Why is Obama Debating Cheney About the Rule of Law?

The Beltway media appear unable to understand why so many of us feel betrayed by this President. But that is because they do not seem to understand, and perhaps do not care, that he’s putting the rule of law up for grabs, both by his actions and by engaging in a debate with people who do not believe they, or he, should be subject to the law.

Except for folks like Rachel Maddow, our media are preoccupied by the "dueling speeches," the so-called "debate" between Dick Cheney and the President of the United States about the efficacy of torture/enhanced interrogation techniques and whether it was reasonable to authorize and conduct these activities after 9/11. But despite the impressive rhetoric in parts of Obama’s speech today, the President of the United States has no business engaging in that "debate."

The sworn duty of the President of the United States is to uphold the Constitution; to faithfully execute the office of the President and "to preserve, protect, and defend the Constitution of the United States." In short, the Constitution is not up for grabs.

But instead of doing his job and protecting the Constitution, the President is engaging in a debate about whether the Constitution and the laws of the United States should be followed, whether adhering to the Constitution and criminal statutes during a perceived threat is a good idea or reasonable expectation, and most astonishingly, whether we should overlook serious lawbreaking and morally abhorrent conduct by our government’s highest officials.

Why is the President of the United States engaging in this debate? It may be reasonable for Obama to remind American citizens that it is his duty to uphold the Constitution, to reaffirm that upholding the law even against high government officials is essential to preserve respect for and adherence to the rule of law. But by legitimizing a debate about whether this position is reasonable, Obama has carelessly allowed Dick Cheney to disguise the commission of the most serious crimes, crimes that were not only morally reprehensible but that did incalculable harm to our security, as "policy differences."

Thursday, Obama described the legal legacy of the past administration as "a mess." That sounds like what kids do in the kitchen. It would have been more accurate, and better for him and the country, to describe the Bush/Cheney legacy as a lawless, unconstitutional morass, a situation so unlawful and corrupt that it has hopelessly compromised our ability achieve justice in dozens of potential court cases. He suggested this, but on this point, subtlety is not helpful.

Barack Obama has no right to put our Constitution and the rule of law up for debate. Instead, what Obama needs to say to Americans, and all the response he needs to make to all of the Cheneyites of the last Administration, is this:

"Numerous disclosures indicate that the criminal laws of this nation may have been violated at the highest levels of our government. I will support a criminal investigation by an independent counsel to determine whether the nation’s laws and treaties of the United States were violated and by whom. If the counsel determines that indeed crimes were committed, I will expect that counsel to do his/her duty and prosecute those responsible, and I will expect our federal courts and juries to do their duty under the law. We will uphold the laws of this country, and it will be the policy of this Administration to ensure that no one is above the law."

So stop debating Cheney. These principles are beyond debate; they’re not up for grabs just because Dick Cheney fears being held criminally liable for his actions. If Cheney and/or others are indicted and tried, they can attempt whatever arguments in their defense the courts will allow. But I suspect most of the debating points Cheney is using now won’t be relevant in that situation.

Related posts:
dday, Rhetoric and Reality, at Digby’s place.
Jane Mayer, The Hard Cases
Eric L. Lewis, Cheney, the CIA and Torture: Asking the Wrong Questions.
TPM/Brian Beutler, Human Rights Groups: Obama’s Policies Mimic the Bush Admin.
Glenn Greenwald, Obama’s Civil Liberties Speech
Dan Froomkin, The Highs and Lows of Obama’s Big Speech
David Waldman, Obama Meets the Civil Liberties Advocates

Update, Friday a.m.: After rereading Obama’s speech and various reactions, and thinking about this more, I think it important to acknowledge the extraordinary eloquence of the arguments Obama put forward in defense of our Constitutional framework and the rule of law.

Put aside, for the moment, Froomkin’s (or Greenwald’s) observation that there were also elements in the speech that appeared to deviate from Obama’s own principles. It was still a stirling defense of why we need to uphold the nation’s legal foundations. And though it is deeply regrettable that, because of men like Dick Cheney, such a defense has become necessary, it was still enormously valuable for the President of the United States to make that defense, to make it strongly and convincingly and to make it in the face of Dick Cheney’s continued assault on America’s legal and ethical foundations.

We’ve gone through eight years in which those foundations have been under devastating assault from an Administration that simply did not recognize the Constitutional framework as limiting, for both moral and security reasons, the discretion and actions of the executive. That was eight years in which the administration of justice was strangled at Bush’s DoJ to serve the Administrations political agenda; eight years in which most of Congress failed to perform their responsibilities to check a lawless regime or hold anyone accountable; and eight years in which most of the media pretended either that this was not happening or seemed not to care.

That sustained, lawless nightmare has taken a huge toll on this nation’s ability to hold its highest officials accountable for even the most egregious wrong doing. We see the consequences everywhere, from detention/interrogation policies, to lying to Congress, to failing to hold the financial sector accountable for massive fraud and looting. The Cheneyesque view that created and imposed this nightmare needed to rebutted, and Obama did that.

But that’s not enough; now it needs to be rooted out.

Upholding the Constitution, preserving, protecting and defending it, require not merely abiding by its terms as President going forward, but also holding others accountable when they failed to do so. And that is an essential task to restoring the rule of law, the part of his job our President seems unwilling to perform.

David Waldman, who’s comment on the President’s meeting with civil liberties groups I added this morning, captures this point well:

I’m still concerned, for instance, that the Republican theory of executive power with respect to detainee policy — something the President referred to as "anything goes" in his speech today — is in fact the Republican theory of executive governance in general. That poses an extraordinarily broad array of difficulties, not the least of which is that it’s an open an[d] ongoing threat to the greater Obama agenda, which is itself often invoked as a reason for not dabbling in the "distraction" of "looking backward." But unless we can demarcate Cheneyism — the "anything goes" philosophy as explicitly illegal, unconstitutional and illegitimate, its continued existence (and threatened practice by future administrations) calls into question the value and durability of the whatever parts of the Obama agenda are ultimately implemented, on detainee policy or anything else.

(emphasis mine)

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