Drift

I've got Rachel Maddow's new book "Drift" at the top of my list of books to buy. David Horsey has a very helpful review of the book, and it has whet my appetite.

Her book very much reflects the way she comports herself on TV. It is smart and deeply documented. It is entertaining and occasionally whimsical. (In any other book about national security issues, you would not find the word "whoopsie," nor would the word "ally" be rhymed with "schmally" in one phrase.) And, far from being a left-wing screed, it presents a sharply argued commentary that many conservatives could buy into.

Maddow's core thesis is that in the decades since the end of the war in Vietnam, there has been a steady and dramatic shift in the way the United States goes to war. There was a time when Congress stepped up to its constitutional responsibility to say when the country would send troops into battle. Once engaged, the entire country took part. Now, Maddow writes, the president can churn up a war anytime he wants, Congress rolls over, and only a tiny fraction of Americans do the fighting while the rest blithely carry on with their normal lives. ...

The best thing Maddow does is resist portraying the drift to unfettered war power as a conspiracy concocted by an evil cabal. These choices were made by intelligent men and women who seemed to truly believe they had the best interests of the country in mind. These very smart, patriotic people promoted really foolish policies because they were guided by poor information, blinded by ideology or driven by political expediency. With rare exceptions, they were not motivated by actual wickedness. (For pure wickedness, check out Maddow's chapters covering the misdeeds and greed of private contractors in the Balkans and Iraq.)

Rachel Maddow is wise enough to recognize that, even at the highest levels of government, human folly explains far more than any conspiracy theory. It's really all about "whoopsie" moments on a disturbingly grand scale. [Emphasis added]

Now, I have to admit that my tinfoil chapeau vibrated madly at this conclusion by Horsey (and presumably by Maddow). I think that especially during the Bush administration there was almost a total overlap with the administration and the private contractors (e.g., Cheney and Halliburton). The Pentagon's private contractors then, as now, seemed to have a direct line to the White House and to many in Congress. Still, the more innocent argument does have merit.

My other concern was expressed perfectly by Florence at Ruminations, an elder blog that I visit daily.

...This is a great, important, well researched, and well written book that I just could not read. That's not exactly accurate--I read the prologue, the first chapter, and the epilogue in detail. The problem was all the chapters in between. I just couldn't take the return in excruciating detail of Grenada, Iran-Contra, and Oliver North, from there we move on to Kuwait, Halliburton, and Secretary of Defense Dick Cheney, followed by Bosnia, leading inexorably to Afghanistan and Iraq. It was like nails on a chalkboard for 7 of 9 chapters. Don't get me wrong, Maddow nails it completely in the description of our not so slow drift toward the replacement of our Constitutionally designed plan that going to war should be a difficult thing to do to our current state of perpetual war which can be initiated unilaterally by the President. It's just that I lived through all of it and I just get mad all over reading about it. [Emphasis added]

Florence still thought the book was worth the price. I'm off to Vroman's later this week and I'll let you know what I think sometime soon.

[Note: Ordinarily I would give the link to Amazon for the book, but I intentionally didn't this time because I'm mad at Amazon for being a supporter of ALEC. I intend to bus it over to my independent book store in Pasadena for all purchases until Amazon retracts that support. I urge you to avoid Amazon for the same reason.]

It's About Time, Damn It!

Do yourself a favor: go read the entire opinion piece by George Washington University law professor Jonathan Turley. He nails it in one.

Writing in passionate language which is more than faintly reminiscent of our Declaration of Independence, Prof. Turley indicts Barack Obama for continuing and even escalating the assault on our civil liberties initiated by the Bush administration, an assault which as a candidate our current president so decried.

Protecting individual rights and liberties — apart from the right to be tax-free — seems barely relevant to candidates or voters. One man is primarily responsible for the disappearance of civil liberties from the national debate, and he is Barack Obama. While many are reluctant to admit it, Obama has proved a disaster not just for specific civil liberties but the civil liberties cause in the United States. [Emphasis added]

And here is the Bill of Particulars Prof. Turley offers:

President Obama not only retained the controversial Bush policies, he expanded on them. The earliest, and most startling, move came quickly. Soon after his election, various military and political figures reported that Obama reportedly promised Bush officials in private that no one would be investigated or prosecuted for torture. ...

Obama failed to close Guantanamo Bay as promised. He continued warrantless surveillance and military tribunals that denied defendants basic rights. He asserted the right to kill U.S. citizens he views as terrorists. His administration has fought to block dozens of public-interest lawsuits challenging privacy violations and presidential abuses.

Either Candidate Obama was just kidding during his campaign or the glories of the Unitary Executive mantle he inherited from George W. Bush corrupted him. It doesn't matter which; the results would have been the same under either explanation. What does matter is that the president is once again the candidate, and he is expecting those of us who worked to elect him the first time will forgive and forget, mostly the latter.

Jonathan Turley hasn't forgotten, nor should the rest of us.

And now the president

The Unitary President: Version 2.0

George W. Bush didn't really have much use for Congress. Under his White House's theory of governance, the executive branch held all the meaningful cards. Congress was just there to rubber stamp his decisions, which, of course, it mostly did.

Barack Obama, who campaigned against such arrogance, has changed his thinking on the issue after getting a taste of the power he now holds under the theory of the Unitary President. Like his predecessor, he's discovered that all he needs is a convenient legal opinion from one of his many staff lawyers and he can do as he pleases.

That became quite clear over the past few weeks with respect to our share of the action to roust the current leader of Libya. He did not seek authorization from Congress to join in the fight, nor, after the 90 days mandated by the War Powers Act of 1973, does he intend to. He made that clear on Saturday.

Needless to say, Congress is not amused.

From the Washington Post:

Unhappiness in Congress was magnified Saturday by a report that Obama ignored some of his legal counselors when he decided last week that the Libya campaign should not be counted as “hostilities.”

That decision allowed him to bypass the 1973 War Powers Resolution, a law that requires presidents to report to Congress on any ongoing military conflict within a limited period of time. After receiving the report, Congress then has to decide whether to authorize the action taken.

Now, there are no US troops officially on the ground there (if you don't count CIA operatives), but there sure are a lot of bombs being dropped by NATO forces. That doesn't seem to matter. Here's the specious argument offered by the White House:

“U.S. military operations [in Libya] are distinct from the kind of ‘hostilities’ contemplated by” the War Powers Resolution, a White House report said.

The logic was that U.S. forces are mainly limited to supply, logistics and intelligence missions — although American drones continue to attack Libyan targets. [Emphasis added]

I guess what the president is saying is that if there are no pilots in the cockpit, those bombs aren't being dropped with any hostile intent.

