Tuesday, February 17, 2009

Just as a potential case for legal misconduct in the Bush DoJ bubbles to the surface, ex-regimistas whine, "But you can't investigate the regimistas!"


In this segment from last night's Rachel Maddow Show, Michael Isikoff tells Rachel: "About a year ago, the head of something called the Office of Professional Responsibility, which is the Justice Department's ethics watchdog unit, disclosed to Congress that it had been investigating whether or not the authorship of [the 2002-3 torture] memos met the legal standards, professional standards, of Justice Department lawyers. This has enormous consequences."

"One of Bush and Cheney's most audacious capers, as far as I'm concerned, was deciding that they could get away with doing illegal stuff by simply having administration lawyers say that illegal stuff wasn't illegal anymore."
-- Rachel Maddow, introducing the above segment

by Ken

The OPR report, Isikoff went on to say, was essentially complete by the end of last year but met with serious objections from then-Attorney General Michael Mukasey and his deputy, Mark Filip. ("It could not be learned precisely what the grounds of Mukasey's objections were," he writes in his Newsweek report, adding that "neither he, Filip nor Mukasey's former chief of staff responded to requests for comment.) The report hasn't been presented yet to new AG Eric Holder, but assuming it is, Isikoff says in the clip,
We understand that if the report goes forward as it was presented to Mukasey, it recommends that the report be forwarded to state bar associations for possible disciplinary action against the lawyers, which would be a huge embarrassment, obviously. It finds that the entire legal edifice of Bush counter-terrorism policy was based on, not just shoddy legal analysis, but unprofessional and potentially unethical legal analysis.

"The lawyers" are three former senior members of the crucial Office of Legal Counsel: our old friend John "Mr. Torture" Yoo, former Assistant AG and OLC head Jay Bybee (now a federal judge), and later OLC head Steven Bradbury. And according to Isikoff, the report goes into great detail as to how the memos were written, the suggestion being that they resulted from back-and-forth with the White House in which the Bush regimes wishes were drafted into legal opinion.

You have to wonder whether David B. Rivkin Jr. and Lee A. Casey (identified as "Washington lawyers who served in the Justice Department during the administrations of Ronald Reagan and George H.W. Bush"), authors of a preposterous op-ed in today's Washington Post called "A Truth Commission? The Danger in Democrats' Rush to Investigate," knew when they pitched their piece that Newsweek's Michael Isikoff (now also MSNBC's Michael Isikoff, as we learn in the above segment) was about to blow the lid on this particular scandal.

What Rivkin and Casey are peddling is the seemingly commonsensical notion that policy differences, no matter how extreme, are no reason to go hunting for crimes in the activities of a previous administration. The answer to this is so obvious -- if you really don't know the difference between making and implementing policy and breaking the law, you really shouldn't talk publicly about either -- that they have to buttress their argument with a bunch of shaky constitutional arguments as to why a "truth commission" would be either jurisdictionally hamstrung or outright illegal. It's at awkward moments like this that right-wingers suddenly become connoisseurs of the fine points of constitutional separation of powers.

Of course this is all bullshit too. Not that some of the stated separation-of-powers concerns might not be real. But those are things you work out in the structuring of such a commission, assuming that such a commission is even the way to go. Maybe we should just convene bunch of grand juries to sort out which portions of the Bush regime's eight-year-long crime wave are prosecutable?

Come on! Rivkin and Casey don't give a hoot about constitutional niceties. They didn't start by asking, gee, I wonder if a "truth commission" is constitutionally permissible. They went looking for every angle from which they could claim it isn't. It is, in other words, the modus operandi of any defense attorney, whose concern isn't whether the client is guilty but what lines of argument and legal niceties and loopholes can be marshaled to derail the prosecution's case.

Rivkin and Casey want us to think that, ho-hum, this is what always want to do in politics: seek revenge on the other guys who used to be in power. But no, we mustn't allow that. Why, it would undermine the whole system of American government!

Except that, as they surely know, that's not what's happening at all. The problem is that the Bush-Cheney regime actually set out to undermine the whole system of American government. We know they succeeded to a terrifying an extent. Just how great an extent is one of the things we need to learn, for the most obvious practical reasons:

* If we don't know what happened, how can we fix it?

* And if we don't make the malefactors answer for their criminal behavior, how can we possibly hope to prevent it from happening again?

There is one obvious reason why the criminal-investigation problem is so severe after eight years of the Bush regime: the fundamentally criminal mindset of the masterminds of the Bush-Cheney regime. They seem to have gone beyond disregarding the law. In every area of policy making and implementation, they went out of their way to break every law they humanly could, in apparent adherence to the Nixon Doctrine that if the president does it, it's not illegal. For former Vice President Cheney in particular it seems to have been a matter of principle to flaunt the law-flouting, as necessary to him for life as breathing.

A related but perhaps less obvious reason why the situation now is so different is that throughout the executive branch the Bush regimistas did such a bang-up job of demolishing the built-in mechanisms for governmental self-policing, notably the network of inspectors general supposedly keeping tabs on every agency of the federal government. It's an inherently dicey business, trusting an organization to police itself. The president appoints the IGs, after all. That's already one strike against their "independence." Beyond that, an administration determined to keep control of the IGs and other investigators probably can develop a smorgasbord of ways of stifling them, and in the extreme case that you're left with some self-destructive nutjob who doesn't understand that the fix is in, well, there are lots of ways of making sure their reports never see the light of day.

One of the things we need to know is who did what to subvert the executive-branch watchdog institutions, again in order to repair them and try to protect them from future interference.

Let Rivkin and Casey conclude their sinister babbling in rhetorical high gear, complete with veiled threats:
Attempting to prosecute political opponents at home or facilitating their prosecution abroad, however much one disagrees with their policy choices while in office, is like pouring acid into our democratic machinery. As the history of the late, unlamented independent counsel statute taught, once a Pandora's box is opened, its contents can wreak havoc equally across the political and party spectrum. If, for example, al-Qaeda is nothing more than a criminal conspiracy -- as some have claimed for many years -- President Obama's charge sheet has already been started. By authorizing continued Predator missile attacks against al-Qaeda leaders in Afghanistan and Pakistan, he has directly targeted those "civilians" with deadly force. That is a war crime.

Obama and the Democratic Congress are entitled to revise and reject any or all of the Bush administration's policies. But no one is entitled to hound political opponents with criminal prosecution, whether directly or through the device of a commission, and those who support such efforts now may someday regret the precedent it sets. Claims that the Bush administration abused presidential powers have been thoroughly reviewed by several congressional committees, and the Justice Department is capable of considering whether any criminal charges are appropriate. If H.R. 104 or a similar bill is passed by Congress, Obama should nip in the bud this recipe for a continuing political vendetta and veto the legislation.

Can two "Washington lawyers" really be this obtuse? For one thing, as Jonathan Turley has been screaming for months now with both Keith Olbermann and Rachel Maddow, when it comes to the war crime of torture, we don't even have a choice of whether to prosecute. We are required to by a host of international treaties.

But with regard to the full range of criminal behavior we already know was committed by the Bush regimistas, like the blatant politicization of the DoJ and numerous other government agencies, what Rivkin and Casey are saying is, we don't care what crimes were committed. Do most Americans really feel that way?

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