Thursday, April 16, 2009

Update: I find the following post a bit embarassing. Turns out that I am outraged by the same announcement that Glenn Greenwald applauds. Obviously the part on which I comment is not news. I do think that my interpretation of the idea that people in the executive branch sould be able to rely on the OLC is the only one which makes sense. However, the OLC is not new and the idea that it can give out pre-emptive pardons isn't either.

The ranting post follows.

I consider the phrase "relying in good faith on opinions of the justice department" to imply the utter rejection of the rule of law. If employees of the executive can "rely" on something written by one of the President's subordinates, then the President has absolute power. In repeating this argument, I think the Obama administration has joined the Bush administration's effort to destroy limited government and the rule of law.

I am enraged by their statement of their decision to release the three still secret torture memos which includes "In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution."

It might be best not to prosecute or even investigate. However, the statement "it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution." is totally unnacceptable. The Obama administration has now declared that opinions of the OLC ought to determine whether or not there is an investigation *even* if the OLC wrote them in bad faith. This gives OLC opinions the force of law.

If employees of the executive can "rely ... on opinions from the Departement of Justice" then the executive is supreme and can brush the constitution, the law and supreme court opinions aside by pretending to interpret them as saying what the supreme executive wants them to say. the deleted qualifier "in good faith" does not imply that the Justice Department must write its honest opinions in good faith. It refers only to the "good faith" of the subordinates who follow orders.

Obama is making opinions public, but does not commit to making all future opinions public (and couldn't bind a future President anyway). In fact, the explanation of why the 3 memos are being public makes it clear that it is definitely not Obama administration policy to make future OLC opinions public.

Thus we have a body subordinate to the President with the power to arbitrarily rewrite the law. This is not bipartisan consensus policy. Thus Obama has decided to attempt to eliminate the rule of law and the principle of divided government and checks and balances. He might not succeed, but I don't see why not.

If actions taken in good faith following OLC opinions are not to be prosecuted (good faith by the actors not the OLC) then there is nothing left. In particular the Supreme Court is no help. If the OLC can rewrite the constitution and the laws, then it can rewrite supreme court opinions. Supreme court decisions are important because they establish precedents, not because of the resolution of the particular case. The OLC can make a plainly dishonest secret interpretation of Supreme Court precedent. If no one can be punished for acts which the OLC dishonestly claims are constitutional, legal and consistent with Supreme Court precedent, then we are not protected by the Constitution, the law or the Supreme Court.

There was no need for Obama to abandon the constitution and the idea of constitutionalism. He could just have ordered his subordinates to not investigate or prosecute without appealing to the OLC. the English legal tradition includes prosecutorial discretion and the barrier between the President and career prosecutors at DOJ is a tradition, not a requirement of the constitution. By arguing that OLC opinions, no matter how clearly written in bad faith, are decisive, Obama decided that the law must bow to the power of the OLC which is subordinate to the President. I'm actually not worried about what he will do with his recently claimed absolute power. However, if there is a bipartisan consensus that the executive can't be punished for breaking the law, his successors will have absolute power too. I think that the political advantage of publicly promising not to investigate Bush administration crimes does not justify the destruction of the constitution and the rule of law.

11 comments:

Anonymous said...

Truly, a fine and brave analysis.

Anonymous said...

I know that the Berkeley thought police strike terror through otherwise brave souls, but what President Obama has done is a disgrace. I can write this, if others cannot.

Anonymous said...

http://www.democracynow.org/2009/4/17/headlines#2

April 17, 2009

Gitmo Prisoner: “Life is Going to Hell”
By Amy Goodman

Another Guantanamo Bay prisoner has come forward to back accounts of worsening torture since President Obama took office. In a letter to his attorney, Adnan Farhan Abdul Latif said, “I have seen death so many times. Everything is over. Life is going to hell in my situation. America, what has happened to you?” A Yemeni national, Abdul Latif has been imprisoned since 2001.

Anonymous said...

http://www.democracynow.org/2009/4/15/headlines#2

April 15, 2009

Gitmo Prisoner: Torture Has Worsened Under Obama
By Amy Goodman

A Guantanamo Bay prisoner has provided new details of torture under what he calls worsening conditions since President Obama’s election. Chadian national Mohammad al-Qaraani used his prison phone time intended for calling his lawyer to instead reach the Arabic satellite network Al Jazeera.

“I refused to leave my cell, as they were not granting me my rights. I was only demanding my basic rights, like walking, meeting other inmates, and eating normal food. So a group of six soldiers wearing protective gear and helmets came to my cell. They were accompanied by a soldier carrying a camera and one with tear gas. They had a thick rubber or plastic baton. They beat me with it. They emptied out about two canisters of tear gas on me. After I stopped talking, and tears were flowing from my eyes, I could hardly see or breathe. They then beat me again to the ground. One of them held my head and beat it against the ground. I started screaming to his senior, ‘See what he’s doing! See what he’s doing!’ His senior started laughing and said, ’He’s doing his job.’ He broke one of my teeth.”

