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[Please welcome Georgetown Law Professor and constitutional scholar Marty Lederman for another great installment of the First Monday series, in collaboration with the Alliance for Justice. We are thrilled to have Marty here to discuss the rule of law, the DOJ, and his thoughts on restoring both. Please stay on topic and be polite to keep discussion flowing smoothly for Marty's time here today. Please take off-topic discussions to the prior thread. Thanks! -- CHS]
It’s a pleasure to be participating in this "First Monday" chat at Firedoglake. There are certainly a great number of things to discuss regarding the Bush Administration’s detention, torture and surveillance policies, as well as the U.S. Attorney scandal and, more generally, the Administration’s radical view of Executive prerogatives.
The granular details of the story are becoming a bit clearer all the time, especially with the publication of superlative accounts such as Philippe Sands’s Torture Team, Jane Mayer’s The Dark Side, and, tomorrow, Bart Gellman’s long-awaited book Angler, on the central role played by Vice President Cheney and his staff. (You can read some excerpts from the latter here. Jim Comey’s remarkable draft letter of resignation in March 2004 is here. And I’ve posted about the NSA story in Angler here and here.)
I thought I’d begin by posting some testimony that I and some of my former Office of Legal Counsel colleagues have just submitted to the Senate Judiciary Committee for a hearing on "Restoring the Rule of Law" that the Subcommittee on the Constitution, Civil Rights and Property Rights is convening tomorrow [link]:
United States Senate Committee on the Judiciary, Subcommittee on the Constitution, Hearing on “Restoring the Rule of Law”, September 16, 2008 Joint Statement of David J. Barron, Professor of Law, Harvard Law School; Walter E. Dellinger, Visiting Professor of Law, Harvard Law School, Partner, O’Melveny & Myers, LLP; Dawn E. Johnsen, Professor of Law and Ira C. Batman Faculty Fellow, Indiana University School of Law-Bloomington; Neil J. Kinkopf, Professor of Law, Georgia State University College of Law; Martin S. Lederman, Associate Professor of Law, Georgetown University Law Center; Trevor W. Morrison, Professor of Law, Columbia Law School; Christopher H. Schroeder, Charles S. Murphy Professor of Law and Public Policy Studies, Duke University School of Law.
We are professors of law and former attorneys in the Justice Department’s Office of Legal Counsel (OLC). We wish to commend the Subcommittee for holding this hearing on the rule of law. As former OLC attorneys we have seen firsthand the ways in which this principle has protected fundamental liberties and promoted the proper functioning of government. Adherence to rule of law principles, moreover, has ensured that a President’s rightful assertion of constitutional authorities is not undermined by doubts about the Executive Branch’s commitment to the separation of powers. We are deeply concerned by actions in the past few years that have eroded the force of this vital principle.
While no Administration has been perfect, for almost all of our history Presidents from all political parties have demonstrated a fundamental commitment to the principle of obedience to statutory and constitutional limits on executive power. That is, until now. Recent secret abuses of power and extravagant claims of unilateral authority have called seriously into question the Executive Branch’s willingness to adhere to lawful limits on executive authority. The resulting crisis of legitimacy makes urgent the need for reforms to promote the rule of law throughout the federal government. In our testimony, we will focus upon ways to promote adherence to the law within the Justice Department, and particularly at OLC.
The fundamental precept that no one, not even the President, is above the law is enshrined in the Take Care Clause, which provides that “the President shall take Care that the Laws be faithfully executed.”[1] Rarely has any President directly challenged the principle that the President must obey the law. President Nixon came close with his extraordinary assertion that, “when the President does it, that means it is not illegal.”[2] The current Administration’s challenge to the rule of law has been more subtle, and for=2 0that reason may prove more difficult to redress. That simply makes it even more imperative that we do all we can to understand and respond to this challenge
In our system, the Constitution, of course, is the supreme law of the land. Congress at times may enact statutes that violate the Constitution, and the courts possess the clear authority to declare such statutes invalid and unenforceable. In some rare circumstances, the President’s duty to faithfully execute the laws counsels him to decline to enforce an unconstitutional statute even absent a judicial order. And under the system of separated powers, one way a statute can be unconstitutional is if it unduly impinges on powers that the Constitution assigns to the President. Whether it is appropriate in any given circumstances for the President to decline to enforce a statute he believes to be unconstitutional involves a complicated calculation, about which previous Administrations and past practice offer much guidance.[3] At least one predicate is absolutely clear: to comply with th e rule of law, in order to reach a sound conclusion that a statute unduly impinges on the President’s powers, the scope of the President’s powers must be correctly stated. Under this Administration, lawyers in the Executive Branch have wildly misinterpreted what the Constitution says about the extent of presidential authority, and as a result the President has erroneously claimed the authority to disregard laws that he is obligated to follow.
A second danger to the rule of law arises when, instead of directly challenging a statutory restriction on the President’s powers as unconstitutional, the Executive Branch relies on constitutional concerns about the statute to justify a strained interpretation of the statute so that it no longer means what Congress said. The canon of constitutional avoidance instructs that when a statute can fairly be interpreted in two different ways, one of which would violate the Constitution (or would raise a serious constitutional concern) and one of which would not, the statute should be interpreted to avoid the constitutional problem. Courts often employ this sound rule of statutory interpretation. The Bush Administration, however, has repeatedly misused and abused the avoidance canon, twisting the meaning of statutes beyond recognition.[4] This second danger to the rule of law is related to the first. Because the Bush Administration endorses such an expansive and erroneous interpretation of the President’s exclusive powers, its lawyers have raised constitutional objections to statutes with unprecedented frequency. The result is that reasonable and permissible statutory regulations of the Executive Branch are misconstrued, contorted, or even eliminated, all in the name of avoiding constitutional concerns that actually flow from an implausible view of the Constitution.