That makes about as much sense as using the AUMF to invade Afghanistan as a shield for invading Iraq. And the attitude of both presidents appears to me to be identical.

So what can Congress do about it besides kvetch? About the only meaningful thing would be to cut off all funding for those non-hostile US forces engaged in the Libyan battle and hope to do that with a veto-proof majority in both houses. I don't think that's in the cards. There are too many people who enjoy making things explode in other countries currently seated in those august bodies.

All that remains is a sternly worded letter, and we know how that will be greeted.

Some change, eh?

The Unitary Governor

Wisconsin Governor Scott Walker was clearly taking notes during the last Bush presidency, gleaning a very important lesson: it's good to be king. How else does one explain his actions in the first months of his term?

He pushed $117 million in business tax cuts through the GOP-run statehouse, aggravating the state's deficit in hopes of creating jobs. Then he got the Legislature to agree to a measure requiring a two-thirds majority to raise taxes in the future, leaving fewer options to close the shortfall.

This week, he proposed a two-year budget to close the projected $3.6-billion deficit. It included big cuts in state aid to local governments — and would bar those cities and counties from raising property taxes to avoid having to make their own reductions.

Most notably, Walker used a small gap in the current fiscal year to fast-track a bill that would give his administration unprecedented powers — not only to weaken public sector unions, but to appoint dozens of powerful new bureaucrats and to determine who gets to stay in the state's Medicaid program. ...

"What you've got is a governor who's come in with a great appetite for achieving his ends," said Norman J. Ornstein, a scholar at the conservative American Enterprise Institute. "This is far more about power than it is about money." [Emphasis added]

How astute of the AEI. It's hard to disagree with that analysis, even given its source. Of course, it didn't take a session examining cow entrails to reach the right conclusion. Governor Walker has been pretty clear in his intentions:

The most consequential provision would allow Walker's administration to determine eligibility for the state's Medicaid program, BadgerCare. Previously, any changes would have to go through the Legislature. Under the bill, the governor has to consult only with the Senate's budget committee. [Emphasis added]

Sound familiar? That eight years under George W. Bush had Congress tied in knots, primarily because Congress quite cheerfully ceded important powers to the executive, just as the Republican-led state legislature is doing in Wisconsin.

Quick study, that Scott Walker.

A Long Talk

Instead of just threatening a filibuster, Sen. Bernie Sanders (I-Vt) delivered, speaking over eight hours from the Senate floor with just a couple of breaks. The subject was the Obama "compromise" with Republicans on extending the Bush tax breaks, which was no compromise at all since it gave the GOP and its masters just about everything in the federal store. Sen. Sanders made his point, repeating himself just in case folks missed key points the first time around.

"It has been a very long day," he said as he concluded his remarks, including a five-hour period in which he spoke without interruption. "I do believe that if the American people stand up … I think we can defeat this proposal. I think we can come up with a better proposal which better reflects the needs of the middle class." ...

"I'm not here to set any great records or to make a spectacle," he said at the start of his effort. "I am simply here today to take as long as I can to explain to the American people the fact that we have got to do a lot better than this agreement provides."

And explain he did. What he had to say resonated with enough of us who watched the live stream on his web site that we crashed it for a period of time. Many of us called his office to urge him on, which meant his staff had quite a long day as well.

I suppose an argument can be made that Sen. Sanders just delayed the inevitable. After all, as the LAT article makes clear, there was no real business scheduled for this particular Friday (as is usually the case because most congress critters are anxious to get home). But he did it anyway, and I think that filibuster may have some long term consequences, at least if we are lucky.

Ironically, one of the consequences is that several Republicans have openly voiced their displeasure with the deal. Sen. DeMint is unhappy with the "compromise," primarily because he discovered a few things in the federal store that his colleagues overlooked, and he wants it all. Sen. McCain tweeted his unhappiness with the deal (but then later indicated he would vote for it -- in typical McCain fashion).

At the same time, however, Sen. Sanders' long day, especially because it generated some excitement among the Democratic base, did give some cover to Democrats who happen to agree that the president gave up too much for too little. This will not be an easy vote, but it just became harder for Harry, and Sen. Reid obviously hates a real fight, especially one originating within his own ranks.

What would be the best consequence, however, would be a Congress who just said "NO!" to a president. We haven't seen that in ten years. The result would be a rebalancing of power, one that throws the "unitary executive" concept out the highest window in Washington DC.

And that would be a good thing.

For Shame, Mr. President

Tim Rutten has written another column that nails it, and its timing is perfect. He reminds us that we lost more than thousands of lives and an iconic landmark on this day nine years ago. He also points to the fact that in many respects, a change in administrations was in fact no change at all.

The story of how the Bush-Cheney administration rushed to make torture an instrument of national policy in its "war on terror," and of how it created an international gulag in which to abuse prisoners, is well known. Less remarked on — for reasons that do nobody credit — is the fact that President Obama and his administration have embraced the secrecy and usurpations of power that made possible the Bush-Cheney betrayal of American values. ...

As former CIA Director Michael V. Hayden told the Washington Times this week, differences between the Bush-Cheney White House for which he worked and the Obama administration on these issues essentially are minor.

"You've got state secrets, targeted killings, indefinite detention, renditions, the opposition to extending the right of habeas corpus to prisoners," Hayden said. "Although it is slightly different, Obama has been as aggressive as Bush in defending prerogatives about who he has to inform in Congress for executive covert action." [Emphasis added]

Last Wednesday 9th Circuit decided that those caught up in the horrific snares of rendition and torture have no right to damages because to secure those damages via a fair and open trial, something this nation once believed was an essential liberty, might reveal "state secrets," a defense regularly used by the Obama Department of Justice, even when the government is not a party to the litigation.

Behold the Imperial Presidency, something which Adam Serwer rightfully skewers in a post at The American Prospect. Atrios had a terse and cynical response to Serwer's essay on how to end the Imperial Presidency here:

What it will take (and even then only temporarily) is a Republican Congress, a Democratic president, and a real or perceived abuse of power against some part of the conservative tribe.

If Atrios is right, and I fear he is, then more than the Twin Towers were destroyed nine years ago. I think Tim Rutten would agree:

The further descent into the false exigencies of the national security state are different and far more threatening, as the Obama administration's eager embrace of their cover demonstrates. Our essential liberties survived the Cold War diminished but intact. Now, the "war on terror" is eroding them further in a conflict in which no one seems able to define a final victory.

I would only add that it is possible that victory is upon us. Unfortunately, we are not wearing the victor's garland.

Shame On President Obama ...

... And shame on us.

