Hope Rewarded, Faith Restored

With a single action, the stroke of a pen, President Barack Obama has initiated a ripple that may grow to a tidal wave of change impacting the US government, its citizens and the world at large. President Obama signed an Executive Order effectively declaring an end to the Bush “War on Terror.” In addition, he nullified legal opinions issued by Bush Administration lawyers regarding Presidential powers purportedly engendered by the “war” since September 11, 2001. The ramifications of this seemingly small action could be immense.

Many scholars and legal experts have questioned or challenged the basis upon which Bush grounded his claims of executive prerogatives and power, by simply declaring a “War on Terror.” To invoke true legal war powers, under the Constitution, there must actually be a war. Moreover, Congress holds a vital role in declaring such measures. That is how the US government is supposed to work. Instead, Bush contrived a phony peril, based upon fabricated “intelligence” information and hyperbolic Elmer Gantry style demagoguery, and duped Congress into authorizing military force in Iraq. Because the power grab could not be sustained or justified by the situation in Iraq alone, especially after the non-existence of “weapons of mass destruction” was revealed, Bush chose to declare war on an amorphous indefinable enemy – i.e. terror. Since the enemy could never be defined, it could never actually be defeated. That permitted Bush the opening to pursue a strategy of unbridled executive power for as long as he wished.

The strategy was as clever and cynical as it was evil and immoral. Any attempt to challenge or even uncover government actions of questionable legality could be met with a refusal to disclose information on the basis of “national security.” Any legal challenge to action that was revealed would be met with efforts to suppress or arguments that any restraint on executive discretion would harm efforts to fight “terrorism.” People were kidnapped, imprisoned, tortured and killed in the name of the US government and for the purpose of waging this war on an enemy that could not be identified or defined. In Joe McCarthy style persecutions, individuals with “alleged ties” to subversive or terrorist groups were held in prisons without charges and without any civil or human rights guaranteed under the US Constitution and the Geneva Conventions and protocols for humane treatment of prisoners. And the American people were told that it was too much of a security risk for the public to know what types of actions were being taken in its name.

Obama called a swift halt to this cynical mentality, as he presaged in his Inaugural Address. He had told us that it was a “false choice” to declare that protecting our safety and security required abandoning and ignoring the fundamental Constitutional principles the country was built upon and the standards of human decency that the International Community considers basic. To those who still harbored belief in the potential fidelity to democratic ideals and possible embodiment of humanity in US government policies, Obama rewarded their hope at a time when it seemed that the government was capable of stooping to almost unimaginable lows.

Apparently convinced that the standards, ideals and principles that have served reasonably well for centuries under severe testing could still serve to resolve any current threats, Obama reaffirmed the public’s faith in the principles that have allowed the US to claim moral world leadership for decades. Those principles had been ignored or abandoned by the Bush Administration, who brought the US to a level of disrepute not seen in many decades, if ever.

There is still much work to do in cleaning up the mess created by the prior Administration. However, this small initial act provides the impetus for a cleansing wave to wash away the stains left by the Bush Administration. Those still within positions of responsibility now know that the sophistry and lame excuses that were previously used to justify improper actions will no longer be considered valid. If a policy or practice is to be continued, it must be justified upon sound Constitutional principles and supported by the rule of law. As Obama told us this past Tuesday, only when government is responsible and accountable will the American people and the world be able to once again place faith and confidence in its actions and its leadership. But Obama has rewarded hope that a change for the better is possible; and he has reaffirmed faith that the ideals and principles of government by and for the people are not totally moribund. We can only hope that the small ripple will gain substantial momentum, for the magnitude of dirt and stain to be swept away is not yet known. Indeed, a tidal wave may well be what is required for the country’s honor to be washed clean again.

It Comes With the Job Description.

