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Tag: "the arbitrary executive"

The Bush Administration’s Torture Regime

[ 0 ] April 19, 2009 |

Many people have already noted a key takeaway from Scott Shane’s article on the CIA’s arbitrary torture regime: it didn’t work. A couple things about it are also worth noting. First of all, remember this old scam?

In March 2002, when Abu Zubaydah was captured in Pakistan after a gunfight with Pakistani security officers backed by F.B.I. and C.I.A. officers, Bush administration officials portrayed him as a Qaeda leader. That judgment was reflected in the Aug. 1, 2002, legal opinion signed by Jay S. Bybee, then head of the Justice Department’s Office of Legal Counsel.

The memo summarizes the C.I.A.’s judgment that Abu Zubaydah, then 31, had risen rapidly to “third or fourth man in Al Qaeda” and had served as “senior lieutenant” to Osama bin Laden. It said he had “managed a network of training camps” and had been “involved in every major terrorist operation carried out by Al Qaeda.”


Since 2002, the C.I.A. has downgraded its assessment of Abu Zubaydah’s significance, while continuing to call his revelations important.

Makes you wonder how many confident assertions that the allegedly second, third, or fourth most important members of the highly decentralized terrorist organization had been captured have been downgraded.

Even more important, for the gullible few who might be inclined to buy the few-bad-apples defense:

The legal basis for this treatment is uncertain, but lawyers at C.I.A. headquarters were in constant touch with interrogators, as well as with Mr. Bybee’s subordinate in the Office of Legal Counsel, John C. Yoo, who was drafting memos on the legal limits of interrogation.

So the Bush administration almost certainly knew about and approved of the useless illegal torture. Moreover, it should be noted that none of the elements of the bullshit “ticking bomb” scenario used to hypothetically defend illegal torture are in place here: there’s no direct knowledge of an imminent attack, no serious evidence that the tortured individual knew anything about an imminent attack, and no reason to believe that legal interrogation methods wouldn’t work if the suspect did know anything about an imminent attack.

Arrest Yoo. Do it now. Arrest and impeach Bybee. Do it now.



[ 0 ] April 17, 2009 |

When the final list of “Chuck Schumer’s Biggest Sell-Outs” is released, this will have to rank near the top. At least when he does stuff like vote to make the compensation of hedge fund managers largely tax-exempt, he’s supporting powerful parochial interests. I don’t like it and he deserves criticism for it, but all senators do it. But it’s not like there’s a huge constituency in New York demanding that key architects of the Bush administration’s arbitrary torture regime serve out their lives as federal judges even though they belong in front of a federal judge post haste.

The other problem here, I think, is the bizarre norms that emerged (especially post-Bork), which seemed to be that even fairly minor personal scandals might be fair game but it was completely beyond the pale of civilized discourse to reject an appointment over such trivialities as their radical and unpopular substantive views. Bybee is soft-spoken and has sufficient formal credentials, so what’s his disgusting advocacy of illegal torture and arbitrary executive power as a powerful government lawyer between friends?

Mixed News on the Bush Torture Memos

[ 0 ] April 16, 2009 |

As Steve says, it’s a mixed news day; it’s good that Obama is releasing the torture memos, bad that CIA operatives who carried out torture won’t be prosecuted. Admittedly, the existence of the memos does make prosecuting lower-level people a difficult proposition, and I could live with it…as soon as Yoo, Bradbury et al. are put on trial and Bybee is impeached and then put on trial.

More on the memos later.

Greenwald: “They are unbelievably ugly and grotesque and conclusively demonstrate the sadistic criminality that consumed our government.”

Yoo’s Tortured Reasoning

[ 0 ] March 6, 2009 |

I have a piece about the newly released memos over at Comment is Free.

Meanwhile, it’s pretty amusing to see a guy responsible for what might be the least plausible “originalist” argument in history now wash his hands by saying that he was just giving “straight-talk legal advice.” Sure.


[ 0 ] March 2, 2009 |

I can’t add much to what Greenwald says here and Wheeler argues here, but the Obama administration’s use of Yoovian theories of arbitrary executive authority are indeed appalling.

Better Than Hitler? Get Out of Jail Free!

[ 0 ] January 12, 2009 |

I strongly endorse Dahlia Lithwick’s position in the debate in the Sunday Times about the prosecution of Bush administration war criminals. Making Lithwick’s argument stronger are the embarrassingly weak conclusions reached by Charles Fried. First, we get the “Dick Cheney is better than Pol Pot” gambit, which I suspect we’ll be hearing a lot more of and is certainly revealing in a way its users don’t intend:

If you cannot see the difference between Hitler and Dick Cheney, between Stalin and Donald Rumsfeld, between Mao and Alberto Gonzales, there may be no point in our talking. It is not just a difference of scale, but our leaders were defending their country and people — albeit with an insufficient sense of moral restraint — against a terrifying threat by ruthless attackers with no sense of moral restraint at all.

I trust that it doesn’t require extensive argument on my part for you to see how specious and dangerous the “if you’re not as bad as Mao, you should be exempt from prosecution for unquestionably illegal acts” argument is. Hilzoy says what needs to be said about this. The other standard is just as useless. If we’re going to exempt executive officials from facing consequences for illegal actions as long as they really think their actions are in the best interests of the country, we might as well not have any legal restraints on executive officials at all.

