I’ve been blogging for at least five years, now. I’ve been doing so right along with a lot of my other Lefty buddies, commenting on and applauding a lot of the same news sources, such as Rachel Maddow, Ed Schultz and what has become the entire MSNBC lineup. And right along with Bill Mahar, too. I thought I understood what they were saying when we all complained about George Bush, but in recent months, I’ve begun to doubt that.
In recent months, since the Obama Administration took the White House, Progressive talking heads have been consistently pushing on a number of issues. Gays in the military, Guantanamo, the stimulus package and many others. And the common refrain has been some variation of, “with the stroke of a pen, President Obama could end all this…”
Perhaps I’ve lost my mind, but I could have sworn that one of the things we didn’t like about George Bush was… his use of executive orders and signing statements to bypass the will of the Congress? Did I totally misread that? Because now that we have our man in the White House, we want him to employ precisely the same tactics that I recall people decrying as circumventing the U.S. Constitution. And beyond that apparent contradiction, there are a number of problems with executive overrides of this type which are also worth mentioning.
The first should be obvious: if we can turn over all of Bush’s executive hanky-panky this easily, so too can the next president “correct” the Obama Administration. I may be confused about what we Lefties were talking about a few years ago, but I remember my U.S. History and Government class, and this is definitely not what the Founders had in mind. We are not meant to be a cult of personality like Saddam’s Iraq or Kim’s North Korea. Our laws are not meant to be subject to the whims of the most powerful ape in the room. We may like things fast in our modern world, but some things are better left up to the stodgy, old, slow and yes, painfully prejudiced and ignorant Congress.
Secondly, if the president does not get the work done through Congress, Congress can always pass a law that circumnavigates his circumnavigation. Potentially, they can do so in a way that overrides the veto. Remember how Congress’ slowness was a bad thing? Well, with a stroke of a pen, you’ll be counting on it.
Third, in some cases, it’s really not that simple anyway. The president is sitting on a prison in Guantanamo filled with people who have been wrongly imprisoned. People whose basic human rights have been violated, which is a crime which our Constitution is particularly well-suited to prosecute… harshly. In fact, history buffs will know that the entire point of the Constitution is precisely that.
The president cannot simply wave his pen and declare “Do-over!” He cannot free Gitmo detainees without complications. And he certainly cannot do that by, once again, short-circuiting the legal process. The only legally justifiable means of releasing the Guantanamo detainees is by putting them on trial, but since most of the evidence against even those guilty of actual crimes against the United States was obtained via torture and is therefore not admissible, that means both the guilty and the innocent would be set completely free.
The CIA is another sticky wicket. The good and bad news about stable democracies is that the institutions of government – from the Department of Agriculture to the military to the CIA – maintain contiguous operation beyond presidential terms. The Department of the Interior does not suddenly loose all it’s staff and get repopulated every time a new president takes the oath, though it came close in the Bush Administration. It is this contiguous institutionalization of government that provides the democratic stability we enjoy as Americans, not the voting part. There is even an argument to be made that this bureaucratic stability is what eventually ground the Bush Administration down in the end: whistleblowers throughout the government leaked the documents and instigated the investigations that mired the Bushies down for the past three or four years.
But in the case of the CIA, that also means there are bodies buried deep in the vaults of that secret agency that no president has probably ever known about. And even if presidents do, we the public don’t. Again, untangling this web, especially where torture has been used, is not as simple as people seem to think it is. And as we’ve learned from the Bush Administration, the leadership can only push agencies just so far before they earn the ire of career bureaucrats who will outlast them. I’m quite certain that, as a Constitutional law professor, President Barack Obama is quite well aware of the problem torture presents. I’m quite certain that he’s interested in removing the stain of torture from our government – not out of ideological zeal, but out of fidelity to the Constitution he spent his life studying. But this, like much of the damage done by the Bush Administration, is going to take time to put right.
Of course, I understand that we need people to push issues. Just because a president with a D next to his name gets elected does not mean that the things we need done will get done. There has to be pressure on politicians if anything is to be accomplished, especially presidents; there needs to be a loyal opposition, a position for which the Republicans are ill-equipped these days. But we need to be cautious that, in pushing for small changes, we don’t arrive at unforeseen and lamentable large changes. Pressure is one thing, but irresponsibility is quite another.
