Confrontational investigations, subpoenas, and hearings are the priority

Efforts to impose legislative limits on the Bush administration's abuses will be futile until aggressive and dramatic light is shined on their behavior.

Published March 4, 2007 2:32PM (EST)

To their real credit, The New York Times Editorial Page (though definitely not the Times itself) was one of the earliest national media venues to recognize our country's true constitutional crisis brought about by the Bush administration's radical theories of presidential omnipotence. And they have, as relentlessly as any other media outlet, condemned those abuses and repeatedly called for actions to limit, if not altogether end, the sheer lawlessness of the Bush presidency.

Today the Times has an Editorial -- entitled "The Must-Do List" -- which identifies numerous pending Bush scandals regarding lawbreaking and abuses of presidential power, and for each one, the Editorial provides a proposed Congressional solution in the form of legislation. It is worth emphasizing, as always, that this list entails only the abuses that we have learned about (not from Congressional oversight, but from the disclosures of whistleblowers to journalists). It is beyond doubt -- as Ron Suskind recently pointed out in an interview with Spiegel-- that there are a whole array of similar, if not worse, abuses which the unprecedentedly secretive Bush administration has still managed to conceal:

SPIEGEL ONLINE: You quote former CIA director George Tenet in your book as saying after Sept. 11: "There is nothing we won't do, nothing we won't try." Are there any other dirty stories?

Suskind: Logically, I would have to say yes. You're dealing with an oddity here, a secret war. Wars tend to be very public things, they are visible. There are correspondents traveling with the troops and you get daily dispatches. This is a new conflict, fought largely in secret. The public is only informed a kind of "need to know basis." Based on that, I would assume that there remains something of an undiscovered country of activity in terms of what we have done over the past five years.

The NYT Editorial is well-intentioned and possibly helpful in re-focusing attention on these issues, but the Editorial's suggested solutions are ultimately misguided. None of the proposed measures -- from restoring Habeas Corpus to enacting new FISA legislation to closing secret CIA prisons to repealing the interrogation provisions of the Military Commissions Act -- is realistic, because it is just not possible to marshall the filibuster-proof number of votes in the Senate right now to accomplish any of that. That's just reality.

And that, in turn, is true because Senators, including large numbers of Democratic Senators, remain petrified of challenging the President in any meaningful way on national security issues generally, and are particularly wracked with fear when it comes to trying to limit those powers which are "justified" in the name of Fighting the Terrorists. Before any of these measures can be pursued meaningfully, media perspective and public opinon on these matters need to change.

Congressional Democrats, for instance, have become somewhat more emboldened in their opposition to the War in Iraq not because they suddenly decided on principle that resolute opposition was necessary, but because American public opinion was way ahead of them and all but demanded action on the war. Americans turned against the war, and thus, Congressional Democrats feel compelled to find a way to follow. Nothing moves Beltway politicians except pressure from their donors and/or demands from the voters who have the power to turn them out of office.

Beyond the obvious fact that the Republican-led Congress completely abdicated their legislative and oversight responsibilities for five years, there have been two principal reasons the Bush administration has been able to break the law with impunity and to continue to govern with no accountability -- (1) a listless and compliant press which has done very little to reveal and make Americans aware of the true nature and extent of these abuses, and (2) the administration's obsessive maintenance of a wall of secrecy which has concealed its behavior from the public and thus prevented the public (and the media) from really understanding what their Government has been doing. While little is going to change with the former, the Democrat-controlled Congress does have the ability to tear down that wall of secrecy and truly shed light on how radical and lawless this administration has been.

Far more than legislative solutions right now (which have no chance of succeeding), what we urgently need are compelled, subpoena-driven, aggressive hearings designed for maximum revelation and drama. Hearings are able, in a dramatic and television-news-friendly environment, to shed light on how extreme and radical this administration really has been in all of these areas. More than trying to repeal the worst legislative abuses of the last Congress, hearings -- real and dramatic and probing -- were the real promise of electing Democrats to take over the Congress. It is time -- and it is beginning to be past the time -- for that to start in earnest.

You can't convince Americans of the need to stop abuses until you demonstrate to them in a dramatic and undeniable way that those absues are being perpetrated and that they are harmful and dangerous. Just as one example, FISA itself was enacted only after the Church Committee conducted a probing and aggressive investigation and exposed the decades of eavesdropping abuses on the part of the Executive branch, whereby all the heinous transgressions from J. Edgar Hoover's blackmail-motivated eavesdropping on Martin Luther King to the array of Nixonian surveillance excesses came to light in all of their unvarnished and ugly reality. Americans were not moved by abstract notions of privacy or checks and balances but by the real life anecdotes of abuses and the evidence demonstrating how widespread they were.

That is what we need now. But we do not have it because the administration even in the wake of its defeat in the November elections -- one could even say especially after the election -- continues to aggressively exploit and manipulate the terrorism threat as a tool to conceal their own conduct and protect themselves from accountability and consequences. Until that ends, no progress on any of these issues is possible.

