The Frankfurter School » Rule of Law

An Apology to President Bush

jm — Wed, 13 Apr 2011 17:59:32 +0000

Dear President George W. Bush,

I owe you an apology. I said some pretty mean things in the heat of your Presidency, and now that I’ve had some time to cool off, I want to tell you that I’m sorry and how much I’ve changed. I said some pretty awful things: I called you “the worst President ever,” a “war criminal,” and linked your Presidency to the end of democracy. But I now know, it wasn’t you, it was me.

I didn’t realize that starting wars in the Arab world didn’t even need Congressional authorization! You went above and beyond the call of law by getting authorization to use military force to spread democracy and liberate people from their evil dictators who we used to prop up.

You used signing statements to let Congress know which of its laws you planned to ignore. Sure President Clinton used them first, but only a few times. But now that President Obama has used them dozens of times, to specifically set aside any Congressional oversight, I realize that it is the prerogative of the Commander in Chief to decide what laws should be enforced and which laws should be ignored. At the time I laughed at you for proclaiming yourself “the decider,” but now I realize you were just being honest.

Your illegal wiretapping scheme really made me mad. Imagine the thought of the government being able to listen in on my phone calls, emails, text messages, any communication you want, just say it’s in connection with a “terrorism” investigation and it’s yours. Of course I thought that seemed wrong at the time, and so did Senator Obama during the brief period of time he was campaigning to people like me, riled up and angry partisans. But now that he is President he is keeping and extending all of your eavesdropping programs, and blocking any meaningful attempts at oversight.

You used Guantanamo Bay to imprison people you kidnapped from foreign countries and hold them outside of any established legal framework. You invented an extra-judicial legal system to hold show trials so that the American values that we are supposedly at war to protect could never be applied to a new class of persons you called “enemy combatants.” But after vowing to change all of that in a heated campaign, President Obama has reversed himself and is continuing to keep the prison open. He’s even going farther than you are and re-writing our laws to enable “indefinite detention” and do things that our founding fathers specifically designed our constitution to prevent.

Then there was the torture. You spent a great deal of energy at a high level of government deciding how much simulated drowning was too much, which positions hurt the most, and how much sleep deprivation would break someone but all the while being (mostly) careful not to kill anyone. But President Obama has continued your policies, even applying them to PFC Bradley Manning, a US Citizen just like me, whose conditions of imprisonment are so objectionable that Amnesty International, The UN, and hundreds of leading American law professors have tried to get his torture to stop. When Hillary Clinton’s spokesman was caught on the record objecting to Manning’s treatment, he was summarily fired, which means that Obama and Clinton seem to think the torture regime you came up with was a pretty good idea, President Bush. I don’t know why I got so upset before.

One of the reasons your Presidency seemed so upsetting was because all of the thing you were doing were shrouded in Secrecy. Even when you were sued by the ACLU you claimed broad privileges not to provide certain evidence, citing “state secrets.” But President Obama obviously thinks you had good reason to do so, because he has expanded his use of state secrets privilege, not only using it to hide evidence but as grounds to dismiss entire cases because the people cannot know about what is being done in our name.

What little the public knew about the things you were doing came from leaks in your administration. Although you made a lot of noise about prosecuting leakers, you never went as far as President Obama in actively prosecuting leak cases and making clear that the wrongdoing that is exposed by whistleblowers pales in comparison to the crime of speaking to the press. Sorry again.

Of course there were also the tax cuts. I thought you were so awful when you took the $237 billion dollar surplus we had in 2000 and got rid of it in one fell swoop by giving it away to the already-rich. What a conniving, awful, and very Republican thing to do! Until of course, President Obama made it a priority to use the final hours of a Democratic Congress to extend your tax cuts to the very wealthiest. I know the country is broke fighting all of those wars, but obviously you were on the right track by making sure the wealthy keep their money so that it could trickle down to the rest of the population. Very smart policy! I now realize I was so wrong to object to your bi-partisan wisdom.

You made a lot of noise about the Social Security crisis — apparently it’s going to run out of money somewhere around 2040. But even though you claimed a mandate to hand over my retirement to the salivating Wall Street bankers, you were never able to touch it. I hated you for wanting to dismantle one of the crowning achievements of our liberal democracy. But now that President Obama is soberly devoted to doing the same thing, I realize you were just a visionary, trying to do the right thing years ahead of your time.