There has been much discussion regarding whether President-Elect Obama should or must authorize and initiate investigations and prosecution of illegal actions by President Bush and his Administration. All sorts of political dissembling have been advanced about “moving on” and letting bygones be bygones. Others argue that such investigations would be an unwelcome distraction when the nation faces a great deal of work simply to recover from the economic devastation wrought by unwise policies and unethical mismanagement by Bush officials. None of these arguments seem to carry as much weight as some more basic imperatives that, quite simply, cannot be avoided as part of the job Obama undertakes as he takes an oath of office.

Former Congressional Representative and former federal prosecutor from New York, Elizabeth Holtzman articulates perhaps the most compelling obligation in an article published in The Nation magazine:

There is another important reason for not "moving on." On January 20, Barack Obama will take an oath of office to uphold the Constitution, which requires the president to "take care that the laws be faithfully executed." Much as President Obama might like to avoid controversy arising from investigations and prosecutions of high-level Bush administration officials, he cannot let them get away with breaking the law without violating his oath. His obligation to pursue justice in these cases is all the more serious given his acknowledgment that waterboarding is torture-which is a federal crime-and the vice president's recent admission of his involvement in and approval of "enhanced" interrogation techniques.
Moreover, under the Geneva Conventions and the Convention Against Torture, our government is obliged to bring to justice those who have violated the conventions. Although Bush smugly ignored his constitutional duty to enforce treaty obligations and laws that punish detainee mistreatment, Obama cannot follow the same lawless path.

Simply put, Obama swears to uphold the law and faithfully prosecute the laws of the United States. Where there is manifest probable cause and documented evidence of such violations, failure to investigate and to prosecute based upon strong evidence would be a dereliction of his Constitutional duty as chief law enforcement officer of the land. The recent Cheney public admission of authorizing measures that constitute torture, and the numerous other flagrant examples of obstruction of justice [including but not limited to concealing millions of e-mails that the law requires be preserved and held for public archives simply to impede court proceedings investigating corruption in the Justice Department] clearly constitute probable cause, if not veritable "smoking gun" evidence of criminality.

Holtzman goes on to argue that there are many reasons why this public responsibility should be honored, including the prospect that ignoring the violations will certainly encourage disregard for the laws and disrespect for law enforcement in the future. We are well aware that the notion of an “Imperial Presidency” was harbored in the breast of Cheney following the demise of his mentor, Richard Nixon. He clearly waited for the opportunity to advance the doctrine at a later time. It can be forcefully argued that fuller prosecution of the Nixon Administration, instead of the pardon, would have established the fallacy and illegality of that doctrine.
Moreover, the disregard – contempt even – for the public interest shown by Bush cronies and bank officials regarding the use of public bailout funds suggests a widespread belief in impunity for the rich and well connected, while the rest of the public is bound to comply with laws relating to unethical and illegal conduct. Only a thorough investigation of the misconduct, followed by appropriate prosecution for crimes when evidence suggests that prosecution is warranted, will break the spell of corruption and change the mindset that the US Government leadership is irretrievably corrupt.

The ability to truly “move on” in terms of implementing measures that will require huge sacrifice on the part of US citizens demands that some measure of faith be reestablished in the White House and its inhabitants. That process must begin with a Chief Executive who places high value in the oath of office that he takes to uphold and defend the Constitution and the rights that it guarantees to the citizens of the United States. Beyond this, the new President must show the world that there is a “new sheriff in town” and that past corruption and lawlessness will no longer be tolerated. Such bold steps are essential to reestablishing the belief of the world that the USA can still represent and stand up for the ideals and values embodied in its founding declarations. Otherwise, it is all just so much empty rhetoric. It is a tough course to follow, but it comes with the job description.

Fool Me Twice....