When the secret Torture Memo of August 1, 2002[5] became public, it provided a vivid – indeed, a shocking – example of the harm that could be done by the invocation of indefensibly sweeping constitutional claims of presidential authority to defy the law and by the perverse twisting of statutory language. A federal law makes it a crime for anyone acting under the color of law to enga ge in torture outside the United States. OLC nevertheless concluded that this federal law, which implements our treaty obligations under the Convention against Torture, could not operate to prohibit the President from ordering the use of torture in interrogating enemy combatants.[6] First, the memo used the canon of constitutional avoidance to suggest that the statute’s unambiguous and unqualified prohibition on torture by all government personnel simply “does not apply to the President’s detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority.”[7] Second, and alternatively, the memo concluded that if the statute cannot be read to exclude persons acting under Presidential orders – a meaning that the words cannot support — and instead must be understood to cover interrogations ordered by the President, then it is unconstitutional. On both points, the memo’s reasoning is premised on such a broad conception of the President’s authority as Commander in Chief that it would allow the President to ignore virtually any statute that regulates the military or the conduct of war. The memo also never even acknowledges that the Constitution explicitly assigns to Congress significant authority relevant to regulating the military, the conduct of war, or the nature of interrogations.[8] The Administration’s interpretation of the constitutional distribution of war powers has no support in judicial precedent. Former OLC head Jack Goldsmith observed that the Torture Memo, and other memoranda authored to support the Administration’s counterterrorism activities, “were deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President. I was astonished, and immensely worried, to discover that some of our most important counterterrorism policies rested on severely damaged legal foundations.[9]
Not only is the theory of presidential power found in the Torture Memo unjustified, but OLC also betrayed its proper role in arriving at its conclusions. Instead of enforcing valid legal constraints within the Executive Branch, OLC seems to have allowed its interpretation of applicable laws to be infected by its outsized view of the President’s power to disregard limitations on his authority to do whatever he thought necessary. As a result, the memorandum reads more like a one-sided justification for conferring legal immunity than as a sober assessment of the actual state of the law.
The Torture Memo was by no means an isolated incident. Indeed, the highly inflated view of presidential power contained in the Torture Memo appears to have informed a vast array of the legal advice given during the Bush Administration. OLC, for example, issued a memo asserting that the President may initiate a full-scale, long-term war even if Congress has not declared or otherwise authorized it, and even if it is prohibited by the War Powers Resolution.[10] Similarly, the Justice Department issued a memo — which no official seems to have been willing to sign — arguing implausibly that FISA does not apply to the President’s Terrorist Surveillance Program and, further, that FISA would be unconstitutional if it did apply to limit this program.[11] In another memo dealing with torture and numerous other statutory limits on interrogation, issued in March 2003 but released just this past March, OLC repeated the extreme theories of presidential power it had voiced in the original Torture Memo.[12] The Administration only released each of these memos years after it began to disregard the statutes in question, in response to leaks about the memos or the underlying programs.
The Bush Administration’s practice with respect to signing statements offers many additional examples of just how expansively it views presidential power. President Bush, like Presidents of both parties before him, has used signing statements to express his view that certain provisions of a new law are unconstitutional. In the first six years of the Bush Administration, the President issued 223 objections citing his commander-in-chief power or his authority over foreign affairs. These objections were raised against statutes addressing a wide variety of issues, from personnel matters[13] to the use of torture.[14] The common element shared by a great many of the statements is that the alleged constitutional concern was based on an unjustifiably far-reaching and preclusive view of the President’s commander-in-chief authority. Moreover, this overreaching was not limited to the areas of foreign and military affairs. An erroneous, expansive view of presidential power was imported to domestic matters under the heading of the unitary executive theory. During his first six years in office, President Bush issued signing statements objecting to 363 new provisions of law on this ground alone. Yet in many instances, the statute in question raised no discernible constitutional problem and the President’s objection was either unsupported or unsupportable.
Without regard to who wins the upcoming presidential election, we recommend that the next Administration make three commitments. First, the next President should promote a reasonable view of presidential power that is grounded in the Constitution’s text and structure as well as settled judicial and political-branch precedents. Second, the next President should commit to greater openness and the accountability that goes with it. Third, the next President should commit to respecting important structural safeguards that check against presidential aggrandizement. Within each of these categories, we recommend a number of more specific steps.
1. A Well-Founded View of Presidential Power. To advance the first commitment, the next President should initiate a process to ensure that the new Administration withdraws and repudiates the reasoning of memoranda and opinions that overstate the President’s constitutional powers and that minimize those of Congress and the courts. We have not conducted a comprehensive review of OLC opinions, nor could we as many are classified or otherwise inaccessible. Thus, we cannot offer an exhaustive list of the opinions that should be withdrawn. We do believe, however, that the list should include the Torture Memos,[15] the DOJ Whitepaper on the Terrorist Surveillance Program,[16] and the September 25, 2001 opinion on war powers.[17].
The next President should also affirmatively adopt a view of presidential power that recognizes the roles and authorities of all three co-equal branches and that takes account of settled judicial precedent. We believe that a model the next President should seriously consider adopting is “The Constitutional Separation of Powers between the President and Congress.”[18] Setting forth the principles that will govern the determination of questions of presidential power will provide a constraint against the sort of result-oriented advice-giving that proved so problematic in instances such as the Torture Memo.
2. Openness and Accountability. To advance the commitment to openness and accountability, we offer several recommendations. OLC should review its procedures for releasing opinions and publicly release guidelines that will govern publication decisions. The goal of the review should be to make sure that OLC’s memoranda and opinions are made available to the public to the maximum extent possible consistent with the legitimate confidentiality interests of the Executive Branch.[19]
Congress, the Courts, and the public are unable to check against abuses of executive power if they do not know about them. In this regard, the experience of the past eight years is instructive. It was only years later and due to leaked information that we learned of highly consequential opinions advising that the Executive Branch was not bound to comply with statutory limits on its power, including opinions relating to the treatment of detainees, the President’s domestic surveillance program, and the use of secret prisons overseas for detention and interrogation.
The review of OLC disclosure procedures should place special emphasis on the importance of releasing legal memoranda and opinions that conclude that statutory constraints on the Executive Branch do not apply because they are unconstitutional or will be interpreted as inapplicable by means of the avoidance canon. The Bush Administration has frequently misused this canon to resist compliance with a wide array of statutory obligations. Congress can potentially remedy such misinterpretations by amending the relevant statute to make it expressly and absolutely clear that the statute applies where the Executive Branch has said it does not. But that cannot happen if Congress is not told of the executive’s interpretation in the first place.[20] Federal law already requires the Justice Department to report any instance in which it declines to defend the constitutionality of a law or does not enforce the law because of a view that it is unconstitutional.[21] The statute does not cover invocations of the avoidance canon, which has become a significant loophole over the past eight years. As a result, we do not know what laws the Adm inistration is refusing to enforce and our ability to hold the government accountable is impaired. We strongly urge Congress to enact a law to require the Justice Department to report instances in which it employs the avoidance canon or other recently misused canons of statutory construction to yield a conclusion that a law does not apply to the Executive Branch or need not be executed. We would particularly commend to Congress’s consideration “The OLC Reporting Act of 2008,” to be introduced by Senator Feingold.[22]
The next President should also commit to review the Executive Branch’s practice in asserting privileges, including executive privilege. The presidential communications privilege is, according to the Supreme Court, a legitimate constitutional privilege rooted in the separation of powers.[23] Nevertheless, this privilege is not absolut e and judicial precedent as well as long Executive Branch and congressional practice recognize that the President’s constitutional interest must be balanced against Congress’s legitimate interests in conducting investigations and oversight.[24] The next President should commit that, when disputes over privilege arise, the executive will seek to resolve them through good faith negotiation and meaningful accommodation. This negotiation and accommodation process must include recognition by the Executive Branch of the legitimate claims to information that the Congress does have in its legislative, oversight and investigatory functions. In a recent and highly relevant case, Judge Bates authored a helpful discussion of Congress’ legitimate interests in information, which in our judgment is largely correct.[25]
The next Administration should review the grounds and procedures for invoking the state secrets privilege. In recent years, the Executive Branch has increasingly used this privilege as a categorical bar to litigation and as a shield to avoid scrutiny of legally questionable executive programs, such as the Terrorist Surveillance Program.[26] The next President should commit to invoking this privilege only where national security interests (rather than the interest in avoiding embarrassment or judicial scrutiny) truly require it.
