State Secrets Litigation

Glenn Greenwald is up in arms about the Obama Administration's advancing the same, extreme interpretation of State Secrets Privilege as the Bush Administration:

It's really remarkable what happened. One of the judges on the three-judge panel explicitly asked the DOJ lawyer, Doug Letter, whether the change in administrations had any bearing on the Government's position in this case. Letter emphatically said it did not. Instead, he told the court, the new administration -- the new DOJ -- had actively reviewed this case and vetted the Bush positions and decisively opted to embrace the same positions.

It's a double-edged sword, though, isn't it? By pushing the Bush Administration's interpretation, the Obama Administration ensures that there will be an appellate court ruling on that interpretation, likely followed by a Supreme Court ruling on that interpretation. Either the courts will reject the Bush/Obama Administration arguments, or they will find them constitutional.

Perhaps that's the worst case scenario for opponents of State Secrets Privilege - that the Supreme Court will give the Bush Administration's extreme views its seal of approval. But if the issue isn't litigated, the issue remains open. Even if Obama backs down, a future administration will reassert the extreme interpretation presently before the courts. Is it truly better "not to know"?

How Do Mere Mortals React To "Politics as Soap Opera"

I mean, when it's not quite as literally soap opera as it was during the Ken Starr / Monical Lewinski era.

In terms of those who aren't addicted to politics.... Do they particularly care if Obama gets his stimulus package passed within 2-1/2 weeks of taking office instead of 1-1/2? Is anybody appalled that he included provisions demanded by Republicans? Or is this drama that political junkies dream up and project upon the rest of America?

It amazes me that people who should know better seem to think Obama was going to walk into Congress with his own pure-as-snow stimulus bill, be received like Moses coming down Mount Sinai with the Ten Commandments, and somehow avoid the whole ugly mess that is Congress. The factory that actually produces legislation. Sure, it would have been nice had members his own party not tucked in their bibs as soon as they heard the numbers involved, but it's the nature of the beast.

Bipartisanship is Marketing

To those who believe that Obama's attempts at bipartisanship demonstrate abandonment of political advantage (as if the stimulus bill would sail through if not for Obama's outreach to Republicans?) or misguided (in the manner of David Broder's apparent belief that a solution reached through compromise is always better, even when one side to an argument is clearly wrong), I say the following: When a politician refers to "bipartisanship", the politician should be seen as either admitting that he doesn't have the political clout to carry an issue without help from the minority party, or because he feels that the public wants him to appear bipartisan.

The difficulty for Obama is that he's dealing with a minority party that has decided (probably correctly) that its power lies in obstructionism, and the media is packed with people like Broder who can't or won't admit that you don't need to compromise in the face of obstructionism. Granted, had Obama not played up to the public belief that bipartisanship is a good thing and that he would be a bipartisan leader, he would be better positioned to say, "This isn't the time for bipartisanship." But had he done that, he probably wouldn't be President.

Falling Down on the Job

Although nothing's set in stone yet, I'm not particularly impressed with the lack of progress on a stimulus bill, or with what looks like a pretty atrocious approach to bailing out the nation's financial institutions.

The Games Politicians Play

I don't know if Obama should scold the person who stuck the birth control provision into the stimulus bill, or thank them. The scolding should follow from the fact that this was supposed to be a pork-free, non-political bill that could pass with broad bipartisan approval. The birth control provision gave right-wing Republicans a talking point - they could point to it and say "What does birth control have to do with stimulation."

And that brings us to the possible "Thank you." Other than being fodder for an easy one-liner, Republican opposition has been unprincipled and dishonest. The fact is, the provision is good public policy and is consistent with the Medicare policies of a number of Republican governors. It would have saved those governors a ton of money and unnecessary hassle in obtaining waivers so that they could offer birth control benefits through Medicaid. And when the provision was dropped, the Republican answer was still "no" - giving Obama the opportunity to... do this:

“We’re not going to get 100 percent agreement, and we might not even get 50 percent agreement, but I do think people appreciate me walking them through my thought process,” the president said, as he left a meeting with GOP senators just off the Senate floor.

“I hope I communicated a sincere desire to get good ideas from everybody,” he added. “My attitude is this the first major piece of legislation we’ve worked on, and that, over time, some of these habits of consultation and mutual respect will take over, but old habits die hard.”

The shoe is on the other foot. The Republicans were ignoring public policy in favor of a talking point, leaving Democrats to explain why the birth control provision belongs in a stimulus package and makes good sense. Now the talking point is gone and the Republicans are left to sputter things like "We need more tax cuts" or "It's unfocused... not that we have any better ideas".

