Fixing America, Erasing Bush

[WilliamPitt]

Obama's shadow on US Constitution. (Photo: Reuters Pictures)

Fixing America, Erasing Bush
By William Rivers Pitt
t r u t h o u t | Columnist

Sunday 24 May 2009

President Obama gave a speech on Thursday praising the excellence of the American experiment, and claimed his own life was made possible by the promise of the documents and the ideals that founded this nation. As usual, his delivery and diction was perfect. Unfortunately, his behavior of late has fallen far short of the ideals he has given such eloquent lip service to.

Two thousand pictures of Americans performing acts of savage torture on prisoners will not be released to the general public if Mr. Obama gets his way. Military commissions will continue to try prisoners outside the scope of American law, and will be free to use brazen hearsay as "hard" evidence against defendants. Mr. Obama continues to cleave to the most abhorrent aspects of Bush-era secrecy policies, and has moved to block a lawsuit filed by Citizens for Responsibility and Ethics in Washington (CREW) on behalf of former CIA agent Valerie Plame, who was outed by Bush administration officials in order to silence her Iraq whistleblower husband, Ambassador Joseph Wilson.

Melanie Sloan, Executive Director of CREW, responded to the Obama administration's stance regarding the Plame suit with a statement that succinctly sums up the distance between Obama's words and his administration's deeds. "We are deeply disappointed that the Obama administration has failed to recognize the grievous harm top Bush White House officials inflicted on Joe and Valerie Wilson," said Sloan. "The government's position cannot be reconciled with President Obama's oft-stated commitment to once again make government officials accountable for their actions."

Indeed.

These issues of torture and secrecy lead directly to the office of the President of the United States, and the manner in which Mr. Obama has proceeded thus far offends the very nature of the nation he presumes to lead. Mr. Obama sang the praises of our founding documents on Thursday, while failing utterly to live up to the oath he swore to them. In particular:

No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

That is the Fifth Amendment to the word, which as much as anything else is what makes America a special place. The notion of American Exceptionalism raises hackles all across the world, but within the lines of that Fifth Amendment are the ideals that do make America truly exceptional.

There is a reason we give Miranda rights to suspected criminals, no matter how threatening they may be. There is a reason prisoners can't be beaten into giving a confession. The infliction of pain destroys the search for truth, and begs the recipient of that abuse to lie so the abuse will stop. In any American courtroom, from the meanest municipal court to the highest bench in the land, any case where the accused has been beaten, coerced, or otherwise denied their rights will be thrown into the street and dismissed with prejudice, and justly so.

Without the presence of the Fifth Amendment, and other protections like it, no justice exists in America. In this, we find our greatness as a nation.

America is not a great nation because we have so many guns, so many bombs, or so much wealth. America is a great nation because thirty thousand brutal years of human history - slaughter, star chambers, slavery and so on - led to the enshrinement of ideals like the Fifth Amendment, and of the idea that the rule of law is the last, best hope for us all.

What George W. Bush, Dick Cheney and the rest of the previous administration did to those ideals is beyond contempt, and all of it emanated from the office of the Executive. What they did is not, however, beyond repair. Mr. Obama has thus far failed to rectify the damage, but he has a golden chance to do so in the coming weeks.

With the retirement of David Souter, a new nominee to the Supreme Court will soon be named. Many names have been bandied about, some leaning Left and some Right. The GOP has already begun game-planning their opposition to any and all Obama nominees, using all the old litmus tests: abortion, privacy, free speech, etc. If Mr. Obama truly wants to live up to all the lofty rhetoric he has been throwing around since the beginning of his presidential campaign, he will nominate someone based on a whole new and vitally critical litmus test: Executive Privilege and Executive power.

It was the Bush administration's abuse of Executive Privilege and Executive power that led to America's use of torture, and to the veil of untouchable secrecy that now enshrouds the Executive Branch. Mr. Obama has the chance to undo this damage by nominating someone to the Supreme Court who believes the Bush administration overreached, and who will rule in those future cases that those Bush-era definitions of Executive Privilege and power should not be allowed to stand. Mr. Obama should use this litmus test for the next Supreme Court nominee he offers, and the next, and the next.

The rest: http://www.truthout.org/052409A

[kentuck]

1. Let's hope so..

that the Bush legacy can be erased - not continued.

[HowHasItComeToThis]

3. BUSH IS BUT A SYMPTOM OF OUR IRRESPONSIBLE SICK MEDIA

HE IS THE RESULT

[indepat]

2. Every illegal, unconstitutional, and inhumane act of junior's regime not repudiated and

reversed is imo ratification and sanction of such illegality, unconstitutionality, and inhumanity and puts this nation on an irreversible course of unlawfulness. :D

Edited to add of

[Cleita]

4. Thanks WP. Someone had to articulate the sinking feeling many have

about their hopes for the future. I just saw "Schindler's List" last night for the first time and one of the impressions I was left with was that the reason the Nazis could so effectively exterminate the Jews with such cruelty and callousness is that the Jews, as well as Gypsies and homosexuals, had become, through incremental loss of their civil rights, less than human in the eyes of the German people. It was easy to take away their property and exploit them because in the end they had no status as citizens and therefore no legal protection under the law.

