By late last week, the fight between the Bush White House and Congress over the firings of nine U.S. attorneys seemed to be leading toward possible contempt charges for some former administration officials. The Bush administration had previously asserted executive privilege over certain documents and witnesses sought by Congress in its investigation of the firings, even directing former White House counsel Harriet Miers to disobey a subpoena ordering her to appear before Congress. Democratic legislators were left with the option of certifying a citation of contempt of Congress to the U.S. attorney for the District of Columbia in hopes of compelling Miers and former White House political director Sara Taylor to testify fully.
On July 19, however, the Washington Post revealed that the Bush administration was unafraid of contempt citations. Should Congress certify a contempt citation to U.S. attorney Jeffrey Taylor’s office, it would be Taylor’s duty under federal law to bring the matter before a grand jury — but the White House will direct him not to.
Reaction from some corners was swift, severe and horrified. President Bush seemed to many to be enlarging an already expansive definition of executive privilege. Karen Tumulty, Time magazine’s national political correspondent, said that with the Post article “the phrase [contempt of Congress] takes on new meaning … There’s no way to challenge the President’s assertion of executive privilege, because, well, the President has asserted executive privilege.” And in a statement given to Salon, Senate Judiciary Committee chairman Pat Leahy, D-Vt., called the decision “deeply disturbing” and said that “this President and Vice President seek to override the independence of law enforcement and manipulate our valued system of checks and balances. This is another demonstration of the lawless and unchecked path the President, the Vice President and their loyal aides have taken us down.”
All that may well be true. And it may be especially disturbing to some that the Bush administration’s position seems to flow from the radical “unitary executive” theory, which exalts the power of the presidency over the other branches of government and has played a role in many controversial administration decisions. But if the White House’s justification for its refusal to honor any congressional contempt citations is examined strictly on legal grounds, then in this case it is not appropriating to itself any novel idea of presidential power. The move itself was predictable, based on positions held for more than two decades during four different presidential administrations by the Department of Justice‘s Office of Legal Counsel. In fact, though the Clinton administration never faced a similar showdown in its own executive privilege fights with Congress, it would almost certainly have taken a similar position in such a case. When contacted by Salon, even those legal scholars who served under Democratic administrations said that whatever their opinions about President Bush’s prior assertions of privilege or of his order to Miers not to appear before Congress, they think the White House is correct — or at least on legally defensible ground — in this latest assertion of power. Congress may simply have to think of new ways to push back.
“I’m struggling here,” Cass Sunstein, a professor at the University of Chicago’s Law School (he wrote “Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America” and spent some time in the OLC under both the Carter and the Reagan administrations), said in an interview, “because I don’t have the reaction that the president’s assertion of power to stop the U.S. attorney from prosecuting is independently outrageous … This is the attorney general saying to the U.S. attorney, ‘We don’t want you bringing a prosecution which is violative of the president’s constitutional prerogatives. You work for the guy, so don’t do that.’ That’s, in the abstract, OK. In the particular case it’s not OK, where it’s being invoked to say that Ms. Miers can refuse to even appear before a congressional committee. That’s the most outrageous part of this.”
Dawn Johnsen, a professor at the Indiana University School of Law who served in the OLC for five years during the Clinton administration, heading it as acting assistant attorney general from 1997 to 1998 (and who has previously written for Salon), took a similar stance.
“I think that the position that the administration is taking here is very strong, actually. I’m someone who thinks that the Bush administration’s assertion of executive privilege is overbroad and that they should be turning over more information, but I think that it’s right that if the president does legitimately assert executive privilege the president may direct the U.S. attorney not to prosecute someone who acts consistently with that assertion.”
It may be surprising to hear Democrats expressing such views, even with caveats, but opinions on this narrow subject are often based as much on loyalty to a branch of government as on allegiance to a political party. The argument may not be about a “rogue presidency,” but about the relative powers of the executive and legislative branches of government.
The current position taken by those who side with the executive stems in part from a 1984 opinion written by Theodore Olson, who headed the OLC between 1981 and 1984 under Ronald Reagan. Later, he would successfully argue Bush v. Gore, the Supreme Court case that decided the 2000 presidential election for George W. Bush, and then serve the Bush administration as solicitor general from 2001 to 2004. The relevant statute says that when Congress prepares a citation for contempt of Congress, it should pass that citation to the U.S. attorney, “whose duty it shall be to bring the matter before the grand jury for its action.” But in the 1984 opinion, Olson, who was traveling and unavailable for comment on this story, disagreed with the plain language of the statute.
