Is Prosecution Off the Table As Well?
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The release of several Bush era Office of Legal Counsel (OLC) memos on Monday detail the breathtakingly expansive claims made by the Bush administration. Warrantless wiretapping, domestic deployment of the military, indefinite detention without charge or even access to counsel – there seems to be literally nothing beyond the scope of the president’s power. Scott Horton wrote that although we didn’t know it at the time the Bush years were effectively a dictatorship. How could we not know we were in a dictatorship? Jane Mayer explains: "The Bush Administration could have openly asked Congress for greater authority, or engaged the public in a discussion of the morality and efficacy of ‘enhanced’ interrogations, but instead it chose a path of tricky legalisms adopted in classified memos." These secret opinions were used to invisibly supersede our existing system of government. While they were in effect the president did not consider himself bound by any law and simply ignored those he did not wish to obey.
In all the reactions I’ve seen so far no one has touched on the following point: The ways that these opinions were used are almost as damaging as the opinions themselves. Several were withdrawn five days before Bush left office. Observers have taken that to mean OLC did not have confidence in their legitimacy and were sure they would be invalidated under legal challenge. In other words, a victory for the rule of law. But this leaves future presidents with the same opportunity, namely: Come into office, issue secret and illegal rulings, stonewall any attempt to get at them, prevent adjudication of their legality and withdraw them shortly before leaving office. In other words, during presidential transitions there will be a brief window during which Constitutional guarantees and the rule of law apply to the president. The rest of the time anything goes. That cannot be allowed to stand; there must be some way to press these claims even though they have been withdrawn. Failure to do so would turn the executive branch’s relationship to the law into a game of three card monte.
Congress had its chance to weigh in on all this and failed, with Republicans bearing the most responsibility. For one, they controlled Congress for six of the eight years. More importantly, they marched in lockstep behind Bush. If Democrats tend towards a more fractious nature that at its worst can become chaotic, Republicans have an affinity for clearly defined lines of authority and emphasis on obedience that can descend into authoritarianism and paranoia. Modern conservatives place Barry Goldwater at most a half step behind Ronald Reagan in their pantheon, but Goldwater walked into a Republican president’s Oval Office and said "There’s not more than 15 Senators for you," i.e. it’s time to resign. Where is today’s Goldwater? Did Tom DeLay, Bill Frist, Mitch McConnell, or John Boehner ever so directly confront their leader? Part of the reason the party is in a shambles at the moment is because it let its McCarthy cells metastasize. Until it can show a more democratic outlook and demonstrate a willingness to stand up to its leaders it will be a long slog in the wilderness.
Democrats are hardly blameless though; they were meek in the minority and timid when swept back into power. The most infamous example is Nancy Pelosi’s declaration immediately after the election that impeachment was "off the table." As we begin to see the details of Bush era lawlessness emerge it is increasingly amazing that the Democratic leadership was unwilling to forcefully oppose it. It seems very likely that the Bush administration took Democratic assurances there would be no attempt to investigate allegations of lawbreaking (!) as a clear sign it could continue to act with impunity.
Which is why there is every reason to be skeptical of any attempt to funnel a process or investigation through Congress: Many of the same players are still there. Congressional commissions are also notoriously ineffective. The two most recent examples – the 9/11 commission and the Iraq Study Group – promised substantial revelations and frameworks for action, and both are already nearly forgotten.
The Obama administration has adopted the positions of the Bush administration in many of its early decisions, but the declassification of the OLC memos is a welcome break. They provide enough evidence of potential lawbreaking to initiate a criminal investigation. That is the process we have always used, and it should be sufficient now. Let the Justice Department start looking into it and let the chips fall where they may. There is no need for Congress to be involved. Given its history and (in this case) its members there is no reason to hope it would produce any kind of satisfactory result.