Obama and restoring the rule of law

There's a German concept called Lebenslüge, which literally means life-lies, or "lies we live by". If we put in American self-help language, we could call it "lies to live by".

We're into the 20th-anniversary period of the fall of the Communist Eastern bloc which was followed by the fall of the Soviet Union. Basically no one outside say those developments coming. Nor inside those countries for that matter. Certainly not Michael Gorbachev, a committed Communist who was drawing on his understanding of the West, the radical-democratic aspects of Marxist theory and his recognition of the chronic economic problems of the Soviet Union to try to establish a successful socialist society and government based more on a classical social-democratic model than on Marxism-Leninism as the Soviets had previously understood it.

Certainly not the democratic opposition in East Germany, for whom the fall of the Berlin Wall in November 1989 was as complete a surprise as it was to everyone else. Probably more so. The leaders of the opposition were largely committed socialists and Greens who were also looking to create a democratic East Germany not based on West German style capitalism.

At the time, for a brief time, it almost seemed like a pacifists' dream of even 10 years earlier coming true. The great Enemy of the Cold War had literally ceased to exist. A Republican administration, with Old Man Bush as President and Dick Cheney (!?!) as Secretary of Defense was shutting down military bases and putting in place new arms agreement to radically roll back the nuclear threat, even to help the former Soviet Republics decommission and destroy many of their nuclear weapons.


That period didn't last much longer than the Gulf War of 1991. In the years following the United States continued to see it as our mission to run the world, more or less. Instead of a period of peace, a new period of military interventions came. I want to be clear here: it's possible and necessary to differentiate between Bill Clinton's more careful and limited interventions in places like Haiti, Bosnia and Kosovo from the historical disaster we know as the Iraq War. But the Cold War turned out to be the Long War. Along with the downsides of being a garrison state.

I remember hearing Jerry Brown in the 1990s talk about the fact that the Revolutions of 1989 in Europe hadn't yet had a counterpart in the West. I'm starting to wonder if the counterpart hasn't already come with Ken Starr, Dick Cheney and Judith Miller among its creators.

Because its hard to see how you can try to be a responsible citizen attempting to understand basic things about public affairs and not wonder on a regular basis if the substance of American democracy hasn't been effectively reduced to show business, a spectacle, as the Situationists in the 1960s conceived it. Bill Moyers a few weeks ago talked about how our public affairs had become "the greatest show on earth" - meaning literally a spectacular show at which we have to marvel at its elaborate strangeness. This is where the "lies to live by" concept comes in. In substantial ways, our political elite go through the motions and rituals of democracy while increasingly seeming no to even notice how far the reality departs from the pretence.

In other words, I wonder if the American counterpart to the Revolutions of 1989 hasn't been to entrench a form of Potemkin democracy that's even less responsive to the public's needs than before.

I usually force myself to watch the Political Wrap feature of the PBS Newshour every Friday, the weekly clown show whose regular clown stars are David Brooks for the conservative Republican side and Mark Shields, ostensibly and sometimes actually for the liberal Democratic side. I usually hate myself afterwards. It's kind of like looking at porn and feeling guilty about it afterwards. Actually, it would probably be much better for me to just look at dirty pichers for 15 minutes instead of the Political Wrap. But I'm addicted to the bad stuff, I'm afraid.

I plan to post two or three times about this past Friday's segment, which stood out for how well it displayed the bankruptcy of Beltway Village attitudes toward politics and the collapse, and I mean walls of Jericho tumbling down collapse, of the quality of American journalism, especially on TV. And this is quality TV, PBS, the bogeyman of the Republicans for being "liberal media" funded in part by tax dollars.

Friday's clown show can be found at Shields and Brooks Gauge 9/11 Trials, Afghan Troop Decision 11/13/09. The first topic they took up was Attorney General Eric Holder's announcement that the 9/11 suspects would be tried in civilian court for the attack. Clown Brooks raved about the whole notion of a civilian trial was hideously bad and a surrender to The Terrorists. Clown Shields sadly grumped that Holder should have consulted the President before finalizing the decision, but that the Supreme Court had forced him into it, and mumbled something about how there would probably be a hung jury. Clown Brooks mentioned in passing that other accused terrorist would be tried before military commissions.

