Thursday, May 14, 2009

A Brief History of Recent Failures to Uphold the Constitution

When it comes to the many issues surrounding the US war crime of torture, one of the main political questions for me is who among American politicians should be investigated, prosecuted and, if found guilty of high crimes and misdemeanors, sentenced according to the law (impeachment, jail time, disbarring, censure, etc.).

It has been rather clear to me that Bush, Cheney, Tenet, Rice, Rumsfeld and several of their minions (Addington, Feith, Yoo, Bybee, etc.) should have been investigated back in 2004/2005 after Abu Ghraib broke--that is, after it became more and more clear that the Bush administration had authorized, rationalized and ordered crimes such as extraordinary rendition and torture.

Since then it has become clear that prosecution has been in order for years, especially after Obama's recent release of the so-called torture memos and the recent release of the Red Cross report. It has also become clear that many in congress and elsewhere, Democrats and Republicans, are now guilty of failing to uphold the constitution and should also be investigated and potentially prosecuted.

Condoleezza Rice's recent comment that "by definition if it was authorized by the President" any controversial interrogation technique is therefore legal suggests why Bush and his cronies should be in more trouble than they are currently in: they believed that they were above the law simply by Presidential decree. Dana Milbank reported on the Bush administration's post-Watergate move to return power to the President, but his report buys into Bush administration rationalizations that there is actually a constitutional theory that supports giving the power to the President to suspend the constitution. Milbank calls this theory a strong version of the "unitary executive theory," but even this executive-biased theory has to be stretched beyond all recognition to match Rice's imperial legal theory (irony: she will be teaching political theory at Stanford).

In 2005 it became clear that Bush and Co. had broken the Watergate-inspired FISA law by wiretapping US citizens without warrants. By early 2006, the focus of those interested in bringing the Bush administration to justice switched from lying us into war, war crimes and torture to warrantless wiretapping, which at the time seemed like a much clearer violation of the law since Bush and Co., in all their arrogance, admitted they were accountable. There was also an under-reported majority of Americans who supported impeachment for warrantless wiretapping. In January, 2006, Al Gore said on ABC News that warrentless wiretapping could constitute an impeachable offense.

To many, these areas of "high crimes" were all, by themselves, deserving of investigation, prosecution and even impeachment years ago. But from Abu Ghraib in 2004 to the mid-term election in late 2006, the Bush administration had nothing to fear because a Republican-led congress had no problem violating the law by ignoring calls for independent investigations. They felt no need to uphold the constitution, and the citizenry did not hold them accountable to their sworn oaths to do so. These violations of the law themselves deserve investigation: legislatures should not have a choice with respect to upholding the constitution. It is their legal obligation. This is also true for Democratic legislatures, including Pelosi, and our current Executive, who both share an "off the table" policy with regard to even investigation of these high crimes.

My argument has always been that deciding not to investigate, let alone prosecute, these obvious high crimes is itself a high crime. The oath that all of these politicians take when they begin their service to us citizens starts with the idea of upholding the constitution. It's very basic, very American. Of course, the idea is to have a system of checks and balances between three equally weighted branches of government, in a way that supports the rule of law (in order to avoid the rule of people and parties, dictators, kings and oligarchies). During 2004-2006, a GOP dominated executive, legislative and judiciary did not provide any hope for such checks and balances, but it did provide fertile ground for the executive's abuse of power in the form of assuming king-like powers to be above the law. GOP leaders even employed the anachronistic idea "sovereign immunity"--and our supposedly liberal President has followed suit and even gone further than the Bushies in some ways.

In November, 2006, there was cause for hope regarding investigations of GOP high crimes when a new, Democratic-led congress was elected. This hope was quickly dashed by the new Speaker of the House, Nancy Pelosi, when she declared soon after assuming power, in contrast to the campaign promises of many in her party, that impeachment processes, including any investigations to see if prosecution would be warranted, were "off the table."