A “United States Attorney is not required to refer a congressional contempt citation to a grand jury or otherwise to prosecute an Executive Branch official who carries out the President’s instruction to invoke the President’s claim of executive privilege before a committee of Congress,” Olson wrote. “Neither the Judicial nor Legislative Branches may [direct] the Executive Branch to prosecute particular individuals.”
OLC opinions do not have the force of law, but they are generally treated as precedent within the Justice Department, and Olson’s opinion is no different. The Clinton administration may never have had to rely on its ultimate conclusion, but neither did the administration repudiate Olson’s opinion — indeed, the Clinton administration cited it at least twice.
“I cannot recall that we ever had to take the position on this exact issue, involving an actual potential contempt citation, when I was [in the OLC],” Johnsen says, but “we did look at the ’84 opinion and generally cited it favorably.”
Marty Lederman, a professor at the Georgetown University Law Center who also served in the Clinton-era OLC and whose posts on the blog Balkinization generally express positions critical of the Bush administration, is critical of Olson’s opinion. He has previously written that “there are many things about the 1984 OLC Opinion that strike me as wrong or overstated,” and has called its conclusion “contestable … a tricky question.”
Told by e-mail of what Johnsen and Sunstein had said, though, even Lederman said there may be some truth to the Bush administration’s argument. “As the statute now stands, Dawn and Cass are probably correct — but [Morrison v. Olson, a 1988 Supreme Court decision] makes it much more complicated,” Lederman said.
Reflecting where the divide over this question really lies, Democratic veterans of the legislative branch took an unequivocal stance against the president’s assertion of power.
One former Democratic congressional staffer who asked not to be named noted that the law the president is flouting contains very specific and unusual language about a federal prosecutor’s obligation to proceed with congressional contempt citations. According to the staffer, federal laws dictate that a prosecutor “shall” bring a case in very few instances; in an instance like this one, where Congress went out of its way to include such language in the statute, it should be interpreted with that in mind.
“If you kill somebody, there’s nothing that says a prosecutor ‘shall’ present the case to a grand jury,” the staffer said. “It’s very unusual to tell a prosecutor they have to do something.”
Charles Tiefer, a professor at the University of Baltimore School of Law who served as solicitor and deputy general counsel of the House of Representatives from 1984 to 1995 (and who has previously written for Salon), agreed.
“People know what ‘shall’ means,” Tiefer argued. “The attorney general can no more tell the U.S. attorney to disregard the certification than he can tell the U.S. attorney to go up to Capitol Hill with a machine gun and start shooting.”
Tiefer described Olson’s 1984 opinion as “sour grapes” by an administration that had just conceded to Congress a fight that involved these issues the year before. Democrats who served in the OLC agree with Olson, according to Tiefer, because executive branch officials stick together in fights with the legislative branch.
“I don’t know anyone in history — until Ted Olson came along — who for a second bought this nonsense, and I take that quite seriously,” Tiefer said. “I’m sure the people who were in OLC love it; I know they love it … OLC people always sing harmony and melody with OLC, regardless of whether they’re in a Democratic or Republican administration. They think, ‘Oh, God, we don’t want [former Attorney General] Janet Reno to have to appear before [Indiana Republican Congressman] Dan Burton, so rah-rah-rah, sis-boom-bah, we stand with Ted Olson.’”
The tug-of-war between the executive and the legislative branches over this issue is ongoing because there has been no definitive legal decision to resolve it. Both sides are traditionally loath to bring executive privilege fights to the courts for fear that they will lose, thereby setting a precedent that cuts against them. The courts, meanwhile, are reluctant to take executive privilege cases; the judicial branch’s general policy is to encourage the legislative and executive branches to negotiate and renegotiate. Only when there’s no room for accommodation will the judiciary intervene. Just one standoff similar to the current situation has ever made it to court, in fact.