Neither Clown Shields nor moderating Clown Jim Lehrer seemed to be fazed in the slightest at "conservative" Clown Brooks basically dismissing the whole concept of civilian trials as being awful. Or even to notice how radical his formulation was. None of the clown show cast seemed to think the more serious and very far-reaching implications of the Obama administration's decision to use the sham military commission system to try some of the long-time prisoners from Guantanamo and elsewhere outside the civilian system.

Up until now, I have managed to hold on to the hope that the Obama administration had simply foolishly passed up the opportunity to dump the responsibility for the entire legal mess that the Cheney-Bush administration created back onto them. He started off by announcing that he would close the Guantanamo gulag by this coming January, a pledge now completely abandoned. The established legal mechanisms for dealing with both terrorists and prisoners of war were there in 2001 and were still there in January 2009. Obama could have insisted on putting all those incarcerated back into the normal military and civilian justice systems where they have always belonged. And he could have effectively said to clowns like David Brooks, "if you think this won't provide a satisfactory outcome, then complain to your old heroes Bush and Cheney and Rummy, because they are the ones that created this mess because they wanted to torture people."

And he could have pushed Holder to appoint a special prosecutor to investigate the torture crimes, or even to hold via regular Justice Department channels the legal investigations that American law and the treaty obligations under the Torture Convention of 1984 require.

In other words, Obama the constitutional scholar and now President could have taken a straightforward stance in defense of the rule of law. That is not the course he chose.

The effects of his current approach are huge. He may favor less vicious, sadistic and unjust treatment of prisoners than his predecessor. But his actions are creating precedent-setting, political and even legal validation for the radical Cheneyist claims of the "Unitary Executive", which holds that the President can simply disobey the law and the Constitution and permit anyone else to do so as long as he claims it's for national security, a claim that is the President's to make without review. And as we've seen, in the Long War, everything has to do with national security, at least according to the claims of the Cheneys of the world.

Obama's position may have had to do with the need to arrange his Presidential relations with the military establishment, as John Dean argued in The Politics of Excusing Torture In The Name of National Security Findlaw 05/15/09, a grim enough possibility in itself. But as we've seen in the health care reform battle, Obama's basic political instincts are pragmatic and, yes, even conservative. He's not going to reverse himself on his acceptance of Bush's national security crimes unless forced to by the courts, the Congress and the Democratic base. Again, just to be clear, pragmatic and sometimes conservative is a radical improvement over the Cheney-Bush years.

But the rule of law issue has to be addressed. The torture issue isn't going away. Ask the people in Argentina still being brought to justice for their crimes during El Proceso, the military dictatorship of 1976-83. Torture isn't the only serious legal issue left over from the Cheney-Bush years. But it's the one that goes to the very existence of the rule of law. Torture is the necessary tool of the Unitary Executive.

I'm going to return in another post to Friday's Brooks-Shields-Lehrer Clown Show. But for now, here are some of the pieces I've seen recently addressing how serious the current legal issues around accused terrorist suspects are:

Glenn Greenwald in Salon: The Right's textbook "surrender to terrorists" 11/14/09, on the contempt conservatives show for the American legal system and the perpetual climate of fear which they seek to reproduce; The new WH counsel and "Scooter Libby justice" 11/14/09, on the extent to which the notion that the national security elite should be above the law is endemic even in liberal Beltway circles, in which Glenn reminds us, "A restoration of the rule of law -- meaning an end to immunity for high-level political officials who commit crimes -- was a central prong of the Obama campaign"; Detainees to get the "state-always-wins" system of "justice" 11/13/09. He notes in the last one a paradox of this situation. Rule-of-law advocates who are the most critical of Obama's use of military commissions are going to be the most vocal defenders of his use of civilian justice to try the 9/11 suspects. As Clown Shields showed on Friday, not much is to be expected on that score from our liberal Pod Pundits.

Marcy Wheeler, Emptywheel: The 9/11 Trials: The Torture Question 11/13/09; Defense Lawyer Comments on Ramzi bin al-Shibh and Rahim al-Nashiri 11/13/09.

Deborah Pearlstein, Holder Speaks Opinio Juris 11/13/09 discusses the shakiness of the military commission concept in these terrorism cases.

Brad Knickerbocker, Holder in the dock as critics focus on New York 9/11 terror trial Christian Science Monitor 11/14/09.

Gerald Posner, Left Off Holder's List The Daily Beast 11/13/09

Tags: obama administration, rule of law

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