After David Adler's Dec. 3rd lecture to Oxy's "American Presidency", which I blogged about last week, he had a Q+A session. I also got the chance to ask him several questions that focused more directly on torture and the constitution.
Here are some of the questions I asked and the responses I received from Prof. Adler. Because I did not have a recording device, I will be paraphrasing Prof. Adler's responses:
Q: In the last several months, the Obama administration has seen the resignation of several high profile officials who were involved with Guantanamo and Torture policy. The list includes such high profile individuals as Greg Craig (White House Counsel), Phil Carter (Detainee affairs policy appointee), and David Ogden (Deputy Attorney General). Do you think that this massive turnover in torture policymakers is indicative of a disagreement on torture in the Obama administration?
A: Adler does believe there is significant disagreement w/in the Obama admin. He believes that there is a significant push-pull between the Obama administration's desire to follow his campaign promises and Constitutional principles and political pressure from the military and party power brokers not to tackle the issue of torture. He believes Obama will eventually close Guantanamo Bay.
Q: Congress recently wrote legislation allowing the Defense Secretary to withhold photos of US-committed torture during the Bush years. The Supreme Court used this legislation as the basis to advise the 2nd District Court of Appealsto reconsider siding with the ACLU's FOIA suit. Is it unusual for the Supreme Court to rely on congressional legislation to make its legal decisions? Also, what effect does this have on the breadth and power of FOIA.
A: Adler replied that no, it's not unusual for the Court to use congressional legislation rather than just the Constitution and legal precedent. He also asserted that FOIA lost a massive amount of clout under the Bush administration, and he's hopeful that it will return to its previous prominence with the Obama administration's promises for open government.
Q: Why can Obama increase troop levels? Isn't that congress' role?
A: Adler agreed with me that this should be congress' call to make. Because of congress' ceding of war powers to the Presidency and the executive's role as the sole organ of foreign policy has resulted in the movement of war powers from the legislature to the executive.
Q: As a potential US Senate candidate and a Constitutional scholar, I have to ask you abut the institution of the Senate itself. Considering the filibuster fiasco and other undemocratic elements (e.g. unequal representation of states) of the Senate, do you think fundamental changes nead to be made to the institution?
A: Adler believes that while the filibuster may have been useful during the civil rights era, it no longer serves a valid purpose. He would advocate the filibusters' elimination if elected. He doesn't believe that the Senate needs to be eradicated in the name of democracy.
And 3 questions from the class:
Q: If not Iraq, what will it take to get the American public to embrace a Constitutional culture?
A: Adler responded that he didn't know, but re-emphasized education.
Q: Is Obama surging in Afghanistan due to political pressure.
A: Adler has immense respect for Obama's character and thinks he makes extremely deliberative decisions that are not motivated by concerns for his legacy. Though he doesn't agree with the Afghanistan surge, he thinks that Obama is doing what he perceives to be the best and most rational course of action within a very poor set of circumstances.
Q: If you run for Senate, will you devote precious campaign time and resources to making a return to constitutional governance a major campaign cornerstone?
A: Adler reasserted that it will be a top priority for him both on the campaign trail and off.
Thanks a million to Professor Adler for answering so many of my questions and giving his time to our class! I wish him the best of luck, and know he will make an excellent Senator from the great state of Idaho.
Thursday, December 10, 2009
Friday, December 4, 2009
David Adler: The Constitutional Presidency, Obama and Torture
On Thursday December 3rd, Oxy's American Presidency class was visited by decorated constitutional scholar David Adler. David Adler is an expert on the American presidency and constitutional law and is a professor at Idaho State University. He is also actively considering running against Sen. Jim Risch (R-ID) in 2014. Imagine that, someone in congress who is an expert on the constitution.
A selection of some of the points he made in his talk about presidential power:
A selection of some of the points he made in his talk about presidential power:
- Power abhors a vacuum. Congress relinquishes its powers and the president usurps them . The courts have failed to rein in the unconstitutional expansion of presidential power. In other words, congress has willingly abdicated responsibility to its constitutional role. This runs directly contrary to the Supreme Court's 1819 ruling in McCulloch v. Maryland which mandated that congress alone fulfill its constitutional rule.