In November 1982, a subcommittee of the House of Representatives delivered a subpoena to Anne Gorsuch (sometimes known by her second married name, Burford), then the administrator of the Environmental Protection Agency, asking her to produce certain documents. The Reagan administration asserted executive privilege over the documents and directed Gorsuch not to produce them, so on Dec. 16, 1982, the House cited Gorsuch for contempt. Even before the House could certify the citation to then U.S. attorney for the District of Columbia Stanley Harris, the Justice Department sued the House, seeking an injunction against the citation. As U.S. attorney, by law, Harris became a party to the lawsuit. And so — different from the current administration’s policy — Harris decided on his own not to proceed with the contempt charges until the civil suit had concluded. In a 1996 interview for an oral history project conducted by the Historical Society of the District of Columbia Circuit, Harris, by then a U.S. district judge, explained:
“It occurred to me that what was important for me as the person charged with the responsibility for prosecuting her was that at the end of the line nobody could say that I had been told what to do or what not to do. And I came in the first morning after receiving the contempt citation and called Main Justice and said, ‘I want to make it clear that I am not going to talk to anybody at Main Justice about this case.’”
The Reagan administration’s lawsuit was dismissed before any of the claims made by the current administration could be put to a real test. In his opinion dismissing the case, Judge John Lewis Smith Jr. said, “The two branches [should] settle their differences without further judicial involvement,” which is eventually what happened — the Reagan administration turned over the documents sought by the House.
A quarter century later, another administration has decided to do battle. But if Congress backs down on its contempt threat without fighting, or fights the Bush administration and loses, it still has two options left to compel full testimony from Harriet Miers and Sara Taylor. It can pursue civil contempt proceedings in court, or it can attempt to use its own “inherent contempt” power to arrest and detain Miers or anyone else who has failed to comply with a subpoena, and then hold its own trial. Congress could hold any persons thus detained until they complied or until the end of the session of Congress, whichever came first. It has not used that power since 1934.
But some proponents of congressional power argue that all these remedies come with their own problems, leaving Congress at a disadvantage in fights with the executive. In an article for Roll Call that ran just a day before the Post’s July 19 story, Paul M. Thompson, who was an assistant U.S. attorney from 2002 to 2005 and then served as counsel to former Sen. Mike DeWine, R-Ohio, on the Senate Judiciary Committee, argued that Congress needs to give itself new powers for its fights with the executive branch.
“The process we have right now when Congress gets into a dispute with the executive is like the New York Yankees playing a Little League baseball team,” Thompson said in an interview. “The executive is the Yankees, Congress is the Little League team, and there is absolutely nobody to be the umpire.”
Thompson said he tends to believe that the executive branch has the power it asserted last week, but thinks that’s beside the point. What Thompson wants to see is a change in the law, so that Congress has powers like, for example, the federal courts or the secretary of agriculture, both of whom can pursue contempt charges essentially on their own.
“The way the system is set up institutionally, [Congress] can never get a resolution on these matters,” Thompson said. “It’s almost a beat-the-clock situation for the president … We need — and I don’t have any clear answers yet — we need to figure out a process that works better than the one that’s in place.”
Sen. Leahy might agree. (He was traveling and unavailable for comment beyond the statement referenced earlier in this article.) In 2000 he used the apparent weakness of Congress’ position to argue against Congress’ citing a White House official for contempt. But at that time, Republicans controlled Congress and the official was a Democrat — Attorney General Janet Reno. Dismissing the efficacy of both the criminal and the civil contempt procedures, Leahy said Congress’ only option was to use its inherent contempt power — and he dismissed that as well, calling it “an embarrassing spectacle.”
“The only way to enforce a contempt citation is by a trial on the Senate floor … The civil contempt mechanism normally available to Congress … specifically exempts subpoenas to the executive branch,” Leahy said. “Obviously, there is also a criminal contempt citation … but this procedure requires a referral to the Justice Department. Is [Sen. Arlen Specter, R-Pa., then the chairman of the Judiciary Committee] suggesting that we make a criminal referral of contempt about the Justice Department to the Justice Department? I assume not.”
Barack Obama’s presidency was born from nothing so much as his repudiation of George W. Bush’s administration — its policies and politics, its style and tone. One of Obama’s most effective 2008 stump speech refrains was his promise to end the era of “Scooter Libby justice, ‘Brownie’ incompetence and Karl Rove politics.”
But the political dynamics for winning a second presidential term often differ markedly from winning the first. So don’t be surprised by many eerie parallels between Obama’s 2012 reelection bid and Bush’s 2004 campaign. The president may not rely upon “Karl Rove politics” in the strictest sense, and nobody would confuse David Axelrod with Rove. But Obama’s reelection route and rhetoric may bear more than a few Rovian hallmarks.