Readers of this website know I have made no secret of my support for President Barack Obama. That support remains unflagging to this point. But politicians have one set of agendas, and the people another, so there is a time for all of us to break with our supported politicians and pressure them to do things they don’t want to do. I say this not as an apologia, but because the media’s insistence on a purely dualistic world of supporters and detractors completely obscures the meaning of the term “loyal opposition.” Opposition to your president does not necessarily presuppose hateful invectives.
Such is the case with the torture investigations. Clearly, Obama is not in favour of going forward with them. And as a practical matter, I don’t necessarily blame him: he’s not just the president, he is also a president, which means he has the power to make or break precedent in the Oval Office and so does his next successor. The precedent set here might be that a sitting president can prosecute a former president for misdeeds in office. Presidents have generally been very reluctant to do this for a simple reason: regardless of the justness of a given prosecution, the precedent leaves itself open to politically-motivated abuse down the line. Just as many of us have argued in the cases of eavesdropping and other violations of civil rights under the Bush Administration, the justness of motivation does not always outweigh the potential for abuse in the future.
And mindful as I am of that dangerous precedent, there has to be some point at which the potential threat of abuse is outweighed by the clear danger presented by the violations of the former administration. In this case, we’re not dealing with illegal actions that lived in a bubble, cut off from effect the moment President Bush left office. What we have is, again, a dangerous precedent that says that when a president wants to do something, all he needs is a few pliable lawyers to write grade-school legal justifications and he’s off to the races. And not just “something.” We’re talking about torturing human beings. . . on top of wrongful incarceration and illegal wiretapping of U.S. citizens. Taken as a whole, the Bush Administration opened up a little slice of totalitarianism that must – must – be closed, nailed shut and boarded up forever.
And what’s more, I think that there is also a political reality right now that cannot be ignored and in this one case, should not be ignored. The same wave of realization and needful correction that brought Barack Obama to power also drives the need to redress this most awful of crimes against the American consciousness. He cannot turn that tide back without crushing himself in the process.
Between the American public’s obvious need for self-correction and the institutional need for justice, the need to break with the president and make him do something unprecedented is overwhelming. And for the first time, we see Barack Obama being overtaken by the wave rather than riding it. This is what it means to be president, sometimes. This is what it means to elect one, too. As troublesome as the situation is and as dangerous as the path before us may be, for the benefit of our president and our nation, we must continue to push him to investigate the torture policies instituted by the Bush Administration.
Not to pretend that either Left or Right, Republican or Democrat actually holds the morel high ground as an intrinsic quality. Far from it. But we keep hearing over and over again on the news that the pressure to investigate torture is coming from the Left. As if the shit-storm we’re seeing right now could possibly be generated by the relatively small group of independents on the Left.
We know that the media loves to drive the Right-Left Bloodsport story, but the idea that a bunch of cigarette-smoking, absinthe-drinking, goatee-wearing bongo-playing poet intellectuals have driven the story of Americans torturing perceived enemies into the tops of all the headlines is simply absurd. This story is being driven by a genuine outrage across a large section of the American public over – call me over sensitive – genuinely outrageous stuff.
And for fuck’s sake, people, does it not matter to anyone in the MSM that crimes appear to have been committed? Politics be damned. Optics be damned. Crimes committed in a nation of laws need to be prosecuted, even if you think they were justified; justification is a question for opinion makers, immaterial to the proper prosecution of laws.
Even more frustrating about the conversation – and even more of a measure of the psychosis that the War on Terror has thrown a large portion of our nation’s power structure, as reflected by the media that bathes itself in that power – is the idea that, because there’s a war going on, we cannot stop to examine our mistakes. This is simply not the case and there is simply no precedent for that type of heedlessness in our history. Plenty of prosecutions have happened in war time, from the Revolutionary War right up to the present day.
I would like someone in the media to patiently explain to my obviously ignorant ass what, precisely, about the United States of America continuing to prosecute it’s laws would embolden the enemy? What about the United States of American proving that it’s laws can withstand it’s institutions and it’s institutions can withstand it’s laws makes us weak?
We derive our strength from our laws. Crimes appear to have been committed. A proper investigation, even if no prosecutions or convictions proceed from it, is the only strategic move.
