Balkinization  

Monday, January 12, 2009

Truth Commissions and Prosecutions

Stephen Griffin

With respect to the calls for truth commissions and prosecutions of former Bush administration officials, I have what I would describe as concerns rather than outright objections. I don’t have either in terms of the calls for more transparency, for disclosure of all secret legal opinions for example. My concerns are directed toward what will happen if we try to put former officials through the wringer by calling them to account, whether immunized in front of a truth commission or in a criminal prosecution. My most general concern is that such a process assumes a political and normative consensus about torture, rendition, etc. which is certainly worth creating but really does not exist at present.

I assume we are talking about torture and other illegal acts that occurred in the aftermath of 9/11. If so, is a truth commission going to examine Democratic officials, including members of Congress, who specifically endorsed torture and harsh tactics after the attacks? Or, for that matter, Democrats who supported the Military Commissions Act? The sad fact is that there was a sort of minor moral collapse among the American political elite after the attacks. Jane Mayer’s book recounts how Senator Clinton (our new Secretary of State) called John Walker Lindh a “traitor” without any evidence, for example. Cheney was not alone in calling for a turn to the “dark side.” A truth commission aimed solely at the acts of Republicans would be rightly seen as hypocritical.

My other concerns relate to parallels I see between proposed commissions and the congressional investigations of the intelligence agencies in the mid-1970s and the Iran-contra scandal. The intelligence investigations were partly derailed by a counteroffensive launched from within the agencies. Today’s NYT makes clear that intelligence officials are already in derail mode, no doubt supported by some members of Congress. But the deeper point is that in the 70s the derailing worked because investigating Democrats couldn’t offer any alternative approach to how the agencies should conduct their quasi-legal business. You may have noticed our new president is already impressed with his intelligence briefings. That doesn’t bode well for truth commissions that will be accused of interfering with intelligence operations (not that anyone will be able to verify this).

The Iran-contra concern is the possibility of lots of Oliver North moments. You may remember North as the Marine Lt. Col. who ran the Iran-contra operation out of the NSC. In front of Congress North wasn’t too persuasive on the law, but he wore his uniform, invoked patriotic values and claimed presidential backing for acts that made the U.S. safer in a dangerous world. That’s also Cheney’s ideology and it has more political support than many Democrats would care to admit. But if you think as I do that North was wrong and his version of patriotism a travesty, that case should be made directly in a policy debate rather than in the quasi-judicial precincts of a truth commission.

Comments:

"A truth commission aimed solely at the acts of Republicans would be rightly seen as hypocritical."

First off, "endorsing" something or calling someone names is not the same thing as a criminal act. The MCA was wrong, but voting for it is not akin to torturing someone or breaking the law before it was passed. After all, it was passed on the assumption that w/o it, certain acts would be illegal and/or actionable.

Second, what is this "acts of Republicans" business? I'm for putting everything on the table. A "truth commission" would do that, just as the 9/11 Commission dealt with acts of various groups, from both parties.

But, even the Congress bit is b.s. If we ignore Congress, we ignore Republican members too. Will we ask, before we prosecute, if "x" torturer is a certain party?

Third, as to the failure of alternatives. Unsure if this is true. Was FISA not an alternative? Other examples to dealing with "quasi-legal business" probably can be listed. You know, other than "not REALLY crossing the line," and so forth.

[The danger of ignoring that there are real alternatives is not denied, but the solution is to make it clear the alternatives are out there. Having commissions outside of the policy arena as such should help more than harm this process.]

Finally, why can't we both have a truth commission and a "policy debate" ... partisan debates can cloud the issue, in fact. In fact, using only the former is very dangerous. It furthers the meme that this wasn't really about basic rule of law and so forth.

It was understandable differences in policy. Opposition to torture etc. is akin to free trade debates. We really want that?
 

Our government represents the people and must be accountable to them. If executive or legislative branch officials of either party engaged in actions that we the people do not endorse, then as responsible citizens of this country we have a right to know and a duty to vote them or their superiors out of office. We must do this or our republican form of government is a sham.
 

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What is so wrong about having accountability and transparency in a democratic republic? When the "President [or the Congress] does it, it's not illegal" fails good governance - and the smell test.
 

