The Bush administration’s allegedly rational and moderate Attorney General asserts that the country needs more arbitrary indefinite detention and less rule of law. Let’s just say that I haven’t changed my mind.
Tag: "the arbitrary executive"
In addition to the issue of Sunday news shows continuing to treat Saint McMaverick as if he were still relevant to anything, this shouldn’t go without emphasis:
Both Sens. John McCain (R-Ariz.) and Diane Feinstein (D-Calif) emphasized on Face the Nation this morning that the Attorney General’s new probe into the Central Intelligence Agency’s interrogation techniques is ill-timed and counter-productive.
Ye gods, is Feinstein atrocious. Perhaps Face the Nation could take the radical step of finding someone who doesn’t agree that torturers shouldn’t face legal consequences for violating the law.
And, in related news, if CIA agents are depressed because they might actually face consequences for illegal activity this is indeed a very good thing.
Shorter John Yoo: Executive branch actions that could have been easily performed under FISA prove that is was fine for the executive branch to systematically violate FISA at their pleasure. This is based on the well-known constitutional principle of…look, it’s Halley’s Comet!
See also Marcy Wheeler and AL. And while to state the proposition that the Constitution was constructed to give the president more arbitrary powers than King George enjoyed is to refute it, see Stephen Holmes for the definitive demolition.
So, to be clear, Boalt Hall’s favorite tenured radical used procedural, legal, and factual errors…to justify torture and arbitrary executive power. (Often, for example, legislative provisions are ambiguous and have multiple reasonable interpretations. The claim that FISA didn’t apply to the executive branch does not qualify.)
It’s difficult to put into words how insanely deficient this legal “analysis” is. The entire point of FISA was to constrain the president’s ability to conduct warrantless surveillance for national security purposes. Prior to FISA, Title III already prohibited warrantless surveillance in the law enforcement context. FISA was intended to provide similar protections in the national security context. Not only did FISA make clear that it provided the “exclusive means” for conducting electronic surveillance, but, as the report points out, it has a provision that suspends its requirements for 15 days following a declaration of war, a clear indication that the statute was intended to apply in war time as well as peace time.
The Bush administration put together quite a rogue’s gallery, but John Yoo has to rank very near the bottom.
I’ll have more about the Toobin article on John Roberts later. But the bottom-line quote — “The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society” — applies quite forcefully (as it usually does) to all of the Court’s conservatives in the most recent Anthony Kennedy atrocity, Ashcroft v. Iqbal.
Lyle Denniston explains that the ruling creates a standard that will make it very difficult to hold high officials responsible for misconduct carried out by their subordinates. And what’s particularly disturbing is what Kennedy had to do to reach this conclusion. As Souter lays out in section 1A of his dissent, what’s remarkable is that Kennedy held that a superior’s knowledge of and indifference towards unconstitutional conduct by subordinates could not make the former legally liable, although Ashcroft and Mueller conceded that they would be liable if their knowledge and indifference were proven. Kennedy, in other words, went far out of his way to insulate powerful state actors from consequences of illegal conduct they should (and, under previous Supreme Court precedents, properly would have) been held responsible for, with patently unjust consequences:
Finally, the Court’s approach is most unfair to Iqbal. He was entitled to rely on Ashcroft and Mueller’s concession, both in their petition for certiorari and in their merits briefs, that they could be held liable on a theory of knowledge and deliberate indifference. By overriding that concession, the Court denies Iqbal a fair chance to be heard on the question.
I would post Kennedy’s defense of his casual disregard of precedent in order to protect powerful state actors in their abuse of people’s constitutional rights. But (as one of our commenters noted) he doesn’t actually have a response to Souter. The reasons for this are pretty obvious, and it’s a disgrace.
The Supremes issued another decision today. Liptak:
A Pakistani Muslim man who was arrested after the Sept. 11 terrorist attacks may not sue John Ashcroft, the former attorney general, and Robert S. Mueller III, the director of the Federal Bureau of Investigation, for abuses he said he suffered in a Brooklyn detention center, the Supreme Court ruled on Monday.
Justice Anthony M. Kennedy, writing for the majority in the 5-to-4 decision, said a lawsuit filed by the man, Javaid Iqbal, must be dismissed at a preliminary stage because he failed to allege a plausible link between the officials’ conduct and the abuses he said he had suffered.