Sometimes the handwriting is so clearly on the wall that it is simply amazing that it remains unread. As the federal government prepares to dole out the second half of the $700 Billion bailout fund authorized by Congress, documented evidence – the little that we do actually know about what happened to the bailout money already given to financial institutions – shows that these banks have no intent to use the public funds to help with the public’s economic crisis. Instead, Bank executives are using the public funds received to cover their backsides and bolster their balance sheets. Public needs be damned! Consider the following quote from a bank receiving about $300 million in public bailout funds:

At the Palm Beach Ritz-Carlton last November, John C. Hope III, the chairman of Whitney National Bank in New Orleans, stood before a ballroom full of Wall Street analysts and explained how his bank intended to use its $300 million in federal bailout money.
“Make more loans?” Mr. Hope said. “We’re not going to change our business model or our credit policies to accommodate the needs of the public sector as they see it to have us make more loans.”

Before we condemn the bankers, we ought to put their actions in context. They have been led to believe that the bailout money is a no-strings payback for their loyal support of the GOP controlling majority in Congress and unflinching support of all policies that Bush has implemented. They do not see any contradiction in private use of these public funds. These banks never believed that the true purpose of the bailout was to help the public. Instead, they convinced themselves that their institutions were either “too big to fail” or that they were too connected to the Bush administration to be allowed to fail. The “business model” that is referred to above has led these institutions to the verge of collapse, but these executives remain committed to that model. What the heads of these institutions are effectively saying is that they deserve to be bailed out, despite their own incompetence and mismanagement. As the old cliché reminds us, it is not what you know but rather who you know.

One of the difficulties that the American public has repeatedly faced in dealing with the Bush Administration is a failure to understand and accept the level of venality and corruption that lies at the very core of its policies and actions. There seems to be a yearning to find some level of integrity and humanity that simply has not been evidenced. Early in the Bush Administration, excuses were offered that the President was being duped by cynical and conspiratorial “handlers” like Cheney and Rumsfeld. To some extent, these agents did have their own agendas that they were able to execute through manipulating power and resources within the Bush Administration. However, it is now fairly inconceivable that the magnitude of corruption that pervades the Bush Administration could have proceeded without the knowledge and consent, if not at the express direction, of the President.

Thus, as decisions are made regarding further bailout funding, careful examination of the true intended purpose is required. In addition, strict measures to ensure that the funds are actually used for a public purpose must be attached to the disbursement of any additional funds. The first half of the $700 Billion was spent for the purposes that the Bush Administration intended. It simply was not the purpose that the public was led to believe was being served. The deceit must come to an end. If not, shame on us.

Isn’t it Possible?

News reports of the current trip by President-elect Obama as he heads toward the Capitol for his historic inauguration raise feelings of exhilaration and hope. Perhaps more importantly than anything, his journey represents the manifestation of the “possible.” Many in the United States of America had not envisioned, though they had perhaps dreamed, of the possibility of a President of color. During the past eight years, clouded by contrived and amplified fear, the country has not been able to look forward. The country has been in the mindset of a crowd riding a sabotaged roller coaster over the crest and plunging toward the bottom. Scared out of their wits, the crowd’s only focus has been on whether it would survive the plunge.

The crowd has been unable to focus on what has actually been happening, oblivious to the deceit that led them to board the ride and unable to muster the discipline to halt the potentially fatal dive. Now the country is in the throes of the worst economic disaster it has faced in more than 70 years. In addition, the country has been further weakened by the wasted commitment of more than a trillion dollars to a manufactured “war.”

The preparations for the inauguration are unprecedented in terms of anti-terrorist measures. Tanks, barriers, electronic surveillance and much more have been planned and put in place to avert a terrorist attack. At the risk of cynicism or even naiveté, perhaps the truth is that the terrorist are not eager to destroy this opportunity for hope and a positive step into the future.

The secret service states that there are no credible threats of a terrorist attack relating to the inauguration. It would be foolish to discount the possibility of some lunatic who might plot to take the life of the incoming President. Yet is it not possible that Obama represents something quite different than did George W. Bush, and his “bring it on” arrogance and provocation? Rather than foolish bravado and divisive antagonism toward imagined and created “enemies,” Obama represents calm, intelligent and rational consideration of realistic problems.