Obama was placed in an awkward position by the legislators who stuck the birth control provision into the stimulus bill. That measure was inconsistent with his stated goals for the bill. But to ask for its removal opened him up to attacks from the left, accusations that he's selling out women's health. While it's standard Washington fare to stick appropriations like this into "must pass" legislation, this really wasn't the time. I hope that Democratic party leaders have a bit of a sit-down after this, to discuss how they might avoid shooting the President and themselves in the foot over the next two years. Meanwhile, they should work to get a similar appropriation passed through, perhaps, a bill directing some aid or assistance to the states or updating Medicaid rules.

Save Us From the Speechwriters

First it was David Frum, not a stupid man but one predisposed to fatuous assertions; next Michael Gerson, the nation's dumbest syndicated columnist. Now erupting, from deep within the bowels of the White House... Marc A. Thiessen.

When President Bush left office on Tuesday, America marked 2,688 days without a terrorist attack on its soil.

Except for anthrax. And the Beltway sniper (close enough to terrorism to test "homeland security", even if without a political objective). And, although certainly not a terrorist attack, the colossal screw-up after Katrina that let the nation know that, for years after 9/11, Bush and his administration were completely incompetent to handle any large-scale disaster on U.S. soil. And if we're counting days, the amount of time between the first attack on the World Trade Center and the end of Clinton's term was even greater, with no subsequent anthrax attacks to conveniently overlook.

Thiessen's goal here seems to be to defend Bush's record of torture, disregard of the Constitution, and indefinite confinement of suspects without charges or recourse to the courts. It's one of those arguments where Bush's adherents wish to be taken on faith. Khalid Sheik Mohammed refused to talk until he was tortured, and the information gathered was so valuable that only Bush and those with top security clearances, like... his speechwriters have been trusted with the intimate details. But it allowed the government to claim to have prevented terrorist attacks that may have been planned for U.S. soil, and a few of those directed at overseas targets, so, you know, shred the Constitution and all hail Bush. And shame on Obama for describing torture for what it is.

It's astonishing that Bush's defenders are so quick to defend the use of torture, but so scared of the word itself. Have they no courage in their convictions? No, that qualification isn't needed. Have they no courage?

President Obama has inherited a set of tools that successfully protected the country for 2,688 days - and he cannot dismantle those tools without risking catastrophic consequences.

You know, it's like potato chips. You hold a guy without charges or access to the courts, torture him, make sensational claims about what you supposedly learned through torture (but refuse to substantiate them)... and how can you possibly stop at just one? C'mon Obama - taste the forbidden fruit. You'll like it....

On Tuesday, George W. Bush told a cheering crowd in Midland, Tex., that his administration had left office without another terrorist attack. When Barack Obama returns to Chicago at the end of his time in office, will he be able to say the same?

Again, that's a claim Clinton could have made - more honestly. But that's not the point, is it. Thiessen wants to set a stage where any further attack on the U.S. vindicates Bush and redeems his miserable record. From his tone, it almost sounds like Thiessen is hoping for an attack, just so he can snivel, "I told you so." Even though it would vindicate nothing in his argument and, quite possibly, reflect and result from the failure of the Bush Administration's policies.

In 2007, President Bush revealed intelligence that Osama bin Laden had told al-Qaeda leaders in Iraq to form a cell to conduct attacks inside the United States - then the surge drove them from their havens and set back those plans.

In 2004, President Bush (via Condoleezza Rice) revealed that in 2001 they sat on intelligence that Osama bin Laden was determined to attack targets within the United States. I wish he'd taken that, you know, 1% as seriously as the notion that a planned terrorist cell ostensibly to be based in U.S. occupied Iraq had similar intentions.

It's Been Almost a Day....

Why isn't everything fixed yet?

Update: The low expectations continue.

Congratulations, Mr. President

And relax. It's not like the expectations are high.

I've never liked this song, but it seems appropriate for the occasion. I'm thinking... A Harry Reid, Nancy Pelosi duet outside the window of the Lincoln Bedroom?

On Looking Forward

Dahlia Lithwick doesn't seem to have much patience for the argument that we should look forward as the Bush Administration is replaced by Obama's:

Those who say that there should be no investigation or prosecution of senior officials who authorized torture and warrant-less surveillance rarely even bother offering legal justifications. They argue that the Obama administration has more urgent problems to contend with. They insist that any such process would devolve into partisan backbiting from which this country could never recover. And they insist, as did Attorney General Michael Mukasey in early December, that there is no basis on which to prosecute the architects of torture and wiretapping policies because each was acting to “protect the security in the country and in the belief that he or she was doing something lawful.”

