The Big Picture
by Glynn Wilson
At Occupy protest encampments across the country this week, the controversy that was all the rage had to do with the defense budget bill just passed by Congress. The paranoia was palpable, and for good reason, considering how the issue was covered by the mainstream, corporate news media — and the implications for protesters worried about being arrested and detained indefinitely without due process as they carry their protests into an election year in 2012.
While much of the debate over the policy on detaining suspected terrorists on domestic soil was probably lost on much of the country now in a shopping frenzy with only a week to go before Christmas, even at the Occupy Birmingham encampment downtown activists were not happy with President Barack Obama. One even suggested he was taking a look at voting for Mitt Romney, the Mormon from Massachusetts, “because at least he represents a minority.”
“What?” I asked.
Come on people. Let’s look at the facts.
According to the initial Associated Press account, the one that probably appeared buried in many daily newspapers on Sunday, Congress did pass a $662 billion defense bill this Thursday “after months of wrangling over how to handle captured terrorist suspects without violating Americans’ constitutional rights.” The wire service depicts the story as a “fierce struggle over provisions on suspected terrorists that have pitted the White House against Congress, divided Republicans and Democrats and drawn the wrath of civil rights groups.”
Yes, the White House initially threatened to veto the budget bill, but dropped that warning on Wednesday, justifying its position by saying last-minute congressional changes no longer challenge the president’s ability to “prosecute the war on terror.”
Now let’s look at how the issue is being covered by the elite Web media out of New York and D.C.
Writing for the Harper’s magazine’s Website, my good friend Scott Horton interviewed Salon’s Glenn Greenwald on the subject. Greenwald’s new book, With Liberty and Justice for Some, examines the emerging doctrine of impunity for politically powerful elites in the United States.
HORTON: You start your account of the doctrine of elite immunity in the United States with Gerald Ford’s decision to pardon Richard Nixon. How did this one decision, among the numerous incidents you describe, provide a point of rupture in the nation’s rule-of-law tradition?
GREENWALD: American history is suffused with violations of equality before the law. The country was steeped in such violations at its founding. But even when this principle was being violated, its supremacy was also being affirmed: resoundingly and unanimously in the case of the founders. That the rule of law — not the rule of men — would reign supreme was one of the few real points of agreement among all the founders. Arguably it was the primary one.
There’s an obvious element of hypocrisy in this fact; espousing a principle that one simultaneously breaches in action is hypocrisy’s defining attribute. But there’s also a more positive side: the country’s vigorous embrace of the principle of equality before law enshrined it as aspiration. It became the guiding precept for how “progress” was understood, for how the union would be perfected.
And the most significant episodes of progress over the next two centuries—the emancipation of slaves, the ending of Jim Crow, the enfranchisement and liberation of women, vastly improved treatment for Native Americans and gay Americans — were animated by this ideal. That happened because “blind justice” — equality before law — was orthodoxy in American political culture. The principle was sacrosanct even when it was imperfectly applied.
The Ford pardon of Nixon changed that, radically and permanently. When President Ford went on national television to explain to an angry, skeptical citizenry why the most powerful political actor would be fully immunized for the felonies he got caught committing, Ford expressly rejected the rule of law. He paid lip service to its core principle — the “law is no respecter of persons” — but then tacked on a newly concocted amendment designed to gut that principle: “but the law is a respecter of reality.”
In other words, if — in the judgment of political leaders — it’s sufficiently disruptive, divisive, or distracting to hold powerful political officials accountable under the law on equal terms with ordinary Americans, then they should be exempt and the rule of law suspended, all in the name of political harmony, of “moving on.” But of course, it will always be divisive and distracting, by definition, to prosecute the most powerful political leaders, so Ford’s rationale, predictably, created a template for elite immunity.
The rationale for Ford’s pardon of Nixon was subsequently legitimized, and it created a precedent for shielding the most powerful elites from the consequences of their lawbreaking. The arguments Ford offered are the same ones now hauled out over and over whenever it is time to argue why the most powerful among us should not be held accountable: It’s not just for the good of the immunized criminal, but in the common good, to Look Forward, Not Backward. This direct assault on the rule of law was pioneered by the pardon of Richard Nixon.
