Obama and the Imperial Presidency

November 9, 2008 12:51 PM

After the Imperial Presidency."Will the new president and Congress undo the executive-power plays of the Bush era?"
posted by homunculus (83 comments total)

The problem with presidential signing statements
posted by homunculus at 12:52 PM on November 9, 2008 [1 favorite]

Heavenly God, we're going to have a president who understands con law!

And he's being advised by freaking Lawrence Tribe!

I thought my post election squee-ing was over, but no. No, apparently it isn't.
posted by palmcorder_yajna at 1:10 PM on November 9, 2008 [2 favorites]

Heavenly God, we're going to have a president who understands con law!

Is that another one of those things we supposedly didn't know about Obama?
posted by Kirth Gerson at 1:12 PM on November 9, 2008

Good questions. Good post.
(Washington to Jefferson: Cool it!)
posted by Smedleyman at 1:15 PM on November 9, 2008

Washington Post: Obama positioned to reverse Bush actions.
posted by ericb at 1:24 PM on November 9, 2008 [7 favorites]

That boston.com link is excellent... very good questions, and very good answers from the major candidates (haven't gotten around to the likes of Ron Paul and Mittens yet). Even McCain's answers are informed and nuanced, although he kind of dodges the question on whether a strike against Iran would need to be approved by Congress... he obviously knows the law and thinks the President should obey it (and states this), but you can tell that his interpretation is that an 'imminent threat' is whatever he says it is. But anyway, the last few months of the campaign made me forget that McCain actually has a sharp mind, and knows the workings of the government as well as anyone.

But really, Joe Biden's answers are by far the best. He (extemporaneously?) explains in plain language how a strike against Iran would have huge unintended consequences. It is nice to see that we'll have a good team in the White House this time around, who actually know that the wet, dark, complicated mess of the real world has such things as 'unintended consequences.'
posted by synaesthetichaze at 1:25 PM on November 9, 2008 [2 favorites]

Kirth--

No, not at all. But it's one thing to know the man's a con law scholar and another thing to actually read his work and to see concretely that, holy jeezus, he gets it, he gets it and he's going to be president!!1!!1!!!!!

Executive summary: Me, on Sunday afternoon, still in bathrobe, squealing like small child with new puppy. Pls. excuse.
posted by palmcorder_yajna at 1:31 PM on November 9, 2008 [1 favorite]

I think there is a pretty big pile of undoing left to undo, but I am pretty emboldened knowing the President-Elect already has a bunch of guys out there with shovels, spades and the occasional dynamite trying to unfuckify what's left of our fuckedupified country.
posted by timsteil at 1:39 PM on November 9, 2008 [9 favorites]

Somehow, I expect strong Republican support for Pres. Obama's attempts to limit his own power. Funny, that.
posted by dhartung at 1:41 PM on November 9, 2008 [11 favorites]

Palmcorder, I wasn't really pretending you were surprised at Obama's expertise. It was more of a dig at that other thread.

Rudy's answer (singular) to the questions was typical: Terrorists! Homeland! He did manage to retrain himself by not actually saying "9-11."
posted by Kirth Gerson at 1:43 PM on November 9, 2008

Romney:

A President should decline to reveal the method and duration of interrogation techniques to be used against high value terrorists who are likely to have counter-interrogation training. This discretion should extend to declining to provide an opinion as to whether Congress may validly limit his power as to the use of a particular technique, especially given Congress’s current plans to try to do exactly that.

posted by Kirth Gerson at 1:48 PM on November 9, 2008

Will the new president and Congress undo the executive-power plays of the Bush era?

My guess would be no.
posted by Makoto at 2:06 PM on November 9, 2008 [1 favorite]

it's one thing to know the man's a con law scholar and another thing to actually read his work and to see concretely that, holy jeezus, he gets it, he gets it and he's going to be president!!1!!1!!!!!

I'm so impressed by the boston.com answers, and hopeful. And I wish David Foster Wallace were still around for this.
posted by FrauMaschine at 2:13 PM on November 9, 2008

Man, wouldn't it be something if Obama used his inherited excess powers for good. As much as I like the guy, I'm worried it will be "here's the new boss, same as the old boss".
posted by crapmatic at 2:23 PM on November 9, 2008 [1 favorite]

I really enjoyed the Boston link. I want to see Palin's answers.
posted by jeblis at 2:24 PM on November 9, 2008

For those who didn't notice, that Boston.Com article is from December 2007.
posted by DanSachs at 2:24 PM on November 9, 2008

Will the new president and Congress undo the executive-power plays of the Bush era?

My guess would be no.

