Sandy:

The comparison of Mr. Bush's acts to the Musharraff dictatorship is more than a little over the top, don't you think?

I am curious what exactly you consider to be Mr. Bush's "rule by decree" ala Musharraff that falls outside an arguable Article II power.

If you are referring to what was IMHO Congress unconstitutional delegation of its power to the executive bureaucracy, then are you joining this radical in calling for a substantial abbreviation of the bureaucratic state to something which approximates the separation of powers set forth in the Constitution? If not, then you will have to endure this GOP President's last minute administrative legislation the way I endured the last Dem President's same last minute "decrees."
 

I believe that a reading of Jane Mayer's The Dark Side will substantiate the view that Mr. Bush and his minions (assuming that is the correct term for the fascist Vice President and his aide David Addington)have behaved with dictatorial preemption.

Unfortunately, I don't believe that the "bureaucratic state" can be substantially abbreviated. That does not mean that it would not benefit people of all political persuasions to be discussing more seriously whether that state can be brought under greater controls (without paralyzing it). I have no answers, alas.
 

Prof. Levinson said:

I believe that a reading of Jane Mayer's The Dark Side will substantiate the view that Mr. Bush and his minions (assuming that is the correct term for the fascist Vice President and his aide David Addington)have behaved with dictatorial preemption.

Now tell us what you really think. ;-)

"Bart" DePalma said:

The comparison of Mr. Bush's acts to the Musharraff dictatorship is more than a little over the top, don't you think?

IOW, no.

Perhaps you'd care to list the "excesses" that Musharraf committed that haven't been committed by the Dubya maladministration as well, so as to make this comparison inexact....

Cheers,
 

Yeah, Bart, don't you remember when Bush shut down the NY Times, fired Chief Justice Roberts and put Nancy Pelosi under house arrest?


Hours after declaring a state of emergency Saturday, Pakistani President Pervez Musharraf ordered troops to take a television station's equipment and put a popular opposition leader under house arrest.


Musharraf also suspended the constitution and dismissed the Pakistan Supreme Court's chief justice for the second time.

On Sunday, police arrested the Javed Hashmi, the acting president of ex-Prime Minister Nawaz Sharif's opposition party was arrested, along with 10 aides, The Associated Press reported. Hashimi was arrested when he stepped outside his house in the central city of Multan, AP reported
 

Sandy:

The NYT is referring to Musharraff's decrees applying to the Pakistani citizenry which abridged their civil rights. In contrast, Meyer offers the objections posited here many times against the surveillance, detention and interrogation of a foreign enemy (with the exception of Padilla). The comparison is not apt IMHO.

Unless constitutionally abbreviated by Congress through an enumerated power of Article I, all of these acts are well within the Article II powers of the President and are hardly "dictatorial decrees" against the citizenry ala Musharraff.

I know we disagree over the extent of Congress' Article I powers in these areas (FISA), the scope of the laws which I agree are within Article I (rules for captures) and the "fascist" nature of the policies themselves, but I do not see these acts as unlawful decrees that are automatically outside the normal authority of the President.

Moreover, a foreign enemy captured and held overseas has never enjoyed civil rights under our Constitution until the Boumediene 5 rewrote the document recently. Thus, I do not see the violation of "civil rights" at the time the acts were carried out (or now regardless of what the 5 have written).
 

So Cass Sunstein is a support of Obama and thus it necessarily follows that Obama will advocate every obscure and ridiculous theory Sunstein has pulled out of his ass at some point. Yeah, that's some solid reasoning.
 

The two cases are not even remotely similar.

There is no need to set aside the constitution by decree when you can simply ignore it and act as you please, nor to close down a paper if it colludes in covering up illegal activity and passing on propaganda.

In Pakistan, the lawyers protested en mass. Here, there were plenty who answered "how would you serve George Bush?" with sufficient alacrity to staff the DoJ with pliant and willing tools.
 

MLS:

Yeah, Bart, don't you remember when Bush shut down the NY Times, ...

... just threatened to prosecute it (and if you listened to the RW foamers, they should have hung 'em for treason).

... fired Chief Justice Roberts ...