What do the UK, Poland, Lithuania, Spain, Australia, Canada have in common? All have official investigations and/or legal cases pending over their countries' role in the CIA's Bush-era programs of kidnapping and torture. One country is noticeably absent from the list: the US.

And that is a shame.

From McClatchy DC:

Arar's case illustrates what lawyers and human rights groups call a shameful trend: While U.S. courts and the Obama administration have been reluctant or unwilling to pursue the cases, countries that once backed former President George W. Bush's war on terrorism are carrying out their own investigations of the alleged U.S. torture program and the role that their governments played in it.

Judges in Great Britain, Spain, Australia, Poland and Lithuania are preparing to hear allegations that their governments helped the CIA run secret prisons on their soil or cooperated in illegal U.S. treatment of terrorism suspects. Spanish prosecutors also have filed criminal charges against six senior Bush administration officials who approved the harsh interrogation methods that detainees say were employed at U.S. military prisons in Afghanistan, Iraq, Guantanamo Bay and other sites. ...

The trend, although it's slow-moving and involves disparate plaintiffs, forums and legal strategies, could represent the end of a reviled chapter of the U.S.-led war on terrorism, which ensnared hundreds of detainees with the clandestine cooperation of dozens of countries. Now, some of those countries, led by new governments or under pressure from their citizens, are trying to pry open those secrets.

"This is the remarkable thing: Other countries are reckoning with the legacy of the Bush administration's torture program, and meanwhile the United States is not," said Jameel Jaffer, the director of the American Civil Liberties Union's national security program.

"That's part of why we're so concerned. The Obama administration, rather than investigate the abuses of the last eight years, has increasingly become an obstacle to accountability." [Emphasis added]

The first excuse used by the Obama administration for not examining the actions of its predecessors was that we needed to "look forward, not backward." That justification soon wore thin as in case after case the Justice Department under President Obama used the same worn out legal argument to stop cases against the government from proceeding: "government secrets." When that strategy came under fire, the emphasis shifted to the bizarre legal theory that under the Authority to Use Military Force (AUMF) passed by Congress, that government body ceded not only its own authority to declare war, but the power of the judiciary to examine crimes committed by the government.

That members of the Bush administration subscribed to the Unitary President theory was no surprise. That members of the Obama administration do so as well is absolutely shocking, especially in light of then-candidate Obama's pronouncements and promises on the campaign trail. Shocking and dismaying.

The question then becomes one for the rest of us. What are we going to do about it? If we continue to do nothing, saving our ire for bailed-out banksters and safety-eschewing oil companies, then we deserve the government we have and will continue to have, regardless of the color of the ties worn by its officials. The "New American Century" will be one in which American democracy lost its soul.

Hopey Changey Stuff

I found a little (if temporary) good news this morning. A federal judge has ruled that the unfettered domestic spying of the Bush administration is not so unfettered after all.

From the Los Angeles Times:

In a repudiation of the Bush administration's anti-terrorism surveillance program, a federal judge ruled Wednesday that the government violated federal law when it failed to seek warrants to spy on two lawyers working for an Islamic charity in Oregon.

U.S. District Judge Vaughn Walker rejected assertions by both Presidents Bush and Obama that their state secrets privilege shields them from lawsuits filed by American citizens investigated under a disputed domestic spying program launched after 9/11. ...

The Bush administration, believing that its strategy for fighting terrorism justified bypassing the FISA statute, didn't attempt to defend its wiretapping practices in the Al-Haramain case. Rather, it argued that the lawsuit should be dismissed because allowing it to proceed would undermine national security.

The Obama White House surprised some civil libertarians when it decided to continue defending Bush's claims to expanded powers to shield controversial counter-terrorism actions from lawsuits. Some advocates had expected Obama would change the policy. [Emphasis added]

While the Justice Department has not given any hints, I suspect that an appeal will be filed and will be taken up to the Supreme Court. Somewhere along the way, the appeal will be granted, and another appeal taken up to the Supreme Court. Given its current makeup, the highest court of the land will hold, probably by a 5-4 decision, that "state secrets" trump civil liberties.

What is so galling is that we were promised change from the policies of the last administration, yet Mr. Obama's administration continued the tradition of its predecessors by invoking the same lame excuse for warrantless wire tapping. In this case, there is no denial by the government that the attorneys for an Islamic charity were spied upon. Instead, the government urged that if the case for damages were allowed to proceed, the plaintiffs would have access to "highly sensitive" information. Eric Holder's department echoed that defense.

I guess the concept of the "Unitary President" is acceptable once you're the beneficiary of all that power.

She Said

Rep. Jane Harman (D-CA) has taken a lot of heat from the Republican Goon Squad for her complaints earlier this year that the intelligence services mislead the congressional "Gang of Eight" on the operation of the Terrorist Surveillance Program (TSP). Apparently tired of the calumny, Rep. Harman responded with this op-ed article published in the Los Angeles Times which describes the meetings the CIA held with the eight congressional leaders.

Those briefings were conducted roughly quarterly at the White House -- either in the vice president's office or the Situation Room. Most of the ones I attended concerned a code-named program now known as the Terrorist Surveillance Program. Respectful of the double oath I signed to protect highly classified material, I did not take notes or speak to anyone about the meetings. However, comments by Michael Hayden, former director of the National Security Agency and the CIA, that the Gang of Eight was "fully" briefed on the TSP prompt me to disclose, for the first time, what they were like.

In virtually every meeting, Hayden would present PowerPoint "slides," walking us through the operational details of the TSP. The program has since been described, in part, as one that intercepted communications to and from the U.S. in an effort to uncover terrorist networks and prevent or disrupt attacks. We were told that the program was the centerpiece of our counter-terrorism efforts, legal and yielding impressive results.

Often present were CIA officials (including then-Director George Tenet) and then-White House counsel Alberto R. Gonzales. Missing was any Justice Department presence -- a tipoff, in retrospect, to the legal limbo under which the program operated. [Emphasis added]

The Justice Department wasn't present because TSP wasn't operating in a "legal limbo," it was operating illegally, something that Mr. Hayden never bothered mentioning during his PowerPoint presentations.

It is now clear to me that we learned only what the briefers wanted to tell us -- even though they were required by law to keep us "fully and currently informed." Absent the ability to do any independent research, it did not occur to me then that the program was operated wholly outside of the framework Congress created as the exclusive means to conduct such surveillance: the Foreign Intelligence Surveillance Act.

I suppose that the "Gang of Eight" can be faulted for assuming that the program had been deemed legal by the Justice Department, because assuming anything the Bush administration did was legal was foolish. That should have been clear long before 2008. The fact that no one asked whether TSP was operating in conformity with FISA is a bit puzzling. Still, had someone asked, I suspect that Mr. Hayden would have simply noted that that the program had passed legal muster, based on a brilliant memo written by John Yoo.