A little over a year later, in December, 2007, a reason came to light for Pelosi's "off the table" policy, an obvious betrayal of her duty to uphold the constitution. Pelosi had been briefed on "Enhanced Interrogation Techniques" in September, 2002. As John Nichols recently points out, this was known in late 2007, but it has only recently become big news after the release of the pertinent CIA briefings notes, which do not explicitly mention waterboarding. Everyone is focused on waterboarding and whether Pelosi was briefed on them in September, 2002, because it is seen as an obvious form of torture, and even more obviously when used 83 times, as it was against Abu Zubaydah. The problem with this focus on waterboarding, according to the Physicians for Human Rights, is that all of the EITs are potentially torture:

The unprecedented analysis by Human Rights First and Physicians for Human Rights combines medical and legal expertise to comprehensively examine ten techniques widely reported to have been authorized for use in the CIA's secret interrogation program, including sleep deprivation, simulated drowning, stress positions, beating, and induced hypothermia. The Report —"Leave No Marks: 'Enhanced' Interrogation Techniques and the Risk of Criminality"— demonstrates the mental and physical consequences of the use of these techniques, and its title refers to the techniques' intended design, which is to inflict psychological trauma and pain without leaving physical scars. U.S. law requires an assessment of the physical and mental impact of an interrogation method to determine its legality. The report concludes that each of the ten tactics is likely to violate U.S. laws, including the War Crimes Act, the U.S. Torture Act, and the Detainee Treatment Act of 2005.


Pelosi insistence that she was not briefed on waterboarding in September, 2002, is basically a claim that she was not briefed on techniques that would constitute torture, therefore she had no obligation at the time to report or investigate possible war crimes. The CIA claims Pelosi knew about waterboarding in 2002, but Pelosi claims she didn't know until 2003 and that the CIA lied to her then, saying it would be used, not that it had been in use for a long time. All of these complexities are moot: if Pelosi was briefed on EITs, she was briefed on possible war crimes, with or without waterboarding, and whether it was briefed as being done at the time or as a plan for the future. She was legally obligated to have done something in 2002 and should be investigated.

GOP leaders have recently called for investigations of Pelosi's role in approving torture, and have even gone so far as to say she was one of the authors of this policy. I agree with Robert Scheer when he argues that calling Pelosi an "author" of the policy is nonsense, but I go farther than calling her simply an enabler:

"She was neither the author of a systematic policy of torture nor has she been, like Cheney and most top Republicans in Congress, an enduring apologist for its practice. It is a nonsensical distraction to place her failure to speak out courageously as a critic of the Bush policies on the same level as those who engineered one of the most shameful debacles in U.S. history. But what she, and anyone else who went along with this evil, as lackadaisically as she now claims, should be confronted with are the serious implications of their passive acquiescence."
Pelosi silence after the 2002 briefing and her "off the table" policy certainly enabled the Bush administration to both continue torturing and avoiding prosecution. But "enable" seems too weak here. I would go with "accomplice" and suggest that she should be investigated and prosecuted if it is found that she failed in her duty to uphold the constitution."


Pelosi is also embroiled in the wiretapping crime. She admitted that she was briefed "a few years ago" on Bush administration illegal wiretaps of Representative Jane Harman and, again, chose to do nothing about it. Take a second and consider this: the Bush administration confesses to wiretapping (Watergate!) a leading Democrat (Watergate!), and they confess this to another leading Democrat, and she then decides not to do anything about it. Regardless if she was protecting herself or Harmon, how could she rationalize that it was okay not to do anything about this obvious high crime of subverting our democracy, one that is so much like the Nixon administration's bugging of the Democratic headquarters? It is important to ask if Harmon break the law with regard to AIPAC, but it is much more important to investigate the Bush administration for these crimes, and anyone who enabled them to get away with it, including Pelosi and Harman, who has now changed her tune on warrantless wiretapping.

These two examples of Pelosi enabling the Bush administration's criminal actions--wiretapping and torture--make Pelosi's "off the table" policy understandable: she was protecting herself from investigation and possible prosecution. This also makes Obama's decision to adopt the "off the table" policy more understandable: in addition to trying to create an environment better suited to passing the legislation he wants passed, he was probably also protecting the second highest ranking Democrat: Nancy Pelosi. Regardless of his reasons, his DECISION not to uphold the constitution seems to me be a high crime itself.

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