- Since the Korean War, all presidents have claimed unilateral power to go to war. The only exceptions have been Eisenhower and (though with some debate) Obama. To return to a constitutional presidency, we would have to return to a pre-Johnson style of presidential role.
- The standard remedies to the excesses of presidential power are at best infeasible. Obama or any other president is unlikely to actually relinquish their own power. If they were to do so, they would be labled as "feminine" and "weak. The Supreme Court is also unlikely to reestablish a constitutional presidency, as indicated by its frequent decisions to hold up presidential power in foreign policy (e.g. United States v. Curtiss-Wright Export Corp.). Congress, the institutional body that would seem to be the most interested in reaquiring their own constitutional power, is also unlikely to be the agent that effects this change. Primarily obsessed with their own reelection prospects, many congressmen view taking on the president on matters of foreign policy to be political suicide.
- The standard arguments about why the president should be the "sole organ" of foreign policy are bunk. He/she doesn't necessarily have more foreign policy knowledge than members of congress. The main reason the president might have a higher level of knowledge of current foreign policy information is because congress has structured the flow of information such that it flows through the executive before going to congress (if ever). Congress in the early days of the nation passed a law requiring that the executive branch had to share all of its knowledge with congress. This was passed with the support of Madison, Washington, and even Hamilton, perhaps the biggest founding supporter of executive power. In short, congress' lack of foreign policy clout is because it has artificially and unconstitutionally transfered that responsibility to the presidency.
- The solution to all this? Adler identifies the 3 C's: Constitutional culture, Constitutional consciousness, and Constitutional conscience. Adler believes that ultimately Americans must be educated from the ground up and reminded what a society without rule of constitutional law looks like. Once we've been educated enough to have a culture that prioritizes constitutional values, Adler argues we will have the consciousness to monitor government actions for excessive exercises of power and have the conscience to speak out against said abuses.
Monday, November 30, 2009
Supreme Court Rejects Appeals Court Ruling Ordering Release of Torture Photos
There is another frustrating setback in the torture photos saga that started on May 13th when the Obama administration reversed its decision to release a substantial number of new Abu Ghraib photos to the public. As reported today by the New York Times, the Supreme Court nullified the 2008 ruling by the Manhattan Second Circuit Court of Appeals that ordered the photos be released to the public. The Supreme Court has today kicked the ruling back to the Appeals Court, asking, as the Times put it, that it "give 'further consideration' to the issue in light of a Congressional action authorizing the Defense Department to keep the pictures from the public."
As a constitutional law dork, I have to ask why the Supreme Court would pay any heed to Congressional legislation in its rulings. Supreme Court cases deal by definition with matters of strictly constitutional law. If our system of checks and balances is to be believed, as articulated in Marbury v. Madison, it is the within the purview of the Court to curb Congressional action, not vice versa. The Court since its inception was meant to stand as an antimajoritarian counterweight to the executive and legislative branches. It is the Supreme Court's most basic duty in this case to authoritatively decide whether or not it is constitutional to withhold the torture photos as so-called "state secrets". If the Court is unwilling to fulfill its basic constitutional obligation to decide cases on the basis of constitutional law alone in this case, it should have not granted cert. to the case. Rather than subvert their own constitutional role, the Supreme Court could have simply let the Appeals Court ruling stand.
Sadly, the constitution sadly doesn't seem to be the center of this debate. My fingers are crossed that the hard work of the ACLU and their allies will be sufficient enough to convince the Appeals Court once again that the constitution still matters. Maybe then will we get the photos, and with them another step towards truth, justice, and accountability.
As a constitutional law dork, I have to ask why the Supreme Court would pay any heed to Congressional legislation in its rulings. Supreme Court cases deal by definition with matters of strictly constitutional law. If our system of checks and balances is to be believed, as articulated in Marbury v. Madison, it is the within the purview of the Court to curb Congressional action, not vice versa. The Court since its inception was meant to stand as an antimajoritarian counterweight to the executive and legislative branches. It is the Supreme Court's most basic duty in this case to authoritatively decide whether or not it is constitutional to withhold the torture photos as so-called "state secrets". If the Court is unwilling to fulfill its basic constitutional obligation to decide cases on the basis of constitutional law alone in this case, it should have not granted cert. to the case. Rather than subvert their own constitutional role, the Supreme Court could have simply let the Appeals Court ruling stand.