Makoto, thanks for bringing that up. Obama's vote on FISA was really reprehensible. I hold out some hope it was purely for the reason of winning the election, and wonder if he will reverse himself. I think it depends almost entirely on the reaction of the left: do we keep after him on these things, or do we adopt the complacent "we won!!1!!" attitude and go to sleep til 2010, as so many already seem to be doing?
posted by drjimmy11 at 2:27 PM on November 9, 2008

Man, wouldn't it be something if Obama used his inherited excess powers for good.

Did you happen to see or read "Lord of the Rings?"
posted by drjimmy11 at 2:31 PM on November 9, 2008 [12 favorites]

Executive power was one of those issues that made me fear the election would be messed up. Bush and Cheney didn't work to get that much power in one place just to turn it over to a Democratic President. I thought maybe we would see Bush start working to undo those powers.

If not, I would like to see Obama reverse such powers and set a precedent with strong language about what executive power is not (if it's possible for him to do so without undermining his own leadership). Though, of course, part of me would like him to first, just for a little while, wield such powers menacingly toward those who cheered them--perhaps a no-frills/high-thrills tour of Guantanamo for selected talk-radio hosts. I'm trying to make that part of me shut up for the sake of unity and such. But still.
posted by troybob at 2:38 PM on November 9, 2008

Obama can't undo his powers since he doesn't legally have any extra ones. What he should do is prosecute the lawbreakers we currently have to disincentivize further criminality.
posted by DU at 2:39 PM on November 9, 2008 [14 favorites]

Also: I'm curious if Bush will allow release of the Reagan (and now Bush I) records he hid away when he took office, or if he'll wait for Obama to do it.
posted by troybob at 2:48 PM on November 9, 2008

Obama can't undo his powers since he doesn't legally have any extra ones. What he should do is prosecute the lawbreakers we currently have to disincentivize further criminality.

That's the kind of discussion the media should be starting.
posted by Blazecock Pileon at 2:57 PM on November 9, 2008

As excited as I am about the larger issues Obama will get to address (if we're patient enough to give him latitude with the timetable), I really look forward to seeing how Obama conducts the office--particularly after the public/press blackout of the last eight years. It sounds like they want to keep using the Internet as strongly as they did during the campaign, and that has some nice potential to keep people involved and aware, and hopefully that will help make things as open and transparent as is practical.
posted by troybob at 3:05 PM on November 9, 2008

Will the new president and Congress undo the executive-power plays of the Bush era?

My guess would be no.

This is why I'm thrilled Obama appealed to, and won with, the center. Now, he won't need the holier-than-thou left to govern. Thinking that a reluctant vote for a compromise bill in the midst of election is a validation of the Bush perversion of the constitution is an example of an obsession with purity that will never grow the party or win elections.
posted by spaltavian at 3:07 PM on November 9, 2008 [10 favorites]

For those who didn't notice, that Boston.Com article is from December 2007.

And was previously discussed here.
posted by homunculus at 3:14 PM on November 9, 2008

My guess would be no.

Instead of guessing, I'd recommend reading the article ericb posted. Regrettable FISA vote =/= will govern like Bush.
posted by Marisa Stole the Precious Thing at 3:14 PM on November 9, 2008

Can he please make the "Department of Homeland Security" go away? I really don't like them.
posted by Salvor Hardin at 3:18 PM on November 9, 2008

Instead of guessing, I'd recommend reading the article ericb posted. Regrettable FISA vote =/= will govern like Bush.

While I hold out hope that Obama will govern differently, the article seems to focus on issues where Obama will be governing exactly like Bush — setting policy unilaterally through executive orders rather than working with Congress. Not that, in those instances, I'm complaining — it would be silly for Obama to try to get Congress to overturn Bush's executive orders just to make a point about process. But there's certainly nothing in that article to indicate a decrease in executive branch authority.
posted by enn at 3:27 PM on November 9, 2008

If Obama's busting bad Bush policies, somebody please add new FBI snitch/snooping guidelines to the list
posted by homunculus at 3:36 PM on November 9, 2008

While I hold out hope that Obama will govern differently, the article seems to focus on issues where Obama will be governing exactly like Bush — setting policy unilaterally through executive orders rather than working with Congress.

Are we talking about ericb's article? Because that article says Obama intends to reverse many of Bush's executive orders, and the closest it comes to talking about "setting policy unilaterally through executive orders rather than working with Congress" is his intention to declare carbon dioxide emissions as endangering to human welfare, and even that's on the recommendation of the EPA.
posted by Marisa Stole the Precious Thing at 3:42 PM on November 9, 2008

I just watched Frontline's doco on the deliberate creation of a more imperial presidency, Cheney's Law, the other day. I highly recommend it as a background to this. One of the many very important things Obama can and hopefully will do is begin to dismantle the damage Cheney and his surrogates have done in the past 8 years in that regard.
posted by stavrosthewonderchicken at 3:49 PM on November 9, 2008 [3 favorites]

Awesome to see Obama already planning to rescind or reverse a lot of Bush executive orders, signing statements, and the like. The man is on the ball.