The moral collapse in the wake of nine-one-one was anything but minor. There were irresponsible citizens calling for nuclear strikes (notwithstanding the notion that they couldn't credibly set a target) and our Representatives voted one week later to give the President a blank check which yet serves as the legislative embodiment of the so-called "war" on terror, the September 18, 2001 Authorization for Use of Military Force, which authorizes the Presdident to attack

"...those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks..."(emphasis added)

This language is unarguably unconstitutional on its face, void for vagueness. It doesn't even have the word "reaonably" in it, as in "...reasonably determine..." But our Congress, with the brave exception of Barbara Lee, voted it in, and we are still paying the price. On the foundation of AUMF we've been duped into rolling back reforms put in place after the exposure of CoIntelPro back in the 70s, we've suspended habeas corpus via the MCA, and we've kidnapped and tortured (couched in euphemisms like "rendition").

No, the moral collapse has not been minor, nor is it a thing of the past. Not until the AUMF of 2001 is repealed and repudiated will we deserve to think we have a good handle on undoing the damage.

(Obligatory disclaimer: I am the founder and primary activist at Repeal AUMF.)
 

If we want to find out what happened with regard to detainee interrogation or surveillance in the aftermath of 9/11, the simplest way is for Congress, or one or more of its committees, to conduct an investigation. Congress already has the power of a “truth commission,” including the ability to grant immunity to witnesses. Assuming that the Obama administration is willing to cooperate, there should be no barrier to obtaining a full accounting of these activities, which would include obtaining the results of previous investigations conducted by the CIA IG and others. It would be up to Congress to decide how much of this information should be released to the public.

The intelligence agencies would certainly resist a congressional investigation, but presumably would prefer it to a criminal inquiry or an independent commission.

My conditions for such an investigation would be that it focus on gathering the facts with a minimum of political grandstanding. The investigators should have access to the members of Congress (and their classified notes) who were consulted or briefed on these programs, as well as the briefers. The investigation should also include the intelligence benefits, if any, that resulted from the activities in question.

If conducted in a fair and objective manner (admittedly a big if), I think this investigation could perform a significant public service with a minimum of disruption to the activities of the intelligence agencies.
 

"My conditions for such an investigation would be that it focus on gathering the facts with a minimum of political grandstanding."

The fact that Congress was part of the problem and that it is inherently subjected to more than a minimum of political grandstanding makes use of a congressional investigation problematic.

Ditto the fact it will be a long process, if done right, and Congress has a short attention span (more so than even in the 1970s) and has a lot of other things on its plate.

It is not surprising then that historically independent commissions often are involved here. And, not just as pass the buck institutions.
 

Perhaps just as certain financial institutions and entities are/were considered too big to fail, the political perception may be that the issues addressed by this post are too big to investigate. "Too big"s can serve as precedents later on when similar events may occur.
 

There is another problem with "truth commissions." "Truth commissions usually deal with past history, while it appears that the subjects of this "investigation" will involve active classified programs continuing during the Obama Administration.

Apart from waterboarding, Mr. Obama has kept his options open on continuing everything else:

STEPHANOPOULOS: Vice President Cheney has been giving a series of exit interviews and he told Mark Nolan(ph) of CBS that the Bush counterterrorism policies have definitely made the United States safer. And he added this piece of advice for you.

(BEGIN AUDIO CLIP)

DICK CHENEY: Before you start to implement your campaign rhetoric you need to sit down and find out precisely what it is we did and how we did it. Because it is going to be vital to keeping the nation safe and secure in the years ahead and it would be a tragedy if they threw over those policies simply because they've campaigned against them.

(END OF AUDIO CLIP)

STEPHANOPOULOS: Are you going to take it?

OBAMA: I think that was pretty good advice, which is I should know what's going on before we make judgments and that we shouldn't be making judgments on the basis of incomplete information or campaign rhetoric. So, I've got no quibble with that particular quote. I think if Vice President Cheney were here he and I would have some significant disagreements on some things that we know happened.

STEPHANOPOULOS: You would say for example?