Qaraani was interviewed by the Al Jazeera journalist Sami al-Hajj, who was imprisoned at Guantanamo for over six years. Qaraani repeated claims made by other Guantanamo prisoners and their attorneys that the abuse has worsened since President Obama’s election.

“This treatment started about twenty days before Obama came into power. And since then, I’ve been subjected to the same treatment almost every day. Since Obama took charge, he has not shown us that anything will change.”

Qaraani was ordered released in January after a judge ruled the Pentagon has failed to provide evidence to justify his imprisonment. He has been held at Guantanamo without charge since 2002.

Anonymous said...

http://www.democracynow.org/2009/4/14/headlines#10

April 14, 2009

Ex-Gitmo Prisoner: Conditions Worsened at Jail Under Obama
By Amy Goodman

A former prisoner at Guantanamo said conditions worsened at the prison after President Obama took office. Binyam Mohamed made the comment in an interview posted on the CagePrisoners.com website.

“They started implementing rules, degrading rules, where they pushed most of us to actually go on hunger strikes. And if you look at the records, before the new administration took over, there was only about ten to twenty people who were on hunger strike, and right after the new administration took over, it went all the way to forty-something on tube feeding and another hundred just on hunger strike.”

Binyam Mohamed was released from Guantanamo in late February after seven years in US custody. Mohamed says he was repeatedly tortured while being held at a secret CIA prison and at Guantanamo.

Anonymous said...

http://angryarab.blogspot.com/2009/04/killing-civilians-continue.html

April 16, 2009

Killing Civilians Continues

"Western forces in Afghanistan acknowledged on Thursday they had killed six civilians in an air strike, just days after apologising for a similar incident that killed five." *

* http://www.reuters.com/article/worldNews/idUSTRE53F3PD20090416

-- As'ad AbuKhalil

Anonymous said...

http://www.nytimes.com/2009/04/14/world/asia/14afghan.html?ref=world

April 14, 2009

Afghan Official Says NATO Strike Killed Civilians
By RICHARD A. OPPEL Jr. and ABDUL WAHEED WAFA

An airstrike by NATO forces early Monday in eastern Afghanistan killed six civilians, including two children, a local Afghan official said.

Anonymous said...

Please explain to me how Obama bombs are different than Bush bombs, better grammar?

Anonymous said...

http://angryarab.blogspot.com/2009/04/torturers-agonized-and-suffered-poor.html

April 18, 2009

The torturers agonized and suffered: Poor torturers

"Instead, watching his torment caused great distress to his captors, the official said. Even for those who believed that brutal treatment could produce results, the official said, 'seeing these depths of human misery and degradation has a traumatic effect.' " *

* http://www.nytimes.com/2009/04/18/world/middleeast/18zubaydah.html

-- As'ad AbuKhalil

Anonymous said...

http://angryarab.blogspot.com/2009/04/birth-of-clinic-discipline-punish-and.html

April 18, 2009

Birth of the Clinic: Discipline, Punish, and Torture

"During the extraordinary weeks that followed, it was the psychologist who apparently played the more critical role. According to newly released Justice Department documents, the psychologist provided ideas, practical advice and even legal justification for interrogation methods that would break Abu Zubaida, physically and mentally. Extreme sleep deprivation, waterboarding, the use of insects to provoke fear -- all were deemed acceptable, in part because the psychologist said so." *

* http://www.washingtonpost.com/wp-dyn/content/article/2009/04/17/AR2009041703690.html

-- As'ad AbuKhalil

Anonymous said...

http://www.nytimes.com/books/00/12/17/specials/foucault-clinic.html

February 24, 1974

After the Church the Doctors, After the Doctors Utopia
By CHRISTOPHER LASCH

THE BIRTH OF THE CLINIC
An Archaeology of Medical Perception.
By Michel Foucault.

Michel Foucault's new book (published in France 11 years ago but only now translated) returns to the history of medicine, the subject also of his first book, "Madness and Civilization" (1961). In continues his brilliant history, not of ideas as such, but of the structures of perception. In the earlier study, Foucault analyzed the origins of the insane asylum, a development that paralleled the "birth of the clinic." Both originated in the upheavals of the late 18th century, specifically in a rejection of earlier medical theory, in a criticism of the hospital, and in a generalized fear of contagion.

Foucault himself does not emphasize these connections between this book and his other works. As usual, his writing is difficult, the argument hard to follow, the arrangement of chapters seemingly arbitrary and the whole very difficult to summarize. In the limited space at hand, I can do no more than sketch in the main lines of the complicated argument presented in "The Birth of the Clinic," without attempting to suggest how that argument modifies our understanding of other facets of 18th-century history or of history in general. By this time it should be unnecessary to add that Foucault's work is indispensable for cultural historians, amply rewarding the effort required to understand it....