Follow the Constitution, not fear

Sonia Sotomayor, President Obama’s first nominee to the U.S. Supreme Court, is currently facing confirmation hearings.

Talking Points Memo has enlisted an appellate litigator to sift through the proceedings. If you enjoy law, as I do, Pincus’s live reporting is very interesting.

I am particularly delighted by an exchange between Sotomayor and Senator Feingold. Feingold asked a question about the Korematsu case,

in which the Supreme Court upheld the internment of Japanese-Americans during World War II. Judge Sotomayor says the decision was wrong, and Feingold asks how Justices can avoid such errors. “A judge should never rule from fear. A judge should rule from law and the Constitution.”

How does a judge resist fears? “By having the wisdom to understand always no matter what the situation that our Constitution has held us in good stead for over 200 years and that our survival depends on upholding it.”

In brief, judges should be guided by the Constitution, not fear. In light of everything that happened during the Bush years (when fear was used as a pretext for executive actions contrary to the Constitution), those are very reassuring words indeed.

Also relevant:  Sotomayor’s reply here:  “In answer to your specific question, Did [9/11] change my view of the Constitution? — No sir.”

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History repeats itself

This is the second tidbit in A Prayer For Owen Meany to catch my attention:

May 9, 1987—Gary Hart, a former U.S. senator from Colorado, quit his campaign for the presidency after some Washington reporters caught him shacked up for the weekend with a Miami model […].

Americans don’t want their presidents to have penises but they don’t mind if their presidents covertly arrange to support the Nicaraguan rebel forces after Congress has restricted such aid; they don’t want their presidents to deceive their wives but they don’t mind if their presidents deceive Congress—lie to the people and violate the people’s constitution!

A Prayer For Owen Meany was published in 1989. John Irving was writing about Gary Hart and President Reagan (the Iran-Contra affair) but his comments foreshadow the Clinton and Bush administrations.

Americans disapprove when a President violates his marriage vows, but they look the other way when a President violates the Constitution and the Geneva Conventions.

Talk about straining out a gnat and swallowing a camel! That’s what happens when your morality begins and ends with sexual taboos.

I wish [President Reagan] would spend a weekend with a Miami model; he could do a lot less harm that way. […] We ought to find a model for the president to spend every weekend with! If we could tire the old geezer out, he wouldn’t be capable of more damaging mischief.

The quotes are from pp. 268-69 and 274-75 in my edition of the novel.

Easier to get forgiveness

E.D. Kain ponders torture:

There are lines a free society simply cannot cross, even in order to protect its security, and if it does choose to cross them well then it ought to do so with the full force of the law at its back, in public. If it has to be done under the cold cloak of secrecy, then perhaps we shouldn’t be doing it at all.

Why didn’t Vice President Dick Cheney and the rest of the Bush Administration go the route that Kain prefers? Why didn’t they invite a public debate by openly proposing the legalization of torture? (Before they had actually begun to torture.)

The answer is found in the aphorism, “Sometimes it’s easier to get forgiveness than to get permission.”

Americans would never have approved the legalization of torture in the cold light of day. Not even in the immediate aftermath of 9/11. But once torture was a fait accompli — after the information had come out in a slow trickle over five or six years — that’s different.

It’s surprising what one’s conscience can adjust to.

Establishment media figures think we should just bury the whole sorry episode. Peggy Noonan, for example:  “Some things in life need to be mysterious. […] Sometimes you need to just keep walking.”

Likewise, leading politicians. John McCain is a staunch opponent of torture, but here he is echoing Noonan:  “We’ve got to move on.”

Sweep it under the rug. What’s done is done; what’s past is past. It’s water under the bridge. Even President Obama is fond of saying that America should look forward, not back.

And so Dick Cheney, John Yoo, Jay ByBee and other torture architects stand to be forgiven for a gross violation of America’s historic values:

As I said in China this spring, there is no place for abuse in what must be considered the family of man. There is no place for torture and arbitrary detention. […] I explained to President Jiang how the roots of American rule of law go back more than 700 years, to the signing of the Magna Carta. The foundation of American values, therefore, is not a passing priority or a temporary trend.

Newt Gingrich in 1997, back when Republicans still opposed torture

Cheney, Bybee, Yoo — and Bush himself — may yet get forgiveness. But they never could have gotten permission:  that’s why they acted “under the cold cloak of secrecy.”

John McCain calls torture, torture

It was reported this week that CIA interrogators waterboarded Khalid Sheikh Mohammed 183 times.