OBAMA: For example, Vice President Cheney I think continues to defend what he calls extraordinary measures or procedures when it comes to interrogations and from my view waterboarding is torture. I have said that under my administration we will not torture.

STEPHANOPOULOS: How about them taking that to the next step. Right now the CIA has a special program, would you require that that program -- basically every government interrogation program be under the same standard, be in accordance with the army field manual?

OBAMA: My general view is that our United States military is under fire and has huge stakes in getting good intelligence. And if our top army commanders feel comfortable with interrogation techniques that are squarely within the boundaries of rule of law, our constitution and international standards, then those are things that we should be able to (INAUDIBLE)

STEPHANOPOULOS: So no more special CIA program?

OBAMA: I'm not going to lay out a particular program because again, I thought that Dick Cheney's advice was good, which is let's make sure we know everything that's being done.
But the interesting thing George was that during the campaign, although John McCain and I had a lot of differences on a lot of issues, this is one where we didn't have a difference, which is that it is possible for us to keep the American people safe while still adhering to our core values and ideals and that's what I intend to carry forward in my administration.

STEPHANOPOULOS: You also agreed on Guantanamo when you say you want to shut it down. You say you're still going to shut it down. Is it turning out to be harder than you expected, will you get that done in the first 100 days?

OBAMA: It is more difficult than I think a lot of people realize and we are going to get it done but part of the challenge that you have is that you have a bunch of folks that have been detained, many of whom who may be very dangerous who have not been put on trial or have not gone through some adjudication. And some of the evidence against them may be tainted even though it's true. And so how to balance creating a process that adheres to rule of law, habeas corpus, basic principles of Anglo American legal system, by doing it in a way that doesn't result in releasing people who are intent on blowing us up.

STEPHANOPOULOS: So not necessarily first 100 days.

OBAMA: That's a challenge. I think it's going to take some time and our legal teams are working in consultation with our national security apparatus as we speak to help design exactly what we need to do.
But I don't want to be ambiguous about this. We are going to close Guantanamo and we are going to make sure that the procedures we set up are ones that abide by our constitution. That is not only the right thing to do but it actually has to be part of our broader national security strategy because we will send a message to the world that we are serious about our values.


After receiving a sh_t storm of complaints from the left on this admission concerning Gitmo, Team Obama offered some sop to the left by claiming that Obama will enter an order to close Gitmo soon after the inaugural, but with no timetable.
 

Joe- I would be the first to acknowledge the limitations of congressional investigations, but there are several factors that suggest that a congressional investigation would be the most viable alternative. First, it does not require any special legislation. Second, independent commissions are generally used for really broad subjects and/or where major government reforms or reorganizations are contemplated (eg, the 9/11 Commission). This is not the case here. The subject matter of the investigation would be comparatively limited. In fact, it would be significantly narrower than that of the Church Committee (which, of course, was also a congressional investigation). Third, the intelligence agencies are less likely to cooperate with an independent commission than with a congressional committee. Finally, an important part of the exercise here should be to gather facts related to congressional involvement. This will be easier for a congressional committee than for an outside commission.

Starting a congressional investigation is a lot easier than establishing a commission. If no congressional committee is willing to start an investigation, that will tell you a lot about your chances of getting a commission.
 

I think Bart’s point is significant, but I would put it slightly differently. It is not just that Obama will be continuing some of the intelligence activities that would be scrutinized in any investigation, but that the people who will be the “targets” of the investigation will be, by and large, the same people we still depend on to collect and analyze intelligence regarding current threats. Treating this as some sort of Nuremberg-like judgment is totally unrealistic under those circumstances.

This is also a reason why a serious congressional investigation, with a minimum of political grandstanding, is actually possible. Congress knows that if it handles this in a cavalier manner it could backfire politically, both in the Oliver North sense alluded to by Professor Griffin (where the public sides with the national security professionals rather than the politicians) or in the event that there are future intelligence failures blamed on congressional overreaction.
 

On Sunday, 24 gave us Hollywood's version of a Senate "truth commission" questioning Jack Bauer in the LTC Ollie North role. The probability that a real hearing might imitate Hollywood is likely why a Dem Congress wants no part of this "truth commission" idea.
 

