Obama’s Speech, Take Two – Giving Up on the Law?

Several blogs earlier today, including this from Phoenix Woman and this from Glenn Greenwald, explored the meaning of Obama’s speech about Gitmo and torture prosecutions.

In his speech, Obama does a Kissinger, placating both sides, while reserving to himself knowledge of his predetermined course. He placates the Right by directly saying that he disfavors and won’t support investigations. He placates the Left by leaving open the rhetorical possibility that he might pursue them if his AG recommends them.

That’s kabuki. The Right is implacable. Moreover, the stakes for it could not be higher. Its current leaders would be permanently embarrassed, past leaders could go to jail, and its electoral prospects would plummet further. Senior Democratic leadersheep have no stomach for them. A whispered GOP "boo" on any subject makes their hearts flutter.

Eric Holder, as AG, constitutionally has the first and last say. I submit that in Washington politics trumps formal legal authority. Holder wasn’t just deferring to the president because it was his venue and his speech. He was there to acknowledge that he’s a team player and it’s Obama’s political call. Were Holder a man who would contest that, he would not have been nominated, nor would he have sat so contentedly alongside his president during that speech. Like Gonzales, but with an elite brain and considerably greater street smarts, Holder will go along with his president’s decision.

His fig leaf may be a claim that not investigating is within his prosecutorial discretion. Applicable law says that’s false, that investigations are mandatory, though arguably not prosecutions. But no one domestically can force the issue and neither the Republican nor Democratic leadership wants to.

Unless the Dems, especially those in the senate, grow spines, Obama will not sanction investigations or prosecutions, nor even a non-criminal Truth Commission. He is more likely to use his political muscle with an easily leveraged Democratic Congress to sidestep calls for them. That would make the Right ecstatic and feed Obama’s "centrist" ego like a biblical quote from the SecDef on a war plan must have pleased Bush.

Which leaves investigations and prosecutions to foreigners, like the Spanish. Hence, the apparent full court press by Obama to persuade Spain’s legislature to change the authority it grants its prosecutors, to limit their exercise of universal jurisdiction to investigate and prosecute war crimes.

That bullying matches Bush’s, displayed in assembling his coalition of the billing to fight his war in Iraq. Imagine how David Broder and the Beltway villagers would wail if a European or Asian government blackmailed a Democratic Congress into limiting the jurisdiction of federal courts to keep an issue important to Spain out of court.

Columbia historian Robert O. Paxton, an expert on Vichy France, defined fascism this way:

A form of political behavior marked by obsessive preoccupation with community decline, humiliation or victimhood and by compensatory cults of unity, energy and purity, in which a mass-based party of committed nationalist militants, working in uneasy but effective collaboration with traditional elites, abandons democratic liberties and pursues with redemptive violence and without ethical or legal restraints goals of internal cleansing and external expansion.

That describes many of the actions of today’s GOP, headed by Rush Limbaugh, abetted by foot soldiers like Glenn Beck and Michael Steele. But it mirrors the actions of the bipartisan Beltway consensus. As Samantha Power wrote, in reviewing Paxton’s thesis (and from which the above quote was taken; emphasis mine),

Paxton debunks the consoling fiction that Mussolini and Hitler seized power. Rather, conservative elites desperate to subdue leftist populist movements "normalized" the fascists by inviting them to share power. It was the mob that flocked to fascism, but the elites who elevated it [to power, and kept it there].

The elites chose that ride on the tiger, but they weren’t the only ones who ended up inside.

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