The question now is what is Congress going to do about it, besides complain and write op-ed pieces? Well, Rep. Harman and her colleagues have proposed a new bill which would end the practice of partial reporting. The current White House response is chilling:

The House and Senate intelligence authorization bills would require increased notification, including, in the House bill, information on lawfulness, cost, benefit and risk. The White House has issued a veto threat, citing constitutional concerns. ... [Emphasis added]

Apparently President Obama has bought into the Unitary Presidency theory.

Unsurprising, that.

Who Knew?

I must admit that I am feeling some uncharitable glee at the current posturing of the congress critters over the fact that the CIA apparently withheld information, and possibly lied, about a super-duper-super-secret program it had been running during the Bush administration. Once the news hit that the CIA had been less than forthcoming about the existence of this program (about which we of the unwashed public still know nothing) because then Vice President Dick Cheney ordered them not to mention its existence to Congress, things got really heated.

Even Sen. Dianne Feinstein, chair of the Senate Intelligence Committee, got riled by the news, so much so that she is calling for an investigation, according to this NY Times article, because laws may have been broken.

Senator Dianne Feinstein, the chairwoman of the Senate Intelligence Committee, said on Sunday that the Bush administration may have broken the law if the Central Intelligence Agency concealed a covert spy program from Congress.

The New York Times reported on Sunday that the agency’s current director, Leon E. Panetta, had told the Senate and House intelligence committees that the C.I.A. withheld the information about a secret counterterrorism program on direct orders from then Vice President Dick Cheney.

The Times said that according to two people with direct knowledge of the matter, Panetta ended the program when he first learned of its existence from subordinates on June 23 and briefed the two intelligence committees about it in separate closed sessions the next day. [Emphasis added]

Now it's bad enough that the information was at the very least withheld from the congressional oversight committees, but even the new director wasn't aware of the program until several months after he took over the CIA. If Leon Panetta didn't know about the program, I think a safe assumption is that the new President and Vice President didn't know about it either. That means that the CIA has been operating with absolutely no oversight at all for the past six months. There's something dreadfully wrong with this picture.

Of course, Republicans don't seem to mind much. After all, the Unitary President concept only applies when a Republican holds the White House. Proof of that came from John Kyl:

Jon Kyl, ... a Republican from Arizona, also said that it’s too soon to say whether an investigation needs to take place.

“What if it’s a top-secret program?” he asked. “Let’s not jump to conclusions.”

So secret that even the President and the Director of the CIA don't know about the program? So secret that the congressional committees charged with oversight of the agency don't even get a hint?

Lewis Carroll would have been proud.

A New Tool In The Tool Kit

Here's my nomination for the ugliest story of the day. Immigration and Customs Enforcement agents have found a new way to deport immigrants, one that abuses the court system to ICE advantage:

Fernando Arteaga appeared last week in Immigration Court as part of a lengthy battle to stay in the United States. But just before the hearing began, immigration officers removed him from the courtroom, arrested him and took him into custody.

Several hours later, agents deported him to Mexico -- even though his court case was still underway. ...

Arteaga, an illegal immigrant from Mexico, was deported in 1988 based on an assault conviction and sneaked back across the border soon after. In 2003, he was arrested by immigration officials but was released from detention after paying a bond. The immigration agency gave him a notice to appear in court. For the last six years, he had been fighting to stay in the country based on his marriage to a U.S. citizen. The couple have three U.S.-born children.

Arteaga's attorney, Mario Acosta Jr., said that moments after his client was arrested May 11, he went into the courtroom and explained what had happened. The judge issued a stay of deportation, Acosta said, but the immigration agency ignored the order and deported Arteaga anyway.

The chain of events is interesting. When Mr. Arteaga was arrested for illegally re-entering the US after being deported, he was allowed to post a bond, then ordered to appear in court in a case which ICE officials initiated. After years of fighting to stay in the US, Mr. Arteaga showed up for a court hearing, was arrested, and then deported even after the judge hearing the case issued a stay of deportation.

There are a couple of rather clear lessons here. The first is that if you are an illegal immigrant you only get due process once in a life time. After that, you are fair game for the government. It gets to do as it chooses, including manipulating the court system to set you up.

The second lesson flows from the first. The executive branch of the government, in this case ICE, trumps the judicial branch. The Unitary Executive theory of the last administration made that clear, and apparently this administration is going to operate under that theory if this episode is any indication.

Some change, eh?

That Abomination at SMU

Another voice was heard about the ludicrous aspects of installing a liebury cum 'think' tank for the recent occupier of the White House. Today the NYT featured a column by Gail Collins that deplored making a memorial to some one who came close to destroying everything good about this country.

The center has several different functions, one of which is to showcase a collection of presidential memorabilia. Texas already has a museum for Lyndon Johnson and one for George H.W. Bush. You do have to wonder how many replicas of the Oval Office any one state needs.

The original Bush Presidential Library and Museum is at Texas A&M University, where visitors can see a “stunning replica of Barbara’s wedding gown,” a restored 1947 Studebaker, samples from the museum’s collection of more than 1,200 elephants and the family speedboat, Fidelity. Why can’t George W. just stick his knickknacks in there, too? They wouldn’t even have to change the name.

True, it might be tough to make room for the foundation’s planned “interactive decision theater,” where visitors “will have the opportunity to make their own presidential decisions.” Do you think we could uninvade Iraq?

The George W. Bush Presidential Center is, of course, planning to have a library. That’s a given for these kinds of monuments to ex-presidents, even if the one in question has done more than any chief executive in modern history to keep public records out of the hands of the public.

This is the guy who told federal agencies that whenever a citizen asked to see a document, the government should presume it was secret unless the petitioner could prove otherwise. Really, the best thing you could do for the Bush administration papers would be to put them someplace where George W. cannot get within 10 miles of them.

The final part of the center is going to be a think tank that was originally called the Freedom Institute. However, the Bush White House did such a thorough job in ruining the word “freedom” that the organizers seem to be rethinking that.

Its mission is to “further the domestic and international goals of the Bush administration.”

As James Traub wrote in The Times Magazine, the institute will be somewhat unique in that, while part of the university, it has no obligation whatsoever to report to the S.M.U. president or provost. It will instead report to the president of the Bush foundation, a former hotel executive who Bush once made ambassador to Costa Rica.

Thanks to that tax deduction, money donated to this enterprise is money that will not be going to help balance the federal budget.

Anger channeled yet?