I have to let you in on a little secret, Bart, 24 is a fictional tv show.
 

Little Lisa's bro comes up with his "Catch-22":

"There is another problem with 'truth commissions.' Truth commissions usually deal with past history, while it appears that the subjects of this 'investigation' will involve active classified programs continuing during the Obama Administration."

If the "active classified programs" may not be legal, then an investigation should be thwarted or delayed until such programs become "past history"? Investigating the past serves not only to consider the future but also the present.

Joseph Heller would be proud of little Lisa's bro.
 

Shag:

The fact that these intelligence gathering programs are lawful and ongoing poses or should pose an obstacle to disclosing them to the the enemy being surveilled.

However, the Dems' calculations are probably elsewhere from concerns over operational security. The fact that a Dem President is continuing the Bush intelligence gathering programs approved and financed by a Dem Congress poses a political obstacle to holding a witch hunt/"truth commission" attacking those programs.
 

I think part of the debate here reflects some implicit assumptions about how widespread the problem is. My personal view is that support for torture is relatively thin even within the agency most contaminated (the CIA). I believe that a good many agents will be willing to tell what they know.

While I don't favor the commission approach, if there is to be one I think it should be independent, with both subpoena power and the power to prosecute for withholding/destroying evidence or perjury. In my contemplation, the commission would be charged with making recommendations for reform of the intelligence-gathering process.

Much as I would like to expose the Dem members of Congress who enabled the torture, I'm afraid they are protected in key ways by the speech and debate clause.
 

Bush, Cheney and Rumsfeld are responsible for thousands upon thousands of unlawful and unjustified deaths, in addition to having had thousands tortured. The United States, domestically and abroad, loses everything if it loses its moral high ground. That high ground is lost, and must be restored.


The issue is as simple as it is serious: punishment follows crimes. Crimes require prosecution. First, we need prosecution, then a truth and reconciliation commission.
 

Assuming Your Conclusions 101:

"The fact that these intelligence gathering programs are lawful and ongoing poses or should pose an obstacle to disclosing them [blah-blah-blah...]"

Cheers,

P.S.: The "fact" that they are "ongoing" should provide even more impetus towards looking into to them in a more serious fashion....
 

Mark- I think we can assume (and there is some evidence already to substantiate this assumption) that there is a spectrum of views within the CIA on waterboarding. Some think it is torture, morally wrong and ineffective. Some think it is not torture, morally acceptable and effective. There are others with views in between. One interrogator has come forward to say that he thinks it is torture but still produced vital information.

But I would guess that there will be something close to unanimity on viewing any investigation, truth commission or otherwise, as an attempt to shift the blame to the CIA for activities that were taken with the full knowledge and approval of the political class, not to mention with explicit legal clearance from OLC and others. Plus, we are not just talking about the relatively few people who were directly involved in waterboarding. Anyone who was involved in interrogations has to wonder whether they will now be subject to potential exposure, adverse career impact or criminal liability for the actions that they took.

So if you are postulating a line of happy agents waiting to tell everything they know, I think you are way off base
 

But I would guess that there will be something close to unanimity on viewing any investigation, truth commission or otherwise, as an attempt to shift the blame to the CIA for activities that were taken with the full knowledge and approval of the political class, not to mention with explicit legal clearance from OLC and others.

How did we get from the original post's discussion of an investigation of "former Bush administration officials" to a Congressional investigation of the CIA? I know Stephen brought up previous investigations as analogous situations that might provide insight, but it seems to me we've shifted targets somewhat (both in the original post and, not surprisingly of course, in the comment thread). Not all Bush administration officials that are worth investigating are in the CIA. An investigation need not center on the intelligence community, but rather on what political actors did to shape the intelligence they received.
 

PMS_Chicago said...

An investigation need not center on the intelligence community, but rather on what political actors did to shape the intelligence they received.

The Senate Intel Committee already went through this political exercise and found no evidence that the Iraq intelligence received from CIA was "shaped" by the elected Executive.

I believe these spate of calls for additional investigations are targeting NSA and CIA intelligence collection methods. It would be hard to hold such witch hunts without including NSA and CIA.
 

