Tag: "the arbitrary executive"
Who else but Stuart Taylor? His argument seems to be that the best remedy for illegal acts of torture is to assure that (apart from some isolated low-level “bad apple” scapegoats) nobody is held responsible for them:
It’s a bad idea. In fact, President George W. Bush ought to pardon any official from cabinet secretary on down who might plausibly face prosecution for interrogation methods approved by administration lawyers. (It would be unseemly for Bush to pardon Vice President Dick Cheney or himself, but the next president wouldn’t allow them to be prosecuted anyway—galling as that may be to critics.) The reason for pardons is simple: what this country needs most is a full and true accounting of what took place. The incoming president should convene a truth commission, with subpoena power, to explore every possible misdeed and derive lessons from it. But this should not be a criminal investigation, which would only force officials to hire lawyers and batten down the hatches.
Pardons would not be favors to criminals. One can argue that officials could have or should have resigned rather than implement questionable legal judgments, but there is no evidence that any high-level official acted with criminal intent.
There’s an obvious contradiction here: if there’s a great deal we don’t know, how can we be sure that nobody aced with “criminal intent?” Wouldn’t individual immunity deals, which don’t require that assumption, be preferable to blanket pardons? But more importantly, if a legal opinion from DOJ lawyers (with the collaboration of their superiors) asserting that illegal and arbitrary actions are in fact legal is all that’s necessary to avoid legal accountability for any administration member, any subsequent attempt to prevent similar abuses is a waste of time.
The key here is what Taylor identifies as the key goals of the “Truth Commission” he envisions:
Pardons would further a truth commission’s most important goals: to uncover all important facts, identify innocent victims to be compensated, foster a serious conversation about what U.S. interrogation rules should be, recommend legal reforms, pave the way for appropriate apologies and restore America’s good name. The goals should not include wrecking the lives of men and women who made grievous mistakes while doing dirty work—work they had been advised by administration lawyers was legal, and which they believed was necessary to prevent terrorist mass murder.
A criminal investigation would only hinder efforts to determine the truth, and preclude any apologies.
I have to concede that if you consider it an important priority that people responsible for arbitrary torture policies “apologize” and that we have a Very Serious “conversation” about torture, then pardons are a good strategy. If you take my view that preventing future arbitrary torture is an infinitely higher priority than people saying they’re sorry, you’re likely to think that justice and accountability are more important. All the best-conceived “legal reforms” in the world will mean absolutely nothing if a DOJ opinion can be expected to immunize virtually any action approved by an executive branch official as long as it can somehow be linked to the “dirty work” of the War on Terror.
Well, it’s certainly reassuring to see that the author of transparently ridiculous arguments on behalf of an unlimited right for the executive to arbitrarily detain and torture individuals at its pleasure is very agitated about Boumediene…
I have an article up at TAP about some of the implications of last week’s Supreme Court landmark. One important thing is that progressives shouldn’t cede the national security component of the argument:
The first section of Justice Scalia’s dissent contains a screed that seems more likely to have come from an O’Reilly Factor transcript than from a Supreme Court opinion in a landmark case. “The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief,” Scalia asserts, “will make the war harder on us. It will almost certainly cause more Americans to be killed.” Although unconvincing as legal analysis, Scalia’s demagoguery does make clear the political problem faced by progressives.
For this reason, it is important for progressives not to approach arguments like Scalia’s from a defensive crouch. In particular, there is no reason for progressives to accept the argument that there is a zero-sum tradeoff between reasonable protections of civil liberties and national security. Especially when one considers opportunity costs, there is, in fact, little security value in arbitrarily detaining people against whom the government lacks evidence. As Stephen Holmes has argued in his book The Matador’s Cape: America’s Reckless Response to Terror, the Bush administration’s aggrandizements of executive power (and Congress’ unwillingness to properly exercise its restraining and oversight functions) have undermined national security rather than preserved it. Long-term arbitrary detentions are bad for both civil liberties and the security of the American public, and it’s crucial for liberals not to concede the latter half of the equation.
Consider these types of revelations. In a world of limited resources, arbitrary detention doesn’t present a tradeoff between national security and civil liberties; it’s bad for both.
Souter, concurring in Boumediene:
It is in fact the very lapse of four years from the time Rasul put everyone on notice that habeas process was available to Guantanamo prisoners, and the lapse of six years since some of these prisoners were captured and incarcerated, that stand at odds with the repeated suggestions of the dissenters that these cases should be seen as a judicial victory in a contest for power between the Court and the political branches. The several answers to the charge of triumphalism might start with a basic fact of Anglo-American constitutional history: that the power, first of the Crown and now of the Executive Branch of the United States, is necessarily limited by habeas corpus jurisdiction to enquire into the legality of executive detention. And one could explain that in this Court’s exercise of responsibility to preserve habeas corpus something much more significant is involved than pulling and hauling between the judicial and political branches. Instead, though, it is enough to repeat that some of these petitioners have spent six years behind bars. After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny,today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation.