When we can reduce a segment of humanity to less that human status and remove them from the protection of the law, it's easy for governments to commit vile acts on them. Our African slaves were only considered three-fifths human by our statutes enabling them to be exploited because they had no legal rights equal to that of humans. The Bush administration had effectively done this with the help of Fox News so that ordinarily nice Americans were cheering on the atrocities that they were committing in our name on Arabs who had been removed to a position of no legal rights or status under the law.

If Obama doesn't drain this swamp of filth left by the previous administration, he won't be able to sail his ship of state over fresh waters but will become sucked into the quagmire and drown into the dross of history.

[omega minimo]

6. That's also what happened with the televised genocide of Katrina NOLA

It "normalized" treating African Americans as sub human and treating ANY disaster victims sub human, if the government pretends to be helpless.

:thumbsdown:

[Cleita]

15. ...but..but..but, Barbara Bush said that this was working out very well

for them because they had nothing to begin with. :puke:

[omega minimo]

23. yes

genocide works out very well for Nazis

[emsimon33]

19. So beautifully expressed--almost poetry! Such well-crafted words and images!

[Cleita]

20. Thank you for the compliment but they aren't really my words but those

metaphors I have picked up from real writers, however, they do express what I think.

[omega minimo]

5. It will be interesting to see how DU responds to your dismissive tone towards President Obama

Set early on and continuously referring to him as "Mister."

"Unfortunately, his behavior of late has fallen far short of the ideals he has given such eloquent lip service to.

"Two thousand pictures of Americans performing acts of savage torture on prisoners will not be released to the general public if Mr. Obama gets his way."



Since the Bushco Acts were crimes (unless modified after the fact) is it necessary to "nominate someone based on a whole new and vitally critical litmus test: Executive Privilege and Executive power."

Can't the crimes be addressed (if ever) and the abuses of "Executive Privilege and Executive power" be corrected without that being a litmus test?

I agree that there must be a balance applied to the two Impeachment Off The Table Bushco SCOTUS appointees, champions/authors of the Unitary Executive policy.

[WilliamPitt]

7. I'm not sure how referring to him as "Mr. Obama" can be interpreted as dismissive.

That's how the New York Times and every other major news agency refers to him in every print article.

I called Bush "Bush" for eight years, never once putting either "Mr." or "President" before his name.

Both are terms of honor he didn't deserve. Mr. Obama does.

[omega minimo]

8. I provided the quote to show how you set the early tone. I also hope you might address the question.

:hi:


"Unfortunately, his behavior of late has fallen far short of the ideals he has given such eloquent lip service to."

[WilliamPitt]

9. Sorry.

In my opinion, it has to be a litmus test because the Supreme Court will be the final arbiter on the issue. It could be settled by act of congress or Executive decree, but it still wouldn't be the final word until the issues are adjudicated by the high court. Until this stuff is SCOTUS-stamped black-letter law, it will remain unresolved...and when it does come to the cort for adjudication, the nine wise souls sitting up there better have a healthy appreciation for the separation of powers, or Bush's interpretation of Executive privilege will become the law of the land, and the separation of powers will be dust.

:toast:

[omega minimo]

11. Hence the concern about the two Bushco enablers of Emperorship

The final arbiter, eh? So it really was cobbled together in a substantive legal way that cannot be dismantled more immediateley and effectively? How did they enshrine it in law? Aside from just "If I Say It It's So"?

:thumbsup:

[WilliamPitt]

12. I'm gonna be a dink and quote myself

...from an article I wrote just after the November election.

===

http://www.truthout.org/111308J

One matter that remains to be resolved has to do with the survival of the rule of law in America, and the continued applicability of our constitutional form of government. The issue stems from the Bush administration's declared parameters regarding the scope of executive privilege and power. When the scandal surrounding the firing of those United States attorneys erupted some years back, several committees of the House of Representatives decided to investigate the matter. They sent out a number of lawfully-drafted and legally-produced subpoenas to the White House demanding that Bush administration witnesses, along with any and all relevant documentation, be produced for Congressional hearings looking into how and why the decision to fire these attorneys was reached.

The Bush administration responded to these subpoenas by telling Congress to get bent. They declared everyone and everything requested by the subpoenas to be off limits due to their definition of executive privilege. In short, and according to Bush's definition of executive powers, not one agency, institution or individual anywhere in America had the power to question or investigate anything done by the White House, ever, period, end of file and thanks very much.

This gets sticky for a couple of reasons. First, of course, is the matter of oversight and separation of powers within the federal government. When one branch of government declares itself above the law and free from meddlesome oversight by other governmental branches, as required by the Constitution, what remains is the absolute annihilation of the rule of law and the end of America's form of government as it has been practiced for the last quarter of a millennium.

