Charting the Forest: A Continuation of the Times' Must-Do List

Scott Horton

In 1768, the German Enlightenment novelist Christoph Martin Wieland wrote in the first part of his Musarion that "there are certain writers who are blinded by too much light, it seems, who don't see the forest for the trees." Within a few years this expression, vividly characterizing the notorious human proclivity to observe only what is immediately before us rather than take the full measure of things, achieved status as a colloquialism in several European languages, including English. Wieland's coinage of this expression is well known, but the context is perhaps less so, and it's telling. He was writing about the perspective of journalists, more particularly about their tendency to address things too narrowly to be useful. Indeed, Musarion also marks one of the first appearances of the word "journalist" the way we use it today, and one of the first descriptions of journalism as a profession. The concept of an educated and socially responsible public whose views are informed by open discourse ("publicity," in the Kantian sense) lies at the core of Enlightenment thinking. It stretches towards democratic institutions, and the accountability of those who wield power in them. It is a concept that would have directly connected Wieland sitting in Weimar with Hume in Britain, Diderot in Paris and Washington, Jefferson and Madison in the emerging United States. It is one of the animating concepts that gave birth to the United States, and continues to be a vital force in it. But I wonder sometimes if the fire doesn't need a bit of occasional stoking.

Today, the Bush Administration stands on the brink of what many pundits have already termed a "second Katrina," a witching hour of scandals which are rocking the White House, the Department of Defense and the Department of Justice with particular force. For the most part these scandals have little to do with current dealings; they relate to heavy handed assertions of executive power going back almost to the beginning of the Administration. An attentive and clear-sighted press would have exposed these dealings much earlier were it not for a curiously uncritical perspective that settled in with the dust of 9/11. More significantly, with the remarkable exception of the eloquent and analytically adept editorial page of the New York Times, the press generally is failing to see the "forest for the trees" in this process.

Taking a clue from the recent Times editorial which offered a legal "must-do" list - systematically identifying the Bush Administration's assaults on foundational American legal values in connection with the prosecution of the "War on Terror," I would like here to extend their list by cataloguing the issues which have arisen in the administration of justice but were not included in the Times "must-do" list and suggest some policy issues they highlight. I am doing this as a post at Balkinization in order to enlist our readership in the development of the project. The idea here is not to offer any sort of comprehensive discussion, but merely an effort to catalogue - an exercise in charting the forest, as it were.

Here's the Times' list: (1) restore habeas corpus, (2) stop illegal spying, really, (3) close the CIA prisons, (4) account for "ghost prisoners," (5) ban extraordinary rendition, (6) tighten the definition of "illegal enemy combatant," (7) screen prisoners fairly and effectively, (8) ban tainted evidence, (9) ban secret evidence, (10) better define "classified" evidence, (11) respect the right to counsel.

Here's my continuation:

1. The Gonzales 8 - I'll take the label from a current Times editorial though the number will likely prove to be far more than eight in the end. The issue is politicization of the US Attorney's offices and prosecutorial process around the country, as well as politicization of key offices within the Department of Justice in Washington. The manifestations are "leaning on" US Attorneys to pursue corruption cases involving political adversaries, to suspend or stop corruption cases involving adherents of the administration, to interfere with the voting process through support of voter suppression projects, particularly targeting minorities. Other manifestations include the handling of torture and coercive-interrogation-related cases against contractors, particularly in the Eastern District of Virginia, perhaps the most politicized US Attorney's office in the country, and the home of Gonzales' deputy, Paul J. McNulty. Moreover, the allegations of the Gonzales 8 cast a dark shadow over the entire US Attorney's service. It raises an obvious question: how many other US Attorneys were "leaned on" in the same way, and relented to the pressure?

2. Judicial Nominations - This process has become increasingly politicized, and is now overtly so - as the nomination of Harriet Miers, a former state bar association president, showed. Miers was a solidly conservative candidate, who nevertheless failed an ideological litmus test demanded by the Bush Administration's Theocon base. But other factors now also appear paramount in this process, including allegiance to the notion of an executive which is not coequal but supreme, or at least vastly more powerful in certain fields (such as war-making, foreign relations and national security) than the other branches. Finally, as Marty Lederman has noted - very astutely in my view - the concept of immunity (or more precisely, impunity) for the executive and its agents plays an increasingly potent role in this process. It may now be an ideological issue as significant to the Administration as abortion and the unitary executive. There is also a direct tie between the judicial nominations process and the US attorneys, as a judicial appointment is frequently seen as a highly desirable "promotion" for a US Attorney. US Attorneys who fail to perform to the Bush Administration's political expectations (because, for instance, they observe clear ethical guidelines) are seen as disqualified for judicial nomination. This suggests that partisan fidelity overrides all other considerations.

