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.

Really?

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.”

Really?

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?”

Indeed.

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.

The Bad News Blues: See What the Republicans Have Planned for You

Merry Christmas, y’all!

“A Question of Integrity” examines growing concerns about ethically questionable and overtly political behavior by some Supreme Court justices, and explores the need the need to apply the same ethical standards that govern every other judge in the federal court system to the nation’s highest court. Viewers are called to action in support of reforms essential to preserve the integrity of our most important legal institution.

Narrated by Edward James Olmos for Alliance for Justice.

“We have asked Attorney General Luther Strange to stand by his word and investigate this blatant violation of the Alabama Fair Campaign Practices Act,” said former Alabama Supreme Court Justice and chairman of the Democratic Party Mark Kennedy. “This is not the first time that Dickie Drake has violated the election laws. He has failed to file reports that were even close to accurate as required by law, he has accepted money through PAC-to-PAC transfers, and now it appears he has committed a felony with Rep. Bachus.”

“I have spent many years on the bench as a judge and it is clear there is strong evidence to warrant an investigation into the campaign practices of both Spencer Bachus and Dickie Drake,” Kennedy said. “I think it’s important for Attorney General Strange to send a message that the statute is enforced equally and without bias. If he doesn’t investigate the violations of Bachus and Drake, it sends a message that he is selectively enforcing the law at best and, at worst, he is using his office to protect criminals in his own party.”

According to campaign finance records, U.S. Rep. Spencer Bachus and newly-elected state Rep. Dickie Drake have committed a felony offense, he said. The offense comes after the principal campaign of Bachus donated $2,000 to the principal campaign of Drake.

The code of Alabama is clear about the violation:

Section 17-5-15-3(a-b) says “A principal campaign committee of a state or local candidate may not receive or spend, in a campaign for state or local office, campaign funds in excess of one thousand dollars ($1,000) that were raised by a principal campaign committee of a federal candidate. Any receipt or expenditure of campaign funds in violation of subsection (a) shall be a Class C felony.”

Drake reported this violation on his most recent campaign finance report. Further, Drake admitted what he did was a violation by pledging to return $1,000 to the Bachus campaign.

Under the law, “any receipt or expenditure” of more than $1,000 is a violation by both Bachus and Drake.

Strange recently prosecuted violations of the Alabama Fair Campaign Practices Act when he fought for a conviction of a Democratic candidate for the state school board on Nov. 2.

In a release announcing the conviction, Strange said, “Campaign finance disclosure laws are an essential part of an open and honest government. When these laws are disregarded and broken, the integrity of our government is threatened. The Office of Attorney General is committed to investigating and prosecuting such violations and to protecting our citizen’s trust in the integrity of their public representatives.”

The Alabama Democratic Party said in a press release it agrees that violations of the campaign finance laws should be prosecuted to the fullest extent to protect the integrity of the political process.

Here at The Locust Fork News-Journal, we tend to agree. Don’t you? If so, let your voice be heard, somewhere…

See the related story and a longer video at this story link:

Siegelman Says if he is Guilty, Texas Governor Rick Perry Could be Executed

Former Alabama Governor Don Siegelman outside the federal courthouse in Montgomery

by Glynn Wilson

MONTGOMERY, Ala. — Former Alabama Governor Don Siegelman says if he is guilty of bribery and corruption for being the fourth governor to appoint HealthSouth founder Richard Scrushy to a hospital regulatory board — in his case allegedly in exchange for contributions to an education lottery campaign — then Texas Governor Rick Perry could be “executed” for what he has done in that state.

Mr. Siegelman made the comment after a hearing on Wednesday requesting more information from the federal government to form the basis of an evidence gathering proceeding that could lead to a new trial for himself and Scrushy.

“If they can put me in prison for nine months for being the fourth governor to reappoint Richard Scrushy, they ought to be able to execute Rick Perry for what he did in Texas,” Siegelman said (see video below).

“There is a standard of justice that should apply across the board and I think the United States Supreme Court will see that and will apply the rule of law in this case,” Siegelman said, talking to the media in front of the federal courthouse in Montgomery after a three hour hearing before U.S. Magistrate Judge Charles S. Coody. “Rick Perry would be in prison today if this were the standard.”

He said the standard was changed in his case by the Bush Justice Department, because prior to his conviction in 2007, there had to be evidence of an explicit agreement for the courts to issue a conviction for bribery.

In his case, Siegelman said, “There was no evidence of an explicit agreement.”

Mr. Siegelman said if his conviction is allowed to stand, “every other governor and Bush and Obama too, and their contributors, could be subject to prosecution.”

He said the ruling in his case has already created a deterrent, or a “chilling effect” on the political process. People are going to stop contributing or politicians would have to start voting against their contributors, he said. “It turns the political system on its head and makes no sense.”

During the hearing, attorneys for Siegelman and Scrushy went back and forth with a Justice Department lawyer on two main issues before the court. Defense counsel are seeking a ruling from the judge to force the team of prosecuting U.S. attorneys to turn over more documents related to claims of “selective prosecution” and “judicial misconduct.”

Siegelman, a Democrat, has claimed all along that the case was brought against him to knock him out of the governor’s race against Republican Bob Riley in 2006, and there is much evidence to support that claim.

Many cases around the country were dismissed by appeals courts and even dropped by the Justice Department during the Bush years because it was shown that the Bush administration unconstitutionally used the court system as a political tool to win elections, directed by political operative Karl Rove out of the White House, even though the judicial branch of government in the U.S. is supposed to remain as isolated as possible from politics.

In Siegelman’s case, the initial investigation against him was orchestrated by U.S. Attorney Leura Canary, a Bush appointee who was married to a paid operative for Bob Riley, Bill Canary, the head of what is widely known as the “conservative” Business Council of Alabama. It is a pro-big business, anti-labor state chamber of commerce.

When confronted by lawyers making that claim back in 2001 and 2002, Ms. Canary issued a press release claiming to excuse or “recuse” herself from prosecuting the case once it came to trial.

But defense attorneys obtained documents after the trial was over, including e-mail messages between the prosecution team, demonstrating that Ms. Canary was involved in personnel and financial decisions in the case, as well as an e-mail from her suggesting that the court put Mr. Siegelman under a “gag order” so he could not talk the media.

Defense attorneys also argued that the prosecutors and members of the U.S. Marshall’s Service appeared to be guilty of “judicial misconduct” for inappropriate contact and communications with jurors, and that Chief U.S. District Judge Mark Fuller acted inappropriately in his handling of that information when it was brought to his attention.

Judge Coody seemed skeptical that the evidence rose to the level of “prosecutorial misconduct,” but he also came down hard on the U.S. attorneys for not providing all the information to the defense team in a timely manner. According to knowledgeable courtroom sources, Coody has a reputation as a “fair” judge, and he seemed both knowledgable about the issues and the documents in the case and he listened to and challenged both sides.

When interviewed outside the courthouse after the hearing, however, Mr. Siegelman did not seem optimistic that he will be granted a new trial from the federal court in Montgomery. He indicated it will be up to the U.S. Supreme Court to resolve the case.

“The Supreme Court has got to resolve this issue. They cannot let my ruling stand as is,” he said. “This is not the law in the United States.”

Related Coverage

Don Siegelman On Trial