In fact, I don’t really remember why I thought you were so awful at all, Mr. President. It seems that with very few exceptions, President Obama has continued with all of your policies and priorities. He does have a way of making me feel like he’s really smart and knows more than I do about stuff in a way that you, Mr. Bush, always made me wonder if you really knew what you were doing. But it turns out you did! You knew exactly what you were doing, because it was the same as this smart man who we all love, who really has his hands tied. You must have had a hard time, President Bush — no wonder you were always so annoyed by reporters who asked you questions.

I don’t mean to insult you by saying that there’s no difference between you and President Obama. I’m sure you know there are some very important differences. And the blind partisan supporters of both of you will magnify the differences and will be very angry at the comparison, because to acknowledge the truth would make everything they worked for and believed in seem meaningless. But the reasons that I hated you above all others from your party, the reasons that I thought you were singularly awful, those have been rendered meaningless and silly in the two short years since you’ve been gone. In those most important ways, you’re no different than your successor, and we just don’t seem able to get all that worked up about it when he does it.

So please accept my sincerest apologies. I hope you’re having a great time in Dallas, or wherever you moved to after the photo ops at your “ranch” in Crawford were no longer needed. Say hi to Laura, she always seemed to get the short end of the stick. (Is she considering a run for Senate now?) And if you’re up for having a beer sometime, let me know.

Yours in citizenship,

Jon Marcus

Things Aren’t Really So Bad

jm — Wed, 03 Sep 2008 15:45:48 +0000

When I talk to some of my friends about the dire situation this country is in and how our democracy has been dismantled, our rights taken away, with a press that exists to anesthetize us rather than inform us, I am invariably met with the same optimistically skeptical response. “Things aren’t that bad,” “Don’t you think that’s a little extreme,” or “Oh come on, Bush is almost out of office and things are getting better” are the general tone and gist of the stock responses I get. I always try to engage people productively in my answers, but obviously I think that our democracy is in critical condition and dying on the operating table. I tend to believe that people who don’t recognize that just don’t know what’s going on or are burying their heads in the sand rather than facing harsh reality.

We live in an authoritarian police state which is very close to completing the alignment and consolidation of government and corporate power in order achieve total and unchallenged dominance over every single one of its citizens. But the exercise of that control is currently invisible and not affecting most people’s day to day life, so there is very little awareness or alarm.

So rather than dismiss or belittle your optimism, or your doubt that things have really gotten as bad as the words that I am using might imply, I will agree with you and tell you why most people I know have absolutely nothing to worry about.

The people who are experiencing illegal detention, imprisonment, police brutality and torture fall into categories of people that you don’t. They are either illegal immigrants, criminals or terrorists, or rabble-rousers who have engaged in questionable activities. And if a few innocent people get caught up in an attempt to rid our country of these vermin, it’s better than allowing them to go free. It is far more important for us to be “safe” than to worry about the rights of people who had poor enough judgment to associate with unsavory types and get themselves arrested.

You have money. You can afford legal help and advice and are in the privileged position to challenge any accusations of wrongdoing in our legal system which grants favor and privilege to those who can afford the legal maneuverings.

You don’t do anything illegal. Well, nothing big anyway. You may occasionally bend some rules, drive faster than the speed limit, or take generous deductions on your taxes, but you are essentially a good upstanding citizen and have no worries about selective enforcement of laws or harsh methods of interrogation because you would never deserve such treatment.

You have nothing to hide. If the FBI raided your house they would find no contraband or any reason to put you in jail. There is a slight possibility that they could carry things out of your house in full view of your neighbors that could cause you some embarrassment, but nothing that could get you arrested. The NSA would not find any reason to arrest you based on your internet browser history, though it’s possible that if it were given to your employer, your insurance company or made public, there could be some unfortunate fallout. But just because the government is now legally able to do this does not mean it is going to happen to you. Things are pretty good. You are allowed to go about your life, make choices, and generally do whatever you want.

The subjects of the King George led relatively happy lives when the American Revolution took place. Not everyone under Pinochet, Franco or Mussolini was unhappy. The aristocracy is usually able to go about their lives happily, and as long as they do not go against the dictator’s orders they were free to choose a life for themselves, shopping, playing, eating, and doing as they wished. Only people who wished to break the rules in some way were subjected to indefinite imprisonment in the Tower of London or disappeared in Chile. Most people avoided this fate.

