Tuesday, December 30, 2008

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.

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Blogger Rmj said...

Minor legal point: the "obstruction" in the courts is the act of the DOJ, not judges appointed by Bush. There are legitimate issues of standing when the violation is so inchoate as to include almost the entirety of the US citizenry.

Quite simply, such a broadside against American society is not something the legal system is set up to respond to. That's the province of Congress. The courts exist to redress grievances for individuals, not to be a third arm of representation of the people. So the problem still comes back to the Bush Administration and the Congress.

5:50 AM  

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