street and whisking them off to a third country for abusive interrogations. The commission might also pry into the claims by the White House -- widely rejected by experienced interrogators -- that abusive interrogations are an effective and necessary intelligence tool.

A common view among those involved with the talks is that any early effort to prosecute Bush administration officials would likely devolve quickly into ugly and fruitless partisan warfare. Second is that even if Obama decided he had the appetite for it, prosecutions in this arena are problematic at best: A series of memos from the Bush Justice Department approved the harsh tactics, and Congress changed the War Crimes Act in 2006, making prosecutions of individuals involved in interrogations more difficult. [my emphasis]

And, oh Lordy, we wouldn't want to have "partisan warfare" over something so trivial as torture and the basic rule of law, now would we?

Obviously, they have to do systematic fact-gathering first. And they need to move fast to minimize the destruction of evidence and the intimidation of witnesses. And they need to show they are serious, and start nailing lower-level perps to pressure them into flipping on the higher-ups.

And it can't be restricted just to the torture program. It needs to look at the deliberate fraud committed in going to war in Iraq; at the misuse and probable manufacture of fake documents for the purpose of deceiving Congress and the public; at the massive corruption in the Iraqi reconstruction contracts; at the various secret-war operations that the CIA and the Pentagon have been carrying on in Pakistan, Somalia, Syria, Yemen and who knows where else; at the gross partisan-politicization of the Justice Department; at the fraud in the post-Katrina contracts; and, whatever dirty deals were involved in the financial bailout package.

And they certainly need to kick loose whatever relevant documents they have on the Valerie Plame outing case.

In addition, the Obama administration needs to get to the bottom of the anthrax attacks in 2001. The case against the late Bruce Ivins was paper-thin. Getting to the bottom of this case, in which we know that it was anthrax from a US defense facility that was used in the attack, could turn out to be incredibly informative. As well as being vitally important in itself. The lead editorial in the print edition of the Nov/Dec 2008 Bulletin of the Atomic Scientists (the last print edition; it's going 100% digital), "Biodefense efforts need transparency", says:

One potential threat is that posed by scientists working in sophisticated state biodefense programs. ...

When the FBI released details of its investigation into the 2001 anthrax attacks, it revealed that it investigated about 100 scientists, including Ivins, who had access to the flask of anthrax bacteria it had determined was the source of the material in the attacks. USAMRIID [an Army medical research program], which runs the lab where this flask was kept, has security measures in place to limit the "insider" risks pesed by scientists who work with dangerous biological agents. But the Ivins case raises the question of whether these measures are sufficient. A vast majority of the scientists working within the U.S. biodefense complex are performing strictly legitimate research, and most are unlikely to have the specific expertise to weaponize pathogens, but it's clear that the stability and intent of every scientist working in state biodefense programs cannot be guaranteed.

And, as the Bulletin points out, since 2001 the federal government has vastly expanded its biodefense research, increasing the risk that rogue operators could get access to the deadly material.

We need a definitive answer on who perpetrated the 2001 anthrax attacks.

Getting back to torture, Benjamin notes:

Some observers outside the Obama camp are also questioning how much Democrats really want exposed with regard to interrogation, since top Democrats in Congress were briefed in secret on some of the harshest tactics used by the CIA and appear to have done little, or perhaps nothing, to stop them.

It may be that some members of Congress could even be criminally culpable in some aspects of the torture program. And if they are, they should be prosecuted. We had way too much of partisan justice under the Cheney-Bush administration already.

Benjamin's article also makes me think that it's probably time for a Constitutional Amendment to limit the President's pardoning power. It's way too broad and subject to abuse for the worst reasons in the hands of characters like Dick Cheney and George Bush.

Glenn Greenwald addresses the sad notion that the Obama Justice Department shouldn't investigate serious crimes because the Republicans might bitch and moan and whine about it and call it partisan in Post-partisan harmony vs. the rule of law Salon 11/13/08.

And Robert Perry recalls some history on that score from the start of the Clinton administration in 1993, Obama: Beware the Lessons of '93 ConsortiumNews.com 11/11/08:

Barack Obama seeks a new era of bipartisanship, but he should take heed of what happened to the last Democrat in the White House – Bill Clinton – in 1993 when he sought to appease Republicans by shelving pending investigations into Reagan-Bush-I-era wrongdoing and hoped for some reciprocity.

Instead the Republicans pocketed the Democratic concessions and pressed ahead with possibly the most partisan assault ever directed against a sitting President. The war on Clinton included attacks on his past life in Arkansas, on his wife Hillary, on personnel decisions at the White House, and on key members of his administration.

The Republicans also took the offensive against Clinton’s reformist agenda, denying him even one GOP vote for his first budget and then sabotaging Hillary Clinton’s plan for universal health insurance.

... Ironically, some of this advice is coming from the same people who were part of Clinton’s decisions in early 1993 to set aside investigations into Reagan-Bush-I wrongdoing and thus to allow a false history of that era to become cemented as a faux reality.

For instance, Lee Hamilton, who in 1993 was an accommodating Democratic congressman, helped sink key investigations into covert Republican relationships with Iran and Iraq. Now, as a senior foreign policy adviser to Obama, Hamilton has spoken favorably of retaining Bush’s Defense Secretary Robert Gates.

It's hard to be bipartisan when the Republican Party only swings one way.

Greenwald is unsparing in his low opinion of the idea of letting the Cheney-Bush officials just get away with crimes:

In his 1776 revolutionary pamphlet, Common Sense, Thomas Paine famously declared that "so far as we approve of monarchy, the law is King." But the Robert Litts and Cass Sunsteins and David Broders have radically re-written that principle so that, now, "trans-partisan harmony is King," which means, in turn, that the President -- whose crimes should no longer be prosecuted due to fear of sowing "divisiveness" -- resides above the rule of law, and thus possesses one of the defining traits of a King.

As political scientists have documented, one hallmark of tin-pot tyrannies is the belief that political leaders should be liberated from the constraints of law as long as that helps to achieve good results. That's the defining mentality of those who crave benevolent tyrants -- our Leaders have so many Good and Important Things to do for us that they can't be distracted and weighed down by abstract luxuries like upholding the rule of law. That's now clearly the prevailing consensus of our political establishment.

Tags: barack obama, robert perry