It’s hard to believe that there are rich people, even in Dallas, who think the George W. Bush Presidential Center is the best possible use for excess cash at this particular point in history. We’re going to devote the next couple of months to torturing any employee of a bailed-out financial company who took a bonus. There ought to be a few minutes to spare for people who weigh all the nation’s competing needs, then decide that what the world needs most is a really good repository for W.’s White House treadmill.

Why does the Bush center need donations anyway? His administration believed the profit motive makes everything efficient — derivatives markets, health care, invasions. If he wants a monument, let him build an amusement park. Kids could compete in brush-clearing contests or slam-dunk at the George Tenet Basketball Court.

And rides. There would, of course, be lots of rides. After all, he took us for one.

I suppose she forgot to mention that rendition special, the unidentified aircraft to dark zone prisons. Maybe that would be the Mockingbird Lane 'Skull Island'. Yes, SMU is on Mockingbird, kind of fits. There will be mocking.

She left out, too, the commemorative waterboarding cell that it truly cries out for. But we can be sure that w's memorial to himself will receive lots and lots of shoes.



This memorial to his wars was taken from Ashurbanipal's Palace, long after his reign and kingdom were sand. Makes me think that the bitter legacy of the departed cretin in chief will eventually be silent - as it should be.

This Shouldn't Have Been Necessary

Given what Barack Obama promised during his campaign, this editorial in today's Los Angeles Times should not have had to appear. Candidate Obama decried the excesses of the Bush administration when it came to detention and torture of alleged "enemy combatants," lamented the shredding of the Bill of Rights, and promised transparency in his government. President Obama, however, has stepped back from these stances, equivocating on each issue, apparently intimidated by the dire threats of further attacks emanating from the CIA and the other US intelligence agencies.

The editorial board of the Times noticed and felt compelled to remind him of his promises. They even suggested areas and ways he could keep those promises while still keeping the US safe.

If he wants to close the chapter on the previous administration's excesses, Obama needs to adopt clear policies in the following areas.

* Interrogation. ...Panetta and Obama must make clear that the administration isn't reserving the right to create a loophole for torture. That assurance will be more credible if Obama makes permanent his order that CIA interrogators abide by the Army Field Manual.

* Due process for detainees. ...This cautious approach may reflect Obama's desire to be able to detain dangerous terrorists even if they haven't been convicted of crimes. That position would be more palatable if he moved most accused foreign terrorists -- and any legal U.S. resident -- to civilian courts.

* Legal advice. ...Obama's nominee to head the office, Dawn Johnsen, favors the public release of at least some opinions. As with the state secrets privilege, the Justice Department should aim for maximum transparency in explaining the legal rationale for its policies -- even when they involve national security.

* Investigations of U.S. officials. ...the administration in the future must not overlook evidence of possible perjury or the willful destruction of evidence. And decisions about whether to prosecute should be made by the Justice Department, not by the White House. [Emphasis in the original]

This editorial, written by the "center-left" board at LAT, is the very least that we should be expecting from the new administration. After noting the president's desire to look forward, not backward, even this group acknowledges that Mr. Obama is hedging and stammering on issues that the people who elected him and the people in the rest of the world want addressed.

If President Obama really wants to look forward, he will have to look at the past to see where the prior administration went wrong so that he can return us to a nation of laws. That means ending the barbarism and the egregious practices that effectively made this nation a dictatorship and it means punishing those who engaged in the foul behavior.

Anything less is actually nothing at all.

Our Ms. Brooks: The Big Lie(s)

As Ruth pointed out earlier this week, the contents of the released memos from the Bush Office of Legal Counsel contained some real stunners, including justification for the last administration's complete suspension of the First and Fourth Amendments of the US Constitution. In her most current column, Rosa Brooks examines just how Bush got away with "a theory of presidential power amounting to virtual dictatorship."

It's clear that the whole purpose for crafting the memos was to give the Bush administration cover for this wholesale power grab. What is so amazing is that the memos themselves, mostly written by John Yoo, are so poorly crafted and so legally deficient that any resemblance to the state of the law is purely accidental.

In a way, what's most shocking is just how outrageously bad the office's legal arguments were. The 2001-2002 memos mischaracterize previous Supreme Court decisions, ignore crucial legal precedents and contain gaping holes in logic. To accept the theories the Office of Legal Counsel came up with, you need to assume that George Washington and Thomas Jefferson had it all wrong when they rebelled against Britain's King George III in 1776. You need to believe, more or less, that the 225 years of American jurisprudence between 1776 and 2001 amounted to one giant mistake.

The memos are so embarrassingly foolish that the Office of Legal Counsel itself was ultimately forced to repudiate them. ...

So, how did Bush get away with it? Ms. Brooks suggests that one answer is the "Big Lie" theory.

In other words: Paradoxically, the more outrageous the claim, the more apt we are to assume there must be some truth to it. Just as some banks and insurance companies are apparently "too big to fail," some claims from those with political power seem to strike us as "too big to disbelieve." "That seems so outrageous it must be right," we tell ourselves. "The important people keep saying it -- they must know something I don't know." ...

Big lies prevail because we can't bring ourselves to believe that our leaders could be so dishonest or deluded. And big lies can do terrible damage, of course. The Bush administration's big legal lies paved the way for some of the most shameful episodes in our history, including the official authorization of torture. ...

But don't think we're out of the woods. As Hitler demonstrated, some small part of the most "impudent lies" will always remain and stick. Big lies leave little lies in their wake, changing the political discourse in enduring, difficult-to-detect ways.

And that's the challenge we now face: tracing the barely visible effects of the Bush administration's now-repudiated big lies -- through our legal system, our constitutional system, our foreign policy -- and undoing all the damage.

So, just what specifically is the course which must be followed to undo all the damage?

My first inclination was to suggest that it's now time for Congress to start digging into this whole mess, something they should have started doing back in 2001, but certainly should have launched in 2006 when Democrats gained control of Congress. And therein lies the rub, as Dan pointed out in his magnificent post at Pruning Shears (via The Sideshow):

Democrats are hardly blameless though; they were meek in the minority and timid when swept back into power. The most infamous example is Nancy Pelosi’s declaration immediately after the election that impeachment was “off the table.” As we begin to see the details of Bush era lawlessness emerge it is increasingly amazing that the Democratic leadership was unwilling to forcefully oppose it. It seems very likely that the Bush administration took Democratic assurances there would be no attempt to investigate allegations of lawbreaking (!) as a clear sign it could continue to act with impunity.

Which is why there is every reason to be skeptical of any attempt to funnel a process or investigation through Congress: Many of the same players are still there. Congressional commissions are also notoriously ineffective. The two most recent examples - the 9/11 commission and the Iraq Study Group - promised substantial revelations and frameworks for action, and both are already nearly forgotten.