Why? That's his boy. Instead, Dubya fired prosecutors that believed too much in the rule of law...

... and put Nancy Pelosi under house arrest?

He didn't put her under arrest. He just told Congress to "stick it" (numerous times).

Hours after declaring a state of emergency Saturday, Pakistani President Pervez Musharraf ordered troops to take a television station's equipment and put a popular opposition leader under house arrest.

Dubya's not adverse to putting people into "black holes", not just "house arrest".

Musharraf also suspended the constitution and dismissed the Pakistan Supreme Court's chief justice for the second time.

Dubya has a more nuanced approach. He ignores them. He's been told by his own court three times that he's full'o'it, and he just keeps going.

On Sunday, police arrested the Javed Hashmi, the acting president of ex-Prime Minister Nawaz Sharif's opposition party was arrested, along with 10 aides, The Associated Press reported. Hashimi was arrested when he stepped outside his house in the central city of Multan, AP reported.

Tell it to Siegelman.....

Cheers,
 

"Bart" DePalma:

Meyer offers the objections posited here many times against the surveillance, detention and interrogation of a foreign enemy (with the exception of Padilla).

... and Hamdi.

Cheers,
 

So Cass Sunstein is a support of Obama and thus it necessarily follows that Obama will advocate every obscure and ridiculous theory Sunstein has pulled out of his ass at some point.

Sunstein is much more than a supporter, he's a close advisor. And so was his wife (probably she still is, but behind the scenes). A number of Sunstein's positions lend support to the view that he favors a strong executive.
 

garth:

Exactly which provisions of the Constitution was Mr. Bush ignoring by prosecuting voter fraud, issuing utterly non-binding signing statements, appointing conservatives to the courts and the Executive, and conducting surveillance of enemy agents for which the 4th Amendment does not require warrants?

Inquiring minds would like to know...

The fact that you disagree with a policy does not make it unconstitutional nor even remotely comparable to Musharaff's dictatorship.

As soon as Mr. Bush starts dissolving and/or arresting the Supreme Court and Congress and places himself and the military in control of government, you be sure to let us know.
 

Moreover, a foreign enemy captured and held overseas has never enjoyed civil rights under our Constitution until the Boumediene 5 rewrote the document recently. Thus, I do not see the violation of "civil rights" at the time the acts were carried out (or now regardless of what the 5 have written).

So, despite (serial) Supreme Court opinions to the contrary, Dubya is OK with what he does, because "Bart" says that it's 'Constitutional'. Hell, in that case, we don't need a Supreme Court; we just need to appoint "Bart" to be Addington-Butt-Kisser-in-Chief. Then all will be well with the world, and no conflict of 'law'. Long Live The King!

Cheers,
 

Exactly which provisions of the Constitution was Mr. Bush ignoring by "prosecuting voter fraud",...

Arguably the Fourteenth Amendment.

Cheers,
 

I suspect Professor Levinson's post was a question posited to start a debate.

Neocon Bart reacted predictably: "The comparison of Mr. Bush's acts to the Musharraff dictatorship is more than a little over the top, don't you think?"

Indeed. The USA is a relatively mature deocracy with a common law tradition. Pakistan does not have that benefit. As I have pointed out before, the history of the British Empire is above all the history of British India and the history of Pakistan is above all the history of the failure of Empire to create a single nation out of all the peoples of the warring states and principalities which came to be part of British India. Although Ghandi and his Congress Party as well as the British government and Earl Mountbatten of Burma, the last Viceroy of India, wished British India to become a single nation at independence, they ran into the implacable opposition of Jinnah and the Muslim League. The result was partition and the creation of Pakistan in 1947.

In the event, thus far Pakistan has often not had even a semblance of democracy as that expression is understood in the West. It would be more accurate to say that it has largely tottered on from military dictatorship to military dictatorship.