When the United States constitution was written, it was done so in order to guarantee certain rights and liberties to people, and to declare them to be inalienable. Although it constructed a system of government that allowed power to be maintained by landowners, it mandated a country where the rule of law took precedence over the rule of men. Many Americans gave their lives fighting for these rights and this nation. The first ten amendments to our constitution, known as our Bill of Rights, have each been abridged and restricted, and we are now a nation without accountability and no longer under the rule of law, with two political parties more interested in maintaining power than restoring checks and balances to our democracy.

But no, it’s probably not that bad. You’ll probably be fine. What could happen?

Why Are House Democrats Suddenly Caving to Bush’s Demands on Illegal Spying?

jm — Tue, 04 Mar 2008 07:45:43 +0000

In my post last week about FISA and the renewal of the so-called “Protect America Act” (PAA), I cited a letter from House Intelligence Committee Chair Silvestre Reyes which strongly rebutted all of the Bush Administrations false claims about its ability to track terrorists hinging on the immediate passage of the Senate version of the PAA. And on the issue of telecom immunity, which even Bush basically admitted last week is really about keeping secret the true details of the program, Reyes writes, “As someone who has been briefed on our most sensitive intelligence programs, I can see no argument why the future security of our country depends on whether past actions of telecommunications companies are immunized.”

On Sunday, Rep. Reyes announced a near-complete about-face on the issue, describing himself as having an “open mind” on granting immunity to the telecoms while The Washington Post reports that a deal is in the works to pass the Senate bill. House Democratic leadership, bowing to pressure from Republicans and conservative “Blue Dog” Democrats, is expected to break the Senate version of the bill into two parts to separate the spying authorization and telecom immunity, allowing liberal Democrats to vote against the immunity provision while still assuring its passage.

Glenn Greenwald of salon.com, one of the most astute and dedicated journalists covering this issue, writes today that the House Democrats are being “stupid and self-destructive” and accuses them of having no political principles.

I have often privately called the behavior of both the Bush Administration and Congressional Democrats “stupid.” But behind all of the supposed incompetence of the Administration has been a program of sweeping privatization and a highly effective policy transformation that has worked entirely in its favor. And behind the failure of Democrats to act in the interests of their constituents or their supposed core values is a powerful alignment of power, money, and campaign tactics to preserve their own incumbency. In short, I do not believe that any of these behaviors reflect a lack of intelligence or thoughtful strategy.

So that leaves me asking, what are the possible reasons for House Democrats to suddenly change their minds and go from defending the constitution, checks and balances and rule of law to being “open-minded” and preparing to use their power to allow passage a bill that protects lawbreakers from any accountability?

When people suddenly change their long-held principled opinions, there is generally a good reason which is far from stupidity. It means that something else has become more important than this particular opinion, like money, health, personal safety, or a horse-trade for another opinion of greater importance. Obviously, enormous pressure has been brought to bear on the Democratic leadership. What did they trade for this change? Have threats been made against them, either to their personal safety or to their reputations with the contents of their most personal communication? Are they getting generous financial contributions to maintain their hold on power?

Asking these questions is an invitation to be called a conspiracy theorist, but I am just asking questions that are logical extensions of the contradictions that have come out of this situation.

Does anyone else have any idea why the Democrats might suddenly have changed their minds?

What’s All the Fuss About FISA?

jm — Tue, 26 Feb 2008 09:12:14 +0000

While most of America has been distracted by the Presidential race between Democratic Senators Hillary Clinton and Barack Obama, the rest of their Senate colleagues have been working very hard to pass legislation making the Bush Administration’s illegal spying program legal, and giving immunity to the companies that the administration paid to break the law. While groups like the ACLU and MoveOn have mobilized their memberships to sign petitions and call their Senators, lobbyists for America’s largest telecommunications companies have had their voices heard much more loudly. While the mainstream press has been dutifully recording this story when one or both houses of Congress moves to pass legislation, it has been independent journalists and bloggers who have been reporting the real developments, the actions in Senate committees and procedural maneuvers that are where the real business of Congress is done.

In fact, if one were to look very closely at the way that things are happening in this country around the FISA reauthorization/Protect America Act/RESTORE Act/warrantless wiretapping/illegal spying/telecom immunity issue (right down to the fact that there isn’t one universally used subject title to neatly sum up the whole thing), you get an excellent case study in how our democracy is being incrementally dismantled, quite legally, using the legislative mechanisms of democracy to destroy itself.