In addition, the next Attorney General should reverse the presumption against disclosure of information in response to a Freedom of Information Act (FOIA) request. On October 12, 2001, Attorney General John Ashcroft issued a new Department of Justice Freedom of Information Act Policy Memorandum to the heads of all federal departments and agencies.[27] This memorandum reversed the existing presumption in favor of disclosure and instructed agencies that, in making discretionary FOIA decisions, they should consider the values behind the exemptions – emphasizing interests such as national security and privacy – that militate against disclosure.[28] This presumption against disclosure prevents accountability on a broad range of government decisions and actions. To maintain secrecy where there is not a clear reason or threat of harm to the national interest undermines both the reality and public perception that government decisionmaking comports with the rule of law.
3. Structural Safeguards against Abuse of Power. To advance the third commitment to enhance structural safeguards, we suggest that the President instruct the Attorney General to pay particular attention to the procedures of OLC. Together with a number of our former colleagues, we have written a set of guidelines that OLC should foll ow in order to best effectuate its role.[29] We have appended these guidelines to this testimony, and with one exception, we will not elaborate further on those guidelines here. We would like to highlight the first of the principles, which counsels that:
When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action.
We do not want to be misunderstood. Although we do not believe that OLC should act as an advocate as described above, we do believe that OLC can and should play the role of honest adjudicator of legal questions even while serving as close legal advisor to the Attorney General and the President. It is OLC’s duty to give the President its best appraisal of what the law allows and forbids, even if this means informing the President that some proposed course of action would be illegal. In order for OLC to play this role effectively, however, the President must have confidence that OLC is willing to assist the President in advancing his or her policy objectives in a legally permissible manner. If this confidence is lacking, there is a real risk that on important matters the President will go elsewhere for legal counsel. The roles of presidential advisor and honest, neutral arbiter of legal questions, then, are not mutually exclusive, but mutually reinforcing.
It is also important to see the failure of OLC in the current Administration to live up to its proper role – including its willingness to operate as an advocate and to offer thinly plausible, or even implausible, legal justifications for the President’s policy goals – in the broader context of attempts to politicize the Department of Justice more generally. Congress has held hearings, and the Inspector General and Office of Professional Responsibility have issued a number of reports, with more forthcoming, on these activities. There have been troubling revelations that partisanship played a role in hiring decisions for career attorneys and for immigration law judges, and also indications that the decision to fire United States Attorneys was influenced, at least in part, by a design to encourage partisan-influenced prosecution decisions.[30] If our commitment to the rule of law has any meaning, these abuses cannot be tolerated. The next President should instruct the Attorney General to adopt measures to ensure that nothing similar ever happens again and that Justice Department decisions taken in the future are free of any lingering taint of partisanship.
Public confidence in the impartial administration of justice must be restored. It is not sufficient that the President and Attorney General themselves be satisfied that they have addressed the problem. Their efforts must be considered credible on bipartisan and interbranch bases.* * * * *
Executive Branch lawyers play a critical role in ensuring that the government adheres to the rule of law. To address past abuses and restore the Department of Justice’s integrity and credibility, we urge the next President and Attorney General to undertake the various recommendations that we have laid out above. Our recommendations also reflect our appreciation of the important role that OLC plays in safeguarding those presidential powers that rest on secure constitutional foundations. Indeed, one of the reasons to correct the abuses of the current Administration is to ensure that the President and his lawyers do not operate under clouds of suspicion and skepticism when they do their duty and defend executive authority in appropriate circumstances. The next Administration, whoever heads it, will no doubt engage in controversial assertions of executive power. These assertions should not be alarming from the standpoint of the rule of law if they are made openly and accountably, are based on well-supported constitutional interpretations, and emerge from a process that respects the structural checks against abuse of power.
[1]U.S. Const. art. II, , § 3.
[2] Excerpts from Interview with Nixon about Domestic Eff ects of Indochina War, N.Y. Times, May 20, 1977, at A16 (interview by David Frost).
[3] See Walter E. Dellinger, Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. Off. Legal Counsel 199 (1994); Benjamin R. Civiletti, The Attorney General’s Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4A Op. Off. Legal Counsel 55 (1980); David Barron, Constitutionalism in the Shadow of Doctrine: The President’s Non-Enforcement Power, 63 Law & Contemp. Probs. 61 (2000); Dawn E. Johnsen, Presidential Non-Enforcement of Constitutionally Objectionable Statutes, 63 Law & Contemp. Probs. 7 (2000)… < /span>
[4] See generally Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum. L. Rev. 1189 (2006).
[5] Memorandum from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President, Standards of Conduct for Interrogation under 18 U.S.C. 2340-2340A (Aug. 1, 2002), available at http://www.washingtonpost.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf..
[6] Although this memo was later rescinded, the Bush Administration has not repudiated this constitutional conclusion or the legal rationale on which it was based. Moreover, as we discuss below, the rationale found in the Torture Memo has been deployed in a number of memos that the Justice Department has not rescinded. And it also formed the basis for the ultimate conclusion of the Administration’s most comprehensive war powers opinion, one that OLC has officially published. Memorandum from John C. Yoo, Deputy Ass’t Att’y Gen., Office of Legal Counsel, to Timothy Flanigan, Deputy Counsel to the President, The President’s Constitutional Authority to Conduct Military Operations against Terrorists and Nations Supporting Them (Sept. 25, 2001), available athttp://www.usdoj.gov/olc/warpowers925.htm.
[7] See Memorandum from Jay S. Bybee, supra note 5, at 34-35.
[8] Congress has broad authority in this area. It is authorized, inter alia, to define and punish offenses against the laws of nations, U.S. Const., art. I, § 8, cl. 10, and to make rules for the government and regulation of the land and naval forces, id., cl. 14.
[9] Jack Goldsmith, The Terror Presidency: Law and Judgment Inside The Bush Administration 10 (2007).