This analysis is quite interesting and you won’t find it discussed hardly anywhere in the mainstream corporate news media in the U.S., except perhaps on MSNBC or Current TV.
It is true that from the first day in office, President Obama adopted a policy of “looking forward, not back.” In fact, I broke the first story about that back in 2008, about the time Alabama’s Artur Davis was whispering in Obama’s ear at the White House Christmas party and considering running for governor.
I thought it was a bad idea then and still do. Would it not have worked out better for everybody in the long-run if Congress had continued and finished its investigation of Bush administration officials who engaged in turning the Justice Department and the federal courts into a political arm of the White House? Perhaps if Karl Rove were rotting away in federal prison today, we would not have to see his pasty white face on Fox News clips spinning the news on a regular basis on the more liberal cable shows on MSNBC.
But let’s get to the crux of the controversy.
HORTON: In a speech he delivered recently in Osawatomie, Kansas, President Obama used Theodore Roosevelt’s concept of New Nationalism as a rhetorical foil. Do you agree that Roosevelt’s vision of a nation dedicated to “real democracy” sets the right tone for an age suffering from elitist triumphalism? And do you think Obama is likely, in a second term, to take any meaningful steps against the problems you describe in your book — particularly relating to accountability?
GREENWALD: Many of the themes sounded in Obama’s Kansas speech were valid and appropriate, but that matters little. Obama is in campaign mode, and what he has convincingly demonstrated is that the inspiring, passionate speeches he delivers have little relationship to his actions.
There is zero basis for believing that Obama will change course on any of these matters in his second term. There is always another election ahead that apologists can cite to justify bad acts (You have to understand: it’s vital that Democrats win the 2014 midterms). And Obama has displayed no interest whatsoever in holding elites accountable for criminality: not just political actors, but financial elites as well.
If anything, it’s even more unlikely that he would hold elites accountable in his second term. In November, 2008, the New York Times explained why presidents have an incentive to shield their predecessors from prosecution: “Because every president eventually leaves office, incoming chief executives have an incentive to quash investigations into their predecessor’s tenure.” In other words, by shielding those who came before him, Obama ensures that he can commit crimes with impunity as well. That’s why all elites — political, financial, media — are motivated to defend and preserve this lawbreaking license for their class.
That’s an interesting argument, coming from a couple of elite lawyers operating at the epicenter of elitism in New York and Washington, D.C.
But before I get to my final analysis on that point, let’s look at the Sunday story out on the issue from the Washington bureau of AP.
In typical sensational fashion, the wire service depicts “a bruising battle in Congress,” after which the Obama administration “retained the right to investigate and try suspected terrorists in civilian courts.”
That’s what civil libertarians want, right? Due process for everybody? No secret military tribunals?
But bound by its objective pledge to cover both sides of the story, AP reports that “officials say” the defense budget bill “raises a host of questions that will complicate and could harm the investigation of terrorism cases.”
I’m not so sure, but let’s continue looking at the reporting.
AP says the administration “waged an uphill fight against a majority of Republicans and some Democrats trying to expand the role of the military while reducing the role of civilian courts in the fight against terrorism.”
It was the latest effort by conservatives to keep open the U.S. military prison facility at Guantanamo Bay, Cuba, to place terrorism suspects in indefinite detention and to designate military commissions as the preferred alternative to civilian courts for meting out justice. In the end, the administration came away with one major victory. Gone from the defense bill during House-Senate negotiations was a provision that would have eliminated executive branch authority to use civilian courts for trying terrorism cases against foreign nationals.
The new law would require military custody for any suspect who is a member of al-Qaida or “associated forces” and involved in planning or attempting to carry out an attack on the United States or its coalition partners. The military custody requirement does not apply to U.S. citizens or to lawful U.S. residents. The president or a designated subordinate may waive the military custody requirement by certifying to Congress that such a move is in the interest of national security.