Sadly, the constitution sadly doesn't seem to be the center of this debate. My fingers are crossed that the hard work of the ACLU and their allies will be sufficient enough to convince the Appeals Court once again that the constitution still matters. Maybe then will we get the photos, and with them another step towards truth, justice, and accountability.
Thursday, November 26, 2009
ACLU FOIA Request Reveals Even More Bush Administration Involvement in Torture
In a press release issued today, the ACLU announced that it has obtained an index of important new CIA documents through a FOIA request. This documents in this index mostly relate to the CIA's 2005 destruction of videotapes that showed vicious torture at CIA black sites. The reason we only have an index rather than the actual documents themselves is, you guessed it, national security. One more example of so-called "state secrets" used as an excuse to cover the administration's butt.
To quote the ACLU's press release:
I suppose at this point that new knowledge about the complicity and guilt of the Bush administration in the CIA's torture program is not surprising. As much as George Tenet and the Bush Administration attempted to pass the buck to one another, they are both guilty for the human rights atrocities committed at CIA black sites.
Indeed the transparency of the "state secrets" lie is even more apparent now. As Ben Wizner pointed out in his Oxy Q+A session, Secrecy and abuse are cyclical: State secrecy sets the stage for torture. Torture creates the need for state secrecy, etc. etc. Here the political nature of the "state secrets" claim is more transparent than ever: the tapes were destroyed in response to the Washington Post's discovery of them and the CIA Inspector General's questioning of the program's legality. Rather than serve a national security interest, the "state secrets" defense being used now to withhold the documents regarding the videotapes is blatantly political. The political fallout of documents proving that the Bush Administration's explicitly authorized the destruction of the tapes in response to the very real possibility that they could be held accountable for them would be immense. The CIA knows it, Obama knows it, and congress knows it.
With evidence as damning as this, it's not hard to see why Republican congressmen have tried so hard to block torture accountability. The extremely limited evidence is damning enough without the no-doubt gruesome details of the documents themselves.
To quote the ACLU's press release:
The chronology outlined in this new index supplies further evidence that the CIA destroyed the videotapes in order to prevent the public from learning the full scope of the CIA’s torture program, and further evidence that the Bush White House was on notice that the CIA intended to destroy the tapes" said Jameel Jaffer, Director of the ACLU National Security Project. "We continue to believe that the CIA’s destruction of the tapes constituted contempt of court, and we intend to press that case over the next few weeks
Listed in the index released last week are a November 8, 2005 cable from a CIA field office to CIA headquarters requesting permission to destroy the 92 tapes and a November 9, 2005 cable confirming their destruction. The precise date of destruction confirms that the tapes were destroyed immediately after the Washington Post reported the existence of the CIA black sites and the New York Times reported that the CIA Inspector General had questioned the legality of the agency’s torture program.
The index also lists the earliest known record of White House participation in discussions about destroying the tapes – an e-mail dated February 22, 2003 revealing that CIA officials met with Bush administration officials to discuss how the agency should respond to a letter from Representative Jane Harman (D-CA) advising the agency not to destroy the tapes. While it was known previously that the White House participated in discussions about the disposition of the tapes, this is the earliest record to date of any such discussions.
I suppose at this point that new knowledge about the complicity and guilt of the Bush administration in the CIA's torture program is not surprising. As much as George Tenet and the Bush Administration attempted to pass the buck to one another, they are both guilty for the human rights atrocities committed at CIA black sites.
Indeed the transparency of the "state secrets" lie is even more apparent now. As Ben Wizner pointed out in his Oxy Q+A session, Secrecy and abuse are cyclical: State secrecy sets the stage for torture. Torture creates the need for state secrecy, etc. etc. Here the political nature of the "state secrets" claim is more transparent than ever: the tapes were destroyed in response to the Washington Post's discovery of them and the CIA Inspector General's questioning of the program's legality. Rather than serve a national security interest, the "state secrets" defense being used now to withhold the documents regarding the videotapes is blatantly political. The political fallout of documents proving that the Bush Administration's explicitly authorized the destruction of the tapes in response to the very real possibility that they could be held accountable for them would be immense. The CIA knows it, Obama knows it, and congress knows it.