The Obama administration has adopted the positions of the Bush administration in many of its early decisions, but the declassification of the OLC memos is a welcome break. They provide enough evidence of potential lawbreaking to initiate a criminal investigation. That is the process we have always used, and it should be sufficient now. Let the Justice Department start looking into it and let the chips fall where they may. There is no need for Congress to be involved. Given its history and (in this case) its members there is no reason to hope it would produce any kind of satisfactory result.

While I don't think Congressional hearings need necessarily impede any Justice Department investigation, I think about the best we could hope for from the 111th Congress (which is still led, after all, by Harry Reid and Nancy Pelosi) is a public airing of the devious and intentionally malignant operations run out of the White House against the nation and citizens it was supposed to serve, not oppress.

Frankly, Dan's argument is compelling enough that I don't think we can hope for even that. This is one of the few times I will admit to wanting Congress to keep its grubby little fists off an important issue.

The Crowded White House

After eight years of an administration that effectively by-passed Congress on just about everything, it is understandable that the new Congress might just be a little touchy when it comes to a new administration which is showing some signs of continuing the tradition. No, President Obama isn't working out of Karl Rove's Handbook to Effective Unitary Presidentiality, but he is setting up a system of in-house advisers and counselors, "Czars", if you will, that seems to dilute the powers and the duties of Cabinet members who must first go through the Senate confirmation process before assuming their offices.

From today's Los Angeles Times:

As President Obama names more policy czars to his White House team -- high-level staff members who will help oversee the administration's top initiatives -- some lawmakers and Washington interest groups are raising concerns that he may be subverting the authority of Congress and concentrating too much power in the presidency. ...

Sen. Robert C. Byrd (D-W.Va.) became concerned enough to send a cautionary letter to Obama last week. At times, he said, past White House staffers have assumed duties that should be the responsibility of officials cleared through the Senate confirmation process. He cited President Bush's naming of homeland security czar Tom Ridge as an example.

"They rarely testify before congressional committees and often shield the information and decision-making process behind the assertion of executive privilege," Byrd wrote of past czars and White House staffers in similar positions. At times, he said, one outcome has been to "inhibit openness and transparency, and reduce accountability."

"The rapid and easy accumulation of power by White House staff can threaten the constitutional system of checks and balances," Byrd said. ...

In addition to naming [Nancy-Ann] DeParle to coordinate healthcare policy, Obama has tapped Carol Browner to be White House energy czar, a post that could overlap with the functions of the Environmental Protection Agency, the Energy Department and other agencies. Adolfo Carrion Jr., a former Bronx borough president, is urban affairs czar, a job that may dovetail with the functions of the Department of Housing and Urban Development. And Paul A. Volcker, Obama's big-picture economic czar, must coordinate with the Treasury Department and other agencies.

While it is tempting to assert that this sort of complaint should have been made eight years ago before the White House power grab of the Bush administration, the fact is that the complaint is just as appropriate now as it would have been then.

The current administration argues that the problems which must be faced often cut across traditional cabinet lines. For example, a sane energy policy can't be squirreled away in just the Energy Department's portfolio. Health insurance programs might affect policies in the Labor Department as well as that of Health and Human Services. The "czar" position was created to make certain that everyone in the administration was on the same page.

The answer to the argument is, of course, that cabinet meetings are supposed to address those kinds of problems. What Sen. Byrd and other members of Congress fear is that those cabinet members who have been through the confirmation process and who must testify before Congress as necessary are nothing more than public faces. The real power is being centered in a White House which has inherited an enhanced executive privilege assertion, with no transparency, no accountability, and no checks and balances.

Frankly, I think Sen. Byrd's concern is justified. It is past time for Congress to reassert itself in the democratic process. No president, regardless of party or size of victory, must be allowed to assume the powers that the last administration did.

Presidential Secrecy Smackdown

A sign that always had ominous overtones in the maladministration just past was its cloak of secrecy. As we learned, monstrous activities were indeed concealed under that cover. Yesterday, President Obama removed a major obstacle to public understanding by releasing presidential papers without the interminable delays that the former cretin in chief had instituted.

The secrecy that began with Darth's meeting to formulate energy policy, refusing to tell what influences were being allowed to make energy policy for the American public, foreshadowed the total power vacuum that the public suffered during the eight years of the oilmen from Texas. The wildly soaring prices of oil were the origin of the financial turmoil now, sucking all the buying power from working people for their transportation needs.

The faculty, alumni, and students at SMU were particularly troubled by the threat of a secret presence on campus that was part of the proposed library. Today that library still has a fight in court, as it has never gained title to the land it has announced it will build on.

A break with the disreputable past is a wonderful sign of President Obama's attitude toward the public. Openness and welcome is the exact opposite of the past eight years of disdain. The public interest has come into a new regard at the White House.

President Barack Obama began dismantling the Bush legacy Wednesday, using his first full day to overturn an order that let ex-presidents seal their papers forever.

It was one of a number of big and small steps by the new president that, taken together, amounted to a slashing denunciation of his predecessor – from an order halting military tribunals at Guantánamo Bay, Cuba, to one meant to make unclassified records more readily available to the public.

"It is a new day," said Lee White, executive director of the National Coalition for History, one of scores of groups that had complained for years about the Bush order regarding White House records. "This ... makes it much more difficult for a former president to shape his legacy."
(snip)
Obama vowed during the campaign to overturn the order, as part of a government "transparency" agenda. Open-government advocates called it a pleasant surprise that he put a focus on the issue so soon after taking office.

"This is the earliest and probably the most emphatic call for more open government from any president," said Tom Blanton, executive director of the National Security Archive at George Washington University.

While a matter of reading up on official records may seem like a minor matter to many in the public, the matters of law in this event have been monumental. The maladministration just ended usurped law by an executive order, and the Department of "Justice" issued a directive that refusal to produce papers that were demanded under constitutional law would receive the support of that politicised Department. The subjugation of our laws to the whimsy of presidents was established in that proceeding by war criminals in high office. When they acted in opposition to the public interest, they declared their own freedom from the laws they used against the rest of us.

Bush's executive order is titled "Further Implementation of the Presidential Records Act." But rather than "implementing" that law, the order abrogates the core principles of the act and violates both its spirit and letter.