To top it off, Fried adds to this a collective guilt argument: “But we must remember: our leaders, ultimately, were chosen by us; their actions were often ratified by our representatives; we chose them again in 2004.” Poor Richard Nixon — if he had only knew that simply being re-elected should exempt him form facing consequences for any past or future acts! And like Brad DeLong, I must have forgotten all the times in which Fried publically asserted during the Clinton impeachment that because he had been elected twice he ipso facto couldn’t be guilty of anything.

"Seven Years Is Enough."

[ 0 ] November 21, 2008 |

Judge Richard Leon — an appointee of George W. Bush — issued a major ruling following the wake of the Supreme Court’s Boumediene decision yesterday, ordering five Guantanamo detainees released “forthwith.” He also added comments that echoed Souter’s Boumediene concurrence:

The judge, in an unusual added comment, suggested to senior government leaders that they forgo an appeal of his ruling on freeing the five prisoners. While conceding that the government had a right to appeal that part of his ruling, Leon commented that he, too, had “a right to appeal” to leaders of the Justice Department, Central Intelligence Agency and other intelligence agencies, and his plea was that they look at the evidence regarding the five he was ordering released. “Seven years of waiting for our legal system to give them an answer to their legal question is enough,” he commented.

This brings the grand total of arbitrarily held detainees released by the federal courts to…five. If I understand correctly, to many Republicans this means that out-of-control judicial activists are essentially running American foreign policy. In fairness, since when has scrutinizing wholly arbitrary executive detentions been considered a function of the judiciary?

…the Talking Dog has more here, and also notes that the detainees haven’t actually been released yet.

"Your Winnings, Sir."

[ 0 ] October 9, 2008 |

Apparently, arbitrary executive power can be abused and exercised in ways that have little relationship with its stated justifications. Shocking!

Mukasey: Hack

[ 0 ] August 12, 2008 |

Rule of law!

“But not every wrong, or even every violation of the law, is a crime.”

But I was informed by the highly serious priests of High Contrarianism that Mukasey’s need to work with Congress would provide powerful disincentives against this sort of thing! I’m shocked that this didn’t work.

In addition, Marcy Wheeler argues that while Mukasey is certainly a hack, the real problem is the toothless sanctions of the Hatch Act.


In general, I agree with Mukasey. Breaking the letter of the law shouldn’t always amount to a prosecutable crime. I guess my problem is that prosecutors seem much more likely to adopt Mukasey’s position when they’re looking at infractions committed by political allies, police officers, or other government employees than they are with the rest of us.

If anything, government employees should be held to a higher standard than the rest of us, not a lower one–especially the people charged with enforcing the laws in the first place.


"Separation of Powers" And Immunity

[ 13 ] August 1, 2008 |

I generally agree with Mark Tushnet that Robert Jackson’s much-cited and lauded concurrence in Youngstown is overrated, in the sense that it effectively describes the puzzles of evaluating the constitutionality of presidential action without providing any useful way of resolving the most interesting and important questions. Still, his descriptions can sometimes be useful, and I think this is the case with the passage cited in yesterday’s opinion rejecting Bush administration assertions of “absolute immunity”:

While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress.

In this sense, the “checks and balances” metaphor is a more useful one than the “separation of powers” metaphor the Bush administration’s claims essentially rest on. In Richard Neustadt’s language, the American system is really “one of shared, not separated, powers.” The oversight function of Congress is crucial to the logic of the system, and the kinds of broad immunity being claimed by Bush would unacceptably frustrate it, as Judge Bates correctly recognized.

In addition, Josh Patashnik wonders why the Bush administration would make these farcical claims, when even if more plausible and narrow claims of immunity were rejected it is “very easy to send aides before Congress and simply have them spew nonsensical garbage, avoid answering tough questions, claim to not remember anything, and be generally unhelpful.” The answer, I think, is just contempt of Congress in every sense. It’s not that Bush thinks that Miers or Bolten will say anything that’s directly incriminating; they just want to send a message that they think that their potentially illegal practices should be beyond the scrutiny of mere legislators.

D.C. Circuit District: No "Absolute Immunity."

[ 5 ] July 31, 2008 |

Lederman: “It is an extraordinarily thorough, scholarly and thoughtful opinion — surely one of the best opinions ever written on questions relating to executive/congressional disputes. It is also, IMHO, correct on the merits, of virtually all of the many legal questions it discusses. It is important not only for its holding on the immunity question, but also for its holding and analysis on congressional standing, and for its unequivocal rejection (pp. 39-41) of one of the Administration’s principal arguments with respect to all of these privilege disputes in the U.S. Attorney matter — the notion that because the subject matter of the investigations is presidential removal of the U.S. Attorneys, Congress has no legitimate oversight function at all. The court quite correctly rejects this view.”

Fall Woman

[ 0 ] July 30, 2008 |

I agree with Turley and Bazelon that it will be pathetic if Monica Goodling ends up taking all of the responsibility for the frequently illegal cronyism and ineptitude at the DOJ. It’s a nice scam they have going: immunize the subordinate so she can discuss illegal reactions without risk, while expecting that nothing she reveals will be used to go after her superiors. I wish I could say that it wouldn’t work, but…

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