With evidence as damning as this, it's not hard to see why Republican congressmen have tried so hard to block torture accountability. The extremely limited evidence is damning enough without the no-doubt gruesome details of the documents themselves.
Wednesday, November 18, 2009
Lawrence O'Donnell and the Denial of Impact
Last night, MSNBC contributor and political analyst Lawrence O'Donnell came and spoke to our torture class. here at Oxy Most of the material he covered was basic media studies knowledge: the media has a significant liberal bias, the 24-hour news cycle, investigative journalism is in decline and traditional news media sources are dying off. There were a couple interesting points. First, that Dick Cheney was trying to receive some kind of national support for torture by making it a partisan issue. In part he succeeded, as evidenced by the many Republican torture apologists in congress. Second, he did acknowledge that giving a platform to Cheney and other torture apologists for the sake of back-and-forth talk show confrontation does legitimize their position. This knee-jerk impulse to find two sides to every issue does create a serious moral quandary for the media by lending legitimacy to defenders of the most heinous crimes against humanity.
Though Mr. O'Donnell did a fantastic job of avoiding saying anything substantive or newsworthy, I did take umbrage at his assertion that media contributors like him don't make a significant impact in public perception of issues. While it is true that viewership for news shows has declined dramatically, televised media as a whole still plays an important role in establishing the national rhetoric surrounding political issues. Mr. O'Donnell complained both about the decline of investigative journalism and the rise of sensationalist media outlets, I wish he'd discussed the effect of their intersection. As has been widely studied in the discipline of media analysis, the decrease in editorial filtering and independent investigative journalism has created a media echo chamber of sorts. In this echo chamber, news stories and particularly soundbite-worthy statements ricochet around the various mass media outlets with little restraint. Mr. O'Donnell argues that his presence on a cable news outlet like MSNBC is fundamentally inconsequential because the viewers watching shows on cable networks "already have their minds made up". Be that as it may, outlets like MSNBC and FOX allow for the introduction of stories and frames into the newscycle that would not otherwise appear in mainstream media.
As exciting as it was to have Mr. O'Donnell join us here at Oxy, I was disappointed that he believed so strongly in the futility of his occupation. I sincerely hope that Mr. O'Donnell uses his powerful position to speak truth to power and establish progressive media narratives. Only in doing so can we counter the pervasive conservative torture apologism narrative that rears its ugly head in nearly every discussion of torture in the media.
Though Mr. O'Donnell did a fantastic job of avoiding saying anything substantive or newsworthy, I did take umbrage at his assertion that media contributors like him don't make a significant impact in public perception of issues. While it is true that viewership for news shows has declined dramatically, televised media as a whole still plays an important role in establishing the national rhetoric surrounding political issues. Mr. O'Donnell complained both about the decline of investigative journalism and the rise of sensationalist media outlets, I wish he'd discussed the effect of their intersection. As has been widely studied in the discipline of media analysis, the decrease in editorial filtering and independent investigative journalism has created a media echo chamber of sorts. In this echo chamber, news stories and particularly soundbite-worthy statements ricochet around the various mass media outlets with little restraint. Mr. O'Donnell argues that his presence on a cable news outlet like MSNBC is fundamentally inconsequential because the viewers watching shows on cable networks "already have their minds made up". Be that as it may, outlets like MSNBC and FOX allow for the introduction of stories and frames into the newscycle that would not otherwise appear in mainstream media.
As exciting as it was to have Mr. O'Donnell join us here at Oxy, I was disappointed that he believed so strongly in the futility of his occupation. I sincerely hope that Mr. O'Donnell uses his powerful position to speak truth to power and establish progressive media narratives. Only in doing so can we counter the pervasive conservative torture apologism narrative that rears its ugly head in nearly every discussion of torture in the media.
Friday, November 13, 2009
Return to the Rule of Law?
Breaking News: Khalid Sheikh Mohammed and 4 other men accused of involvement in the 9/11 attacks will finally be put on trial in NYC. Unfortunately, it was also announced that 5 other men will face military commissions. Regardless, though this is specifically being politically framed as bringing the 9/11 perpetrators to justice, it is a massive step in favor of law and order. President Obama is finally fulfilling President Bush's promise to bring the accused 9/11 conspirators to justice. This is a huge political risk for President Obama. If successful, the trials will make him a man of justice, and if plagued by complications from US-committed torture could be a major political albatross.