[10] Memorandum from John C. Yoo, supra note 6.
[11]Memorandum from U.S. Department of Justice, Legal Authorities Supporting the Activities of the National Security Agency Described by the President 35 (Jan. 19, 2006)(“Indeed, if an interpretation of FISA that allows the President to conduct the NSA activities were not “fairly possible,” FISA would be unconstitutional as applied in the context of this congressionally authorized armed conflict.”).
[12] Memorandum from John C. Yoo, Deputy Assistant Att’y Gen., to William J. Haynes, Gen. Counsel, department of Defense, Military Interrogation of Alien Unlawful Combatants Held Outside the United States, (Mar. 14, 2003), available at http://www.fas.org/irp/agency/doj/olc-interrogation.pdf.
[13] Consider, for example, a provision limiting the number of government relations personnel employed in the Department of Defense. President Bush contended that this limitation would raise serious constitutional questions relating to his authority as commander in chief. Yet, the statement did not specify the nature of those objections and it is difficult to imagine what they might have been, other than the implausibly exaggerated view of the President’s commander-in-chief power expressed in the Torture Memo. Statement on Signing The Department of Defense and Emergency Supplemental Appropriations for Recovery from and Response to Terrorist Attacks on the United States Act 2002, 38 Weekly Comp. Pres. Docs. 46 (Jan. 10, 2002).
[14] Consider, for example, the signing statement objecting to the McCain Amendment prohibiting military personnel from engaging in cruel, inhuman, or degrading treatment of detainees. President Bush asserted that this prohibition could violate his commander-in-chief power and strongly indicated that the judiciary had no authority to enforce it. Statement on Signing the Department of Defense, Emergency Supplemental Appropriation to Address Hurricanes in the Gulf of Mexico and Pandemic Influenza Act 2006, 41 Weekly Comp. Pres. Docs. 1918 (Dec. 30, 2005).
[15] Jay S. Bybee, supra note 5; Memorandum from John C. Yoo, supra note 12.
[16] U.S. Department of Justice, supra note 11.
[17] Memorandum from John C. Yoo, supra note 6.
[18] 20 Op. Off. Legal Counsel 124 (May 7, 1996).
[19] This recommendation is discussed more fully in the document appended to this testimony, Principles to Guide the Office of Legal Counsel. Some of us have addressed this issue in previously submitted testimony. See From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules, Part III Before Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 105th Cong. (forthcoming 2008) (statement of Christopher H. Schroeder), 2008 WL 2537928; Secret Law and the Threat to Democratic and Accountable Government Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, 105th Cong. (forthcoming 2008) (state ment of Dawn E. Johnsen), 2008 WL 1923041.
[20] See Morrison, supra note 4, at 1237-39.
[21] 28 U.S.C. § 530D (2008).
[22] We also recommend consideration of similar legislation that we understand Rep. Brad Miller plans to introduce in the House of Representatives.
[23] United States v. Nixon, 418 U.S. 683 (1974).
[24] See, e.g., United States v. Am. Tel. & Telegraph Co., 567 F.2d 121 (D.C. Cir. 1977); Senate Select Committee v. Nixon, 498 F.2d 725 (D.C. Cir. 1974).
[25]See Committee on the Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008).
[26] See, e.g., Al-Haramain Islamic Found. v. Bush, 507 F.3d 1190 (9th Cir. 2007); ACLU v. Nat’l Sec. Agency, 498 F.3d 644 (6th Cir. 2007).
[27] Memorandum from U.S. Dep’t. of Justice, Office of Info. and Privacy (Oct. 12, 2001), available at www.usdoj.gov/oip/foiapost/2001foiapost19.htm.
[28] See The Ashcroft Memo, Coalition of Journalists for Open Government http://www.cjog.net/background_the_ashcroft_memo.html.
[29] Dawn E. Johnsen, Faithfully Executing the Laws: Internal Legal Constraints on Executive Power, 54 UCLA L. Rev. 1559 app. at 1603-11 (2007).
[30] Office of the Inspector Gen. & Office of Prof’l Responsibility, U.S. Dep’t of Justice, An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General (July 28, 2008); Office of the Inspector Gen. & Office of Prof’l Responsibility, U.S. Dep’t of Justice, An Investigation of Allegations of Politicized Hiring in the Department of Justice Honors Program and Summer Law Intern Program (June 24, 2008). These reports are available at http://www.usdoj.gov/opr/index.html. For a discussion of the adverse effects of the politicized hiring of immigration law judges, see Charlie Savage, Vetted Judges More Likely to Reject Asylum Bids, N.Y. Times (Aug. 23, 2008).
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Welcome Professor Lederman!
Thank you for being here Prof.Lederman
Marty — welcome to FDL! Great to have you here for First Monday — and thank you so much for giving us an advance peek f the testimony you all are submitting for the hearing tomorrow.
For folks who are interested in watching the hearing, it begins at 10:15 am ET. Am still trying to ascertain whether C-Span will cover or whether we’ll have to rely on the Committee feed. Will let you know as soon as I know something definite on that.
Thanks, but please, call me Marty. This is the blogosphere, after all.
Professor Lederman thank you for being here today.
The Summer 2008 issue of the Harvard Law & Policy Review arrived in my mailbox the other day.
There was a handy little article by Janet Reno and Geoff Klineberg called “Advice for the New Attoreny General.” In it, they rely upon a series of speeches given by Robert H. Jackson; former AG, former Supreme Court Justice, and former Nuremberg prosecutor.
The first speech they examined was (one of my personal all time favorites) his 1940 address at the Second Annual Conference of US Attorneys. General Reno and Mr. Klineberg offer this speech as the guidance for how to “find a proper balance between providing democratically responsive policy direction to ninety-four United States Attorneys and unduly influencing the independent exercise of their prosecutorial discretion.”
Prof Lederman, I think the guidance in that speech is not merely spot on, is inspirational in such a way that it sets a mood, tone, frame of mind that carry the listener through other aspects of that person’s work at DOJ. Do you think this is the proper prescription?
I hope you know you’ve got readers who aren’t lawyers, readers who want the Rule of Law to be respected. Thank you for being here.
Thank you so much for joining us today. There was an editorial in CBS News this weekend discussing how the Justice Department’s constitutional overreaching in its efforts to combat terrorism have actually undermined its own efforts to keep us safe. Would you say you share that view?