At least KSM was more than a mere suspect (unlike many of the other victims of American torture), since he confessed that he was the mastermind of 9/11. But after the first half dozen or so instances, the CIA interrogators were surely just getting their jollies at KSM’s expense.

Here’s John McCain, who suffered torture in Vietnam, reacting to this week’s news:

I applaud Senator McCain for being so plain-spoken where other commentators use weasel words. Waterboarding is torture. Waterboarding someone even once is too often. The torture of detainees has made America less secure, not more secure.

I disagree with Senator McCain when he criticizes President Obama for releasing the torture memos. Our government established a torture regime, and actually tortured individuals who in some cases were innocent — that’s not the sort of issue you just sweep under the rug. It smacks of “my country, right or wrong.”

I don’t even like President Obama’s habit of referring to the practice of torture as “a mistake”. I agree that it didn’t serve America’s best interests. But “mistake” implies that President Bush and Vice President Cheney didn’t mean to torture anyone — Whoops!

On the contrary, this was premeditated:  a careful policy, crafted several years after 9/11, when sufficient time had passed that no one should have been motivated by blind panic.

The Bush Administration must be held accountable. If that means prosecution in a court of law, so be it. But, at the very least, they should be held accountable in the court of public opinion, after their deeds have been exposed to the cold light of day.

Remember:  “the buck stops here“.

The torture memos

Today, President Obama released four memos to the public. The memos were written by the Office of Legal Counsel during the Bush Administration. The memos authorized interrogators to use so-called “enhanced interrogation techniques” when interrogating suspects in the war on terror.

But let’s call torture, torture. As Glenn Greenwald emphasizes, the Office of Legal Counsel was aware that the U.S. government had condemned the same practices when other countries employed them.

The US government denounced some of those practices explicitly as torture. Here’s a key quote from one of the memos:

Each year, in the State Department’s Country Reports on Human Rights Practices, the United States condemns coercive interrogation techniques and other practices employed by other countries. Certain of the techniques the United States has condemned appear to bear some resemblance to some of the CIA interrogation techniques.

Those are weasel words. It isn’t merely that “certain of the techniques” bear “some” resemblance to CIA interrogation techniques. We’re talking about a whole range of practices, which are the very same practices that the torture memos authorize.

For example, when Indonesia utilized food and sleep deprivation, the USA condemned it as “psychological torture”. And the discussion of Egypt refers to “stripping and blindfolding victims; suspending victims from a ceiling or doorframe with feet just touching the floor; beating victims … and dousing victims with cold water” as “methods of torture”.

The memo goes on to say that the condemnation of such practices is only a matter of diplomacy, and therefore of “limited relevance”. The memos thus proceed to provide CIA interrogators with legal cover when they practice those same, condemned, methods of torture.

President Obama continues to resist demands (widespread among left-leaning bloggers) that the US government prosecute Americans who authorized or participated in the torture regime. But I would like to highlight one part of the statement the President delivered today:

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.

Note the phrase, “in good faith”. In a very lawyerly way, President Obama has left the door open for the prosecution of individuals whose actions were not “in good faith”.

I’m intrigued by that, particularly as it extends to the lawyers — for example, then Assistant Attorney General Jay S. Bybee — who authorized the practice of torture. Were they themselves acting “in good faith”?

More likely, they knew full well that the official legal advice they were proferring was bogus. But they wrote the memos anyway, in order to carry out the wishes of their political masters.

When you knowingly profer bogus legal advice, it doesn’t count as “in good faith”.

I guarantee that Bybee, Gonzales and others are looking over their shoulders these days. This story isn’t going to blow over in a matter of weeks. It’s going to play out for years, if necessary, but one day these men are likely to be held accountable for their deeds.

Hopefully, accountability will reach all the way to the offices of Vice President Cheney and President Bush. “The buck stops here” — remember that maxim?

Beware politicians who warn of a crisis

We start 2009 in the midst of a crisis unlike any we have seen in our lifetime, a crisis that has only deepened over the last few weeks. […]

Now, I don’t believe it’s too late to change course, but it will be if we don’t take dramatic action as soon as possible. […]

There is no doubt that the cost of this plan will be considerable. It will certainly add to the budget deficit in the short term.

But equally certain are the consequences of doing too little or nothing at all, for that will lead to an even greater deficit of jobs, incomes, and confidence in our economy.

It is true that we cannot depend on government alone to create jobs or long-term growth. But at this particular moment, only government can provide the short-term boost necessary to lift us from a recession this deep and severe. Only government can break the cycle that is crippling our economy.