Now that Mitt Romney has won the Republican nomination, two key features prevail over the 2012 campaign — and both were also plainly evident in 2004. First, the incumbent president’s reelection fortunes are far from certain; and, second, the incumbent faces a decent but nevertheless weak challenger who is further hampered by internal problems within his party’s coalition.
Because incumbents can’t run for reelection promising “change,” and because “hope” during a lingering recession was also off the menu, the Obama campaign’s 2012 theme of “forward” — a word that often follows “plow,” mind you — was the best available alternative. That said, and substituting the economy for terrorism, Obama is implicitly if not explicitly advancing the same theme Bush did in 2004: America suffered a tough blow, but the situation could have been worse and, more to the point, under my stewardship the nation is steadily regaining its footing.
This counterfactual campaign theme — vote for me not because of what happened, but what might have but didn’t — is a common thread for Bush and Obama. It’s not an uplifting message, but it sufficed in 2004 and Obama is counting on it working again in 2012.
Politics 101 further dictates that when an incumbent’s reelection is in doubt, he must go negative against the challenger. Obama political operatives in the White House and at the Democratic National Committee long ago made it abundantly clear they were willing to do just that. Team Obama may not go negative against Romney to the degree the Bush camp did against John Kerry in 2004. (By mid-summer 2004, 75 percent of Bush’s TV ads were negative attacks on Kerry.) But don’t be surprised if attacks on Romney’s record and even character are plentiful, harsh and relentless. In 2008, America saw candidate Obama’s toothy grin; four years later, expect to see President Obama’s fangs.
Expect the Obama camp to emphasize two major critiques of Romney: that he is a flip-flopper willing to say anything or reverse any position to win; and that he is an economic royalist whose personal and public life suggest a person incapable of understanding the lives and struggles of average Americans. Again — note the unusual parallels with 2004.
Although Romney is a Republican former governor and Kerry was at the time his state’s Democratic junior U.S. senator, the two Massachusetts pols make for similar targets. Each man is an extraordinarily rich preppie and Ivy Leaguer. Each represents the liberal wing of his respective party. Each has shown a propensity for ruining an otherwise valid point with sloppy, backfiring language. And each has a reputation for lacking political spine.
The flip-flop frame is candidate character assassination of the first order. Like the lone negative number in a string of multiplied positives, the critique that nobody can trust any statement or claim made by a politician has the potential to negate every accomplishment or promise. If it sticks, it can be fatal, as Kerry learned in 2004.
Obama and the Democratic National Committee know their electoral history and, sure enough, last November — a year before the election and two full months before a single Iowan had caucused — the DNC released a four-minute “Mitt vs. Mitt” ad and its accompanying website with the damning tag line, “the story of two men trapped in one body.” The site is a brilliant homage to the Bush campaign’s 2004 windsurfer attack ad and the devastating, 11-minute ad the Republican National Committee produced chronicling Kerry’s “evolution” on Iraq.
And then there is what might be called “the Willard factor”: Romney as Richy Rich, the Monopoly Guy with the Bain Capital background and the Swiss bank account. His bio would be political gold to Romney’s opponent any election cycle, but it’s gold-plated platinum in the first full presidential campaign following the biggest economic crisis since the Great Depression, the rise of the Occupy Wall Street movement, and the long overdue national debate over income inequality.
Again, the wealth-personified line of attack mirrors the out-of-touch, Martha’s Vineyard yoke the Bush team put around Kerry’s neck in 2004. Right on cue, in the first public event of his reelection campaign, last week Obama attacked Romney by name and invoked the economic disconnect card with relish. “He sincerely believes that if CEOs and wealthy investors like him make money the rest of us will automatically prosper as well,” said Obama of Romney, adding that “corporations aren’t people – -people are people.” (For the record, Kerry is actually wealthier than Romney, who would become one of the richest men ever to occupy the White House, should he win.)
Obama will also try to shift the national debate toward areas of strength, as Bush did. Historically, this meant the same strategy, but with inverse implications for each party: The so-called mommy party Democrats would encourage voters to focus on more favorable kitchen-table economy issues — healthcare, jobs, education — and away from less favorable “daddy party” Republican issues surrounding foreign wars abroad and culture wars. Because Obama is net-positive in foreign policy approval and net-negative on the economy, rather than mirroring by inversion, Obama will try to duplicate Bush’s shift-in-emphasis in 2004. GOP complaints that Obama is politicizing the killing of Osama bin Laden reveal Republican fears that Obama is going to play the terrorism card in 2012 just like Bush did eight years ago.
