Talk About Torture with Bruce Fein
(Please welcome Bruce Fein, author of Constitutional Peril, in the comments — jh)
Bruce Fein is a former official with the Reagan Justice Department, an ideological conservative who has been a rigorously honest and consistent critic of those who attempt to violate constitutionally guaranteed civil liberties, regardless of party affiliation. As Glenn Greenwald noted when Bruce was here with his book Constitutional Peril:
While most of his fellow conservatives were defending anything and everything George Bush did, and most establishment Democrats were running away from these issues as fast as their scared little legs could carry them, Fein became one of the most eloquent and uncompromising defenders of our country’s constitutional values in the face of a coordinated onslaught led by Dick Cheney’s office and the Bush DOJ. Fein, to my knowledge, was the first prominent political figure to declare — in a December 27, 2005 Washington Times column that has aged exceptionally well — that Bush’s FISA lawbreaking was not only a threat to our republican principles, but was an impeachable offense, and he further argued that Congress had not the option, but the Constitutional duty, to impeach the President if the lawbreaking did not cease immediately.
I contacted Bruce and asked him to come on and talk about the release of the torture memos. He wrote about the Obama administration’s position on torture recently for The Daily Beast:
In sweeping the Bush-Cheney lawlessness under the rug, Obama has set a precedent of whitewashing White House lawlessness in the name of national security that will lie around like a loaded weapon ready for resurrection by any commander in chief eager to appear “tough on terrorism” and to exploit popular fear. Obama urges that the crimes were justified because the duumvirate acted to protect the nation from international terrorism. But Congress did not create a national-security defense to torture or commit FISA felonies.
President Obama should have invoked his pardon power if he believed circumstances justified the crimes by Bush and Cheney and the CIA’s interrogators. A pardon or lesser clemency properly exposes the president to political accountability, as Bush discovered with Cheney’s Chief of Staff Scooter Libby and President Ford with former President Nixon. More significant, a pardon does not set a precedent making lawful what was unlawful. It acknowledges the criminality of the underlying activity, and acceptance of the pardon is an admission of guilt by the recipient. Pardons leave unsullied the doctrine of Ex parte Milligan (1866): “The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men at all times and in all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.”
Bush and Cheney also insisted that everything they did was constitutional and indispensable to thwarting another 9/11. Obama’s promise of change has proven nothing more than verbal jugglery.
If anyone was hoping (as I was) that Obama meant only to grant immunity to those who were following orders dictated and written by those above them, they were disabused of that notion by statements made yesterday by Rahm Emanuel. Obama’s lawyers will be defending John Yoo against a torture suit initiated by Jose Padilla, despite the fact that Eric Holder has said the Bush administration was “wrong” when it “authorized the use of torture.
We’re lucky to have Bruce with us here today to talk about the release of the torture memos, and what it means. And if you ask him real nice, he’ll probably also tell you what he thinks about the Jane Harmon situation.