The Senate Intel Committee already went through this political exercise and found no evidence that the Iraq intelligence received from CIA was "shaped" by the elected Executive.

You should probably contact the committee and have them rewrite their reports, then.
 

But I would guess that there will be something close to unanimity on viewing any investigation, truth commission or otherwise, as an attempt to shift the blame to the CIA for activities that were taken with the full knowledge and approval of the political class, not to mention with explicit legal clearance from OLC and others.

As PMS suggests, it's not clear why they would come to this conclusion. If anything is clear from this thread, and from other sources who support prosecution (e.g., Glenn Greenwald), it's that the focus is on the Bush Administration.
 

PMS:

I am referring to the Phase I report investigating in part whether the Bush Administration pressured CIA analysts to change or "shape" the intelligence product on Iraq and found no evidence to support this claim.

Your linked Phase II report concerned whether the Bush Administration's public arguments in favor of the Iraq War were supported by the intelligence product produced by CIA and DIA. Of course, the committee Dem majority did not examine bipartisan congressional statements that were identical or more hawkish than those of the Administration.
 

[PMS_Chicago]: An investigation need not center on the intelligence community, but rather on what political actors did to shape the intelligence they received.

[LSR "Bart"]: The Senate Intel Committee already went through this political exercise and found no evidence that the Iraq intelligence received from CIA was "shaped" by the elected Executive.


False. The investigations were expressly limited to the intelligence, and not to what was done with it. Sen. Pat Roberts [R-f*ckwit] promised that the second half of the investigation [into maladministration activities] would be done (aaaafffttteeerrr the 2004 elections), and that we'd find out what the Dubya maladministration did (or did not do). This never happened (for the obvious reason).

Cheers,
 

"Bart" still confoozes fictional shows with cold reality:

On Sunday, 24 gave us Hollywood's version of a Senate "truth commission" questioning Jack Bauer in the LTC Ollie North role. The probability that a real hearing might imitate Hollywood is likely why a Dem Congress wants no part of this "truth commission" idea.

Cheers,
 

Matter of fact, there ought to be a corollary to Godwin's Law:

When one of the disputants starts quoting Hollywood, all useful conversation is at an end.

Cheers,
 

The fact that these intelligence gathering programs are lawful

Well, unless they aren't. It's betrays an authoritarian mindset that you advocate forestalling clarity.
 

is a truth commission going to examine Democratic officials, including members of Congress, who specifically endorsed torture and harsh tactics after the attacks?

If there is a crime called accessory to war crimes, of course they should be investigated for committing it.

Otherwise, I suppose they didn't commit, they merely condoned. It was likewise no crime to be a Nazi sympathizer.

Is this supposed to be a difficult question? I can't imagine why. Complicity of others doesn't mean that crimes weren't committed, nor that there were no criminals.
 

Eric:

Authoritarianism is the control of political power by an elite to the exclusion of the rest of the citizenry.

Our disagreement over how to gather intelligence against a foreign enemy has nothing at all to do with authoritarianism.
 

Our disagreement over how to gather intelligence against a foreign enemy has nothing at all to do with authoritarianism.

Bart, it is your mindset which is authoritarian. Virtually everything that issues from your keyboard reflects that attitude and that's why most of us here disagree with you so often.

Apologies for belaboring the obvious.
 

From Bob Woodward

"The top Bush administration official in charge of deciding whether to bring Guantanamo Bay detainees to trial has concluded that the U.S. military tortured a Saudi national who allegedly planned to participate in the Sept. 11, 2001, attacks, interrogating him with techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, leaving him in a "life-threatening condition."

This should provide an interesting test of how the Obama administration intends to deal with such issues.
 

mls:

From Bob Woodward

"The top Bush administration official in charge of deciding whether to bring Guantanamo Bay detainees to trial has concluded that the U.S. military tortured a Saudi national who allegedly planned to participate in the Sept. 11, 2001, attacks, interrogating him with techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, leaving him in a "life-threatening condition."


