Way back in April of last year I wrote that there are some things that are above political loyalty and that the Constitution is one of them. In July I wrote in a post titled “The Constitution Doesn’t Poll Very Well” that noted how busily the Obama Admin and Congressional Blue Dogs were gutting the Bill of Rights. This past February I listed a number of Bush’s illegal powers that Obama was protecting despite his promises for “transparency, accountability and openness”. Now I have to report that Obama has decided to protect the people who retroactively wrote legal justifications for this illegal and immoral policy, defend the policy itself, and worst of all, accept torture as legitimate behaviour once he puts a Yoo-style legal framework around it so we can all pretend it isn’t inhuman.
As the attorney general, Eric H. Holder Jr., debates whether to appoint a criminal prosecutor to investigate the interrogations of terrorism suspects after the attacks of Sept. 11, 2001, he is at the brink of a career-defining decision that risks the anger of the White House and the Central Intelligence Agency, one of the Justice Department’s main partners in combating terrorism.
There is no surprise then that Mr. Holder is said by officials to have been resistant at first to the idea of appointing a prosecutor, particularly since the Obama administration has made it clear that it wants to put the issue of interrogation practices during the Bush administration behind it.
Mr. Holder has told associates he is weighing a narrow investigation, focusing only on C.I.A. interrogators and contract employees who clearly crossed the line and violated the Bush administration’s guidelines and engaged in flagrantly abusive acts.
But in taking that route, Mr. Holder would run two risks. One is the political fallout if only a handful of low-level agents are prosecuted for what many critics see as a pattern of excess condoned at the top of the government. The other is that an aggressive prosecutor would not stop at the bottom, but would work up the chain of command, and end up with a full-blown criminal inquiry into the intelligence agencies — just the kind of broad, open-ended criminal investigation the Obama administration says it wants to avoid.
AG Holder is caught between a rock and a hard place. He’s under pressure both ethically and legally to prosecute torturers yet his boss doesn’t want him to prosecute any of the people who devised and ordered the torture to occur. Glenn Greenwald put what this means succinctly.
[T]he Newsweek reporter who first printed what DOJ officials told him about Holder’s intentions, Daniel Klaidman, confirmed in an interview on The Young Turks that Holder intends to confine any investigations only to “rogue” interrogators who exceeded John Yoo’s torture permission slips while shielding high-level Bush officials who acted in accordance with Yoo’s decrees. Proving yet again that there is nothing more difficult than satirizing our rotted political culture, here is what I wrote about Holder’s intentions last week:
Holder’s plan, at least at the moment, is — from the start — to confine the prosecutors’ authority to investigate to CIA agents who went beyond what John Yoo and George Bush decreed could be done (“he used more water than Yoo said he could”; “he tied him up for longer than Yoo authorized”; “the room was colder and the freezing water icier than Yoo allowed”). At least if these reports are accurate (and, for several reasons, that’s unclear), anyone who “merely” did what John Yoo said was legal — meaning everyone who matters — will be shielded and immunized.
If low-level CIA interrogators — and only them — end up as the targets of investigations because they used m0re water than John Yoo allowed, or turned the thermostat lower than the hypothermic levels which the DOJ permitted, or waterboarded with more frequency than Jay Bybee approved, I wouldn’t blame the CIA for being furious. It was the regime itself, implemented at the highest levels of our government, that was criminal. Prosecuting only low-level interrogators who followed the torturing spirit of those policies but transgressed some bureaucratic guidelines would be a travesty on par with what happened with the Abu Ghraib “investigations.”
(emphasis in original)
Worse, by putting the legal emphasis on whether or not the interrogators had exceeded the authority given them by Yoo and Bybee and the other apologists, Obama is tacitly accepting the Yoo/Bybee/Addington/Cheney assertion that a) torture is legal in the US and b) the president can legally order an illegal procedure as long as it is kept within whatever bounds are set by the president. Which in turn means that torture is now legal and that US presidents have the power to ignore treaty law, international law, and domestic law – the Constitution – just as Bush/Cheney claimed they did. It is a de facto rather than de jure assumption of power, quiet, even stealthy. Without facing the issue squarely, discussing it openly, or explaining it clearly, the Obama Admin is simply going to act as if it’s true, thus creating precedent and making it true.