As the reports from OPR last summer disclosed, a large number of lawyers have been hired at the DOJ during the Bush presidency based on their political credentials. The conservative ideology of Federalist Society members and similar lawyers at the DOJ and in other federal agencies will undermine our ability to insist upon the rule of law for a long time to come. Even if the Democrats win and an Obama appointed Attorney General and new lawyers at the OLC take over at the top, this very substantial cadre of ideologically committed career attorneys will be a serious problem. Do you think these lawyers who were hired according to improper criteria should be permitted to retain their jobs? If you do not favor dismissing them, what remedies do you propose? Prof. Michael Avery, Suffolk Law School, Boston.
We had a chat recently with David Iglesias regarding some of the reforms needed with DOJ once the Bush Administration leaves office. And the question that none of us could settle to any of our satisfaction was how to deal with some of the politicized hires and potential problems long term with determining how to weed out the ones who aren’t truly qualified from the ones who are, without tainting the qualified folks by association or raising questions of political discrimination. It seems that is an enormously thorny issue — and also raises substantial questions of how much the internal culture of the DOJ and the USAtty’s offices may have been fundamentally altered — and how that can be rectified. The OLC is a prime question mark in that regard, I think, given how many folks I know who used to work there and did not stay because of the atmosphere there.
Any thoughts on all of this? Where do we go to reclaim that? If, at all?
Marty, I notice that your testimony does not address another safeguard against the abuse of power — the “advise and consent” role of the Senate in approving presidential nominations.
Should the Subcommittee on the Constitution of the SJC ask for your wisdom on how they might probe the willingness of presidential nominees to state and explain their willingness to support the rule of law, what would you suggest? What questions might they ask of nominees, or what should they look for in a nominee’s background?
Mr Lederman,
Thank you for joining us this afternoon and for giving us the advance look at your statement.
How How HOW do we make the folks on both sides of the aisle understand that this is not just simple “policy disagreements” as has been claimed by some?
I want my Constitution back!
Marty,
Welcome to The Lake! And we have Christy Hardin Smith and Looseheadprop on hand as well! An All-Star cast!
Your topic is very important to me. Watergate inspired me, and gave me great hope for the future of our democracy. Now, not so much. I have been especially pained by the Democrats lackluster response to the Bush Regime’s shredding of the Constitution, epitomized by Pelosi taking off the table precisely what should have been front and center on the table, and the absolutely despicable performance of the Media in tolerating and yawning at each new outrage. Now I have real fears for the future of our country. I hope that you, Christy, LHP and others can help guide us back on track!
Bob in HI
Of course, they’d have to fully exercise that “advice and consent” function in order for it to be truly operable. But I digress… *g*
I do think that speech from Robert Jackson is still one of the finest expressions of what a prosecutor is to be that has ever been drafted. I used to keep a copy in my desk for those tough days at the office when I was an assistant prosecutor in the little burg where I worked…
Thanks, lhp, for that cite to the article by Ms. Reno and Geoff Klineberg. I haven’t read that particular Jackson speech in a while, but it sounds as if yes, he did try to strike just about the perfect balance between deference to local U.S. Attorneys and control from Main Justice. This is an eternal, and very difficult, balance to strike. Ideally, the local U.S. Attorneys will be given as much leeway as possible, but at the same time, it’s important to ensure that the government is consistent in the legal theories and arguments that it makes, and even its prosecution strategies and priorities, at least generally.
The problem in the Bush Administration was not simply that DOJ (actually, more frequently the White House) was aggressive about controlling the U.S. Attorneys, but instead that Washington apparently brought significant pressure to bear on those local prosecutors to make investigation and prosecution decisions, and to press phony “voter fraud” cases, in order to affect partisan electoral prospects. The substance, and not the procedure, in other words, was the main problem. (Although the direction from the White House, rather than Main Justice itself, is a “process”-like problem that exacerbated the risk of improper influence on the merits.)
Do you think the next president (whoever he might be) will relinquish some of the executive powers that the current president has claimed?
I blame Addington, and I wish someone would hold him responsible for something. Back to lurking.
Well as long as we’re wishing for the return of the rule of law and reform of the executive branch, why not go whole hog and wish for a little reform of the ways in which Congress (esp the Senate) enabled the Bush DOJ to go about its dirtywork without fear of oversight and accountability?
I do not see Goldsmith as somekind of a good guy in this. He had an overbroad view of Presidential power as well. He may have felt some aspects of the illegal NSA warrantless wiretapping program were too much for him to stomach but he was willing to sign off on others (also illegal). And he, Comey, and Ashcroft wrote a letter in favor of immunity for telecoms. This is a problem with conservatives like Glodsmith and Comey who have been lionized for “standing up” to some unConstitutional abuses of Bush. They may not have liked these but they championed others. It leaves me with the impression that they backed Bush’s power grabs but not the way he used them in certain cases.
I also found the bit about how tightly held the NSA program was, even within the upper echelons of government, to the point that there was such a fight to even get Comey read into it — and that Condi Rice never was — to be indicative of just how short a leash Dick Cheney and David Addington were keeping their most prized power seizures. And how willing the rest of the upper echelons — Gonzales, Card, and others were willing to allow that to continue, especially George Bush.
The excerpts that Barton Gellman has published the last two days really fill in a lot of the gaps we’ve all been digging at quite painfully.
Michael: You ask whether it’s a serious problem that conservative lawyers were hired to career positions at DOJ because of their ideology, and whether something should be done in a Democratic Administration to lessen their continuing influence.
Of course, the partisan hires to career positions at DOJ were simply unlawful, and something serious should be done both to ensure that it never happens again, and to provide a remedy, where possible, to the applicants who were denied employment on improper grounds.
Having said that, I happen to think that it is not such a bad thing to have a mix of ideologies among the lawyers at DOJ, particularly in career slots. If the political appointees are worth their salt, they will effectively take advantage of the ideological diversity to promote a rigorous and lively dialogue within the Department, something that has been woefully absent in the echo chamber of this Administration. At OLC, for instance, many of us former Clinton-era folks are committed to the idea that one should run most controversial questions by those in the office who are least likely to agree: Just as in litigation, one’s briefs, opinions and advice benefit significantly if oen is aware of, and responsive to, the strongest arguments on the other side.
Well I think that one of the biggest examples of politicization at Justice is how the DOJ, and more specifically Mukasey have undermined Congressional efforts to use oversight as a proper check on the Executive. I mean, attempts to force Bush advisors to testify (despite their hollow claims of privilege) were regularly thwarted by Mukasey. It took a federal judge to force their hand (who scoffed at the idea of blanket privilege by the way), but even afterwards, Mukasey continued to support the administration’s position.
Any thoughts on that Marty?
I think the American people, or at least high school and university students are going to have to be exposed to a first-year course in political philosophy, where the major questions are (1) by what title do rulers claim the obedience of their subjects; and (2) what is the nature of the mutual obligation between the rulers and the ruled.