The GOP of course, is outraged. Surprise, surprise. Some pretty crazy things are being said by individuals such as Sen. Jeff Sessions and Sen. John McCain, but the crown jewel of crazy goes to former NYC Rudy Giuliani, who said on Fox that "We think they're criminals! These are soldiers in a war against us; and the rules of war should apply." Apparently the new chapter in Republican revisionist history is that we have treated these men as "prisoners of war" and should continue to do so. If they're POWs, the Geneva Conventions apply. Are you and the Republican party willing to accept that Mr. Giuliani? The hypocrisy of these men is astounding, as they flood the media with the message that these accused terrorists are POWs and hence can't be tried in civilian court. A reminder to Mr. Giuliani, Sens. McCain and Sessions and their ilk: it was you who supported the declassification of these men as POWs and the creation of the "Geneva Convention-immune" classification of "enemy combatant". You cannot call them POWs again out of convenience after 8 years of illegal detention, torture and Geneva Convention violations. That is revisionist history and blatantly deceptive.
Additionally, the Republicans seem to be arguing that the US courts are incapable of dealing with terrorism cases. As Rachel Maddow pointed out tonight, this is an absurd proposition. We've imprisoned Charles Manson, the "blind sheik", the "unabomber", the "shoe bomber" and even another 9/11 conspirator through the federal courts. This, as Maddow points out, is sheer cowardice.
I would go further than Maddow does though and outline the political implications of these proceedings for Republicans. I believe that the Republicans do have legitimate reasons to be afraid, though not for the safety of the American people. Rather, the Republicans are all too aware that these trials for the first time will allow the Guantanomo detainees to testify in a real American court about the torture they were subjected to at the hands of the US. No longer will the culpability of the Bush White House's torture program be shielded by a censor and thick glass, as Wizner described it as being in the Gitmo military tribunals. If the details of detainees gruesome torture at the hands of US operatives becomes public, Republicans could be forced to answer for the Bush administration's actions. I'd be panicking if I were them too.
For this blog, the timing of this decision couldn't be better. In my recent posts on Ben Wizner's talks, I quoted him as saying that "[state] secrecy is the source of rot". If AG Holder is serious about these prosecutions, and the accused 9/11 conspirators are only the first of many to face constitutional justice, our long national nightmare of secret torture may finally come to an end. That end is still a long way off, but today marks a historic first step. Friday night is when the most contentious policies are always announced (nobody listens to the news Friday night. Except me.), but this story will hopefully dominate the news for a long time.
Further Viewing:
On the decision to put the 5 men on trial and Republican outrage:
On the challenges facing the court and a possible referendum on the Bush torture policy:
The GOP of course, is outraged. Surprise, surprise. Some pretty crazy things are being said by individuals such as Sen. Jeff Sessions and Sen. John McCain, but the crown jewel of crazy goes to former NYC Rudy Giuliani, who said on Fox that "We think they're criminals! These are soldiers in a war against us; and the rules of war should apply." Apparently the new chapter in Republican revisionist history is that we have treated these men as "prisoners of war" and should continue to do so. If they're POWs, the Geneva Conventions apply. Are you and the Republican party willing to accept that Mr. Giuliani? The hypocrisy of these men is astounding, as they flood the media with the message that these accused terrorists are POWs and hence can't be tried in civilian court. A reminder to Mr. Giuliani, Sens. McCain and Sessions and their ilk: it was you who supported the declassification of these men as POWs and the creation of the "Geneva Convention-immune" classification of "enemy combatant". You cannot call them POWs again out of convenience after 8 years of illegal detention, torture and Geneva Convention violations. That is revisionist history and blatantly deceptive.
Additionally, the Republicans seem to be arguing that the US courts are incapable of dealing with terrorism cases. As Rachel Maddow pointed out tonight, this is an absurd proposition. We've imprisoned Charles Manson, the "blind sheik", the "unabomber", the "shoe bomber" and even another 9/11 conspirator through the federal courts. This, as Maddow points out, is sheer cowardice.