This specific issue is all but certain to wind up in the hands of the Supreme Court one of these days. The Congressional committees, whose subpoenas were spurned, decided to hold the White House in contempt, which initiated a legal process whereby the matter of Bush's definition of executive privilege will eventually be decided in the courts ... which brings us to Scary Problem #2.

There is no settled, definitive, black-letter law on the books in America that specifically sets the parameters for the execution of and limitations on executive powers. The United States Constitution contains exactly 15 words in a single sentence explaining the matter, right at the beginning of Article II: "The executive Power shall be vested in a President of the United States of America." The Federalist Papers go in to far greater detail, but those are documents with no legally binding power, so this one sentence is really all there is.

To be sure, this is not the only gray area left by the founders to be sussed out by future American generations: the right to privacy, the right to bear arms and the right of all citizens to vote were, along with several other issues, not originally settled in the final drafts of our founding documents. Unlike these other issues, however, executive power has never been directly addressed, neither by either legislation or judicial decision, and remains undefined as a matter of law.

The closest we've come was in the 1974 Supreme Court decision in US v. Nixon (418 U.S. 683), which ordered President Richard Nixon to cough up those Watergate tapes after he had refused to do so. While the high court did agree with Nixon's argument that broad executive powers are an absolute necessity for the secure performance of presidential duties, that privilege can not be deemed absolute.

"To read the Article II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and non-diplomatic discussions," wordily claimed the court in the 1974 decision, "would upset the constitutional balance of 'a workable government' and gravely impair the role of the courts under Article III."

In other words, the Supreme Court decided executive privilege exists, but not completely, and executive powers are broad, but not absolute. Put another way, the court said "Yeah, but also no," and left the issue quite completely unsettled as a matter of law. Therefore, if the case pertaining to those fired US attorneys and Bush's dismissal of those legally-issued subpoenas ever comes up for adjudication by the Supreme Court, their ultimate decision will be binding.

If they rule in favor of Bush's definition of executive privilege, the constitutionally-mandated oversight powers, to be executed by separate but equal governmental branches, will be null and void on the spot. That will create an imperial executive branch, permanent secrecy, and the end of the rule of law in this country.

So, that's one thing we are going to have to deal with down the road, and never mind the impending departure of as many as three Supreme Court justices, which sets up a whole different conversation about whom to appoint in their place and what those appointments will mean to the future of American law. That's a whole 'nother kettle of crawfish entirely, but one that has everything to do with Senate majorities, filibusters, upcoming midterm elections, and so on.

[omega minimo]

14. thanks

[emsimon33]

18. This is an observation that many are making as regards Pres. Obama

Actions, not pretty words, are needed, despite the fact that President Obama is light years ahead of Bush-Cheney in almost every other way.

[emsimon33]

17. I have noticed on Bill Moyers' Journal that people refer to him as

Mr. Obama. I can't remember what Bush was referred to as it always came through a filter with me--idiotidiotidiot-so the filter in my head blocked the appellation.

[mmonk]

10. Can't argue with that.

[Wednesdays]

13. K&R

:kick:

[emsimon33]

16. Eloquent and insightful as always.

[howmad1]

26. So's a slick used car salesman;

Just like Obama, eloquent and insightful as always. He'll tell you exactly what you want to hear, and lie like a rug to make the sale (or get elected).

[WilliamPitt]

27. Are you talking about me?

[Phoebe Loosinhouse]

21. I'm surprised that you didn't address his bold new concept of preventive detention

I want to hear the Supreme Court nominees asked that question - if they think anything close to that concept can be acceptable in a country adhering to the Rule of Law and the American Constitution.

[WilliamPitt]

22. This was written and into the review/editing process

...before that story popped. I agree, it belongs in the piece, but the window was closed.

[WilliamPitt]

24. Evening kick

[Time for change]

25. Excellent

I am so disappointed in what he's doing.

Preventive detention is the last straw.

In Germany they first came for the Communists,
and I didn't speak up because I wasn't a Communist.

Then they came for the Jews,
and I didn't speak up because I wasn't a Jew.

Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist.

Then they came for the Catholics,
and I didn't speak up because I was a Protestant.

Then they came for me —
and by that time no one was left to speak up.

[midnight]

31. Agree! Let's speak up now.

[soryang]

28. I won't hold my breath

One man isn't going to stop this onslaught on the Constitution which the Justice department is compounding with its all powerful executive privilege doctrine in the courts.

[Joe Fields]

29. I hope you're prepared to be greatly disappointed, Will, because then,

if he picks a true liberal judge, you'll be pleasantly surprised, and otherwise, the blow will be somewhat softened, as it was expected.

I really don't know how much difference it makes, anymore.

On edit: I liked very much what you wrote. It was a powerful defense of why we have specific amendments to our constitution.

[The Wizard]

30. Let the Debushification begin (NT)