The 2004 parallels extend beyond message. Obama will be amply resourced and enjoy a field technology by virtue of his campaign’s state-of-the-art Web, donor, volunteer and social media innovations. Remember the Bush reelection campaign’s vaunted “72-hour” voter turnout model? That seems like an Edsel compared to the Ferrari the Obama team will be sporting this summer and fall. Among the perquisites modern presidential incumbents enjoy is the option to test-drive the best mobilization machines before anyone else.
Finally, what most connects Obama 2012 to Bush 2004 is the stability of the electoral map itself. Only three states — two net to Bush — flipped from one party to the other between 2000 and 2004; only nine states flipped between 2004 and 2008. Split the difference and a good, back-of-the-napkin over-under for number of states likely to flip between 2008 and 2012 is six. And thus, like the lead sailboat during a windless race, Obama doesn’t need or want conditions to change much from 2008: He merely has to replicate the map that swept him into office, with the burden of figuring out how to shake up the Electoral College falling to Romney, just as it did for Kerry against Bush. Even Karl Rove’s mapping of the 2012 election concedes this reality.
The 2008 election was memorable; to borrow the title of one best-selling chronicle, it was a “game changer.” But 2012 will not be. In many respects, it will be a game repeater, with Obama playing Bush to Romney’s Kerry of 2004. The president may be asking Americans to look “forward” in 2012, but the best preview of his reelection campaign can be found by looking backward eight years.
There was good reason for Republicans to cry foul over the Obama campaign’s advertisement highlighting the president’s killing of Osama bin Laden; the GOP has lost its decades-long edge on national security. According to a Washington Post poll, “By a margin of more than 2 to 1, Americans say the president’s handling of terrorism is a major reason to support rather than oppose his bid for reelection.”
Republicans lost their popularity on security issues for one reason: George W. Bush’s foreign policy was a disaster. And yet, the party’s nominee, Mitt Romney, has assembled a foreign-policy team composed almost exclusively of individuals with the same war-always mentality and ideology that served Bush — and the United States — so poorly. In some cases, the exact same men responsible for Bush’s catastrophic national security policies are advising Romney. The former Massachusetts governor could have included some of the pragmatists and realists from the George H.W. Bush administration. Instead, a Romney presidency seems like it would be Bush 43 all over again.
Richard Grenell, who served as United Nations spokesman under Bush, may be gone from the Romney campaign after an uproar over his sexuality, but there are plenty more former Bushies. First off, there are Romney’s “special advisors.” There’s Michael Chertoff, W.’s Homeland Security director. Chertoff oversaw DHS’s failures during Hurricane Katrina, and amassed unprecedented powers of secrecy. Next up is Eliot Cohen, counselor to the State Department for Bush’s last two years and on the Defense Policy Advisory Board for the president’s entire term. Cohen was an adamant supporter of the Iraq War and advised Bush directly on the issue. Or take Cofer Black, the man who infamously said to Bush in September 2011 about al-Qaida that “When we’re through with them they will have flies walking across their eyeballs.” Black went on to become chairman of Blackwater, where he resigned after the company illegally bribed Iraqi officials.
Then there are the 13 “working groups” composed of equally worrisome individuals. The Middle East and North Africa Working Group is co-chaired by Bush’s Assistant Secretary of Defense Mary Beth Long, and Meghan O’Sullivan, Bush’s special assistant and deputy national security advisor for Iraq and Afghanistan. The remaining co-chair is Walid Phares, who never worked for Bush but advised Lebanese warlords in the 1980s. Romney has reportedly promised Phares a top job in his administration, despite his virulently anti-Islamic views.
All told, Romney lists 37 holdovers from the George W. Bush administration — the very same administration he and all other Republican candidates barely referenced during their many debates because it was so discredited and toxic, even to the Republican base.
It didn’t have to be this way. There are, in fact, people in Republican circles who are sensible on international affairs. The Cato Institute, in particular, has experts that could dramatically change the direction of American foreign policy. Men like Justin Logan and Christopher Preble were prescient on Iraq and a host of other issues. Similarly, the Center for the National Interest (formerly the Nixon Center) has a host of solid scholars, including ones like Dimitri Simes and Geoffrey Kemp, who have valuable government experience in the Nixon and Reagan administrations, respectively, and a history of perceptive analysis. Richard Haass, president of the Council on Foreign Relations, would have been another good pick.