In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA), which set up a special court to review and authorize requests for surveillance of foreign agents. This legislation came about in a period of revelations about all kinds of covert operations and surveillance being conducted by the Nixon Administration, and Congress acted appropriately to restore checks and balances to the power that was being exercised by the Executive branch. Republicans and Democrats joined together to defend and protect our constitution and the role of Congress and the courts in our government. The FISA court was established by this act to review and authorize surveillance of foreign agents. The court was secret, could give authorization in 24-72 hours, and in cases of urgency, the government was authorized to begin surveillance immediately and get the required authorization after-the-fact. This bipartisan compromise was criticized widely by many liberals for its secrecy and for the wide latitude it gave to security agencies, and the fact that it bypassed our existing and highly effective court system. In the 30 years since the court was established, it has approved all but five of the thousands of requests it has reviewed (all 5 of which occurred during the current administration).

FISA has been amended several times over the thirty years since it was passed, always to assure that our spying kept pace with technology. The most recent update occurred as part of the USA PATRIOT ACT, a complete and expansive extension of government spying powers that was passed just weeks after the 9/11 attacks.

In 2005, The New York Times reported that the Bush Administration was spying on Americans, reading emails and listening to phone calls, without obtaining the required warrants from the FISA court, a story which The Times held for over a year so as not to be seen as impacting the 2004 election. The Administration would not confirm the existence of this program but instead launched an attack on the New York Times for publishing national security secrets and then vowed to punish the whistleblowers who leaked the classified information.

Democrats immediately called for an investigation into the allegations but Republicans in control of Congress blocked their attempts at oversight, and instead began work on a bill that would legalize thestill- unconfirmed spying program and transform the oversight provided by FISA into mere reporting, to be made at the Administration’s discretion. A coalition of civil liberties and electronic privacy groups filed class action lawsuits against AT&T and several other companies, accusing them of violating their constitutional rights by assisting in this illegal government program.

When the Democrats regained control of Congress after the 2006 elections, investigations finally began, although slowly. The Senate Intelligence Committee discovered that there had been vigorous debate about the program within the administration, and that then-white house counsel Alberto Gonzalez and White House chief of staff Andy Card paid an infamous hospital visit to Attorney General John Ashcroft to unsuccessfully seek his signature on the renewal of this controversial program in 2004.

The Administration, with the help of lobbyists for the telecoms, started exerting enormous pressure on Congress to pass legislation to legalize the controversial spying activity and holding the companies harmless for their role in the lawbreaking. This brilliant tactic to grant immunity to the telecoms is on its face a gift to these companies which contribute hundreds of thousands of dollars to both parties, but even more importantly will immediately end the pending lawsuits and prevent the disclosure of information about the program, which is the real agenda behind immunity. The Administration has resisted Congressional oversight of the program by claiming executive privilege, but that would not apply to the details of the program that would be compelled as evidence and testimony in the lawsuits against the companies. Thus, granting these companies retroactive immunity is of great urgency in the cover-up of the lawbreaking.

In August 2007, Congress passed the “Protect America Act,” (PAA) which did not come out of the usual committee process but was written by the White House to make its surveillance activities legal. The Administration helped pave the way for this bill to be rushed through by hyping terrorist threats to the capitol and threatening to tar Democrats as soft on national security. Congress passed this massive expansion of powers but gave it a six month “sunset provision” so that they could have time to consider the issues and write their own bill. The PAA also stopped short of giving legal immunity to the phone companies.

Congress then began the work of drafting legislation to permanently address the Administration’s relentless requests for more power. In November, the House passed THE RESTORE ACT which gave explicit permission to the government to eavesdrop on foreign terrorists but left it in the jurisdiction of the secret FISA court. This bill did not include any provisions for retroactive immunity.

Meanwhile, two different bills in the Senate began moving through the Intelligence Committee and the Judiciary Committee. Senator Dianne Feinstein, a Democrat of California who sits on both committees, was starting to come under attack for a series of moves that put her more in line with conservative Republicans and lobbyists than her liberal Democratic constituents, and her office was besieged with phone calls and letters criticizing her support for telecom immunity, and some California Democrats moved to get the state party to censure her. During this period of intense criticism, after being a key “swing vote,” and siding with Republicans on the Intelligence Committee to include telecom immunity in that bill, Feinstein reversed her position for the Judiciary Committee bill to appease her critics and that committee produced a competing wiretap bill without any provision for telecom immunity.

