Not the Change We Need: Part VII in a Continuing Series

In a depressing turn of events, Attorney General Holder has overridden career lawyers at the Justice Department to determine that the bill currently pending in Congress that would give the District of Columbia a vote in the House is constitutional. From the Washington Post:

Justice Department lawyers concluded in an unpublished opinion earlier this year that the historic D.C. voting rights bill pending in Congress is unconstitutional, according to sources briefed on the issue. But Attorney General Eric H. Holder Jr., who supports the measure, ordered up a second opinion from other lawyers in his department and determined that the legislation would pass muster.

The District of Columbia, as a principle of justice and democracy, is clearly entitled to voting representation in the Congress. It is unacceptable that this hasn’t been addressed earlier. However, an end-run around the Constitution is equally unacceptable. A constitutional amendment is the appropriate method to grant the vote.

That said, my concern is not that Eric Holder has reached a conclusion that it is constitutional. My concern is that he did so in conflict with the conclusions of the OLC. Political or policy ends must not be used to override sound legal reasoning. This is true whether that occurs within the OLC (as with the many Bush-era memos pertaining to detainee rights and Presidential power) or around it. There is a legitimate legal debate over the validity of this bill, and given the actions of the current Congress it appears it that the question will be heard by the courts.If so, the Justice Department should defend it as with other federal laws. However, it is very disappointing to see the Obama Administration override career lawyers for a political end. The OLC’s determination that the bill was unconstitutional could have scuttled its passage. Reversing the opinion to help get the bill through Congress is inappropriate.

A politicized Department of Justice is not the change we need.

Note: For those of you counting, part VI of this series (a special two steps forward, one step back edition) got lost in the shuffle and is thus outsourced entirely to Glenn Greenwald and Jonathan Turley (on Rachel Maddow).

Not the Change We Need: Part III in a Continuing Series

From Jonathan Turley:

Graham then asked “If our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield?” “Do you agree with that?”

Kagan replied, “I do” and the marriage with the Bush policies was complete. So much for change. Both Holder and Kagan have now taken such a vow with Senators in order to secure their confirmations. The message appears to be a uniquely English approach to government. We will continue policies and laws that can do great harm to civil liberties, but we will use them in a beneficent way. Your “change” is not that we will get rid of the policies. Your change is that you get us. This “trust us we’re the government” approach to civil liberties was precisely what Madison and other framers rejected. To have a well-respected academic voice such views is a terrible disappointment for civil libertarians, who are being offered a meaningful commission as a type of air kiss toward war crimes.

I do trust Barack Obama more than I trusted George Bush. This is not a particularly high standard. But I don’t want to have to trust my leaders not to infringe on the Constitution. Civil liberties are supposed to be a firewall against tyranny, regardless of leader. It saddens me that the President and his appointees apparently do not realize this, or more dangerously, do not care.

As an aside, I find it a historical irony that the United States appears to be conceptualizing something similar to the dar al-Harb, or house of war. The question, though, is if legal residents in the United States can be detained at will, as in the case of Ali Saleh Kahlah al-Marri, then where is the counterpart, the dar as-Salam?

Bush Administration Legal Memos

ProPublica has published an interactive list of Bush Administration ‘secret’ memos on torture, wiretapping, and the scope of executive authority. It is an important reference on the subject.

Ultimately, President Obama and the Attorney General will have to decide whether to release these memos to the public. Regardless of whether investigations or prosecutions of Bush officials occur, these memos should be released so the nation can appropriately discuss and repudiate the actions and legal positions of the last eight years.

Sheldon Whitehouse Argues for ‘Looking Back’

Senator Whitehouse (D-RI) makes an eloquent argument for why ‘looking back’ at the actions of the Bush administration is necessary for American democracy.

If we blind ourselves to this history, if we pull an invisibility cloak over it, we will deny ourselves its lessons. Those lessons came at too painful a cost to ignore. Those lessons merit discovery, disclosure and discussion. Indeed, disclosure and discussion is the difference between a valuable lesson for the bright upward forces of our democracy, and a blueprint for darker forces to return and do it all over again.