So why aren’t guys like this being tapped? Why is the GOP sticking with a discredited foreign-policy approach rather that looking to its own past for wiser counsel? “Most of the realists and pragmatists have simply been driven out of the Republican Party,” says Stephen Walt, who writes a blog at Foreign Policy and teaches at Harvard. “The neoconservatives have been driving the agenda since Bush was elected and they remain well-entrenched.”
Another factor is that the Republican Party’s base remains strongly militaristic and reluctant to recognize limits on American power. Jon Huntsman’s failed presidential campaign illustrated that problem. The good news is that nobody seems to be calling for nation-building and occupying foreign countries in the mold of Iraq and Afghanistan. But that’s the only lesson that seems to have been learned from the last decade of foreign-policy debacles.
Finally, it may just be that the United States has too much power to change course. While the Unites States has undoubtedly made disastrous decisions in the last decades, it is so powerful that it is largely insulated from the consequences of them. If Romney’s foreign-policy advisor list is anything to go by, a Romney administration would have to teach the U.S. all over again about the problems with trying to police the world. Prepare for Bush redux.
The Bush administration hasn’t heard the last from Philip Zelikow. After the rediscovery last week of his long lost 2006 anti-torture memo, Zelikow, a former State Department official, has written arguably the most damning article yet about U.S. government’s interrogation policies from 2001 to 2009. The article, called “Codes of Conduct for a Twilight War,” will be released in a forthcoming issue of the Houston Law Journal, and was obtained exclusively by Salon. Says Zelikow in an email: “I’m not aware of other accounts that combine historical, policy and legal approaches to” the subject of the Bush administration’s interrogation methods.
Based on published histories and his firsthand observations, and adapted from a lecture delivered in November, the article calls the administration’s rationale for its use of torture — which he nonetheless insists only on calling “extreme interrogation” and “coercive methods” — “radical,” “an amazing contention,” “untenable and extreme,” “unsustainable,” “an unprecedented program of coolly calculated dehumanizing abuse and physical torment,” and, finally, simply a “mistake.” He concludes: “This was a collective failure of American public leadership, in which a number of officials and members of Congress (and staffers) of both parties played a part, endorsing a CIA program of physical coercion without any precedent in U.S. history.” In fact, “The only defense against criminal prosecution would be that officials acted in good faith reliance on the advice of their government lawyers.”
Part of what makes Zelikow’s analysis so damning and definitive is its judiciousness. The article is deeply empathetic of the uniquely fearful situation under which the Bush administration was initially operating. Zelikow calls the Sept. 11 attacks a “collective trauma” and a “shoc[k] to mass beliefs.” He notes that Bush and others spent time in burn units, morgues and with survivors of the attacks. One traumatic experienced often overlooked — overlooked because it appeared in Stephen Hayes’ stenographic biography of Dick Cheney — was that the vice-president’s daughter was (falsely, it turns out) told that her house with her children in it had tested positive for anthrax. Similarly, Cheney and National Security Advisor Condoleezza Rice were told that they and others had been exposed to an extremely lethal toxin in a particular area of the White House — and might soon die as a result. “The alarms did not stop and they too were not abstract … The pressure on Bush and his senior advisers was so direct because so much of the response had to be invented and improvised,” the article reads.
An additional factor in the power of the article is Zelikow’s credibility and history. Before entering government, he was a civil rights lawyer in Texas battling the Ku Klux Klan and then a highly esteemed Harvard historian specializing in U.S. foreign policy — he co-authored one book with Rice. He then served on the National Security Council under President George H.W. Bush and directed the 9/11 Commission before becoming counselor to Rice at the State Department from 2005 to 2007. He currently volunteers part-time on the President’s Intelligence Advisory Board under President Obama.
Such bipartisan, establishment credentials render the breakdown and conclusion of this article all the more damning. He believes that what should have been a political and moral question — should the United States torture captives? — became strictly a legal matter left up to government lawyers, few of whom had any experience with these issues, and who had to take the necessity of extreme measures as a given. “These lawyers then became secular priests, granting absolution to the supplicant policymakers,” Zelikow writes.
The problems began when the Office of the Vice President and the CIA took central roles in policymaking. Cheney felt himself above the rest of the National Security Council, bypassing Rice and other traditional channels of national security policymaking. Ad-hoc decision-making and improvisation became “a habit of thought,” which seemed initially to pay off in the security of the nation, as well as in Bush’s political standing and self-confidence.
