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Justice Department lawyers concluded in an unpublished opinion earlier this year that the historic D.C. voting rights bill pending in Congress is unconstitutional, according to sources briefed on the issue.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).

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Reality Disconnect: Los Angeles Times Edition

In a bizarre editorial yesterday, the Los Angeles Times evaluated the arguments for and against the United States joining the International Criminal Court. Unfortunately, the arguments seemed grounded in a different reality.

The arguments against joining the International Criminal Court are rooted in fear that Americans might one day face prosecution and judgment by foreigners in The Hague, and insecurity about our own legal and political systems being strong enough to prevent that from happening. But the ICC has jurisdiction only in cases in which a suspect’s home government is “unwilling or unable” to investigate or try him itself. The court is designed to try genocidal dictators and war criminals from countries in which the rule of law is nonexistent or the courts are in thrall to the regime. The notion that this could apply to the United States is laughable, yet it was the basis of Bush administration objections.

What world is the LA Times Editorial Board living that it is “laughable” that the United States would never be unwilling to prosecute its own war criminals? President Obama and the Congress have repeatedly shown themselves to be staunchly against war crimes prosecutions for former Bush officials. This even as a leaked report from the Red Cross, the official arbiter of the Geneva Conventions, states that 14 detainees were tortured while in CIA custody.

I am strongly in favor of joining the International Criminal Court, and eight years ago I made arguments similar to those presented in the editorial. Unfortunately, the last eight years have changed the reality on the ground. The United States is becoming the kind of outlaw regime that the ICC is designed to target. I now believe that in addition to any and every other reason for joining the ICC, we should do so in the hope that it will force us to respect our own laws and international obligations.

Not the Change We Need: Part V in a Continuing Series (Updated)

When President Obama ordered executive officials not to rely on Bush-era signing statements on Monday, I decided to take the optimistic view that this was a good sign. Emptywheel was not so optimistic.

Savage (who of course wrote the book on this stuff) goes on to explain the background of Bush’s abuse of signing statements, and to note that Obama says he will use signing statements, “with caution and restraint” (whatever that means).

Clearly, my optimism wasn’t warranted.

President Obama on Wednesday issued his first signing statement, reserving a right to bypass dozens of provisions in a $410 billion government spending bill even as he signed it into law.

In the statement — directions to executive-branch officials about how to carry out the legislation — Mr. Obama instructed them to view most of the disputed provisions as merely advisory and nonbinding, saying they were unconstitutional intrusions on his own powers.

However, there isn’t a consensus that the provisions really are unconstitutional limitations on his powers. For example, Jonathan Turley, a professor at GW Law School, has concerns regarding the provision relating to UN peacekeeping missions. He makes the point that the Constitution gave Congress the ability to restrict “foreign entanglements and adventures” through the power of appropriations. This is true whether or not we agree with Congress’s limitations.

More broadly, however, the use signing statements that alter the meaning of provisions would seem to undermine the constitutional balance of powers. When combined with the Obama Administration’s defense of the state secrets privilege, the delay in releasing the contents of additional Bush-era OLC memos, and the adoption of certain rhetoric about the war on terror, this paints the disturbing picture that the Obama Administration is not serious about rolling back the Bush Administration’s executive overreach. While they have taken some symbolic steps, there doesn’t seem to be a serious commitment to either revealing Bush-era abuses of executive power or halting all such future abuses. Rather, they appear inclined to reserve the ability to abuse power in more limited ways.

This is not the change we need.

Update: The Obama Administration has moved to dismiss another civil case involving torture, on the grounds that the right of prisoners at Guantanamo not to suffer abuses was not established at the time. Unacceptable.

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.

Criticizing Obama

I think Glenn Greenwald has it right.

If those who want fundamental reform in these areas adopt the view that they will not criticize Barack Obama because to do so is to “help Republicans,” or because he deserves more time, or because criticisms are unnecessary because we can trust in him to do the right thing, or because criticizing him is to “tear him down” or “create a circular firing squad” or “be a Naderite purist” or any of those other empty platitudes, then they are ceding the field to the very powerful factions who are going to fight vehemently against any changes.  Do you think that those who want the CIA to retain “robust” interrogation and who want the federal surveillance state maintained, or want a hard-line towards Iran and a continuation of our Middle East policies, or who want to maintain corporate-lobbyist-domination of Washington, are sitting back saying:  “it’s not right to pressure Obama too much right now; give him some time”?

I’d go even farther and argue that there is a moral obligation to express dissent, particularly on questions of war, torture, and civil liberties. This seemed to be the general consensus among activists during the Bush years, even in the knowledge that we were unlikely to force a change in policy. Now that we actually have some influence, why are we so afraid to use it? Isn’t the moral imperative the same?

Update: I suppose I have to clarify that perhaps our criticisms need to be more productive now. Dissent for dissent’s sake isn’t terribly helpful.

Published in: on January 13, 2009 at 9:41 am  Leave a Comment  
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