The Presidential Records Act was created out of the legal morass surrounding the Watergate scandals and legitimate congressional fears that former president Nixon would never allow public access to the records of his administration. The legislation established once and for all -- or so we thought -- the principle that presidential papers represent the official records of activity by the highest office in our government of, by, and for the people -- and that they therefore belong to the U.S. government and, by extension, its citizens. The act further mandates that management of, custody of and access to such records should be governed on behalf of the nation by the archivist of the United States.
(snip)
And there's more. On Oct. 16, Attorney General John Ashcroft issued a memorandum telling federal agencies that when they decide to withhold records in response to Freedom of Information (FOIA) requests, they can "be assured" that the Department of Justice will defend their decisions. The memorandum supersedes a 1993 directive by then-Attorney General Janet Reno, directing federal agencies to resolve ambiguous situations in favor of openness. Though Ashcroft's memo suggested that the present reversal on FOIA requests was necessary for protecting "national security, enhancing the effectiveness of our law enforcement agencies, protecting sensitive business information and, not least, preserving personal privacy," the fact is that these categories of information are already exempted from release under our freedom of information laws. Like Bush's executive order, Ashcroft's FOIA memorandum has the effect of limiting our ability as citizens to know what our government is doing, and why.

The end of this failed executive branch should provide a lesson for all times, and its records should be public property. We have paid with lives and treasure, and debt stretching off into a distant future, for the criminal acts, and intent, of these reprehensible thieves. We can rightly claim ownership of the records of their misdeeds.

The Successes Of The Unitard

I tend to marvel at the sheer incompetence of George W. Bush and his administration when I look back at his tenure: Iraq and Afghanistan, Katrina, the economy. However, some of his policies succeeded brilliantly, most notably his drive to nuke civil liberties back to the Stone Age. David O. Savage has a pretty good analysis piece in today's Los Angeles Times which underscores those successes and the strategy behind them.

George W. Bush will end his presidency in retreat, forced to compromise on several fronts. Free-market economics have given way to massive government bailouts, and an assertive, unilateral foreign policy has yielded to one more attuned to world opinion. But in his defense of the war on terrorism, Bush has succeeded in beating back nearly all legal challenges -- including those to some of his most controversial policies.

Among them are a domestic surveillance program to intercept international phone calls, the rounding up of Muslim men for questioning after the Sept. 11 attacks, the holding of suspects in military custody in this country without filing charges, harsh interrogations -- some have called it torture -- of suspects arrested abroad, and the detention of foreign captives at a military prison at Guantanamo Bay, Cuba.

How did he succeed? Well, he had plenty of help.

Soon after Sept. 11, Bush said that as commander in chief he had the "inherent" power to act boldly in the nation's defense, regardless of whether Congress or the courts agreed. ...

His claim has been much criticized. It also has not been accepted by Congress or endorsed by the Supreme Court. The justices have said the president must act according to the law, not in spite of it.

Nonetheless, Bush's anti-terrorism policies have not been blocked by the courts or Congress. When the Supreme Court struck down Bush's use of special military trials at Guantanamo on grounds that he had no legal basis for creating them, Congress passed the Military Commissions Act to authorize the trials.

When critics claimed the National Security Agency was violating the Foreign Intelligence Surveillance Act by intercepting calls without a warrant, Congress passed a law to authorize such wiretapping. The same measure also granted legal immunity to telephone companies that had cooperated with the administration.

And not just Congress was complicit: the federal courts, now packed with Bush appointees because Democrats decided to keep their powder dry, have also helped:

When the government is sued, its lawyers can throw up an array of barriers. They can say the officials who carried out the policy have immunity from being sued. They can say the plaintiffs do not have standing to sue or lack enough evidence to show the policy is unconstitutional.

"This is a Catch-22," said Harold Hongju Koh, dean of Yale Law School. "They can say, 'You don't know we did it, so you can't sue.' Or, 'If you know we did it, you can't sue because it's a state secret.' The government makes these procedural arguments in every case, and it means you essentially never get a ruling on the merits." [Emphasis added]

In other words, the federal courts bought those government arguments and summarily dismissed the law suits before the trial ever proceeded.

Those law suits brought by the ACLU, however, were brought in civil court, and that may give some clue as to where ultimately this country will have to go to right the wrongs done by this administration and to return some sense of justice to this country. Once again, we need independent criminal investigations on these breaches of domestic and international law, and we need prosecutions of those who ripped constitutional guarantees to shreds. Only then will we be safe from the evil-doers who would turn this country into a Beria era dictatorship.

Oh, and Mr. Savage? That bit about "some have called it torture"? That "some" fall into the category of those who signed the various Geneva Conventions which clearly defined waterboarding as torture. Do your homework a little more carefully next time.

A Declaration Against Interest

Dick Cheney confessed to war crimes this week in an interview with ABC news. Well, it wasn't really a confession, more like a boast. And he still claims that no war crimes were committed, the Geneva Conventions be damned. Arrogance unbounded. Of all the commentary I read on the Vice President's interview, the one that most clearly articulated the outrage I felt at Cheney's comments was Derrick Z. Jackson's column in yesterday's Boston Globe.

VICE PRESIDENT Dick Cheney said this week that he directly approved waterboarding to torture terror suspects. "I was aware of the program, certainly, and involved in helping get the process cleared," Cheney told "ABC News." Asked if he believes the simulating of drowning is an appropriate technique, he said, "I do." ...

...Cheney told us after 9/11 that the administration would protect us by working on "the dark side . . . in the shadows in the intelligence world." Cheney, Rumsfeld, and President Bush turned the dark side into a blind eye, the shadows into a shroud, and obliterated intelligent discourse on terrorism with raw fear. That was only the warm-up for twisting intelligence to invade Iraq for weapons of mass destruction that did not exist.

Bingo!

The tragic part is that he and his colleagues are going to get away with it. They will go from the malfeasance of this administration to cushy jobs elsewhere: on boards of directors, or conservative think tanks, or, at the very least, to high-paying speaking tours, a fact, Mr. Jackson points out, is exactly the path that those who left the administration earlier took:

For eight years the administration never feared trampling truth and justice, even as Rumsfeld told the Senate Armed Services Committee in 2004 about Abu Ghraib, "Anyone who recommended that kind of behavior that I have seen depicted in those photos needs to be brought to justice." At the moment, the administration faces no serious repercussions for decisions that resulted in many times more deaths in Iraq than here on Sept. 11, 2001. Rumsfeld went from disgrace to a visiting fellowship at the Hoover Institution. Deputy Defense Secretary Paul Wolfowitz went from miscalculating the need for hundreds of thousands of troops in Iraq as "wildly off the mark" to counting the planet's dollars at the World Bank - until corruption ended his presidency there. [Emphasis added]

It wasn't just international law that was broken by this sorry lot, national law and the very Constitution were trampled. We've had eight years in which warrantless wire taps were encouraged, citizens spied on as they engaged in peaceful protest, and "terror lists" compiled which limited Americans' right to travel. They did it because they could.

