Amnesia At Our Peril

I have to admit that I was stunned to read this “Point/Counterpoint” feature in the LA Times yesterday between Susan Estrich and Hugh Hewitt on the subject of investigating Dubya and his pals for “break(ing) the law in fighting terrorism,” not because I expected anything but utter wankery from Hugh Hewitt, but because I expected Estrich to amount at least a token defense, given that she’s the “liberal” here (silly me - and I also posted here).

Here she is…

I don't approve of torture, detaining people without charges or warrantless wiretapping without some form of judicial review or approval. I don't believe that the Constitution grants the executive virtually unlimited powers even in the pursuit of the horrors of terrorism. I'm actually sentimental enough to get shivers up my spine when I hear the stories of the acting U.S. attorney general and the FBI director racing to the hospital bed of the seriously ill then-Atty. Gen. John Ashcroft in 2004 to warn him not to sign the directive the White House chief of staff was bringing over. That directive was a reauthorization of a blatantly unconstitutional assault on individual liberties and freedom in the name of fighting terrorism.

But the punch line, as we both know, is that Ashcroft didn't sign off on the White House's secret surveillance program. The president, reportedly having been kept in the dark by folks in his own administration and facing mass resignations from lawyers who belong to a different political party than I do but swear allegiance to the same Constitution, revised the program. The good guys won. The Constitution lives.

Glenn Greenwald, in another typically thorough post, gives us all the particulars of how former Bushco AG Abu Gonzales did his best to keep Deputy AG James Comey from testifying before the Senate Judiciary Committee and thus keep hidden the story of Comey’s visit, along with FBI Director Robert Mueller, to the hospital room where then-AG John Ashcroft was recovering from a gall bladder condition on March 10, 2004. The point of Comey/Mueller’s visit, of course, was to help Ashcroft resist pressure from then-Bush White House Chief of Staff Andrew Card and Gonzales from approving the warrantless wiretapping program.

However, according to TPM Muckraker here…

When Comey went in on that Friday, March 12th to give the White House its customary morning briefing, Comey said that the president pulled him aside. They had a 15 minute private meeting, the content of which Comey would not divulge. But Comey did suggest at the conclusion of that conversation that the president speak with FBI Director Mueller. And so that meeting followed. Following that meeting, Comey said that Mueller brought word that the Justice Department was to do whatever was "necessary" to make the program into one that the Justice Department could sign off on.

Comey said that it took two to three weeks for the Justice Department to do the analysis necessary to have the program approved. During that time, the program went on without Justice Department approval. But following the Justice Department's suggested changes, the Justice Department (either Ashcroft or Comey) did sign off on the program.

And of course, as we know, the 110th Congress codified the lawbreaking of the happily-now-departed Bushco cabal here by passing its utter sham of a FISA bill (here).

So I guess, to Estrich’s thinking, the Constitution “lives” indeed – without the Fourth Amendment, that is.

She also tells us this…

That's how the story should end. I don't need their heads. I don't believe John Yoo and his colleagues deserve to be in prison. That isn't what criminal law is about. That isn't how the system we all swear allegiance to is supposed to work.

For those who don't know, Yoo was the White House lawyer whose job it was to come up with fancy legal justifications for blatantly unconstitutional programs, which were then promoted by others. He and those who worked with him and followed his advice are guilty of twisting the Constitution -- abusing it, even. Our founding fathers -- who, unlike us, actually lived under tyranny -- took some care to prohibit it. If Yoo and company had had their way, the founding fathers' efforts would have been for naught.

All the more reason to haul Yoo’s ass in front of a war crimes tribunal, IMHO, along with Dubya, Rummy, and “Deadeye Dick,” for starters, particularly when you consider the following (from here, in Jack Goldsmith, former Office of Legal Counsel lawyer in Bushco’s “Justice” Department, describes how he finally came to part ways with his employer)…

Yoo was a ''godsend'' to a White House nervous about war-crimes prosecutions, Goldsmith writes in his book, because his opinions reassured the White House that no official who relied on them could be prosecuted after the fact. But Yoo's direct access to Gonzales angered his boss, Attorney General John Ashcroft, according to Goldsmith. (Neither Ashcroft nor Gonzales responded to requests for interviews for this article.) Ashcroft, Goldsmith says, felt that Gonzales and the war council (Gonzales, Cheney Chief Of Staff David Addington, Defense Department General Counsel William J. Haynes II and Yoo) were usurping legal-policy decisions that were properly entrusted to the attorney general, such as the creation of military commissions, which Gonzales supported and Ashcroft never liked.