Is it doing all this to protect the Bush-Cheney Gang? Don’t be silly. Is it doing all this just because Obama wants to avoid the cesspool of recriminations and partisan screeching he’d have to endure if he decided that Bush/Cheney are actually accountable for their crimes rather than above the law as they claim? Maybe but that’s not the major reason.
The major reason is Obama is protecting himself and his cronies from potential slapback. In the past six months Obama has made is crystal clear that he intends to use these illegal powers himself after, Pinochet-like, he has made them “legal” through simple declarations, facile assertions, and stealthy assumptions. By trumpeting the excuse that allowing legal accountability for their crimes to happen to the Bush Gang would be some sort of unacceptable distraction from his main business – nonsense at both the legal and practical levels if you think about it for half-a-minute – he is making sure that he isn’t put into the position of having to condemn powers he wants and plans to use.
The excuses made for him – that he’ll do it “in his second term”, that he’s playing some kind of deep political game, that we just need to “give him more time” and eventually he’ll get around to defending the Constitution because, you know, “you can’t do everything at once”, even the suggestion that if he tries for accountability he’ll be assassinated – are no longer credible if they ever were. Obama’s deliberate legal moves to harden the Bush/Cheney Unitary President Theory (that a US president is much more like a king than a Prime Minister- above the law because he is the law) has been too consistent, too insistent to pretend any longer that his support of the doctrine is a matter of convenience or timing.
Obama, who swore to “protect and defend the Constitution” is proving more adept than Bush at making the Constitution irrelevant, an antique. He is gutting key provisions of what he swore to protect and he isn’t even pretending it’s so he can “keep us safe from terrorism”. He hasn’t bothered to explain it and he’s offered no reason or excuse for doing it beyond the Bush/Cheney argument that it’s a presidential prerogative. IOW, he can do it if he wants to because he’s president. Bush did the heavy lifting; Obama is now going to do the easy part: confirming what’s already been done by someone else.
We are giving up our civil rights, turning into a torture state like Syria or Uzbekistan, and for what? What are we getting in return? A king instead of a president, George III instead of George Washington. Our money is going to jack up billionaires and we can’t even get universal, single-payer health care. Taking a leaf from the insurance companies who donated so much to his campaign, Obama is taking our mandate and giving us NOTHING in return. Avedon Carol:
I was thinking of writing to my Congressman and saying that since he has stopped advocating for progressive policies, I plan to vote in the primary for the most convincing advocate for single-payer, and if the incumbent is still the Democratic nominee, I will vote for the most viable third-party progressive if there is one, and if there isn’t, I will vote for me.
She also has a list of questions she asks to define a “liberal media”. I think they’re perfect questions to ask yourself about your Democrat rep and the party as a whole.
Are they demanding single-payer and pointing out that it is the most efficient and inexpensive option that would save us hundreds of billions of dollars? Are they pressing the attorney general to prosecute the war criminals who got us into these stupid wars? Are they making the case for reproductive freedom and good sex education? Are they explaining why the War on (Some People Who Use Some) Drugs is a disaster that must be stopped? Are they telling you that public spending on good social programs makes the entire economy and everyone in it better off? No they’re not.
There are fewer and fewer cogent reasons for supporting the Democrats or Obama and one unimpeachable reason to dump them like a hot turd: They are NOT protecting the Constitution. They’re not even interested in protecting it. I’ve written this over and over and I’ll say it again: The Constitution is the country. It is above party politics or political loyalties and no one who trashes it should be immune from accountability.
That includes Obama. It includes the Democrats. They are not immune or we are just the flipside of BushBabies.