Having become a state in 1947, on 7th October 1958 the then President, Iskander Mirza abrogated the Constitution and declared Martial Law, abrogating the 1956 Constitution. General Muhammad Ayub Khan, the then Commander-in-Chief of the armed forces, became the Chief Martial Law Administrator and within weeks he ousted President Mirza, declared himself President and promptly awarded himself the rank of Field Marshal. Martial law remained in force until a new constitution was promulgated in 1962. The Field Marshal shamelessly manipulated the 1965 elections to assure himself re-election as President. When there was widespread disorder in 1969, General Agha Muhammad Yahya Khan ousted Ayub Khan, declared martial law and named himself as Chief Martial Law Administrator but, in contrast with his predecessor, promulgated an interim constitution and enabled Pakistan to have its first democratic elections in 1970, which however resulted in the secession of East Pakistan to form Bangladesh and a war with India. Zulfikar Ali Butto who had won the elections in West Pakistan became President and Chief Martial Law Administrator on 20th December 1971. After the National Assembly passed the 1973 Constitution, Butto became Prime Minister but on 5th July 1977 was ousted by General Muhammad Zia-ul-Haq in the by now familiar coup process. Two years later, former Premier Butto was hanged.

I have already gone into some detail on this blog about the interaction between the late Ronald Reagan and the late Zia-ul-Haq (both in my book equally unlamented), most recently here from which I trust it will be understood that for all his many faults Pervez Musharraff was faced with an impossible task in a country which for all practical purposes is a "failed state with nukes". The Bush Administration's interactions with Pakistan have only made matters worse.

Unfortunately, with his many apologists like this blog's very own "loathsome spotted reptile", many with far greater communications skills, it is perhaps unlikely that in my lifetime there will be any "Judgment at Nuremberg" for the war criminals of the Bush Administration and matters will have to be left to the judgment of history.

The burning question for those of us in Europe who have spent the last 8 years praying for régime change in Washington, is whether Obama will make it and whether there will be time in the first four years to make a start on putting matters right.
 

I don't understand exactly what is meant by "politically motivated" prosecutions. Obviously a prosecution is wrong, regardless of what motivates it, if (a) the evidence of guilt is manufactured, (b) exculpatory evidence is suppressed or (c) the prosecutor knows that the evidence is insufficient to sustain a conviction.

On the other hand, if none of these factors are present, how much does it matter what subjective factors might have motivated the prosecutor (or someone involved in the prosecution). In a perfect world, a prosecutor would not let things like personal feelings toward a defendant, career advancement, publicity, political correctness, public pressure or political prejudices influence his or her exercise of discretion. We live a long way from that perfect world though.

For example, our friend Mourad here wants to prosecute the Bush Administration for war crimes. Would that be a politically motivated prosecution? Whose psyche do we analyze to make that determination?
 

I don't understand exactly what is meant by "politically motivated" prosecutions.

Prosecutions motivated by partisan politics in this context. If you want to play with the word "politics" to make it meaningless, be my guest. Thus, impeachment of a murderer (let's say Burr) is simply "political" no more no less than impeachment of let's say Andrew Johnson.

if none of these factors are present, how much does it matter what subjective factors might have motivated the prosecutor

The "factors" listed didn't include what can be labeled "pretextual" prosecutions. This is, though given the reasoning I'm not totally sure what's wrong with it, what happens in the "Driving While Black" situation.

Consider stopping only black people for speeding and searching their cars via plain view doctrine, police pressure to conform, and so forth. Such people might be going five miles over the limit. The "guilt" is not fabricated. No "exculpatory evidence" supressed.

What's the problem? Why is everyone so upset? It's so confusing. Why are many lifetime conservatives upset at the political abuses of the Bush prosectutorial department?

But, no one's perfect. This means, apparently, there aren't shades of bad, some much more than others. All color is darker than white, so light pink akin to dark blue. A slap and a knife stab are both battery, so what's the deal?
 

DWB also includes various false positives, but hey, they are "reasonable" stops, right?

Stretch prosecutorial discretion in this day and age, little isn't "reasonable" if you want to be fooled (or to fool).

Equal justice under law? The failure of the perfect means one can't hope for some sembalance of the good, I guess.
 

Right MLS. But you failed to mention that Mush took the television equipment of the TV station because the CEO positioned a camera on private property (his own), positioned to photograph goons beating up lawyers with a direct link to the internet for the world to see, and refused to shut it off as he was being beaten senseless.