Just look at some of the developments in the last few weeks alone. The administration successfully convinced an appeals court last week to uphold dismissal of the lawsuit brought by Khaled el-Masri -- the German citizen who was abducted by the CIA, shipped around to various countries for interrogation, and then dumped on the side of the road in Albania once it was determined he was innocent. The administration claimed that allowing the lawsuit to proceed would risk disclosure of "state secrets" -- a doctrine previously confined to a very narrow scope of cases but which the administration has expanded beyond recognition in order to all but entirely shield its conduct from judicial review and to shield itself from accountability under the law.

And then there is the ongoing travesty of the Jose Padilla criminal case, where the judge has ordered the Government to turn over all tapes of Padilla's interrogation in order to determine whether, as Padilla alleges, he was tortured while being held incommunicado and with no charges for three-and-a-half years. But as Newsweek just reported, the administration is claiming that it is "no longer able to locate" the "crucial video" of Padilla's last interrogation in the military brig. After years of resisting any efforts to allow Padilla any process of any kind, and finally being ordered by a federal court to disclose this information, the administration now simply claims that it lost the critical evidence which would shed definitive light on Padilla's treatment and therefore cannot produce it.

Incidents of this kind -- whereby the administration will engage in any efforts without limits to prevent an examination of its actual conduct -- are too numerous to chronicle, literally. Sen. Jim Webb has spent the last two months -- unsuccessfully -- merely attempting to obtain an answer from the administration as to whether they believe they have the authority to attack Iran without Congressional approval. The administration has repeatedly breached all of its commitments to provide to Congress any real information about how it used its illegal eavesdropping powers on Americans when it exercised those powers for five years with no oversight (on whom did they eavesdrop in secret?). And just last week, Attorney General Gonzales expressed the same contempt for Congressional oversight as he has been exhibiting for years, albeit more explicitly this time, when he told Bob Novak that, in essence, he has more important things to do than respond to Congressional inquries.

Democrats in Congress need to realize right now that the administration will not produce or disclose any meaningful evidence unless and until they are truly forced to do so, and forcing them to disclose meaningful information is going to require a willingness to fight hard. Vague little threats of future action or pseudo-tough allusions to subpoenas are pointless. Far more than legislative solutions that will go nowhere and have no chance of passing (absent real changes in the focus of public and media attention), what must be the first priority are efforts to shine a bright light on what this President has been doing in the dark for years.

There has been talk recently from the President's supporters of the possible "constitutional crisis" that may be triggered by a confrontation between the President and the Congress over war powers in Iraq and/or Iran. Such talk is absurd. We have had a constitutional crisis in this country since September, 2001, when the Bush Justice Department promulgated theories of limitless presidential power that could not be any more repugnant to our constitutional order. And since then, this President has exercised those powers continuously and aggressively, to the point where he has literally existed outside of and above all forms of law, and has been all but immune from true judicial scrutiny and/or Congressional oversight or limitation.

The choice is not whether to provoke a constitutional crisis. The real choice is whether to recognize that we have one and to act to end it, or continue to pretend that it does not exist by acquiescing to the President's ongoing abuses and fundamental encroachments into every area. If -- as has happened -- Congress sits by and allows the President to seize limitless power and to ignore Congressional authority, then the subversion of our constitutional system becomes as much the fault of the Congress as the President.

Thus far -- and, granted, it has only been two months since Democrats took over -- the efforts to force these issues to the fore have been rather lame and anemic. Having said that, one should acknowledge that approaching these matters incrementally is necessary. For instance, demanding information that you know is not forthcoming might be strategically smart before issuing subpoenas, so that one can depict the subpoenas as necessary. But we don't really have the luxury of having months go by while we indulge all of that incremental strategizing.

Democrats have to internalize that this administration does not operate like previous ones. No rational person can doubt that they are limitless in their contempt for legal restrictions or notions of checks and balances. The last election, by itself, has not changed their approach and will do not so. They are not going to voluntarily comply with anything or disclose anything. They are going to have to be forced to do so.

And televised, highly publicized confrontations over the administration's hubris and arrogance and utter contempt for our legal institutions and political traditions is not something to be avoided. It is something we desperately need as a country. Issue subpoenas for all of this information, make them defy the subpoenas, and then demand that courts compel compliance. Create media dramas in which the administration fights to maintain full-scale secrecy around all of its legally dubious and extreme behavior. Americans hate hubris of that sort and do not trust this administration. Those are fights they cannot win.

Confrontations of this type are absolute pre-requisites if one wants to do anything about any of the truly urgent issues raised by the Times Editorial this morning. These issues cannot be amicably resolved or legislated away. The real power of the Congress is to compel a public airing of what this Government has been doing for the last six years. Everything else will follow from that. But it still remains to be seen -- it is highly questionable -- whether the Democrats who have been given control of the Congress by the American people have the stomach for that fight.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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