The incoming President states that he will carefully assess problems that he faces and that he will sit down with both friends and enemies in order to attempt to find peaceful and constructive solutions. His predecessor, in contrast, views the world in terms of “good and evil” and refuses to even communicate with those that he has placed in the category of his “enemies.” The old President offers his opponents only the option of violence and vengeful response to hateful rhetoric and actions. The new president offers the possibility of new and different options. There is a reality to the cliche about "he who lives by the sword dies by the sword." One who casts the world and relationships only in terms of have, division and enmity will generate a corresponding level of fear, distrust and hatred against him. In many ways, the climate of fear and risk to security that pervades is the creation of the policies and attitudes of George W. Bush and his small minded politics. Obama has called upon the United States and the world to turn away from small minded and divisive politics and to look toward the possibility of a more enlightened future.

The headwinds of challenge into which Obama will step as he takes the oath of office suggest to us the monumental courage that the man who will become the 44th President has. Yet he seems confident, humble and prepared for the undertaking. And perhaps more than any President in recent history, there is a huge supporting population that yearns for his success, a cadre that dreams of the possible.

“All in All, It’s Just Another Stone in the Wall.” [Apologies to Zappa]

One day after a federal court judge ordered the Justice Department to undertake a sincere and thorough search for millions of White house E-mails that the Bush Administration has been contending “may” have been missing for the past 4 years, the Justice Department represented today in a sworn statement to the court that the E-mails have miraculously been “found.”

In an historic example of deliberate obstruction of justice at the highest levels of government not seen since the Nixon era, the Administration of George W. Bush has tacitly admitted to stonewalling Congress and the courts who were seeking to determine the Office of the President and Vice President involvement in and authorization of illegal and unconstitutional activities. Those activities ranged from exerting improper political influence on screening and appointment of government employees in the Justice department and other Agencies to sanctioning interrogation and spying activities that contravene the Constitution and the Geneva Conventions.

The logical and apparent reasons for stonewalling Congress and the judicial system were to avoid probable impeachment. The tragedy is that when the highest law enforcement official in the most powerful country on the planet corrupts the system in order to cover up his own criminal activity, the foundation of the system of representative democracy fails. The protection of the civil rights of each individual citizen lies in the principle that no man is above the law. Whether based upon pure arrogance or upon some contrived theory of an “Imperial Presidency,” the notion that the President can do whatever he chooses and is immune from constraints established in the laws of the nation is pure hubris.

Moreover, the audacity shown by the Bush Administration in withholding evidence that it was legally bound to disclose, for no reason other than to obstruct justice, is amazing. Even more stunning is that Bush and Cheney are likely to get away with the stonewalling and obstruction without even the least formal sanction. The press has proven a toothless watchdog at best, and a willing accomplice at worst. This, more than anything, shows the degree to which the system of government supposedly “by and for the people” and supposedly protected by "checks and balances" has been corrupted and degraded.

Some would argue that pursuit of Bush Administration officials for misconduct amounts to political retribution, payback by the victors for abuse by the GOP when it was in power. That is how GOP stalwarts and Bush apologists would like to see the scenario play out. Such dismissal would be cynical, untrue and unfortunate. It is natural and appropriate when serious damage has been done or a system has seriously malfunctioned as a result of a series of events to conduct a thorough inquiry to determine the cause of the damage and the nature of the malfunction. This is practical and remedial; it is common sense and not vengeance. Only by carefully examining what happened can we hope to repair the damage and to prevent similar harm in the future.

But all in all, the cynical and arrogant behavior of the Bush Administration is simply in keeping with its form for the past eight years. Vice President Cheney in his parting interviews bluntly challenged the American people, the press and the media with comments to the effect "what are you going to do about it? He admitted to authorization of activities that the rest of civilized society considers torture and was unrepentant. In establishing a bulwark between his elitist cronies and the rest of the American people, in erecting a protective barrier to prevent being held accountable for criminal and inhumane actions that have disgraced a nation, the obstruction of justice by withholding e-mails was just “another brick in the wall.”