A couple of things I'd also like to see:

• A pledge not to use Presidential pardons for members of his cabinet, staff, or major political donors. It would put his staff and PACs on notice that there is no executive "get out of jail free card", and send a signal that malfeasance may be be forgiven personally, but not judicially.
• As much as it stabs me in the gut me to say it, because I do believe that they should serve jail time, and are war criminals: a statement that he will not prosecute Bush, Cheney, or Rumsfeld. While I'm pretty sure a good deal of the surviving Republican caucus might go along with it, there is no guarentee that the old partisan "we protect our own" mentality might kick in in the face of criminal trials, leading to more of the same bickering we've had in the past. Instead, form an open Truth and Reconciliation hearing regarding the war on terror, on the South African post-apartheid model. No prosecution for anything revealed in the hearing. Open testimony. Promote freedom of conscience over political fraternity. The approach would be "What went wrong, and how can we safeguard against those systemic abuses in future?" rather than "Who's to blame?"
• Once Obama is securely in office, and the "he's a terrorist!" frenzy has died down: an immediate release and pardon for all prisoners in Guantanamo that have been held for more than a year without being presented for public trial. An immediate shutting down of CIA "black sites", and a curtailing of extraditing prisoners to other countries for torture.
• A reversal on his own vote for FISA - I can understand it being done at the time for political expediency to avoid more ammuition for the "soft on terrorists" smears, but holding on to that power as President is, (I hope) unconscionable to a man of ethics.

posted by Bora Horza Gobuchul at 4:23 PM on November 9, 2008 [6 favorites]

Instead of guessing, I'd recommend reading the article ericb posted.

The article says that Obama will use his powers as head of the executive branch to alter the goals of administrative agencies so that they favor the positions of his administration rather than those of his predecessor. This is standard operating procedure when a new president takes office, particularly when the previous president was a member of the other party.

It has nothing to do with his stance, whatever it might be, on the Bush administration's unconstitutional arrogation of power to the executive over the course of the past 8 years. On the one occasion that Obama had the opportunity to either endorse or repudiate such an arrogation, he chose to endorse it despite having strongly denounced it just months before, offering the lame excuse that he could be trusted to exercise it wisely.

One would expect that a 'constitutional scholar' would be aware that the prudent exercise of an unconstitutional power renders it no less unconstitutional. And while I don't doubt that Obama will be a competent president, the continual rubbishing of the Constitution for the sake of political expediency is one day bound to rubbish its protections right out of existence, to the extent that it already hasn't.
posted by Makoto at 4:24 PM on November 9, 2008 [2 favorites]

Marisa, my point was that countermanding executive orders on things like stem cell research with further executive orders doesn't really do anything to delegitimize the idea that the executive branch has any business meddling with things like research funding in the first place. Homunculus's link claims that Bush reversed many Clinton executive orders upon assuming office; that obviously wasn't because he didn't believe in their use as a policy instrument.
posted by enn at 4:28 PM on November 9, 2008

As mentioned above, the only way to "undo" the damage done by the Bush Administration is to prosecute wrongdoers. People need to be sent to jail.

If he doesn't do that, his only other option is to not abuse his power like Bush did. However, this will do nothing to stop future Presidents from starting where Bush left off. Like DU said above, Obama needs to disincentivize future criminality.
posted by null terminated at 4:31 PM on November 9, 2008

A team of four dozen advisers, working for months in virtual solitude, set out to identify regulatory and policy changes Obama could implement soon after his inauguration. The team is now consulting with liberal advocacy groups, Capitol Hill staffers and potential agency chiefs to prioritize those they regard as the most onerous or ideologically offensive, said a top transition official who was not permitted to speak on the record about the inner workings of the transition.
posted by delmoi at 4:35 PM on November 9, 2008 [1 favorite]

If he doesn't do that, his only other option is to not abuse his power like Bush did. However, this will do nothing to stop future Presidents from starting where Bush left off. Like DU said above, Obama needs to disincentivize future criminality.

I would certainly like to see that happen, but it seems like a second term project. For now, Obama should focus on governing the country effectively. He our economic problems our fixed, it would go a long way towards making these kinds of prosecutions politically palpable.

Now, I have no idea if Obama would do anything like this, he's never said he wouldn't. But it does seem unlikely.

But the moral hazard in not doing so is real. Nixon got off, Regan got away with Iran contra, if bush gets away with his multitude of crimes, who knows what happens next.
posted by delmoi at 4:38 PM on November 9, 2008

Did you happen to see or read "Lord of the Rings?"

Was that the one where an angelic power sent by a divine power helped to overthrow an evil that threatened to overwhelm the whole world? Or the one where a young, brave, but naive hero took on a great and powerful burden, and in the end was consumed by it and failed in his quest?
posted by The Tensor at 4:41 PM on November 9, 2008 [1 favorite]

If he doesn't do that, his only other option is to not abuse his power like Bush did. However, this will do nothing to stop future Presidents from starting where Bush left off. Like DU said above, Obama needs to disincentivize future criminality.