To think that permitting access to basic habeas rights to prisoners who have been arbitrarily detained by the American government in American-controlled territory for six years is some kind of massive judicial power grab is silly. More later.
UPDATE from bean: Marty Lederman has initial reactions to the decision.
UPDATE the second (SL): Matt beat me to my hobbyhorse, but I note initially that reasonable, moderate, thinking person’s conservatives Alito and Roberts not only dissented (the latter writing) but joined Scalia’s dissent — which begins with a some paragraphs of talk-radio demagoguery about how because of the Court Islamofascists will be come to kill your children — in full. Again, it seems worth noting that there is effectively no substantive difference between Bush’s appointments and Scalia and Thomas.
Although Yoo certainly deserves all of the criticism he’s getting today and far more, it’s also important to remember that his analysis only meant something because he was telling the President and his subordinates what they wanted to hear. Consider this, for example, from GOP Moral Sage James Dobson explaining why he’s not wild about John McCain:
Mr. Dobson took issue with a litany of Sen. McCain’s positions, including support for embryonic-stem-cell research and opposition to a Constitutional amendment to ban same-sex marriage. Those stances, plus Sen. McCain’s discussion of global warming and his push to outlaw torture and shut down the U.S. prison in Guantanamo Bay, Cuba, have “frustrated” conservatives “whom McCain seems to have written off,” Mr. Dobson said.
So McCain’s (nominal) opposition to torture is a good reason to be worried about his tendency. And in these policy preferences, as far as I can tell, Dobson is hardly an outlier. The mean and median GOP voter and public official seems to believe (or at least are not strongly oppose) the ideas that 1)the president should be able to torture people at his whim irrespective of any statutes or treaties, and 2)morality requires that the United States Constitution explicitly make gays and lesbians second-class citizens. The fact that so many people share these views is the real problem here.
And as Glenn points out, Democrats in Congress haven’t covered themselves in glory here either. It’s outrageous that it required an ACLU lawsuit, rather than strong Congressional action, to get these documents (which had no business being classified in the first place) declassified.
The Yoo torture memos have finally been declassified. Emily Bazelon cites their “glib certainty,” which is part of it. But this would be potentially acceptable if its arguments were more plausible and the implausibilities weren’t in service of such reprehensible ends. It’s one thing to, say, confidently assert a very narrow but plausible reading of a statute restricting executive power. Confidently asserting a broad range of arbitrary executive powers (including the power to torture), allegedly beyond the power of the legislature to regulate despite the explicit textual grants of relevant powers to Congress, during a “war” whose battlefield could be the entire planet and whose duration could be infinite, is another matter entirely.
President Bush, as most of you know, has used his veto powers sparingly. But on some issues — like more poor children getting health care — he simply can’t avoid using them. Today, he acts to advance another issue he feels strongly about: torture. He’s for it:
President Bush on Saturday further cemented his legacy of fighting for strong executive powers, using his veto to shut down a congressional effort to limit the Central Intelligence Agency’s latitude to subject terrorism suspects to harsh interrogation techniques that are prohibited by the military and law enforcement agencies.
Mr. Bush vetoed a bill that would have explicitly prohibited the agency from using such interrogation methods, which include waterboarding, a technique in which restrained prisoners are threatened with drowning and that has been the subject of intense criticism at home and abroad.
Less than a year left. But remember that Straight Talkin’ John McCain urged Bush to support torture as well. Indeed, unlike
Joe Lieberman Zell Miller Hillary Clinton, I think that future Democratic candidate Barack Obama is in fact much better qualified to be Commander-In-Chief, and hopefully a majority of voters will reach the same conclusion.
Julian Sanchez is probably right that in order to refute Andy McCarthy’s claim that the Sixth Circuit rejecting the ACLU’s standing to sue over the the Bush administration’s wireless wiretapping (and then the Supreme Court rejecting the appeal) demonstrates that the program is constitutional on the merits one needs merely to restate it. But just in case Tim Lee gives the long version. I’ll add that if anything the fact that the two Republican judges rested on standing if anything suggests that the program isn’t constitutional; if they believed the program to be constitutional they could have granted standing — as the dissenting judge plausibly did — and simply upheld the program on the merits. Although it’s possible in theory that the two conservative judges felt the program was constitutional but decided to rest on an illogical standing argument instead, it seems rather unlikely.
I’d have to say this may be my favorite example of McCarthy’s hackery since he suddenly reversed course and discovered in 2005 with no textual or logical support that filibusters of judicial nominees are unconstitutional. If all goes well, I think we can expect him to revert back to the correct position in roughly January of 2009.