Thou Dost Protest Too Much, Methinks.

In two separate pieces of political theatre in the past few days, we have been served up excellent examples of what causes us to distrust and dislike politicians and Washington, DC. If the politicians involved were able to step back from the blinding glare of their own narcissism, they might be able to see the foolishness of their behavior. Yet their life in a self created bubble apparently causes them to be oblivious to common sense and in some cases common decency.

In the first example, the leader of the opposition GOP forces suggested that the Republican minority might delay or impede the passage of a much needed stimulus package. Sen. John Boehner, in an act of political grandstanding, announced that his caucus was very concerned about the prospect of a projected “trillion dollar” national deficit as a result of a proposed stimulus. He complained that the price tag was so large that it would have to be “borne by future generations.”

Sen. Boehner did not, however, explain where this solicitude was hiding when he and his “Conservative” cohorts beat down every attempt [Democrat or GOP initiated] to restrain spending for the Iraq fiasco. Where was this concern when a multi-Billion dollar surplus was plundered by an incompetent administration and turned into a half-Trillion dollar deficit? The US Treasury was being looted by President Bush to pay for a military adventure and “phony war” while the Iraqi Treasury ran a multi-Billion dollar surplus. Boehner implicitly accused any dissenters as being unpatriotic and irresponsible for not backing the President. Meanwhile, the tab to be paid by present and future generations of taxpayers grew wildly.

Such public posturing and patent hypocrisy by so-called “Leaders” may be the reason why so many in the United States are turned off when the subject of public service comes up. Representatives like Boehner point out the inconsistency of the term, making it often appear an oxymoron. It would indeed be difficult to explain how Boehner’s position is in the interest of the public. It was nothing more than public grandstanding for self-aggrandizement, to show that he still considers himself a force to be reckoned with in Congress, despite the drubbing his party took in the polls and the disaster the country faces as a result of his cabal's failure of leadership.

More recently, former Illinois Attorney General Burris showed up at the inaugural of the new 111th Congress and was turned away because he lacked proper credential certification. This political theatre was intended to embarrass the new Democratic Congress in its refusal to seat a fellow Democrat. So Burris went outside and held separate press conferences posing as the badly treated stepchild and “victim” of unfair treatment.

Burris has been, up until now, a respected public servant and should have displayed more character. First, he knew full well that the Illinois Secretary of State had refused to certify his appointment to fill the seat vacated by President-Elect Obama. The reason is that the appointment was made by Gov. Blagojevich who is under investigation and impending indictment for attempting to sell the appointment for personal gain. No matter how qualified, the appointment of anyone by Blagojevich, is suspect and the person so appointed would fall under that shadow unless and until the matter is cleared up.

Second, knowing that the proper credentials were lacking, only an egotistical politician would choose to mar the historical event of the inauguration of the new Congress by drawing personal attention to a personal dispute that he knew could not be resolved. The Senate had previously informed him that he would not be seated that day. Greater character would have been shown by staying away and continuing to work with Senate leadership and the Illinois authorities to resolve the matter. There is no apparent evidence that Burris was involved in the scheming by Blagojevich. As a result, a formal process of inquiry would have cleared him and allowed the Senate to seat him free of any taint. Instead, Burris chose to act like a typical political clown and seek the spotlight to demand personal attention and to implicitly support the improper and corrupt behavior of Gov. Blagojevich. Such behavior can only lower public perception of Burris. It also might lower public opinion of politicians, if there were room for descent in the level of opinion the public now holds.

Obama and the Rule of Law

As Barack Obama enters office, he will be faced with one of many problems created by the Bush administration, the case of Al-Marri v. Pucciarelli, No. 08-368 that will go before the US Supreme Court. The case involves a Qatari man who was captured while in the US legally and has been held indefinitely without charges as an “enemy combatant.” The case will challenge Obama to state his position with respect to the operation of the rule of law in the United States and the primacy of the US Constitution. Under a rule of law, a person has the right to know what crimes he is being charged with, the right to see and confront evidence against him and the right to defense in a speedy trial. None of these Constitutional protections have been afforded Al-Marri.