How many members of our esteemed "speak obsequiousness and flattery to power" fourth estate do you know who have the spine to provoke such an arrest?

Bart feels it's over the top to compare Mr. Bush's acts to Musharraf's totally neglecting that Musharraf suspended the constitution and sacked the judiciary primarily because the judiciary, in the person of Iftikar Chaudhry, and demanded that the prisoners rendered to the Mr. Bush's 35,000 person illegal detention system be brought into court and charged or released.

Musharraf has now been dumped in no small part for human trafficking of Pakistani citizens into Bush's military/CIA detention system for cash. The Pakistani SJC was due to rule on whether rendering to Americans constituted illegal refoulement due to the fact that such prisoners were subjected to treatment described by the ICRC as torture. Unlike the habeas pleas that were the subject of Boumediene, those in the Islamabad High Court are literally "produce the body", because they include a petition that the illegally detained prisoners be produced in the flesh. Those would be the prisoners the U.S. is keeping in Afghanistan and Guantanamo, and possibly elsewhere. The vast majority of the prisoners and prisons have been set up with zero consultation with other branches of the government, constituting rule by decree on the part of Bush.

The U.S. is underneath a great deal of the Musharraf abuse of rule of law, and had a great part in the constitutional suspension. That's before one gets into the violations of Pakistani sovereignty by the U.S. and some very strange "extraditions" lately.

The comparison is a bad one? Only because the underlying cause goes unpunished while the effect has to resign in disgrace.
 

Joe- as I indicated before, I have no doubt that a variety of subjective factors play a role in many, if not all, prosecutorial and law enforcement decisions. And if one can identify a systematic bias over a large group of cases (like DWB), one may argue for some sort of corrective to “eliminate” this bias (or, perhaps more accurately, make the bias more random). But this is very different than judging the validity of an individual prosecution based on motivation of the prosecutor. In addition to the fact that the prosecutor’s motivation has no bearing on the defendant’s guilt or innocence, demonstrating the prosecutor’s “true” motivation is itself an extremely subjective exercise.

Take for example the recent indictment of Ted Stevens. There are a lot of indicia one could use to make the case that this is a “political” prosecution. He was indicted right before an election. He was charged with acts that are very rarely treated as a criminal matter. He was charged with technical violations (failing to make financial disclosures) after the government was unable, following a lengthy investigation, to prove more substantive crimes (bribery or illegal gifts).

I suspect that if Stevens were a Democrat, a lot of people would be leaping to the conclusion that this is a politically motivated prosecution. And I am sure that one could come up with evidence that someone in the prosecutorial chain of command had a grudge against Stevens, or knew someone who had a grudge against Stevens, or that some political person had once expressed the desire that Stevens be investigated or prosecuted. And there you have it, a politically motivated prosecution. Case closed.

This is why I think that if we are going to talk about “politically motivated prosecutions” we need some more objective definition than “you know it when you see it.”
 

MLS is absolutely correct that the Stevens charges are politically motivated. They were allowed and encouraged to go forward in order to remove Stevens in a manner conducive to replacing him with another Republican, once it became obvious that his corruption had reached the point where he was no longer electable.

That this looks like it will no longer work, thanks to the tarnishing of the GOP brand, even in Alaska, is not a bar to recognizing that the charges were politically motivated.

Politically motivated legal proceedings are obvious: they are intended to influence the outcome of an election. Thus the attempt to disenfranchise voters who might vote Democratic in states where it might matter, for example.
 

C2h50h may be right about the motivation behind the Stevens prosecution. Or he may be completely wrong. Either way, it has no bearing on Stevens’s guilt or innocence.

“Politically motivated legal proceedings are obvious: they are intended to influence the outcome of an election.”

It is “obvious” to C2h50h that the Stevens prosecution is intended to influence the outcome of an election. I am not sure that it is so “obvious” to anyone else.

It seems a lot more obvious that much civil rights/voting rights/redistricting litigation is intended to influence the outcome of an election. Are these the types of “politically motivated legal proceedings” we need to get rid of?
 