The AP then goes on to quote University of Texas law professor Robert M. Chesney, who says the bill “will ramp up the political costs” when the administration decides to hold a civilian criminal prosecution for a detainee and does leave the president “with flexibility” to have civilian trials. “Therefore the law is neither quite as bad as its opponents say nor as useful as its supporters think.”
It seems to me it was the Republicans, most especially Senator Jeff Sessions from Alabama, who fought the Obama administration’s efforts to keep using civilian courts and retain due process. It was the president himself, a former constitutional law professor at the University of Chicago, who stood up for those principles, while the Republicans were trying their best to trash American freedoms in the name of “fighting terrorism.”
Then there’s one more column to consider, this one from Alternet out of San Francisco, which ran under the headline Obama Says He Won’t Detain Citizens, and That’s Good Enough for Us!.
What the Occupy protesters and American citizens need to understand is this: “the detention powers in the (defense budget bill) aren’t new. Bush rammed them through an intimidated Congress after 9/11, and they were later limited to a degree by a series of Supreme Court decisions.”
Not that the battle is not worth fighting, because it is, and for good reasons.
The bill “reaffirms and codifies those executive powers, 10 years after the attacks, and severs them from 9/11.” It is “probably right that this administration won’t detain U.S. citizens accused of terrorism — which doesn’t do much for the due process of non-citizens — but what about President Chelsea Clinton or a lunatic like Michele Bachmann? What about the next administration to feature a Dick Cheney?”
That’s what I tried to tell the right-wingers back when we were fighting against legal immunity for the telecom giants and the preservation of the Fourth Amendment when they had no problem with Bush and Cheney taking away their rights against unreasonable searches and seizures — as long as they didn’t go after their guns. I probably wrote a hundred stories on Liberty vs. Security during the Bush years.
But perhaps the most revealing political comment from Greenwald is what matters here.
“Obama is in campaign mode…”
No truer words have ever been spoken. This is about politics, people, pure and simple.
The president feels he must come off as a hawkish moderate to win the general election next year. We will see if it works. That would not be my advice on how to win, but it’s obviously why he went after Osama bin Laden in Afghanistan, whose death is now being billed as the top news story of 2011.
Plus, it has been clear from the start that President Obama is not going to willingly give up any of the executive powers built up by Bush and Cheney as they tried to bring back the so-called “Imperial Presidency.” The main reason is that he is the first African-American president and has received more death threats than any president in history, according to the Secret Service.
Our hope is that the Obama Justice Department will keep its focus on right-wing terrorists like Timothy McVeigh, not so-called “eco-terrorists” — environmental activists who got added to the terror watch lists by the Bush Justice Department and the new Department of Homeland Security. It is a fake category that should never have been added in the first place.
And, let’s hope the rules of detention wanted by the Republicans are not applied to peaceful Occupy protesters as they ramp up their demonstrations next year. I do not think that is the “secret plan” of the Obama administration, as indicated by the paranoia I heard from Occupy protesters in Birmingham.
If this administration goes the wrong way on this question, Obama will probably not be re-elected next November, and that would be a terrible tragedy for this country. In my view, any Republican allowed back in the White House at this juncture would be a bad thing for the country. Period.
My advice for the president? Get out of the White House and take to the streets on the side of the Occupy protesters and against the drastic disparity in the distribution of wealth in this country. That will earn you back the left base you need to defeat the Republicans come November.
And by the way, thank you very much for this — lest it get lost in the holiday blizzard of Christmas news.
The Obama Justice Department just announced the prosecution of CEOs at the mortgage giants Fannie Mae and Freddie Mac on Friday.
“They are the highest-profile individuals to be charged in connection with the 2008 financial crisis,” according to AP.
Perhaps the Occupy protesters might want to tip their hats or their holiday wine glasses to that fact.
Stay warm out there, and take a break if you can for Christmas.
The big fight in Alabama next year will be in Montgomery when the Legislature goes back into session in February. Watch this space and we will continue to bring you the latest on what the Republicans have planned next. Here’s one example.
Merry Christmas, y’all!
© 2011, Glynn Wilson. All rights reserved.