3. Political Intimidation of Judges - The Administration's Theocon base regularly attacks judges in vicious terms, often using language suggesting physical violence. The Family Research Council's two "Justice Sundays" are the clearest evidence of this. Both drew Bush Administration acolytes to the podium. Attorney General Gonzales has repeatedly made speeches which reflect a toned-down version of the same thing: Gonzales warns judges to keep out of matters in which national security interests are high, and to avoid tampering with the president's discretion in war-making. Gonzales' speeches are barely veiled threats, and a number of cases - most significantly involving ending life support to a woman in Florida - show the sort of vicious attacks that can be unleashed on judges who fail to toe the line. In particular, the Bush Administration's agenda here is a complement to its judicial nominations strategy, buttressing a bench packed with ideological adherents by intimidating more moderate and less ideological judges into silence. In particular, this strategy is meant to reinforce the absolutist claims of the Bush Administration to governance in all national security and war matters (which, given their conceptualization of a Nietzschean "long war into the twilight" is an ever larger part of the total world of legal decision-making).

4. Persecution of Whistleblowers - the price of good governance is eternal vigilance before the public trust, which requires both legislators rising to ask the question that Cicero always put ("Cui bono?" - "And whom does it benefit?" - Pro Roscio Amerino sec. 84) and civil servants committed to uphold that trust and prepared to alert the organs of independent oversight about the corruption and illegal deeds of office holders. The Bush Administration has developed the persecution of whistleblowers into a new art form. Whistleblowers who avail themselves of the formal channels find themselves immediately under attack - they face immediate disciplinary review, firing, and harassment and persecution even after their termination. The case of Jesselyn Raddack at DOJ is an astonishing example, as is the case of Sibel Edmonds at the FBI, and the witnesses that Congressman Chris Shays brought together at his February 14, 2006 hearing.

5. Perversion of the Inspectors General - Another aspect of this issue is the corruption of inspector general’s offices throughout the Administration. From the outset, these offices - designed to be the watchdogs of ethics and legality - were selected as homes for the least-qualified political hacks. Four times in the last three years I have met with whistleblowers to discuss their interaction with inspectors general. In each case, the conduct of the ostensible federal ethics officer was horrendous. By and large Bush Administration inspectors general understand their role to be this: persecute and silence whistleblowers. Humiliate them. Do whatever you can to make their claims seem ridiculous or not credible. And above all, protect political appointees in the administration. In sum, the office of inspector general has served to obscure and divert attention from corruption and mismanagement, not to root it out.

6. Persecution of Defense Counsel - in my nearly thirty years of work as a human rights monitor, I have noted some features which are common to tyrannical, particularly to wannabe totalitarian regimes, whether they be of the left or the right. One is that defense counsel - and particularly defense counsel in politically sensitive cases who do their job professionally and articulately - always draw fire, and sometimes brutal repression. The tyrannical regime wants and needs defense counsel to give their show trials credibility. Their role is to insure a smooth functioning of the legal process. As an experienced defense attorney explained to me in Uzbekistan shortly after the collapse of the Soviet Union: "I always had a simple understanding of my role. It was to convince my client to plead guilty and throw himself on the mercy of the court. Only by this path could he ever really hope to achieve a milder sentence." In my career, I witnessed vicious repression of defense counsel in the Soviet Union, Uzbekistan, Zimbabwe and Cuba. I certainly never expected to see it in America. But under the Bush Administration, it has arrived. The particular victims are counsel who volunteer on a pro bono basis - doing a public service - to handle cases for prisoners in the "War on Terror," but detailed JAG lawyers have also taken their blows. These lawyers have been routinely denigrated and attacked by the Administration : Major Dan Mori was recently told by the Gitmo chief prosecutor that criminal charges might be brought against him for his criticisms of the Military Commissions process. These criticisms are not only completely accurate, Mori would be breaching his duty of zealous advocacy were he to fail to make them. Mori's colleague Lieutenant Commander Charlie Swift, the man who won the Supreme Court decision in Hamdan, and the only JAG officer to make a leading legal periodical's list of the 100 most influential lawyers in the United States, was passed over for promotion and is therefore being forced out (the same is rumored to be the case for all the best known JAG defense counsel, leading one to call the appointment a "guaranteed career stopper"). Defense counsel were accused of being responsible for the suicides of Guantanamo detainees. They are repeatedly accused of jeopardizing national security concerns when they discuss their clients' cases, and particularly when they note that their clients have been tortured or mistreated. (The DOJ and DOD position is that the torture techniques applied are highly classified national security secrets, which cannot be divulged. This is not a new posture. In fact, it was adopted by the Soviet NKVD in the 1920's.) Other defense counsel have described to me, often in graphic terms, acts of physical intimidation in the process of security clearances in Guantanamo and at other high-security installations. All of this reflects a highly ideological perspective of the Bush Administration in a doctrine called "lawfare." It holds that defense counsel are continuing the adversary's struggle against the United States into the courtroom. The "lawfare" concept is also nothing new. Anyone who is familiar with legal theory texts from the Soviet Union in the 1950's knows that the idea of impartial justice is a bourgeois delusion, and that true justice is a vehicle through which the state rules over its subjects, crushing all opposition. Granting "rights" to enemies of the state is therefore a nonsensical proposition.