I am tempted to blame Nancy Pelosi (and she certainly deserves a lot of the blame) for taking impeachment off the table, and Democratic congress critters (including Senator Barack Obama) for signing off on the recent FISA bill granting retroactive immunity to the telecoms who cooperated so freely in the warrantless wire tapping. In fact, I think a case can be made that nearly everyone sitting in the 109th and the 110th Congresses were complicit with the overt and intentional ruination of our Bill of Rights as this "unitary president" assumed essentially dictatorial powers after 9/11.

The fact of the matter, however, is that this administration got away with the nightmare of the last eight years because we let them, we, as in "We, the People." Even though our press most certainly did not do its job, preferring instead to regurgitate the talking points handed them by the administration in the tradition of Soviet era Pravda, we knew enough to take action. We didn't take that action then, but we certainly can now. We can demand that the 111th Congress investigate the high level wrongdoing and that it turn its findings over to the Department of Justice for prosecution.

It mustn't stop there, however. We cannot assume that the next administration will be any different, even if it is wrapped inside a package labeled "Democratic". We can demand that President Obama close Guantanamo Bay and every other prison in which people are being detained without charge and tortured into giving ludicrous confessions which would be inadmissible in any civilized court of law. We can demand that the FISA law be updated to conform to new technology, but that it still conform to the principles of Bill of Rights. We can demand that all domestic spying be examined for its legality, "threats" be damned.

If our demands are once again ignored, then we must take to the streets in numbers large enough that the miscreants must take notice, because if we don't, we will have eight more nightmarish years, and then another eight more, and then another. And I don't want to live like that.

Another IED Set To Go Off

Yet another time bomb has been planted by the outgoing Bush administration, and it's a really nasty one. It involves health care and the right of health care workers to refuse to provide it, according to the Los Angeles Time.

The outgoing Bush administration is planning to announce a broad new "right of conscience" rule permitting medical facilities, doctors, nurses, pharmacists and other healthcare workers to refuse to participate in any procedure they find morally objectionable, including abortion and possibly even artificial insemination and birth control.

For more than 30 years, federal law has dictated that doctors and nurses may refuse to perform abortions. The new rule would go further by making clear that healthcare workers also may refuse to provide information or advice to patients who might want an abortion.

It also seeks to cover more employees. For example, in addition to a surgeon and a nurse in an operating room, the rule would extend to "an employee whose task it is to clean the instruments," the draft rule said.

The rule, which would take effect before President Elect Obama's inauguration, is indeed an unholy expansion of current law, as the article points out:

Since the 1970s, Congress has said no person may be compelled to perform or assist in performing an abortion or sterilization. One law says no person may be required to assist in a "health service program or research activity" that is "contrary to his religious beliefs or moral convictions." The HHS rule says that law should be enforced "broadly" to cover any "activity related in any way to providing medicine, healthcare or any other service related to health or welfare." [Emphasis added]

Who could possibly be in favor of such an expansive rule? Oh, just the usual suspects: the Christian Medical Assn. and the U.S. Conference of Catholic Bishops. Their excuse (wait for it...) is that the new rule will not limit a woman's right to an abortion, only the right of a health care worker to save his or her soul.

Oh, please.

As the American College of Obstetrics and Gynecology has pointed out, such organizations are overlooking one of the most basic ethical tenets of medicine:

Last year, the American College of Obstetrics and Gynecology said a "patient's well-being must be paramount" when a conflict arises over a medical professional's beliefs. ...

"Although respect for conscience is important, conscientious refusals should be limited if they constitute an imposition of religious or moral beliefs on patients [or] negatively affect a patient's health," ACOG's Committee on Ethics said. It also said physicians have a "duty to refer patients in a timely manner to other providers if they do not feel that they can in conscience provide the standard reproductive services that patients request." [Emphasis added]

If the rule is allowed to take effect, it will take months and months to go through the process of repealing it because, once again, public hearings and public input would be required. The only way to stop the rule from taking effect is for Congress to step in. Senator Clinton has already promised to engage that battle, which would be a fitting way for her to make her exit.

It would also be a fitting way for Congress as a whole to finally reject the Unitary President theory of this administration. After all, Congress is the body which is supposed to legislate. The president's job is to see that the laws so legislated are executed, not to engage in legislating his own bills. I suggested we let our congress critters know that we expect them to uphold the Constitution in this regard.

And as for the outgoing administration's latest gift to the American public...

For shame, Mr. Bush.

For shame.

The Former Executive's Privilege

Reading this article in the NY Times really started my day wrong. It appears that the Bush administration is going to avoid any liability for the last eight years, thanks to Harry S. Truman, of all people. Here's the lede:

When a Congressional committee subpoenaed Harry S. Truman in 1953, nearly a year after he left office, he made a startling claim: Even though he was no longer president, the Constitution still empowered him to block subpoenas.

“If the doctrine of separation of powers and the independence of the presidency is to have any validity at all, it must be equally applicable to a president after his term of office has expired,” Truman wrote to the committee.

Congress backed down, establishing a precedent suggesting that former presidents wield lingering powers to keep matters from their administration secret. Now, as Congressional Democrats prepare to move forward with investigations of the Bush administration, they wonder whether that claim may be invoked again.

The Truman tussle involved one of his appointments to the IMF, someone the House Un-American Activities Committee wanted to investigate as a "known Communist." Truman wanted no part of the witch hunt, so he asked some high powered attorneys to come up with an excuse. They did, Congress blinked, and now we are seeing that scenario playing out anew.

George W. Bush has asserted an extraordinary expansion of executive powers under the questionable theory of the Unitary President, even blocking an inquiry into former President Clinton's administration by the then GOP-led Congress. Under this theory, the Bush administration has effectively rebuffed any congressional inquiry into his policies, encouraging current and former members of the White House staff to ignore congressional subpoenas. It now looks like this will continue after Bush leaves office.

President Elect Obama has already indicated he has no desire for massive investigations into the Bush years, preferring instead that Congress go about the business of fixing all of the problems caused by the activities (many of them unlawful) of the Bush administration. That means that all we will get is a fresh bandage over a festering wound. The same people who lied us into a war and who used the Justice Department for domestic spying and personal vendettas will have the opportunity to rise again whenever the time is right.

And all because of a letter submitted to Congress by a former president decades ago. That isn't much of a legal precedent, but, given the makeup of the current Supreme Court, I suspect many who want to curtail the expansion of presidential assertions of privilege are a bit nervous about pushing the issue.

With the decisions by Democratic congressional leaders to accumulate massive amounts of dry powder and to take impeachment off the table, I guess we should have expected this. It still stings.