If, as seems likely, we are going to have a monarchical state, we might as well sort out its philosophical foundations. This was done three hundred years ago, but time flies, and we forget.
For later reading…here is Christy’s excellent post this morning on Cheney:
http://firedoglake.com/2008/09…..tough-nut/
In a companion piece to the Janet Reno article described above, Sen. Ted Kennedy has an article (full of so many specific ezamples of abuses, it almost seems like dishing)entitled “Restoring the Civil Rights Division.”
In it, Sen Kennedy offers a number of suggestions with repsect to the abuse of the personnel system at DOJ.
One ofthe revelations in his article was that “[a]lthough Department of Justice regulations prohibit considering ‘political affiliation’ in hiring, there is no internal Department process for raising such a claim.” [emphasis mine]
He further revealed that political and ideoligical considerations were injected into attorney performance evaluations, awards, assigments and promotion decisions. The current method for challenging an unfavorable review runs through the political leadership to the AAG for the Division.
“too often, appeals of performance evaluations have been allowed to die on the desk of the Deputy Assistant Attorney General.”
Do you beleive that creating a personnel system watchdog or other formalized strucure that would permit the individuals harmed by a politicized adverse decision to take accountability and enforcement into their own hands (unlike Sybil Edmonds who seems to linger in limbo) might be called for?
Yes. It would be hard for any Administration not to abandon at least some of the most extreme Bush claims. The question, however, is which (and how many) of the claims, and OLC opinions, will be repudiated. And on that question, I have to imagine that the outcome of the election will make a very big difference.
It’s an interesting approach and I agree with some of the items you are proposing, but in the end I believe that there is never a restoration of law without ACTUAL accountability for violations.
Hearings and waiting while all the players go on to lucrative post-administration pay offs, or until they pop back up unapologetically in other administrations, like Elliot Abrams, isn’t accountability. Not in the since that any normal people would interpret it.
You don’t go to someone who has embezzled from their company and say, “well, u just wait, history won’t like u for that” We are talking here about knowingly disappearing hundreds to GITMO for depraved abuse, when as early as mid-2002 a top analyst who visited informed Addington that at least 1/3 of those there were not invovled in any way with terrorism. We are talking about Dana Priest reporting on one “young” (and you have to wonder how young) detainee being frozen to death while tied in a stress position. We are talking about the military following the orders to abuse and then crowning that achievement with having court martials and investigations where torture killing after torture killing, whether of Iraqi generals beaten and suffocated in a sleeping bag or cab drivers having their legs pulverized, blow by blow – all get “byes” bc the military has been reshaped in the image of Bush, Rumsfeld, Pace, Myers and the like. We are talking about Canadian citizens sent, directly by our DOJ (Thompson signing off) to first Jordan for some light abuse and via Jordan into Syrian torture.
On and on. How does shining a light and letting history decide accomplish anything? Isn’t what we have now a direct result of never actually demanding accountability for anything since Watergate, and not for much during Watergate?
In any event, I think your point on OLC opinions, “OLC should review its procedures for releasing opinions and publicly release guidelines that will govern publication decisions. The goal of the review should be to make sure that OLC’s memoranda and opinions are made available to the public to the maximum extent possible consistent with the legitimate confidentiality interests of the Executive Branch.” are good, but I would go further.
I found it interesting to note that, unlike most legal memoranda in both law firms and law schools, the OLC memos for so much of the “worst” don’t even make a glancing effort at a “facts” section, not even one that is redacted for classified information. Instead, they rely on the concept that there is “classified legal reasoning” and “secret law” all of which should be nonsense, but which has become de facto correct by legislative, judicial and citizen inaction and media complicity.
Still, I think it should be made very clear by statute that no claim of good faith reliance can be asserted at all by anyone relying on a secret memo. Period.
And I also think it should be made clear asap that anyone receiving a pardon for carrying out Executive orders loses all govt benefits.
But in the end, it’s hard to really even get interested in the whys and wherefores of “fixing” the system, any more so than it is to get interested in the whys and wherefores of “fixing” the issues that would make the criminal justice system more workable and with more bright line guidelines, bc it seems fairly irredeemable now that none of it matters. The Executive can always run amok, and Congress and corporations will figure out what they want to do in their own self interest, but in the end, Congress and the prosecutorial wing of the Executive are pretty much bought and sold by special interest and ego, having nothing really to do with law or justice or the Constitution.
I look back at all the pushback from JAG, vs. the continuing complicity of DOJ, and it’s a sad comparsion. And that so many have stood so silently while so many lies were told to Americans, and while so many suffered and died while those lies were being sold, and it makes it hard to think there’s any reason to try to work by or through Congress or the DOJ, bc they are not just failed institutions, they are failed institutions riddled with bad people.
I think it was Richard Clarke who said that there was a coup d’etat in government in January/February 2001. I might have the source wrong, but I distinctly recall someone high up having reported it.
Thank you for joining us, Marty.
Have you any thoughts regarding the apparent inablilty of the Democrats to recognize what some of the rest of us, yourself included, obviously, see as very dangerous threats to the Rule of Law?
Beyond complicity, pathetic political ‘calculation’, and what is generally referred to as ’spinelessness’, what legitimate excuses have the Democratic ‘leadership’ for not doing their jobs AND not respecting the oath of office which all of them took, presumably swearing on a BIBLE, to uphold and protect the Constitution of the United States of America?
Marty,
Thanks so much for your detailed presentation. That will provide much reading for me for the next few days.
I wanted to point out an exciting new poll released today by AP and the National Constitution Center. Of note are their findings that 67% of the public disagree with the idea that to protect national security, the president should be given more power at the expense of Congress and the courts, with 50% disagreeing strongly. Further, 73% said that Congress should be able to force the testimony of the president’s closest advisors.
Please keep up your good work on this issue. The poll makes it clear that it isn’t just the extreme blogosphere that cares about the Constitution and the rule of law. A strong majority of Americans want a return to our founding principles.
How about a “new rule” that says that if you violate your oath to protect the Constitution…you must be impeached, period. Oh yeah..there’s already such a rule. Just saying. I want to see serious action taken against these usurpers of power.
I do wonder how many more egregious OLC opinions there are that none of us know about as yet. I almost feel like we should start a betting pool on subject matter and how far outside the law they were willing to go. If they could ignore Youngstown Steel altogether, then what else has been on the chopping bloc of precedents without our knowing it?