…

Several hours after Goldsmith was sworn in, on Oct. 6, 2003, he recalls that he received a phone call from Gonzales: the White House needed to know as soon as possible whether the Fourth Geneva Convention, which describes protections that explicitly cover civilians in war zones like Iraq, also covered insurgents and terrorists. After several days of study, Goldsmith agreed with lawyers in several other federal agencies, who had concluded that the convention applied to all Iraqi civilians, including terrorists and insurgents. In a meeting with Ashcroft, Goldsmith explained his analysis, which Ashcroft accepted. Later, Goldsmith drove from the Justice Department to the White House for a meeting with Gonzales and Addington. Goldsmith remembers his deputy Patrick Philbin turning to him in the car and saying: ''They're going to be really mad. They're not going to understand our decision. They've never been told no.'' (Philbin declined to discuss the conversation.)

In his book, Goldsmith describes Addington as the ''biggest presence in the room -- a large man with large glasses and an imposing salt-and-pepper beard'' who was ''known throughout the bureaucracy as the best-informed, savviest and most conservative lawyer in the administration, someone who spoke for and acted with the full backing of the powerful vice president, and someone who crushed bureaucratic opponents.'' When Goldsmith presented his analysis of the Geneva Conventions at the White House, Addington, according to Goldsmith, became livid. ''The president has already decided that terrorists do not receive Geneva Convention protections,'' Addington replied angrily, according to Goldsmith. ''You cannot question his decision.'' (Addington declined to comment on this and other details concerning him in this article.)

Goldsmith then explained that he agreed with the president's determination that detainees from Al Qaeda and the Taliban weren't protected under the Third Geneva Convention, which concerns the treatment of prisoners of war, but that different protections were at issue with the Fourth Geneva Convention, which concerns civilians. Addington, Goldsmith says, was not persuaded. (Goldsmith told me that he has checked his recollections of this and other meetings with at least one other participant or with someone to whom he described the meetings soon after.)

Months later, when Goldsmith tried to question another presidential decision, Addington expressed his views even more pointedly. ''If you rule that way,'' Addington exclaimed in disgust, Goldsmith recalls, ''the blood of the hundred thousand people who die in the next attack will be on your hands.''

Oh, and in the same post, Addington cheerily exclaims that “we’re one bomb away from getting rid of that obnoxious [FISA] court” (what a creep).

And in case anyone was wondering about the alleged legal basis for denying habeas corpus rights to prisoners at Guantanamo, another Yoo “innovation,” this reminds us that Yoo decided to do that on the shaky-at-best legal reasoning of the WWII-era Supreme Court ruling in Ex Parte Quirin, in which German spies were executed (Quirin was at issue in the Boumediene v. Bush ruling, which was the third setback handed to our then-ruling cabal by the Supremes)…

How was this possible? The Court had a simple answer: haberdashery. Writing an unseemly eight months after the saboteurs had been executed, the Court held that the Germans, having shed the uniform of their nation, had likewise shed the protections of the laws of war. Thus they were, in the phrase Chief Justice Harlan Fiske Stone coined, "unlawful combatants."

I don’t know if exposure to the light of day of all of these abuses of our constitution and the rule of law would result in convictions, but at the very least, it would show to the world that the abuses of the prior regime will not be tolerated and never serve as a precedent for future presidential administrations.

I’m hardly some fancy law professor like Estrich, but even I know that.

And I don’t think she’s much of a “liberal,” for refusing to acknowledge that (actually, I don’t think she’s much of an American, period).

Update 1/29/08: Though Estrich thinks we should "move on," of course (in a manner of speaking), this is another reason why we should do the exact opposite.