With Cheney and CIA head George Tenet “the key entrepreneurs in setting codes of conduct for the War on Terror,” it was essentially left to their obsequious lawyers to decide, in secret, on the interrogation methods America should employ. Bush even told the Senate’s Intelligence Committee chairman that “the vice president should be your point of contact … [He] has the portfolio for intelligence activities.” Decisions were made to jettison international treaties. By December 2001, the CIA was already interested in reverse-engineering methods “heretofore used only to treat Americans to resist enemy torture.” When a senior al-Qaida member was captured in March 2002, the prototype for the administration’s torture policies was already developed. “So, for the first time in American history, leaders of the U.S. government carefully devised ways and means to torment enemy captives.”
Zelikow notes that “None of the policy or moral issues connected with these choices appear to have been analyzed in any noticeable way.” Perhaps worst of all, no serious consideration was given to weighing the costs of benefits of the torture program, with reference to relevant historical precedents and/or examinations of the respective French, British and Israeli experiences in dealing with captured terrorists. “Bush and Rice should have insisted on this,” Zelikow writes.
The 52-page article observes the successes of Obama’s counterterrorism policies after repudiating the use of torture. On the basis of the empirical evidence then, “[t]here is no evident correlations between intelligence success and the available of extreme interrogation methods,” no matter what Bush and Cheney claim. Finally, “The program’s costs — which include the high-level effort expended in order to establish, maintain, and defense the program — appear on the evidence so far to have well outweighed any unique value the program might have had as a method of counterterrorism intelligence collection.” This is apart from the damage to America’s international standing and corrosion of its traditional values.
Zelikow concludes his analysis by arguing that, although the Obama administration has the right to wage war and use extralegal methods to defeat al-Qaida, its claim of that authority to defeat “associated forces” is unwarranted. “The U.S. government should publish and explain any overarching policy and legal documents that guide and confine the conduct of deadly operation against its foreign enemies … the executive branch of the U.S. government has a duty to articulate the scope of its warfare to the Congress and the public.” The Bush administration’s unprecedented elevation of torture to national policy may be history, but the job to get U.S. foreign policy in line with its constitutional and moral obligations is far from over.
News of Thomas Kinkade’s death arrived on the same day I received in the mail a vintage teacup on which I had spent a ridiculous amount of money. It has a cottage painted on it. Kinkade, whose work has long exerted a morbid fascination for me (to the concern of all my friends), specialized in cottages. So some part of me understands the appeal, I guess, but, damn: Those paintings make my corneas hurt. And yet, I could barely stop looking at them.
Kinkade was only 54, and his family told the media that he died of “natural causes.” This comes after years of reports of drunken public misbehavior: cursing at people who tried to save him from falling off bar stools, heckling Siegfried & Roy, grabbing a woman’s breasts at a publicity event and, most memorably, urinating on a Winnie the Pooh statue at the Disneyland Hotel while proclaiming, “This one’s for you, Walt!” There were DUI arrests. Also, his manufacturing company declared bankruptcy two years ago, and former franchisees of the once-ubiquitous Thomas Kinkade Signature Galleries won settlements against him for fraud.
That’s quite a fall for a man who frequently spoke of his Christian faith and family values when asked to comment on the mammoth success of his brand in the early 2000s. “When I got saved, God became my art agent,” Kinkade explained in a 2004 video. He went from a childhood in Placerville, Calif. (invariably characterized as “hard-scrabble”) to an apprenticeship selling his work in supermarket parking lots to his apotheosis as the nation’s “most profitable” artist, the Painter of Light™, and multimillionaire. He was profiled in the New Yorker by Susan Orlean.
I first learned about the dark side of the Painter of Light™ — sorry, couldn’t resist that one — when I reviewed “his” novel, “Cape Light,” in 2002. The novel, first in a series, was produced much as his paintings are: by a semi-industrial process in which low-level apprentices embellish a prefab base provided by Kinkade. He wasn’t the only artist to work in this way; he wasn’t even the only novelist. To the best of my knowledge, his novels — heartwarming, fuzzily pious tales of small-town life — have been coming out ever since, one more facet of a lifestyle brand that, at its most ambitious, included an entire Thomas Kinkade-themed housing development.