A little bright, healthy sunshine and fresh air, so that an educated population knows what was done and how, can show where the tunnels were bored, when the truth was subordinated; what institutions were subverted; how our democracy was compromised; so this grim history is not condemned to repeat itself; so a knowing public in the clarity of day can say, “Never, never, never, again;” so we can keep that light – that light that is at once America’s greatest gift and greatest strength – brightly shining. To do this, I submit, we must look back.

Unfortunately, Whitehouse agrees with a common argument against torture prosecutions.

Our new Attorney-General designate has said, we should not criminalize policy differences. I agree.

Some of what the Bush administration done can be considered a policy difference, their commitment to the rapine exploitation of the environment, for example. However, I don’t think that any illegal act can be considered ‘a policy difference’. Neither can acts that undermine the balance of powers and the constitution. More importantly, policy is enacted in full public view and in the legal manner. The Bush administration used secret and dubious arguments about the scope of executive authority to conduct many of their most problematic programs; programs that are so extreme that they cannot possibly be relegated to the scope of mere ‘policy differences’.

Yes, we do not prosecute policy differences. However, Attorney General-Designate Eric Holder, Senator Whitehouse, and President Obama should be more careful how they define the acceptable scope of a ‘policy debate’. Some things are beyond the pale.

Republicans – No Respect for the Rule of Law

Consider this. According to Senator Whitehouse (D-RI), Republicans are pressuring Eric Holder to commit not to prosecute Bush administration officials for the use of torture.

Republicans on the Judiciary Committee have asked Eric Holder to make a commitment, before he is even confirmed, that he will not prosecute any Bush Administration officials for their involvement in acts of torture during the last administration.

I suppose that after the past eight years, I shouldn’t be surprised that Republicans don’t want political appointees to do their jobs. But this is especially appalling. It would be unbelievably improper for Holder to make that commitment. The decision on whether to prosecute must be made only after investigation. They are asking him not to do his job, as a condition for taking the job. We may as well abolish the position.

Furthermore, I’m not sure that this makes political sense. The Obama administration has been fairly clear in their reluctance to prosecute on torture issues. What possible reason could there be to publicize this in this way? Now, if Holder doesn’t prosecute, he caved to the Republicans. If he does, then he was just upholding the integrity of the law. It seems to me that this would make it easier to make a public argument in favor of prosecution.

Additionally, the traditional media has been almost universally united in their consensus that prosecutions would be divisive and distracting. This move just reopens the debate, and does so in a way that more clearly places Republicans in the wrong.

Holder on Waterboarding During Confirmation Hearing

In response to a direct question by Senator Leahy, AG-Designate Eric Holder responded with refreshing clarity that waterboarding is torture.

If you look at the history of the use of that technique: used by the Khmer Rouge, used in the Inquisition, used by the Japanese and prosecuted by us as war crimes. We prosecuted our own soldiers for using it in Vietnam. I agree with you Mr. Chairman, that waterboarding is torture.

Jonathan Turley was on the Rachel Maddow Show tonight discussing this hearing (video below). He made the important point that waterboarding is unequivocally torture and that we didn’t need the new AG to tell us that. He went on to make the key point that the follow-up question on torture prosecutions went unasked.

That is a key point, and I believe prosecutions are necessary for a host of reasons. However, I did find the first part of Holder’s response to be promising. I think that the statements regarding previous prosecutions of waterboarding – Japanese war crimes and American soldiers in Vietnam – were unnecessary. No real historical context was necessary, but if Holder wanted to, he could have limited himself to the Inquisition.

I don’t want to give too much weight toward my particular parse of his words, and I certainly didn’t watch the entire confirmation hearing. However, I see the mention of previous prosecutions as the laying of a certain amount of historical cover, should he eventually choose to prosecute. Furthermore, I believe that any amount of intellectual honesty requires prosecuting these incidents, having acknowledged the precedent.

I have great hope for the intellectual honesty of this administration.

Update: See also Jonathan Turley’s post on the subject here.