As I understand it, she cited this as a reason for not pursuing prosecution of the detainee. AFAIK, the detainee was al-Qahtani, the (one-time) alleged "20th hijacker" (albeit there's been almost as many of them as there have been "#2 al Qaedas"). If we can't prosecute him, someone f*cked up "Big Time" (as Chteney would say).

Cheers,
 

mattski said...

BD: Authoritarianism is the control of political power by an elite to the exclusion of the rest of the citizenry. Our disagreement over how to gather intelligence against a foreign enemy has nothing at all to do with authoritarianism.

Bart, it is your mindset which is authoritarian. Virtually everything that issues from your keyboard reflects that attitude and that's why most of us here disagree with you so often.


It has always amused me to be called an authoritarian, fascist or nazi by those on the left who apparently have no concept of what those words mean.

My posts here repeatedly argue on the behalf of our elected branches of government of both parties and constitutional limits on government power over the citizenry.

The posts from the left here repeatedly argue on behalf of the supremacy of the non-democratic and often unconstitutional elements of our government - courts, special prosecutors and the bureaucracy.

Thus, I ask which one of us has the authoritarian mindset toward our citizenry?

The fact that you confuse foreign enemies warring against our citizenry with the citizenry itself does not transform you from an authoritarian to a libertarian, but rather into what our enemies used to call a "useful fool."
 

BTW, Biden has just conceded during an Iraq trip that Obama has reneged on his 16 month withdrawal promise and will now abide by the US/Iraq SOFA agreement because Obama “wants the withdrawal to be a responsible one,” and “does not want to waste the security gains that have been achieved.”
 

BTW, Susan Crawford has just conceded that the US reneged on its promise not to torture, using the word "torture."
 

"BD: Authoritarianism is the control of political power by an elite to the exclusion of the rest of the citizenry."

Hmm; definition trouble. For many years I've defined "authoritarianism" as the philosophy/religion of unquestioning acceptance of statements from authority figures. In other words, as a happy acquiescence by the ruled to the rulers. Mr. DePalma appears to define it as a variety of political government equivalent to totalitarianism. This sort of thing is funny when practiced by Daffy, Bugs and Elmer, but all too depressing when done by nominally rational adults. Defining the terms should always be a big part of any debate.
 

This comment has been removed by the author.
 

In any event, given our present system of government, where it is assumed that the Executive Branch dictates and the other two branches submit, I doubt very much that we will see any action other than righteous hand-waving followed by satisfied kow-towing from the Congress. Boy I'm glad I'm typing rather than speaking. My only real curiosity now will be whether Mr. Obama will be allowed to use the royal powers he has inherited from Mr. Cheney, assuming that he is so uppity as to try to actually use them (these powers being wholly reserved for the use of the rightful Ruling, or Republican, caste).
 

JohnR: As far as the Cheneyites have created broad-reaching powers, you can be sure they've done equivalent research into how to prevent political opponents from using them. They (think they, maybe) know where all the holes are, it's their life's work. At the very least, they likely depend on a state of "war" such as we have now.
 

JohnR said...

"BD: Authoritarianism is the control of political power by an elite to the exclusion of the rest of the citizenry."

Hmm; definition trouble. For many years I've defined "authoritarianism" as the philosophy/religion of unquestioning acceptance of statements from authority figures.


I thought I was supposed to be a conservative gadfly contesting the statements of resident authority figures.
 

"Bart" DeCultureOfVictimhood:

I thought I was supposed to be a conservative gadfly contesting the statements of resident authority figures.

Let us know when the proprietors lock you up for six years incommunicado. You're such a weenie, "Bart"....

And the thought that came to my mind was dung fly....

Cheers,
 

My posts here repeatedly argue on the behalf of our elected branches of government of both parties and constitutional limits on government power over the citizenry.

Bart, I would remind you that you have been labeled 'delusional' by one of our conservative friends on this blog. And as another sagacious commenter, Dilan, has noted, you don't argue from principle. You argue for specific policy results, which coincidently, have a tendency to reflect a love of brute force and power for its own sake, and a hatred for the weak, the lowly and the disenfranchised. (In a word, you're a bully.) It is a morbidly fascinating pastime to watch you mangle language, reason and common decency.