I personally wouldn't say "there should be no investigation or prosecution of senior officials who authorized torture and warrant-less surveillance"; I would say "If Justice Department officials are aware of crimes, they can consider whether or not to prosecute them". (And here I mean "consider" in the sense that any prosecutor evaluates a case, and choose to prosecute some while passing over others.) I take issue with bringing out the muckrakes and trying to dredge new indictable offenses out of the Bush Administration's... I suppose there's no real need to continue that metaphor; you get the point. There's lots of muck to rake, but there's a real cost and risk in choosing that path.

Of all of the reasons not to prosecute that Lithwick attributes to opponents of (large-scale investigation and) prosecution, the only one I agree with is this: "the Obama administration has more urgent problems to contend with". Sure, the cost of any distraction that resulted from a full-scale investigation of "the crimes of the Bush Administration" would have to be weighed against the benefits of finding and prosecuting crime. Would the benefits, either in the long- or short-term, outweigh the costs? Lithwick apparently believes they will; I suspect otherwise. Lithwick implies that the decision should be made on legal grounds, not practical or political grounds, but even if that's technically possible the nation will nonetheless interpret the choice to prosecute through a political filter.

Others — including unnamed officials on the Obama transition team — have already claimed that there is simply no political will for criminal prosecutions, or even a truth commission.

Is that untrue? I personally haven't sensed a strong public sentiment toward either an independent counsel or a truth commission. If Lithwick is seeing a strong grassroots movement, or is aware of opinion polling suggesting otherwise, I would welcome more information.

We are telling ourselves that bad people did bad things under bad circumstances, but that it’s better to forgive and forget, that we are really truly sorry and it won’t happen again. We sound like a nation of drunks after a bender. We are full of good intentions, but unwilling to hold ourselves to account.

Actually, I have very little sense that a large number of people on either side hold that mindset. I sense that there are people, including myself, who are very worried that the Bush Administration's bad policies will happen again, and that some will be carried forward into the Obama Administration. I've even heard some Bush critics cynically suggest that Obama doesn't want to take action because he doesn't want to tie his own hands. On the other side, there are partisans who would not admit (and perhaps can't contemplate) that any act contemplated by the Bush Administration was wrong, or that any action nominally taken "in the interest of national security" should ever be second-guessed. The number who argue, "We meant well but we were wrong, so let's let bygones be bygones?" They're probably out there, somewhere; I'm just not running across them.

Lithwick argues,

Nobody is looking for a series of public floggings. The blueprints for government accountability look nothing like witch hunts. They look like legal processes that have served us for centuries.

and

Some commentators have suggested that any such truth commission should promise immunity or a pardon in exchange for truthful testimony, but I believe that if it becomes clear that laws were broken, or that war crimes were committed, a special prosecutor should be appointed to investigate further.

Although Lithwick correctly states, "It’s not a witch hunt simply because political actors are under investigation", I disagree with her suggestion that nobody wants the witch hunt / public flogging of former members of the Bush Administration. I believe that some people very much want that, and that they will overshadow the motives of those who want an investigation focused upon determining facts and preventing the recurrence of bad acts. Frankly, as long as you leave the threat of special prosecutors and indictment hanging over the witnesses, all you're going to get at your hearings is a long succession of people who either refuse to testify or, after being subpoenaed, recite, "On advice of counsel, I hereby respectfully exercise my Fifth Amendment privilege against self-incrimination...."

If our world were more ideal, Lithwick's view would prevail - and an efficient, entirely non-political investigation would quickly reveal important truths, help ensure that crimes were punished, help prevent similar crimes in the future, etc. Nobody would have to worry that the prosecution would be perceived as politically motivated, because that would be unthinkable. (But in a world that ideal, we wouldn't be in this position in the first place, would we?) I hate to drag practical concerns and politics into this, but in our often dystopian world and under our imperfect political system that's an unfortunate necessity.

Didn't Ken Starr initially have a very high approval rating, and broad popular support for his Whitewater investigation, before it went metastatic in its "leave no stone unturned" quest to get Clinton? "Oh no", his defenders protest, "he only investigated possible criminal acts he found during his other investigations". "Even if Starr ran amok, this time will be different", proponents of a sweeping investigation of the Bush Administration contend. Yeah, right.