My review was just a goof intended to amuse Salon’s readers, but after it appeared, I began to receive emails from people who had sunk their life savings in Thomas Kinkade Signature Galleries (essentially, mall and shopping-district outlets for his prints) and been fleeced. I didn’t really understand how the financial architecture of Kinkade’s gallery empire worked, and I sure didn’t share their taste in wall art, but these people struck me as decent and sincere. They’d believed in Thomas Kinkade — not just in the man or the company, but in the ethos supposedly represented by his work, one in which (to quote Kinkade’s introduction to “Cape Light”) “people have the time to savor life’s simple pleasures” and lead “deep, satisfying lives.”
My conversations with these victims made me uneasy. Was there some relationship between the franchisees’ naivete, perhaps even their willful self-delusion, and their terrible taste? Was it hopelessly snobby to wonder that? What about Kinkade himself? He seemed to be at best a hypocrite and at worst a crook. Was there a meaningful connection between his bad conscience and his bad art? German thinkers of the 1930s would have said so, and they had plenty of opportunity to observe bad fascist art up close. Hermann Broch maintained that someone who chooses to make kitsch is “ethically depraved, a criminal willing radical evil.” The novelist Milan Kundera believes kitsch to be the natural expression of totalitarianism. That’s a lot of moral weight to place on a bunch of garish cottage paintings, but Kinkade was always the first to present his work as a form of ideology.
I felt compassion for the ripped-off gallery operators, and at the same time I was aware that quite a few of them had probably also fallen for the similarly sanctimonious, bogus folksiness of George W. Bush, thereby subjecting our nation to one of the worst presidents in its history. Kinkade and Bush struck me as of a piece, probably because they had both borrowed from Ronald Reagan in promising that we could get back to a better way of life that never existed in the first place. In nearly every encounter with the press, Kinkade delivered a diatribe against the art-world “establishment” that had shut him out. They were “elites” touting unfathomable, downer junk to hardworking people who needed uplift instead. Art snobs were the aesthetic counterparts of the so-called liberal elites, a group that surely included me.
At the same time, I must admit that I, too, like a cottage. Granted, I like the stylized, art-deco kind painted on bone china, rather than the insanely detailed and phosphorescently lit specimens in Kinkade’s pictures. And I’m in little danger of equating my new teacup with a Brancusi just because it’s cheerier. Nevertheless, I suspect that my idea of what’s pleasing about a cottage isn’t too different from that of Kinkade’s fans: an aura of harmless coziness, of modest domestic beauty and comfort not too cut off from the past. It’s as if we’re speaking the same word, but in different languages.
I suspect this is why Kinkade’s paintings have exerted their weird, hypnotic effect on me. They are so preposterous (especially the stream-side ones; he really needed to sit down with an architect and go over the basics of drainage), so awful. And yet I can still detect — beneath that cacophony of hollyhocks and cobblestones and snapdragons — the whisper of something intelligible. I’m pretty sure I know why the hordes of Kinkade collectors love his work, even if I don’t like it myself. Kinkade’s paintings are irredeemably false, like all kitsch, but through them you can just barely glimpse the honest desires they seek to exploit, sinking under the dreck.
Kundera defined kitsch as “the absolute denial of shit,” meaning it offers an airbrushed, sterilized, sentimentalized view of the world. From that, it doesn’t necessarily follow that art wallows in shit, but art doesn’t exist for the primary purpose of denying it, either. Kitsch is, first and foremost, a lie; its very existence is founded on bad faith.
Kinkade, like Bush, peddled a falsely simplified image of the world — one without mildew or flooded basements, for one thing — which, no surprise, turned out to be plastered over a whole lot of stinky stuff. The true believers, the ones who bought into these men the most during the 2000s, ended up paying some of the highest prices, from the Kinkade acolytes who invested in his gallery Ponzi scheme to the working-class red-staters who sent off their kids to die in a pointless war. Bad taste, harmless as it may seem, can end up costing you a lot.
Further reading
Los Angeles Times obituary for Thomas Kinkade
Susan Orlean’s 2001 profile of Thomas Kinkade for the New Yorker
A 2006 Los Angeles Times story documenting Kinkade’s business problems
Salon’s Janelle Brown visits Hiddenbrooke, a Kinkade-theme housing development in Northern California
Laura Miller reviews “Cape Light,” a novel by Thomas Kinkade and Katherine Spencer
George W. Bush and Barack Obama (Credit: Reuters/Larry Downing) 
(Credit: Reuters/Win McNamee) 
(Credit: Reuters/Jim Young) 