I would go further than Maddow does though and outline the political implications of these proceedings for Republicans. I believe that the Republicans do have legitimate reasons to be afraid, though not for the safety of the American people. Rather, the Republicans are all too aware that these trials for the first time will allow the Guantanomo detainees to testify in a real American court about the torture they were subjected to at the hands of the US. No longer will the culpability of the Bush White House's torture program be shielded by a censor and thick glass, as Wizner described it as being in the Gitmo military tribunals. If the details of detainees gruesome torture at the hands of US operatives becomes public, Republicans could be forced to answer for the Bush administration's actions. I'd be panicking if I were them too.
For this blog, the timing of this decision couldn't be better. In my recent posts on Ben Wizner's talks, I quoted him as saying that "[state] secrecy is the source of rot". If AG Holder is serious about these prosecutions, and the accused 9/11 conspirators are only the first of many to face constitutional justice, our long national nightmare of secret torture may finally come to an end. That end is still a long way off, but today marks a historic first step. Friday night is when the most contentious policies are always announced (nobody listens to the news Friday night. Except me.), but this story will hopefully dominate the news for a long time.
Further Viewing:
On the decision to put the 5 men on trial and Republican outrage:
Visit msnbc.com for Breaking News, World News, and News about the Economy
On the challenges facing the court and a possible referendum on the Bush torture policy:
Visit msnbc.com for Breaking News, World News, and News about the Economy
Sunday, November 8, 2009
Ben Wizner pt. 3: Q+A Session (Oct. 23)
In the Oct. 23rd conversation our class on torture had with ACLU attorney Ben Wizner, we discussed in greater detail and specificity the legal issues regarding torture. We covered a large range of topics, but with an emphasis on state secrets and the classification of the so-called "enemy combatant". Here are some of the gems of knowledge Wizner shared with us:
On State Secrets:
This is the final installment in the Wizner Talks! Here are the earlier installments: Part 1 and Part 2 .
On State Secrets:
- In relation to torture: "secrecy is the source of rot".
- Secrecy and abuse are cyclical: State secrecy sets the stage for torture. Torture creates the need for state secrecy. Etc. etc.
- Though there are legitimate state secrets (e.g. military technology in wartime), secrecy must be balanced with the need for an open government of and for the people. State secrets have been abused since their very inception, as evidenced by the pentagon papers. The pentagon papers were held secret on the grounds of national security when ultimately it was revealed that they were kept secret because they were a political liability. Governments have an irresestible temptation to use state secrets for political ends, and this is where the courts must intervene.
- Between 2000-2006, FOIA was the only oversight of the Presidency. The Republican controlled congress did not perform it's constitutional duty.
- "Secret people, secret laws, secret proceedings". Enemy combatants, being tried under "state secrets protected" secret laws, and the few human rights representatives present could only watch through a soundproof screen. Indeed, they had a censor at the ready to bleep out anything a detainee could say regarding his treatment in Gitmo.
- The tribunals, according to Wizner, were "not about keeping information from terrorists, but about keeping information from the American people.
- The purpose of the courtroom was to prevent testimony about torture from leaving it. The detainees were allowed to talk about martyrdom and other purported evils of the US, and indeed even call for direct assaults on the nation. But when they talked about their treatment in Gitmo, they were censored. In other words, they were allowed to call for assaults on the US, but it was far more important that evidence of US torture be kept secret.
- Bush: the "War on Terror" is not a normal war. Enemy combatants are not normal enemies. There are no rules for enemy combatants beyond what we make up. Even individuals acquitted by the Bush-created tribunals remained enemy combatants.
- Where Bush argues no laws apply to enemy combatants, as they are a new class of enemy, Wizner argues that they have additional protections. They are both private citizens and enemy fighters. Both criminal laws and rules of combat (e.g. Geneva Conventions) apply.
- Wizner opposes a truth commission. Such a commission assumes we all agree that torture occurred. As congressional Republicans exemplify, we do not.
- The rule of law is diminished by the 24-hour news cycle. He-said she-said partisan standoffs always assume two sides to any issue. In other words, the mass media legitimizes fringe believers in the usefulness of torture.
- Wizner hopes that congress will pass legislation defining, and hopefully limiting, the breadth of executive "state secrets".
This is the final installment in the Wizner Talks! Here are the earlier installments: Part 1 and Part 2 .
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