The Stevens case was a particularly poor example for MLS to choose. In the ordinary course, no one would claim a political motivation because the Justice Dept. is controlled by the same party.

The problem with politically motivated prosecutions is the same as the flaw in racially motivated ones: that justice is not blind, but is applied selectively on the basis of irrelevant facts (skin color or party affiliation). I can think of no better way to corrupt a system of justice and to destroy confidence in the system. But that, of course, is the goal of the Bush Administration.
 

Mark- maybe my prior post was unclear. I understand that no one would ordinarily suggest that Stevens was being prosecuted for political reasons (although C2h50h thinks he is). My point is that if Stevens were a Democrat, that charge would be being made. And that the facts surrounding the prosecution would make that charge seem plausible. Especially since no one actually knows exactly what the charge means.
 

MLS:

I don't understand exactly what is meant by "politically motivated" prosecutions. Obviously a prosecution is wrong, regardless of what motivates it, if (a) the evidence of guilt is manufactured, (b) exculpatory evidence is suppressed or (c) the prosecutor knows that the evidence is insufficient to sustain a conviction.

Let's say that these wer present in all cases. If a prosecutor prsecuted only those cases where the suspect was a Republican and ignored all the ones where the suspect was a Democrat, would that be politically motivated?

But just a FYI, Siegelman's conviction was thrown out on appeal, so this politically engineered prosecution doesn't even fit the bill for those that could be prosecuted.

Cheers,
 

My point is that if Stevens were a Democrat, that charge would be being made.

Well, it probably would be made by Stevens -- the defendant always says so. I'm less concerned about individual cases of politically-motivated prosecutions and more concerned about whether there's a general pattern of such activity. There has indeed been such a pattern with the Bush Administration: Siegelman; the firings of the US attorneys; violation of civil service laws in hiring practices; phony attributions of "voter fraud"; and probably others as well that I don't recall off the top of my head. That behavior pattern is just as destructive as Joe's example of DWB.
 

Actually, Mark and MLS, I'm not alone in asserting that the Stevens case was politically motivated and just for the reasons I gave.

If it was tongue-in-cheek (and on a serious blog like this, what kind of crass individual would do that?) that detracts not all from the point, which is that the law is a tool, and a tool is simply a weapon being used for other purposes at present (to mangle von Clausewitz) while the user maneuvers to get behind their intended victim, probably.

That the Bush administration has used the law as a bludgeon and also in their multi-year fan dance to hide their actions is no longer arguable by any reasonable standard. That other individuals, in other parties, have also engaged in politically motivated legal proceedings goes nowhere in justifying this.
 

“If a prosecutor prsecuted only those cases where the suspect was a Republican and ignored all the ones where the suspect was a Democrat, would that be politically motivated?”

Again, I am not disputing that prosecutors can be motivated by “political” considerations (of all different types). I am just suggesting that trying to judge the merits of a particular prosecution by the motivations of the prosecutor is not particularly helpful. So, in the example you give, if we stipulate that the prosecutor is “politically motivated,” that doesn’t say whether any of the prosecuted Republicans or non-prosecuted Democrats are guilty or not. As Mark points out, defendants often claim “political motivation” since this is a useful distraction from the issue of whether they did what they accused of.

BTW, I don’t think Siegelman’s conviction has been reversed on appeal. He has been released pending appeal.
 

I'm not saying you're wrong, and certainly not suggesting that your point was unworthy. I'm just saying that a single instance doesn't raise quite the same structural concerns as systematic abuse does.
 

Oops. My last comment was to C2h50h.
 

MLS:

BTW, I don’t think Siegelman’s conviction has been reversed on appeal. He has been released pending appeal.

My bad. You're right. The appellate court ordered him released, in an opinion that hinted strongly towards finding merit in his appeal. But he hasn't won his appeal yet.

Cheers,
 

"nor should we forget the USA purge, politically motivated prosecutions, signing statments, illegally stacking the deck of the executive and judicial branchs with partisans and lobbyists, illegal domestic surveillance..."

That would be the Clinton administration you're describing.
 

Tim Lyman:

That would be the Clinton administration you're describing.

Typo. That's spelled "Dubya". And "maladministration".