Obama's Correct To Look Forward

Without wishing to minimize the bad acts committed by members of the Bush Administration, the need to prevent recurrence, or even the instinct to seek a bit of revenge for the Clinton impeachment, I just can't get on board with this mindset:

Worst of all, Obama (in response to Stephanopoulos' asking him about the number one highest-voted question on Change.gov, first submitted by Bob Fertik) all but said that he does not want to pursue prosecutions for high-level lawbreakers in the Bush administration, twice repeating the standard Beltway mantra that "we need to look forward as opposed to looking backwards" and "my instinct is for us to focus on how do we make sure that moving forward we are doing the right thing." Obama didn't categorically rule out prosecutions -- he paid passing lip service to the pretty idea that "nobody is above the law," implied Eric Holder would have some role in making these decisions, and said "we're going to be looking at past practices" -- but he clearly intended to convey his emphatic view that he opposes "past-looking" investigations. In the U.S., high political officials aren't investigated, let alone held accountable, for lawbreaking, and that is rather clearly something Obama has no intention of changing

Now I'll grant that there are circumstances when we should look backwards and criminally prosecute bad actors from an outgoing administration, and I'll concede that it's difficult to articulate the circumstances under which that is or is not appropriate, but here's one small measure: If the sins aren't sufficient to trigger impeachment by a Congress controlled by the opposition party, that alone raises a serious question not only about whether they are so serious as to trigger criminal investigation and prosecution, but also whether the opposition party shares culpability for having failed to act sooner.

An after-the-fact appointment of a special counsel, whose job is essentially to dig for criminal acts and prosecute those who committed crimes, not only can be easily spun as "revenge for the Clinton impeachment", but sets a precedent that could haunt any outgoing administration, no matter how squeaky clean. Didn't Ken Starr teach us, no matter where you start out, if you keep expanding the scope of your investigation you will eventually find some opportunity to accuse somebody (rightly or wrongly) of crimes, coerce witnesses, set perjury traps... create a great deal of pain and disruption for the nation and its governance and, at the end of the day, quite possibly accomplish nothing meaningful?

Another problem is that when you create a sideshow of the type proposed, it can take everybody's energy and attention away from the very real issues we must address, while looking forward. Thanks in no small part to Bush, this nation has a lot of very serious problems that need to be quickly addressed. The investigation and prosecution of a host of officials of the outgoing administration has the potential not only to interfere with the new administration's focus, it could polarize the nation, and make the Dems seem as small, petty, obsessed, biased and vindictive as Ken Starr looked to them when he finally released his report.

If Justice Department officials are aware of crimes, they can consider whether or not to prosecute them. There are issues that the new Congress should investigate, and it's possible that crimes will be uncovered there as well. We don't need to look away from the past. But despite the temptation and opportunity, and a mile of muck to dig through, I don't think it's necessary or wise to start appointing special prosecutors to ferret out people and acts to prosecute. Even if it doesn't end up looking as counter-productive as Ken Starr's investigation run amok.

Choosing the Surgeon General

Quick - name a surgeon general.

Dr. Koop? That was easy. Name another.

Sorry, Elders didn't get the job. Got a second? I'm waiting....

Perhaps I'm being unfair in your case, but we've really only had one celebrity Surgeon General. And since Koop retired, Presidents have seemed happy to keep it that way. So, other than to provide fodder for bad jokes, why is Obama apparently choosing somebody who is already a celebrity for that job?

I suspect that there are several reasons, but that they all tie together.

1. Gupta has incredible media access and connections. When he makes an announcement, he's pretty much guaranteed that it will get ample news coverage.

2. He has a popular persona of being trustworthy and competent. He has already been introduced to the American public, and he has an established, good reputation.

3. When necessary, he has enough personality and public access to bypass the media and take his message directly to the public.

This choice, to me, suggests that Obama truly intends to initiate sweeping healthcare reforms, and Gupta is going to be the public face of reform.

Despite his relatively conventional choices for most positions, I personally expect Obama to follow the model of his campaign, using community organizing techniques and Internet outreach to bypass traditional media and even political channels, in order to get public sentiment behind proposals that face opposition - Republican or Democratic opposition. In that context, with health care reform being an exceptionally thorny and controvercial subject, Obama's choice of Gupta makes perfect sense.

And Next We Find a Philosopher King, and....

David Ignatius urges Obama to find a Warren Buffet of intelligence to be the next director of national intelligence.

The right answer? Find the Buffett-like manager who can create a truly great U.S. intelligence system at DNI, then let that person pick a CIA director who will be nonpolitical. And then, as the late CIA Director Richard Helms liked to tell his trench-coated colleagues, "Let's get on with it."

Sounds good. But... where do we look?