Barack Obama, in an economic statement Jan. 9, ten days before he takes office.

When politicians use the word “crisis”, it makes me nervous.

We’re just saying goodbye to eight years of crisis talk by the Bush administration. To be precise, seven years and four months:  from Sept. 11, 2001, through to the last days of the Bush presidency.

To paraphrase Obama:  a crisis justifies government in taking dramatic action. Right away!

At least he didn’t add, If you don’t support the government’s plan, you’re a commie faggot terrorist-sympathizing elitist anti-American enemy of freedom!

The p.s. is a paraphrase of President Bush, of course. Aggressive rhetoric was Bush’s standard tactic to suppress political opposition and democratic debate. And for a while, it worked. President Bush’s crisis talk produced a compliant population and a compliant political opposition.

Hence the title of this post:  Beware politicians who warn of a crisis.

We’re just saying goodbye to eight years of crisis talk by the Bush administration, and President-elect Obama is preparing to take office with some crisis talk of his own. It’s worrisome.

I’m an Obama supporter and I think there’s good reason to trust him. There seems to be a consensus among economists that a big stimulus package is the right medicine for this economic, uh … crisis.

The LA Times says that Keynesian economic theory has been discredited, but I don’t agree. What has been discredited is the tendency of certain governments to run massive deficits in times of prosperity. Take another bow, President Bush:

The federal government had a modest budget surplus when Bush took office in 2001, but ran a deficit — funding itself to a significant degree with borrowed money — of 4.9 percent of gross domestic product in 2004 and 4 percent in 2005, even as the economy was growing at a healthy pace.

Moreover, the fact that a bunch of hard-right Republican types are crying foul, and demanding big tax cuts for the wealthy instead, only strengthens my conviction that Obama has the right idea.

But when governments engage in crisis talk, the public needs to become exceptionally alert. The public should have been less credulous post 9/11. We should have grown suspicious when the administration kept changing its rationale for the invasion of Iraq. We should have paused to consider whether it was wise to divert attention to another theatre of war while Osama bin laden was still on the loose. We should have asked whether the prediction that American troops would be greeted as liberators, with flowers, was absurd and utopian. And when things went badly awry, the public should have demanded a change in leadership and a change in strategy — the sort of change that was finally introduced to Iraq only in 2006.

In a word, the public should have been more sceptical.

We shouldn’t forget this lesson now, just because Barack Obama is riding a wave of good will. He has impressed us greatly so far, and we all want him to succeed.

But that doesn’t mean we should avert our eyes, and let him run the show however he chooses. We should consider alternative points of view — unless the alternative prescription is to continue the very policies which have proven disastrous.

In fact, one of the reasons I trust Obama is because he engages with dissenting points of view instead of suppressing them. That may be the single most important metric to monitor. If Obama is engaging with his detractors, transparently and respectfully, we can take considerable comfort in that.

But if a time should come when Obama begins to belittle his political opponents and dismiss their suggestions reflexively — that would be a huge warning sign.

The general principle is, Beware politicians who warn of a crisis. Obama certainly deserves our trust as he takes office — but he deserves our scrutiny, too. That’s how democracy works.

Turning the page on torture

Remember: even the Pentagon concedes that a dozen prisoners have been tortured to death by US interrogators. Human rights groups put that number at close to a hundred. Most of the techniques we saw displayed at Abu Ghraib were authorized by the president and vice-president. And they monitored the waterboarding sessions very closely.

Andrew Sullivan

On Tuesday, Barack Obama will become the President of the United States of America. I strongly supported his candidacy, in part because he forthrightly opposed torture.

That’s a big change from the current administration.

Obama remains steadfast on this point, even though he’s no longer running for office. Here he is on Sunday, on ABC’s This Week. The discussion of torture is kicked off when Stephanopoulos quotes Dick Cheney at 1:33.

I’m not thrilled to see Obama waffle on the CIA’s “special” program. But he sounds all the right notes when he refers successively to the rule of law, the U.S. constitution, international standards, and America’s core values and ideals.

President Bush pays lip service to those concepts, too. He insists that all of the interrogation techniques his administration employed were lawful — even waterboarding. (Beginning at around forty seconds here.)

Obama is a constitutional lawyer; he knows what the law actually says. And I’m prepared to trust him when he says that his administration will act within the law.

America’s first black President? — that’s wonderful!

A President who will not torture? — that’s downright priceless!

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