Cheers,
 

MLS:

[Arne]: “If a prosecutor prsecuted only those cases where the suspect was a Republican and ignored all the ones where the suspect was a Democrat, would that be politically motivated?”

Again, I am not disputing that prosecutors can be motivated by “political” considerations (of all different types). I am just suggesting that trying to judge the merits of a particular prosecution by the motivations of the prosecutor is not particularly helpful. So, in the example you give, if we stipulate that the prosecutor is “politically motivated,” that doesn’t say whether any of the prosecuted Republicans or non-prosecuted Democrats are guilty or not.

Please don't ignore what I write. I prefaced that with:

[MLS}: I don't understand exactly what is meant by "politically motivated" prosecutions. Obviously a prosecution is wrong, regardless of what motivates it, if (a) the evidence of guilt is manufactured, (b) exculpatory evidence is suppressed or (c) the prosecutor knows that the evidence is insufficient to sustain a conviction.

[Arne]: Let's say that these wer present in all cases.

[typos in original]

Thanks in advance.


Trying to pretend that motivation is difficult to prove, thus not worth investigating, is just silly. That approach just leads to abuse. While it may be difficult to show motivation, it's no worse than other prosecutions where motive is an element, and we don't throw those out as irredeemably difficult....

Cheers,
 

Some commentators have defended President Bush, and argued that it is incorrect compare him to Musharraf (even with the qualifying remarks of Prof. Levinson). Evidently, everyone just assumes that what Musharraf has done, was unconstitutional and generally dastardly.

The people supporting President Bush should take sometime to think about what their equivalents are saying about Musharraf. There are, of course, people who defend Musharraf and come up with all sort of excuses, or explanations, about why his behavior was necessary and good for the country. Musharraf was "also" fighting terrorist extremists, and compared with President Bush, had much more to worry about in terms of domestic security.

In any case, I'm providing some quotes from pro-Musharraf website, so that pro-Bush folks on this thread can see they are saying the same type of stuff as pro-Musharraf folks, and using the same distraction tactics, and qualifications used to defend Musharraf.

1. "He has the vision and ability to do more for this country than these self-centered politicians ever will, but it is his reputation that is tarnished while they enjoy their moments of glory."

(I like this next one, evidently the U.S. is to blame, that's a good distraction tactic. Pro-bush supporters should remember this one - change the topic.)

2. "Nonetheless, despite those mistakes, he has been that rare phenomenon in Pakistani politics — an honest man with good intentions who tried to serve his country to the best of his abilities. In a country that has suffered so much over the years from corrupt and self-serving politicians, there have been too few figures like him. If he had not been manipulated by the White House, he would still be a popular president. Certainly, the accusation of gross misconduct leveled at him by his opponents is political hypocrisy."

Anyways, the exercise I'm recommending here is to compare your defenses of Bush to the same kind of garbage that is spewed by people who are dedicated to Musharraf. You folks who are dedicated to serving authoritarian leaders have lots in common.

Oh sorry!! Musharraf isn't authoritarian: "Musharraf’s biggest mistake is that he tried to be a democratic leader while he could have easily been an authoritative one." From a blog post entitled, "Pervez Musharraf: Pakistan’s Only Real Democrat in 40 Years"
 

So, in the example you give, if we stipulate that the prosecutor is “politically motivated,” that doesn’t say whether any of the prosecuted Republicans or non-prosecuted Democrats are guilty or not.

This seems to me like you're dodging the issue a bit. Let's assume the defendant is guilty. That doesn't solve the evil of politically motivated prosecutions any more than does the case of the speeding black driver. In order for a justice system to operate, it must be perceived by the public at large as operating fairly and equally. When that perception is destroyed, then people will tend to rely on self-help rather than trust the system. That's a formula for disaster.
 

Well, there is one difference between Musharraf and Bush. In the former case, the president selected the supreme court of his liking; in the latter, the reverse happened.
 

Ooops! Looks like Phillippe Sands completely misrepresented an interview with Doug Feith in his writings and testimony before Congress.

What a surprise.

I wonder in what other ways Sands' "scholarship" misrepresents the facts?
 

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