Bush administration officials claim that the man is “too dangerous” to be allowed free as he might provide aid to Al Qaida or other terrorist groups. Yet these vague assertions are not backed up by any coherent supporting facts. They amount to a standard that if a president declares someone dangerous, that person is stripped of all due process rights. The US judiciary has forced the Bush administration to defend its position by requiring the hearing on the Al-Marri case. Now Obama will be obliged to submit a brief stating his position on the matter. Looking for clues as to Obama’s approach, the New York Times cited the following in an article:

A year ago, Mr. Obama answered a detailed questionnaire concerning his views on presidential power from The Boston Globe. “I reject the Bush administration’s claim,” Mr. Obama said, “that the president has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.”

However, this response partially sidesteps the core issue. Bush’s claim to authority is that he has the power as President that exceeds the US Constitution in times of war. This raises an old legal conceptual question whether an office can exceed the authority of the law or body that creates it. Traditional restraint and a desire to avoid the excesses of King George III that led to the American Revolution have caused the judiciary to reject such arguments of an “Imperial Presidency” in favor of protecting the balance of powers that is built into the fundament of US government and embodied in the Constitution.

Some of the legal issues have been obscured by racist antipathy because the detainee is Muslim. However, the strength of a legal system is not in its ability to deal justly with the popular cases, but rather with those that present unpopular contestants or issues. Much of the Bush argument is based upon fear mongering and deliberately fomented hatred of Arabs and Muslims precipitated by his own political agenda. Part of the Bush administration argument must rest upon the assertion that Al-Marri is not entitled to protection under the Constitution. However, many cases have established and upheld the principle that the Constitution speaks to the limits of authority of the government and the means that it may use to enforce laws. There is no clear legal answer why the detainee cannot be tried under traditional principles of jurisprudence and due process that this country has stood for in the past. If he has committed acts of terrorism or tangible support to terrorist organizations, let that be proven in court.

This, however, brings us to the tangled web of the Bush administration fiasco, again as cited in the New York Time article:

Another alternative for the new administration is to prosecute Mr. Marri as a criminal. But it is not clear that there is admissible evidence against him.

The basic problem is that the supposed evidence upon which the Bush administration would rely to imprison Al-Marri is based upon torture. This presents several major problems for Bush. First, to be required to present such evidence would expose the Bush administration to potential war crimes prosecution. Second, the evidence would be inadmissible as such evidence is deemed inherently unreliable. Third, to maintain prosecution on a theory that the government cannot charge the defendant and cannot prove the basis for his detention would stand basic principles of law and criminal jurisprudence on end. It is simply irrational. Beyond that, to continue to indefinitely detain a man without charges simply to avoid embarrassment to the Bush administration relating to its use of internationally outlawed interrogation practices would undermine basic principles of justice and human rights.

What makes very little sense from an objective standpoint is why the case even need reach the Supreme Court. There is no one man who is so dangerous that he cannot be subjected to the rule of law. If, as happens routinely, Al-Marri were acquitted because of illegal interrogation or police abuse, he would be one of the most scrutinized men on earth. It is doubtful he could ever present any real threat approximating the imaginary one concocted by the Bush administration. If the threat were genuine, the Bush administration would not be so reluctant to put it forward for judicial scrutiny. The case is about power and prerogatives, and about whether the President is subject to the Constitution. Even the purported “war” that the Bush administration uses to support its exercise of presumed war powers is a fabrication. So the Bush administration argument is a legal house of cards.

Hopefully, Obama will exercise his rigorous legal training and sense of integrity to submit a brief that disavows the expansive claims of the Bush administration. In doing so, he will make great strides toward bringing the country back onto the course of a “rule of law.” To fail to do so simply suggests that we can expect more of the same politically corrupted jurisprudence and sophistry that we have experienced under the Bush regime.