Earlier this week, I wrote about the State Secrets Protection Act of 2008, which was co-sponsored by numerous key Senators [including Joe Biden and Hillary Clinton, as well as the Senate Judiciary Committee's Chair (Pat Leahy) and ranking member (Arlen Specter)], and which was approved by the Judiciary Committee last year with all Democrats voting in favor. That bill, in essence, sought to ban the exact abuse of the State Secrets privilege which the Bush administration repeatedly invoked and which, now, the Obama administration has embraced: namely, as a weapon to conceal and immunize government lawbreaking (by compelling the dismissal of entire lawsuits in advance) rather than a limited, document-by-document evidentiary privilege.
Yesterday -- as an obvious response to the Obama DOJ's support for the Bush view of the privilege -- Leahy and Specter, along with Russ Feingold, Claire McCaskill, Sheldon Whitehouse and Ted Kennedy, re-introduced that bill in the Senate. When doing so, Leahy made clear that the bill was more needed than ever in light of the actions of the Obama administration:
During the Bush administration, the state secrets privilege was used to avoid judicial review and skirt accountability by ending cases without consideration of the merits [ed: exactly what the Obama DOJ endorsed this week]. It was used to stymie litigation at its very inception in cases alleging egregious Government misconduct, such as extraordinary rendition and warrantless eavesdropping on the communications of Americans [ed: exactly what the Obama DOJ endorsed this week]. . . .
We held a Committee hearing on this issue last year, and the appropriate use of this privilege remains an area of concern for me and for the cosponsors of this bill. In light of the pending cases where this privilege has been invoked, involving issues including torture, rendition and warrantless wiretapping, we can ill-afford to delay consideration of this important legislation.
Sen. Feingold explicitly criticized the Obama administration earlier this week for its endorsement of exactly these abusive theories. Several hours before the Senate bill was introduced, several key House Democrats introduced a similar bill in the House. The ACLU promptly endorsed the bill.
A President who seeks to aggrandize his own power through wildly expansive claims of executive authority ought to be vigorously criticized. But the ultimate responsibility to put a stop to that lies with the Congress (and the courts). More than anything else, it was the failure of the Congress to rein in the abuses of the Bush presidency (when they weren't actively endorsing those abuses) that was the ultimate enabling force of the extremism and destruction of the last eight years.
What we need far more than a benevolent and magnanimous President is a re-assertion of Congressional authority as a check on executive power. Even if Obama decided unilaterally to refrain from exercising some of the powers which the Bush administration seized, that would be a woefully insufficient check against future abuse, since it would mean that these liberties would be preserved only when a benevolent ruler occupies the White House (and, then, only when the benevolent occupant decides not to use the power). Acts of Congress -- along with meaningful, enforced oversight of the President -- are indispensable for preventing these abuses. And that's true whether or not one believes that the current occupant of the Oval Office is a good, kind and trustworthy ruler.
My time is limited this morning, but Chris in DC -- a Washington lawyer and regular commenter here -- elaborates on his own blog as to why it is a re-assertion of Congressional authority (not kind and good acts from Obama) that is the paramount priority:
What is often overlooked in all these discussions about the specific abuses of the Bush administration, amid all the resentment toward a particular president and his Republican party, is how much severe damage these excesses are doing to the very structure of our constitutional system. That corrosion of all sources of institutional (and popular) power other than the federal executive branch is, to me, far more egregious, more significant, and more difficult to reverse than the control and individual acts of a certain president or party in power at any given time.
As Marcy Wheeler notes, the co-sponsors of this bill are among the most influential in the Senate. The bill is endowed with the two most precious Beltway commodities -- bipartisanship (with Specter on board) and the blessing of a saintly "centrist" (McCaskill). It's a bill that is co-sponsored by the two leading Senators on the Senate Judiciary Committee as well as the Chairman of the House Judiciary Committee (Conyers). If they are serious about imposing meaningful limits on the Obama DOJ's attempt to shield the executive branch from judicial scrutiny, they will be able to move this bill quickly. I hope to have more shortly on ways to push that process along, but more vital even than limits on this privilege is having a Congress that once again acts as a meaningful check on executive transgressions. Restoration of that system is of far more enduring value than Obama's issuance of magnanimous and irrevocable-on-a-whim decrees.
* * * * *
In yesterday's post focusing on Marc Ambinder's "reporting" yesterday (Armando describes more accurately what it really is in the struck-through language), I made reference to Andrew Sullivan's immediate condemnation of the Obama DOJ's embrace of the Bush position on State Secrets and contrasted that to his defense of the Obama DOJ yesterday, noting that he appeared to have changed his views on this matter rather substantially in a short period of time. Last night, Andrew wrote that I misstated his position (emphasis in original):
For my part, I have not changed my mind and never, pace Glenn, stated that the Obama administration was complicit in torture. I said it should be very careful to avoid that.
I certainly didn't mean to misinterpret what he wrote, and don't think I did. Just compare what Andrew actually wrote to what I said he wrote (emphasis added):
Me yesterday: Andrew was "arguing just two days ago that Obama was becoming retroactively complicit in Bush's torture program as a result of shielding it from scrutiny."
Andrew on Sunday: "This is a depressing sign that the Obama administration will protect the Bush-Cheney torture regime from the light of day. And with each decision to cover for their predecessors, the Obamaites become retroactively complicit in them."
I tried to track his exact language in describing what he said, so it's difficult (at least for me) to see how I mischaracterized what he wrote. In any event, I agree with Andrew's general argument from Sunday that a form of complicity can arise if the Obama administration is too vigorous and dedicated to keeping Bush crimes concealed and protecting them from any scrutiny and accountability (and that complicity analysis should always begin with, and be grounded in, the United States' obligations under Articles 2, 4, 7 and 15 of the Convention Against Torture, to which Ronald Reagan bound the U.S. by signing it in 1988). It's far too early to declare that this has happened, but embracing the long-excoriated Bush view of the State Secrets privilege (and vesting power in people to implement views like this) are clearly ominous steps in that direction.