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October 11, 2007

Cheney’s Law?

Posted in: BushCo,Civil rights,Congress,Justice Department,Legal,Oversight

From the upcoming Frontline series, to be broadcast on PBS next Tuesday at 9 pm ET.  Here’s a sneak peek for everyone.

Marty Lederman, at Balkinization, wrote earlier:

…I am increasingly confident that when the history of the Bush Administration is written, this systematic violation of statutory and treaty-based law concerning fundamental war crimes and other horrific offenses will be seen as the blackest mark in our nation’s recent history — not only because of what was done, but because the programs were routinely sanctioned, on an ongoing basis, by numerous esteemed professionals — lawyers, doctors, psychologists and government officers — without whose approval such a systematized torture regime could not be sustained….

What, then, will it take for Congress to have the courage finally to provide the thorough public accounting that is so desperately needed here…

What, indeed? I’ve been trying to force myself to slog through the joint government filing in the Boumediene/Al Odah cases, but I have to keep pausing because I am so disgusted.  The word “Kafkaesque” doesn’t come close to describing what it is like to read this sort of brief from the Solicitor General of the United States.  Truly.  (Until then, SCOTUSblog has a good start on a summary.)

As the Frontline clip above makes clear, there has been a systematic push for erosion of American principles of checks and balances by a number of players, not the least of whom is Dick Cheney, to strengthen the executive branch’s hold on absolute power.  From the “Cheney’s Law” website:

“The vice president believes that Congress has very few powers to actually constrain the president and the executive branch,” former Justice Department attorney Marty Lederman tells FRONTLINE. “He believes the president should have the final word, indeed the only word on all matters within the executive branch.”…

“There were extravagant and unnecessary claims of presidential power that were wildly overbroad to the tasks at hand,” Goldsmith says. “I had a whole flurry of emotions. My first one was disbelief that programs of this importance could be supported by legal opinions that were this flawed. My second was the realization that I would have a very, very hard time standing by these opinions if pressed. My third was the sinking feeling — what was I going to do if I was pressed about reaffirming these opinions?”

As Goldsmith began to question his colleagues’ claims that the administration could ignore domestic laws and international treaties, he began to clash with Cheney’s office. According to Goldsmith, Addington warned him, “If you rule that way, the blood of the 100,000 people who die in the next attack will be on your hands.”

Unquestioning loyalty to an already decided course of action, whether or not it was in the best interests of the nation or within the bounds of our nation’s laws, is exactly why we are in the mess that we are today.  The question now is:  how exactly do we walk this back to sanity and sure legal footing?  Part of the solution is a whole lot of sunshine — and I wanted to highlight some starting points:

– John Dean has a 3-part series on authoritarian conservatism:  here, here, and here.  It is a great start to the conversation we will be having with Dean during his book salon on October 14th (this Sunday) at 11:30 am PT [2:30pm ET] here at FDL.  (Here is a link to the prior book salon with John Dean — it is a fantastic read in case you missed it.) 

Louis Fisher, writing at Neiman, on the misuse of “state secrets” to shield from oversight and accountability.  (H/T to Froomkin)

David Luban at Balkinization lays out the latest on the Torture Memo 3.0.  Glenn has more thoughts on this as well.

Digby, riffing off an Atrios piece, on misprision of a felony,  pulls a Turdblossom special out of the festering pile.  Don’t miss the Horton piece in Harper’s on this.

SCOTUSblog digs into the question of the SCOTUS, the President, treaty obligations, and the clash of branches.  Very interesting read.

The bottom line:  It is in the stifling of accountability that the biggest problems began to arise, and what we have seen is nothing compared to what lies beneath the public view.  This is going to take a lot of work — not the least of which because the GOP-controlled Congress failed in its duty of public oversight for six long years, giving the proponents of unilateral executive power unfettered time and access to the consolidation of unconstitutional power in the executive branch.

We will be generations in the untying of this Gordian Knot.  But untie it we must.

UPDATE:  Sam Seder just e-mailed to let me know that the producer of the Frontline show will be on Sam’s Sunday broadcast.  Should be a great preview for Tuesday, so tune-in.


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