All that Mr. Iqbal’s suit plausibly suggested, Justice Kennedy wrote, “is that the nation’s top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity.”
Justice Souter added that the majority had engaged in a sort of legal sleight of hand, ignoring a concession from the government that Mr. Ashcroft and Mr. Mueller would be liable were Mr. Iqbal able to prove they actually knew of unconstitutional discrimination by their subordinates and were deliberately indifferent to it.
Instead of accepting that concession, Justice Souter continued, the majority decided that even proof of such knowledge was insufficient.
More when I’ve had a chance to read the opinions more carefully.
…see also Farber.
The Editors sum up the state of play:
It’s funny that when torture was all the fault of poor, ugly hillbillies of the sort David Brooks writes about in his Adventure Stories for Young Aristocrats, we had to throw the book at the evil-doers. Now that important figures in Washington have admitted to directly ordering more and worse, however, the question of even investigating whether some sort of crime may perhaps have taken place is fraught with all sort of beard-tugging brain-twisters which no man can untangle, even with the help of modern computer technology. How can we investigate if we don’t know all the facts? How dare we enforce laws against things which might possibly be permissible in some highly artificial thought experiment? What if ‘24′ is FOR REALS?!? These are the sorts of questions which need to be shrugged at for 50 billion news cycles before we can even think about OH MY GOD A SHARK ATE A WHITE LADY AT HER WEDDING!!!!! We’ve got what amounts to a reverse Nuremberg defense, where Bush administration officials are let off the hook because they were only giving orders. I’m not sure that’s such a great idea.
Brutally depressing, yet true. Although it must be noted that if you stipulate that torture has a 100% chance of stopping millions of deaths and also stipulate that all other methods will have a 0% chance and stipulate that we have perfect advance knowledge of all of this then torture is a great thing and how could you be the kind of immoral deontologicist who would say otherwise?!?!?!?!?!?!?
See Greenwald and Daphne Evitar on a potentially important decision from a Ninth Circuit panel repudiating at least one element of the expansive “state secrets” privilege claimed by the Bush and Obama administrations. In this case, the Bush admininstration put forward the position that this incredibly broad privelege could apply to a civil suit involving a third party, and (disgracefully) the Obama administration continued with this assertion. While the ruling does not deny that the privelege exists in certain narrow circumstances, it rejected the broader claims put forward by Bush and Obama:
Today, in a 26-page ruling (.pdf), the appellate court resoundingly rejected the Bush/Obama position, holding that the “state secrets” privilege — except in extremely rare circumstances not applicable here — does not entitle the Government to demand dismissal of an entire lawsuit based on the assertion that the “subject matter” of the lawsuit is a state secret. Instead, the privilege only allows the Government to make specific claims of secrecy with regard to specific documents and other facts — exactly how the privilege was virtually always used before the Bush and Obama DOJs sought to expand it into a vast weapon of immunity from all lawsuits challenging the legality of any executive branch program relating to national security.
We’ll have to see if this is heard en banc or by the Surpeme Court, but hopefully the suit against Jeppesen Dataplan for abetting an extraordinary rendition that led to torture will be allowed to proceed.
Michael Gerson asserts that his belief torture is OK as long as Americans do it isn’t “moral relativism.” This man seems deeply confused, although I think it’s more along the line of having a gig which depends on him pretending not to understand things. (Perhaps he also believes that applying his alleged anti-torture principles to the Republicans who used to sign his paychecks would be “Kantian nihilism.”)
I remember with some amusement when Gerson was considered some kind of great moral sage because he drizzled some spurious language of charity and moderation over bog-standard reactionary policy preferences. The Villagers being The Villagers, he probably still is. Pathetic.
Shorter Stuart Taylor: It is well-established that criminal laws can only be applied if it can be proven that lawbreaking had no positive consequence whatsoever.* By far the most reliable guide to whether such consequences exist is the highly reliable unsubstantiated assertions of the lawbreakers themselves. A commission to investigate the Bush administration’s arbitrary torture is OK, but the only acceptable outcome is exoneration, which we should assume in advance. After all, an illegal arbitrary torture regime is far less consequential than a president lying about receiving a blowjob — now that’s worth a multi-year investigation.
* Note: this innovative ad hoc principle may not apply if you’re not a Republican public official.