You are quite delusional, quite unmoored from reality, and quite dangerous in your anti-democratic beliefs.
 

Wow {I believe I have said this previously]. I hate to pile on Bart, as I assume that is not raison d'etre of this blog, but I am struck by these lines:

"My posts here repeatedly argue on the behalf of our elected branches of government of both parties and constitutional limits on government power over the citizenry.
The posts from the left here repeatedly argue on behalf of the supremacy of the non-democratic and often unconstitutional elements of our government - courts, special prosecutors and the bureaucracy."

If the elected representatives of the people fail to fufill their obligations properly, to whom should the people turn? That persons X, Y, and Z got elected does not make them infallible. They wield power only on authority of the people (a fiduciary relationship, as Locke would have said). If the courts cannot protect the rights of the people, who can? Would we have ever gotten round to civil rights for blacks without the courts? Perhaps we should have just waited for the majority to elect non-racist representatives? 'We,' here, would mean those of us not oppressed, of course.

And, while I can at least understand [though dispute] the claim that non-elected judges represent a non-majoritarian ['undemocratic'} element in our system, what makes either courts, special prosecutors, or bureaucracy 'unconstitutional'?
 

Chris:

The courts, special prosecutors and the bureaucracy are plainly non-democratic institutions and the special prosecutors and bureaucracies (to the extent that they exercise legislative and judicial powers) are unconstitutional despite the Court's refusal to enforce the Constitution when ratifying these bodies.
 

It appears than another claimed Bush violation of law is actually perfectly lawful.

Eric Lichtblau, one of the NYT reporters who disclosed the Terrorist Surveillance Program to al Qeada on the ground that it could be "illegal," is now reporting that the FISA Court of Appeals is affirming a classified FISC ruling that the President may conduct warrant-less foreign intelligence gathering of international telecommunications under the 4th Amendment even if an American is incidentally surveilled. This opinion is supposed to be made public, probably to help resolve the harassment suits against the Telecoms and the Government.
 

Bart: Actually, that's not the finding at all. Try reading it.
 

Barak Obama like all politicans wants to hold power for as long as possible. If he allows his administration to become consumed with "truth investigations
,prosecutions,commissions then his tenure will indeed be a brief one.

Obama didn't campaign on this issue and so it is outside the scope of his political mandate.

Obama campaigned on changing the tone in DC.In fact the partisan rancor that would ensue from "truth commissions and prosecutions" would be at cross purposes with his oft repeated pledge.

With an economic crisis and two wars going on, the nation is not going to tolerate politicians focusing their attentions and efforts on anything that doesn't directly and immediately touch their lives.

People are losing their jobs, homes and lives. They want to feel secure a heck of a lot more than they want the dirty details of the Bush administration's transgressions.Wise politicians understand this and will act, or not act, accordingly.
 

"With an economic crisis and two wars going on, the nation is not going to tolerate politicians focusing their attentions and efforts on anything that doesn't directly and immediately touch their lives.

"People are losing their jobs, homes and lives. They want to feel secure a heck of a lot more than they want the dirty details of the Bush administration's transgressions.Wise politicians understand this and will act, or not act, accordingly."

This suggests that some mistakes are too big to investigate. But messing with Monica triggers impeachment. So the moral seems to be for presidents to make major mistakes to avoid investigations, sort of like some financial institutions being too big to fail.
 

A special investigation, perhaps led by Patrick Fitzgerald, on this issue was a top question posed to Obama's website.

So the "people" who voted for him apparently aren't just concerned with the economy. Likewise, supporting an independent commission, let's say, is not the same thing as being "consumed" with the fact.

Obama campaigned on change and being not-Bush. The Holder hearings calling waterboarding torture moment and choosing an OLC head that does not just want to "look to the future" implies that this includes dealing with this issue to some degree.

Now, some rather not. Clear there.
 

Paul Krugman's lengthy "A Letter to the new president. What Obama must do." in Rolling Stone (1/16/09) is available at:

http://www.truthout.org/011709Z

The subheading for the final portion "Truth & Reconciliation" sets forth reasons for such.
 

Hilzoy also has some thoughts here, which shares a sentiment with a stronger Krugman piece here.
 

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