7. State Secrets Doctrine - most states have a doctrine of state secrets of some sort. The modern notion of justice - dating to the trial of John Lilburne in 1649 - is inextricably linked today to the idea of public trials, increasingly covered by the media. Every state has national security matters - relating to war plans and the instruments of war, for instance, which it strives to keep secret for sound reasons. A logical conflict arises when legal proceedings arise in which state secrets are at issue. As President Kennedy noted, however, the mere word "secrecy" is inimical to the values of our democracy, and the invocation of the state secrets doctrine must therefore be constrained to the narrowest circle of cases. However, under the Bush Administration, this doctrine has proliferated out of all perspective and control. Increasingly it is plainly being used as a show-stopper whenever a legal proceeding would politically embarrass the Administration. Excellent examples of the extremely abusive invocation of the state secrets doctrine can be found in legal proceedings involving Maher Arar, Khaled el-Masri and Sibel Edmonds. In each case the "secrets" which would be divulged have been spread in lurid detail in newspapers all around the world. The disclosure of "secrets" is objectively not the issue. The issue is avoiding embarrassment to political figures. This constitutes an impermissible corruption of the entire judicial process, and one which draws striking parallel to events that occurred in the English Court of Star Chamber in the first half of the 17th century.

8. Erosion of Posse Comitatus Act Protections - one of the few salutary aspects of the Compromise of 1876-77 was agreement to preclude the military from exercising police functions within the territory of the United States with a handful of very limited exceptions, all implemented in the Posse Comitatus Act of 1878. This included protections of civilians not on or immediately around military installations from surveillance by the mushrooming intelligence apparatus of the DOD. The Bush Administration's disdain for the Posse Comitatus Act limitations is well known. It is increasingly clear that the Bush Administration has adopted a secret, internal understanding of the Posse Comitatus Act which is at odds with the statute and its traditional interpretation. There is some evidence linking John Yoo to this inventive, new reading. For four years reports have surfaced of DOD surveillance within the United States targeting religious and other non-governmental associations which oppose military operations, and particularly the Iraq War. Accordingly, to the extent exposed, the Posse Comitatus Act violations reflect a consistent pattern of targeting the Administration's domestic political adversaries. DOD denials of some of these reports lack credibility. No serious Congressional oversight of this matter has occurred.

9. FISA Violations - as has been extensively discussed on Balkinization, the Administration has adopted surveillance practices which are a violation of Federal criminal law. These practices continued even after exposed and publicly condemned. This is one of the strongest proofs that the Administration is veering towards the legal premise of Charles I: rex est lex.

The issues flagged above cannot be justified as a sort of justice reform package. Indeed, no Republican platform has identified or presumed to campaign on these matters as an issue. But the package is virulently political. I am most struck by the parallels to Carl Schmitt and his program for consolidation of political power over the legal sector spelled out in writings in the mid-thirties. Schmitt considered the idea of impartial justice to be a dangerous liberal fallacy, a concept that liberal judges could exploit to impose their own values and ideas for those of the executive. Schmitt's prescription was a reorganized legal sector in which the dominance of the executive was clear, and all legal professionals - lawyers, prosecutors and judges alike - were to be bound to him. In two writings, Schmitt furnished a battle plan - how could the liberal constitutionalism of Weimar be converted to a new, more authoritarian and centrally directed model. This entailed vetting the judiciary to uproot "independent" judges, insuring political alignment of prosecutors, and intimidating the defense bar as well as a series of reforms of criminal process which greatly enhanced the power of the state and undermined civil liberties.

Viewed at some distance, the parallels between the Bush Administration's tactics and those advocated by Schmitt are extremely disturbing. What Attorney General Gonzales has undertaken is no more than a mild echo of the Schmittian agenda. But its objective cannot be mistaken. It assumes a fundamental shift of the underpinnings of the American system, one which greatly enhances the power of the executive at the expense of civil liberties and the independent judiciary. No less striking is the partisan political dynamic. Clearly what is being attempted is the creation of a one-party state, where political fidelity is the essential credential for service as a prosecutor or judge. It is the logical aspiration of any political party to seek and retain power. But it was the genius of the American constitutional system to impose severe restraints on that aspiration. As George Washington wrote to his Attorney General, Edmund Randolph, in 1789:

Impressed with a conviction that the due administration of justice is the firmest pillar of good Government, I have considered the first arrangement of the Judicial department as essential to the happiness of our Country, and to the stability of its political system; hence the selection of the fittest characters to expound the law, and dispense justice, has been an invariable object of my anxious concern.

Washington made clear that he felt partisanship should not be a factor in the selection of officers of the Justice Department or judges, and that the executive should likewise avoid other displays of favoritism based on family or other association, keeping only to merit. Of course, Washington’s approach did not last long, and it would be unrealistic to imagine America in the twenty-first century returning to a standard in which involvement with political parties and their agendas is excluded. However, it is time to recognize that the pendulum has swung too far, and it is urgent that it be brought back to the center.

In the Bush presidency, we have witnessed a severe systems test of foundational principles, indeed, an effort to transform the system. At this point, the outcome remains uncertain. A few scattered newspapers and Congressional hearings will not be enough to check the sea change that Bush's legal team has launched. This will require a pinch of indignation. But first it will require seeing the forest and not just the trees.
Posted 9:25 PM by Scott Horton [link]