Accountability: What happens when Jeb Bush comes?

Brother Jeb is still waiting in the wings

In the spirit of Tankwoman's post about the urgency of this year's election (Presidential and Congressional), I wanted to post about the issue of accountability, which was prominent at the Netroots Nation convention this past week. A lot of the videos are now available online.

Cass Sunstein was one of the speakers on Friday's panel on "The Next President and the Law". His presentation is available from Ustream.tv (use this link if the embedded video doesn't play correctly; that's John Dean concluding his presentation at the start of this video):

Free TV Show from Ustream
Ari Melber reports on the "accountability" controversy that came up during this panel in Netroots Summit Grapples with Bipartisan Attacks on Rule of Law The Notion blog 07/18/2008.


Both Sunstein and John Dean argued that an Obama administration should avoid prosecuting members of the Cheney-Bush administration. Another panel participant, Michael Waldman, argued that something like a Truth Commission (which would expose facts but not prosecute people) would avoid partisan entanglements over the investigation. (I don't believe he used the term "Truth Commission" himself.)

Glenn Greenwald addressed Sunstein's argument in Political harmony v. the rule of law: an easy choice for the political establishment Salon 07/19/08 and in a radio appearance with Sunstein on Democracy Now 07/22/08.

While I certainly pay attention to Greenwald's arguments on these matters, my impression of Sunstein's appearance at Netroots Nation isn't so negative as Greenwald's. Sunstein said that Republican judges had made "a kind of quiet but massive revolution" in the law over the past 20 years. He distinguished between two kinds of "unitary Executive" arguments that could be made. One is based on the Constitutional grounds that the Executive Branch executes the laws and federal agencies work for the President. Sunstein saw this particular kind of argument as "not alarming".

But the Dick Cheney/David Addington position on the Unitary Executive argues that there is inherent Executive authority to operate to operate outside of legislative authority and even against the legislature. He made it very clear he opposes this version.

On the accountability issue, Sunstein said that the main thing was to get things right going forward. He said we need to be careful about imprisoning member of the prior administration because it creates a "spiral going forward" that leads to things like the Clinton impeachment.

This way of putting it strikes me as wrong to the point of being weird. (One of the big problems is that many people like Sunstein aren't willing to confront the extent to which the Republican Party has become an authoritarian institution that is willing to defy the law, the Constitution and institutional precedent.

If I had been live-blogging, I would have used the words I wrote down at the time, "I really object to this." And that Waldman's idea that a Truth Commission would avoid partisan entanglements over the investigation is an illusion.

The panel got strong pushback on this from the audience and from several questioners. Dean stuck to his position in his response. Though I disagree with Dean's position, he speaks with direct personal experience on the matter of Executive lawbreaking. But, as Melman notes in his piece - though Sunstein himself had to contact him to get it included as an update - Sunstein tried to walk back his position by stressing that he wasn't in favor of ignoring "federal crimes".

This struck me as somewhat contradictory. Because from the Iraq War to the torture policy to phony partisan prosecutions at the Justice Department involve very serious crimes. Sure, an Obama administration should be "careful" in such prosecutions. But the prosecutions themselves are vitally necessary, even if the new administration has to rely on international law to pursue the criminal cases because of Bush pardons as he leaves office.

Dean mentioned in his presentation that Obama has said that he would investigate criminal acts in the previous administration. I think it would be great if Obama would nominate California's current Attorney General, Jerry Brown, for his federal Attorney General. Brown has the integrity and the stones to pursue such prosecutions.

Sunstein's walk-back suggests to me that he might not have encountered the kind of reaction he got at Netroots Nation, of immediate outrage at the notion that war crimes and other felonies in the current administration such just get a pass by the incoming administration. There is an emerging Establishment consensus that the criminals should just be allowed to get away with it. And that could well have been the first time that he encountered outrage at the proposal.

Here's an example of an argument for giving torturers and those who created the torture policy a get-out-of-jail-free card: The Truth About Torture by Stuart Taylor Jr. Newsweek 07/12/08 (07/21/08 issue).

I'm almost done reading Jane Mayer's new book on the torture policy, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals. The "war on terrorism" and the Iraq War in particular provided the key enabling for the torture policy. The Iraq War involved other war crimes, as well. And unwinding the worst abuses of the Cheney-Bush administration requires getting the US out of the Iraq War.

But Mayer's book has solidified in my mind that the torture policy is Dick Cheney's real knife in the heart of the Constitution. Unless the torture policy is reversed and those involved held criminally responsible, the likelihood is enormous that the next Republican Presidency will carry the authoritarian dismantling of the Constitution and the rule of law even further than this administration has.

And what would that involve? I'm sure that we'll find out later that even the awful things we know about aren't the limits of the abuses of this administration. And we already know about widespread torture, including at least two American citizens, massive illegal spying and shamelessly partisan prosecution like that of former Alabama Gov. Don Siegelman, who also spoke at Netroots Nation.

Taking that appalling record "to the next level" would seemingly have to mean things like more widespread torture of American citizens; overt censorship of TV, radio, and the Internet; shutting down persistently critical opposition papers and Web sites; more blatant suppression of public dissent at political rallies and demonstrations; even more massive partisan prosecution of Democrats (and dissenting Republicans, if there were any left); and more extensive COINTELPRO type operations against democratic opposition.

Legal accountability is absolutely essential.

As a questioner at about 51:00 on the video puts it, if the Obama administration doesn't pursue prosecution and acts lawfully himself, we might be all right for the next 4-8 years. "But that doesn't do anything for when Jeb Bush comes."

Tags: authoritarianism, cass sunstein, glenn greenwald, john dean, netroots nation 2008

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