It was actually a lot simple than this. It was about power not any Constitutional philosophy however erroneous. As I noted earlier today, Goldsmith quoted Addington as saying,
http://www.washingtonpost.com/…..02292.html
My thoughts on the Bates opinion are here. It’s an amazing document. I should caution, however, as I do in that post, that Democratic Administrations, too, have made extravagant claims about privilege and immunity, although nothing so brazen or as stubborn as what the Bush folks did here. The basic problem is that in every administration, of whatever party, the folks in the executive branch often think — not without reason — that congressional subpoenas are often designed as much to harass and embarrass as to facilitate genuine, thoughtful oversight. (Let’s not forget Duke Cunningham’s constant badgering of Clinton officials.) I’m a big defender of more robust congressional prerogatives, but the problem is not an insubstantial one. Part of the solution must be for strong committee chairs to demonstrate to the Executive that they are appropriately serious and substantive, and that they can be both respectful and probing/demanding, at the same time. It’s a difficult balance to strike. And a critical component of it is the accommodation process between the branches on congressional requests, which must be built back from scratch after the distrust of the past few years.
Professor Lederman (OK – Marty), thank you for being here today. And thank you for posting the information that you have.
IANAL, but I am skeptical of your (and the other signatories) faith in having the next administration do all the things you have suggested. If it is a McCain administration it will continue to have the same set of lawyers that the Bushies have had. Just take a look at McCain’s legal advisory committee to see this.
Your suggestion to have a new statute on the avoidance canon passed by Congress is well stated and might be effective. However, to expect the Executive branch to police itself on secrecy, executive privilege, what defines war, and any other stuff that people like Addington, Yoo, and their ilk can dream up to define as they wish is not wise, IMO.
I know you folks have great faith in the OLC and based on how it used to work, your faith would be supported. However, cynical people like myself fear that if the OLC can be corrupted once, what is to prevent it from being corrupted again?
Again, thank you for your participation and your support of our Constitution.
I think the Barton Gelman excerpts also begin the explaination of why Congress has been such a rubber stamp. Think about it, you are a member of Congress–maybe one of the Gang of Eight–you get told the conclusion “the US must do X” or all our cities will be blown up next week, and the broad outlines of what X is”.
But you can’t get answers to detailed questions, you cannot talk to members of your staff with both expertise and security clearances and the VP puts off all your objections with implications that if you only knew all that he knows, you would certainly agree with him.
This makes you VERY unsure of yourself.
If you manage to muster up an objection, you get put in the nutcracker that Comey described in Gellman Burton’s book–if you are wrong and Cheney is right, the blood of the next Americans killed in a terror attack will be on your hands.
If you are not an expert, like Comey and Goldsmith were, and if you cannot consult with your experts,
well, that’s powerful
Yes, who could possibly forget the craven stylings of Dan Burton and his quest for the Socks the Cat Christmas Card List. There was Congressional subpoena power worthy of the name oversight. *g*
If I remember correctly, all the way back to the Rockefeller letter to Cheney, one of the things he complained about in that missive was that he was not able to consult with his legal staffer on the intel committee for guidance and review. Not that he’s been a profile in courage, mind you, given his later actions on FISA after he already found out about a lot of this, but I do recall the contemporaneous mention in that letter — it stuck out in the read at the time it was released.
You left out the part about Gellman’s revelations that Cheney and Addington LIED TO the Gang of Eight. From the top of part two . . .
Emphasis added.
The Gang of Eight may have doubted what they were being told at the time, but they didn’t have the knowledge that they where being lied to. They do now, however . . .
I’d really be interested to hear how they are reacting to Gellman’s piece.
I came close to calling Rockfeller’s office this morning just to read that portion to them and say “I told you so.” But I didn’t have time to be that snide today.
One of the ways it has been rectified in the past when there were abuses — the Nixon administration specifically comes to mind — is that the newer hires are brought in specifically for skills to rectify past abuses. In that case, selection of personnel with very specific, very honed skill sets can be key.
The problem is finding these folks, coaxing them back into government service with a substantial pay cut (because most of them are six figure firm job folks at the very least at this stage of their careers), locating someone who will do the work in good faith and without a retribution agenda, because that would be devastating to morale in a particular department (and by that I mean against the people working there in the moment, not in terms of looking at abuses and fixing them which goes to accountability in my mind), but who would also have the ability to re-teach internal DOJ culture in terms of the hows and whys on actions taken and reasons therefor.
Not the easiest if people to find. And when you add in finding someone that will pass muster in a highly polarized advice and consent setting, you begin to see how difficult a needle that is to thread.
VIP post Thank you for this arduous work.It is the highest priority to remove the rot from the rule of law as it applies to executive priveledge the constitution and the body of law it has produced.
US Constitution is the cornerstone of democracy and those who seek to undemine it should be held accountable.
How are you asking congress to hold the perverters of the meanings of our constitution and body of law accountable?
Addington et al are assuming a pass on accountability by their interpretations. Please clarify the process to hold violators accountable. Thank You
Yes, I meant to say Dan Burton, sorry.
Exactly, in fact I had the Roosevelt letter specifically in mind.
There is a WORLD of difference between Comey having faith in his own expert knowledge and a legislator who may not even be a lawyer trying to stand up to administration lawyers like Addington.
That only works when there exists a respect for alternate opinion. That last happened under the administration of Lyndon Johnson. Since then the judicial system has been under surreptitious attack beginning with Nixon’s “Law and Order” through Bush41’s lockstep, goose step political Congress, ending with the current maladministration, all determined to place into office predetermined political ideologues, for the most part successfully. Thus, the respect for opinion has become limited to one sole ideology. That became apparent under Reagan, with the subversion of the Solicitor General’s traditional posture in order to facilitate party policy over general welfare. Gonzales was only a continuation of that process and the sleaze replacing Gonzales shows the contempt for law of the administration.
My opinion is that the system is broken in its entirety. Once the safety checks are perverted, they no longer will function as originally designed, their usefulness is over. A complete re-evaluation and re-engineering of the system is imperative if it is to function reliably. As for those of those adhering to the Heritage Foundation, that should be prima facie evidence for treason and the usurpation of the constitution, and face the traditional penalty for treason, rabid dogs that they are.
Mary, you hit on the word most critical in this discussion: accountability.
In Watergate, some of the president’s highest and closest advisors went to jail for lying and obstruction of justice, including the onetime Attorney General of the United States of America, John Mitchell.
Marty, how does accountability figure into your testimony?
Clearly even the lawyers didn’t do so well on that score, given Gonzales’ performance as the perennial “yes man” of the group. No wonder they foisted him into the AG chair.
Jim Comey has gone around the country delivering a speech about creating a “culture of ethics” in a given institution whether a corporation, a school, or a government agency. I caught the version he delivered at a meeting of the Vera Institute in NYC. http://www.vera.org/
Comey asserts that there are some people who will pretty much always do the right thing no matter what; that there are some people who will give into temptation no matter how much the culture pressures them not to, but that the vast majority of people respond to the culture of the organization they find themselves in.