During these few weeks at the end of 2007 that Senator Feinstein was flip-flopping, Senator Christopher Dodd, then running for President, began speaking out very forcefully against immunity for the telecoms. He announced that he was placing a “hold” on any bill that contained provisions for immunity and that he would lead a filibuster to prevent any such bill from passing in the Senate. Amidst the mounting pressure, Senators Obama and Clinton quietly agreed that they too were opposed to immunity for the telecoms.

In December, Democratic Senate Majority Leader Harry Reid, ignoring Senator Dodd’s hold on the bill, brought the Intelligence Committee bill to the floor for debate, giving the advantage once again to immunity. Senator Dodd and Senator Russell Feingold spoke out forcefully against the bill and threatened to filibuster; the netroots were fired up and paying close attention, and Reid pulled the bill off the floor.

But in the first weeks of 2008, the spotlight had fully turned to contest between Clinton and Obama and the “surge” of Mike Huckabee in the Republican race, and Harry Reid set about the crafting elaborate parliamentary theatrics to allow “debate” on a series of amendments to the Intelligence Committee bill. The resulting choreography, done in concert with the White House and Republican leaders, required that the number of votes required for each amendment (either a filibuster-proof 60 vote majority or a simple majority) were just enough to assure passage of the bill in exactly the form that White House demanded. And although final passage was delayed while the Protect America Act was extended by 15 days, and many good people rose in defense of the rule of law, the bill ultimately passed the Senate in exactly the form the White House had demanded, by a vote of 68-29.

Now, in order to become law, either the House must pass the same bill, or the Senate bill must now be reconciled with the House version in joint conference. President Bush has repeatedly threatened to veto any version of the legislation which gets to his desk without immunity for the telecoms. The PAA (but not FISA) has now expired and the right wing scare campaign has begun. But House Democrats don’t look to be quite as cowed as their Senate counterparts if a recent letter to the President from House Intelligence Committee Chair Silvestre Reyes is any indication. He directly takes on the fear-mongering and debunks the false claims the administration has made about the potential for lapses in terror surveillance. It remains to be seen what the outcome will be.

The only thing at issue here are checks and balances on the Executive branch, and the changes being made to FISA are designed only to eliminate oversight of the already secret surveillance programs. The government already has all the tools it needs to conduct all the surveillance it needs, and the wide discretion to conduct them when it sees fit. And the argument for immunity is entirely disingenuous as well, straight-facedly claiming that if we do not excuse the lawbreaking by these corporations that they might be reluctant to break the law next time they are asked.

While the mainstream corporate press has been documenting this story as major votes have occurred, most of the reporting has at best been shallow and lacking in context or real analysis, and at worst has been inaccurate and misleading. Independent sites like Salon.com and its indefatigable Glenn Greenwald, and bloggers like firedoglake’s Jane Hamsher have filled the role now vacated by the mainstream press, to collect information, analysis, and relevant background to give the reader a complete sense of each action and vote means and what is at stake.

Grassroots groups and internet-based organizers have had some small measures of success in altering the course of these events, if not in changing the outcome, and it remains to be seen if this power can grow and be made stronger and more effective.

In the meantime, our government may be allowed to spy on us without just cause or meaningful oversight, very very soon.

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A Political Prisoner in Alabama

jm — Mon, 25 Feb 2008 08:54:25 +0000

Don Siegelman, the former Democratic Governor of Alabama, is currently serving a seven-year sentence in federal prison for alleged bribery in connection with appointing a political contributor to a position on a state board. Now, fifty-two former attorneys general, both Republicans and Democrats, are now calling for Congress to investigate this case, citing evidence that this was a purely political prosecution overseen by Karl Rove, using Federal Prosecutors to take back the Alabama governorship for the GOP when they were unable to do it with free elections.

RawStory has been covering this story for some time but CBS’ 60 Minutes just did a segment on it last night and it’s well worth watching.

Still developing on this story are reports by Larisa Alexandovna that during last night’s broadcast of this program, two CBS affiliates in Alabama went to a black screen for only the duration of the segment on Siegelman.

Follow RawStory’s complete coverage of this story:

The Permanent Republican Majority: Part 1

The Permanent Republican Majority: Part 2

The Permanent Republican Majority: Part 3

Watch the 60 Minutes Segment HERE.