Thus, if you create a culture within an institution where doing the right thing, even to your own detriment is both expected and rewarded, you will get a populace within your organization that will pretty reliably do the right the right thing. That was certainly my experience back in the day when I was involved with DOJ, that the norm within the office was to put “doing justice” ahead of things like not making your agents look bad, or pumping up your own statistics.
I remember Whitney North Seymour coming to talk to us about not letting our zeal to win overcome our obligation to ensure that civil liberties and due process were protected. He was a guest speaker, but I think that it is not unrealistic to actually TEACH ethical culture in an institution. Of course you have to practice what you preach, but I often wonder if the young lawyers hired within the last 7+ years have ever heard anyone talk in any but cynical or in threatening terms.
Especially when their examples were Bradley Schlotzman, Monica Goodling, Kyle Sampson, Alberto Gonzales, Scooter Libby, David Addington, Hans Von Spakovsky…the list is truly endless, isn’t it?
And don’t forget Mitchell’s successor, Richard Kleindienst.
He didn’t go to jail but was convicted of perjury and was given a suspended sentence.
Personally, I want a Constitutional Amendment that requires a 2/3 vote of the senate to confirm ANY political appointee or SCOTUS nominee. I would like to see it be very difficult for a President to get hacks and flacks into positions of authority anywhere in his Administration or the SCOTUS. This would make it more difficult for a Abu Gonzales or Hayden to get confirmed or for a Clarance Thomas, Alito, Roberts to make it onto the SCOTUS.
Perhaps the amendment could also include language that renders agencies like EPA, FDA, Fish and Wildlife, NASA, etc, be INDEPENDENT of the President’s authority once appointees are in place – to ensure that science and ONLY science informs policy. Politics can be worked out between the President and the Congress AFTER the science has its unadulterated say.
And no one can be fired without legitimate cause…no more “serves at the pleasure of the President” claims wrt attorneys being fired (or anyone else for that matter).
And require that ALL legal opinions from the DOJ or OLC be immediately made available to the public…and that there no longer be secret courts like FISC. REGULAR nonsecret judges can handle it…and the decisions must be reviewable.
I agree. In any case, it is unacceptable that any and all future Presidents must voluntarily agree with restraints on Presidential power less than that claimed by Bush/Cheney. It must be made non-voluntary.
Congress is responsible for this unacceptable situation whereby we are now stuck counting on the kindness of the latest President/Dictator to be self restrained in exercising power because “impeachment is off the table”.
Did Comey do the right thing with Padilla or with his support for telecom immunity?
Goldsmith didn’t wander in from some holler to become head of the OLC. He was a conservative, indeed to be considered for the OLC under Addington’s watch, a very conservative figure. He bought into the conservative principles whose logical extensions resulted in Bush/Cheney’s extra-Constitutional excesses. Where are the ethics if you accept the premises but then try to dodge the conclusions?
Thanks so much everyone for participating today. We had a lot of folks reading along, which put a fairly significant load on the servers — sorry for any hiccups along the way.
Marty, truly appreciate you being here today and for all the work you continue to do on all these issues. Very much appreciated by a whole lot of us here.
Do you think we should be taking another look at the Pendelton Act (which was the beginning of civil service reform during the early years of the Progressive Era—Signed by Pres. Chester Arthur after a disappointed office seeker who did not get a patronage appointment he desired, assassinated President Garfeild)?
Didn’t that law specifically prohibit discrimination in federal hiring basis on political affiliation?
Maybe there ought to be fewer exempt positions in the Plum Book and more merit hiring?
That sort of gets at the crux of the matter. Bushco is NOT a Republican group NOR are they “conservatives”…they have masqueraded as belonging to those groups, but they clearly are not. They are a cabal of fascist-minded (goverment controlled by corporations) individuals who have created an authoritarian dictatorship. They have used “followers” of their lying rhetoric to get into power. That is what is not being dealt with. They have taken over as much as they could get away with (which is almost everything). Until that fact is acknowledged, nothing will change. They may not even leave…they can act on Directive 51, based on an economic crisis…today the market dropped over 500 points.
Someone needs to start telling it like it really is…these people are involved in a soft-coup of the United States, similar to what happened in Germany. They have the same mindset. They are traitors…every one of them. Just like in Germany, when everyone got up in arms about the rise of Nazis in government…they tried to legislate their way out…didn’t work….just read history, and yes, it can happen here.
Thanks so much, Christy and fdl readers. I’m sorry the server was so sluggish and that I didn’t have time to answer more questions, but I think this has been a very worthwhile exchange. Let’s do it again sometime!
Accountability is the tooth in the law. Our laws are toothless at the White House. What are you proposing and is T=this post the National Lawyers Guilsdequivaent to Monday Night Football?
Absolutely — come back any time!
The Bush Administration was highly abusive in even its political appointees, not just at Justice in all departments and agencies. I can not think of one where this did not happen. But this would never have occurred or much less so if there had been real pushback from Congress and the Democrats. The Addington quote I cited above really encapsulates what the Bush approach was. They were going to push until somebody pushed back, but almost nobody did. And in those cases Cheney was usually there with his work arounds. For all the drama of the confrontation over warrantless wiretapping, the Administration ended up with pretty much everything they wanted.
There are problems with a purely merit system. Who administers it? Who decides what constitutes merit? How do we avoid an autonomous bureaucracy that operates virtually independently of the people and their elected representatives? We have seen gross politicization but there is the danger that the reverse would be as bad.
Disbar Addington.
And Yoo and Gonzales.
Hugh I agree that a merit system taken too far can have it’s own problem, but at this point in hisotry the pendulum has swong all the way back to a “spoils system” of partonage abuse which wasd what the Pendleton Act was meant to combat.
I think that pendulum would have to swing pretty far in the opposite direction before we will have an unaccountable, independant beaurocracy on our hands. *g*
Ah, so … FDL is still here, still providing some of the best of what nuanced thought and honest discourse yet remains in this sorry land …
For a while, the toobz were clearly overwhelmed and tossed me to the hounds of Nowheresville … mayhap the ‘excitement’ of a 504.48 point drop in the DOW discumbualated the toobulators resulting in underwhelming ‘performance’ across the ether threadways everywhere.
Things certainly are ‘interesting’.
Now to read.
Profound thanks to Professor Lederman.
I know this thread is pretty much over, but still it is relevant to remind everyone of Naomi Wolf’s new book,
Give Me Liberty, which is intended to be a “handbook for American revolutionaries.”
I just got this in an email from American Freedom Campaign.
Bob in HI
Goodness Christy, I agree with you if those people could be found, but, I’m afraid visions of Goodling come to mind. It just can’t be left up to the Executive branch. The other branches must be actively involved, by statute without signing statements.