Elaine Scarry makes the same argument here: Presidential Crimes
posted by homunculus at 4:43 PM on November 9, 2008

Instead, form an open Truth and Reconciliation hearing regarding the war on terror, on the South African post-apartheid model. No prosecution for anything revealed in the hearing. Open testimony. Promote freedom of conscience over political fraternity. The approach would be "What went wrong, and how can we safeguard against those systemic abuses in future?" rather than "Who's to blame?"

South Africa was a pretty extreme situation. There was a real chance that violence could break out, and prosecutions could be seen as trumped up.

On the other hand, in the U.S. what could happen? The next administration could try to prosecute Obama, but so what? A cycle of retributive prosecution would actually do a lot to prevent people from breaking the law while in power. Members of the Obama administration would be aware that they could be prosecuted if they did anything illegal, then they won't do anything illegal.

On the other hand, if we simply declare that no one is going to go to jail, ever, then people in the administration and future administrations can do whatever they want. This is exactly the moral hazard we want to avoid.

You can argue we'll never know the full truth, but we already know enough.
posted by delmoi at 4:44 PM on November 9, 2008

That's the kind of discussion [about prosecuting bush] the media should be starting.

What? And see their friends go to jail? How horrid!
posted by delmoi at 4:48 PM on November 9, 2008

Man, I wonder if bush will just forget to pardon his criminal allies, because he's an idiot and all his staff are morons too.

That would be pretty awesome.
posted by delmoi at 4:49 PM on November 9, 2008 [3 favorites]

Man, wouldn't it be something if Obama used his inherited excess powers for good.

It would be something, but I don't know that it would be a good something.
posted by IndigoJones at 4:54 PM on November 9, 2008

I wish David Foster Wallace were still around for this.

As much as I wish DFW were still around just for the purposes of, oh, EVERYTHING, what does it specifically have to do with Obama dismantling the "sekrit executive fort" that Bush has created out of the Executive Branch? I ask because I honestly wonder if I'm missing some crucial link here, did DFW write about politics and I just missed it?
posted by grapefruitmoon at 5:13 PM on November 9, 2008

As offensive as a lot of what the Bush Administration has done is, I'm surprised to see so many people who think the solution is criminal prosecution. Executive branch officials have to make hard judgments in situations where the law is unclear, all the time. They rely on their lawyers to tell them what is or is not illegal, and like it or not, Bush's lawyers told him what he was doing was legal, and they did so based on legally reasoning that wasn't mindblowingly wrong. Prosecuting a government official for relying on government lawyers' advice, or prosecuting a lawyer for delivering that advice is a dangerous place to go.

Even more than that, political prosecutions are a bad idea, for all the reasons you'd guess they are. If we start beginning each new presidential administration by prosecuting people from the last one, we eliminate all incentive for talented people to enter government. We eliminate all incentive for executive branch officials to do anything. A paralyzing fear of prosecution is not healthy for the government. Leaving all that aside, prosecutions of one administration by the next will never be seen as legitimate by anyone who voted for the old administration.

The solution to this problem is to move on, release the prisoners, stop the renditions, close the black sites. Criminal prosecutions are not the answer.
posted by Bulgaroktonos at 5:25 PM on November 9, 2008 [1 favorite]

Prosecuting a government official for relying on government lawyers' advice, or prosecuting a lawyer for delivering that advice is a dangerous place to go.

This attitude leaves no one accountable and lets the Executive Branch run wild. John Yoo knew what he was doing and should be prosecuted for war crimes.
posted by null terminated at 5:38 PM on November 9, 2008 [3 favorites]

The solution to this problem is to move on, release the prisoners, stop the renditions, close the black sites. Criminal prosecutions are not the answer.

umm... "my lawyer told me it was ok" is not a get out of jail free card. i think there is more than reasonable suspicion that the Bush administration broke the law on many different occasions. you seem to assume prosecution is equivalent to conviction: if we suspect a crime, it should be investigated and, if there is evidence, prosecuted.

if we completely ignore the way the Bush administration set out to construct a legal framework for state sponsored torture of prisoners, there is still the use of the justice department as a wing of the RNC. the former is horrifying, the latter is poison to any democratic system of government: why do you think there should be no consequences?

(and laws were almost certainly broken.)
posted by geos at 5:45 PM on November 9, 2008 [1 favorite]

Null, that stills leaves a strong system of political accountability, that we saw work last week. It still leaves impeachment, which is entirely appropriate in especially egregious circumstances. Accountability is not the same as jail time.
posted by Bulgaroktonos at 5:46 PM on November 9, 2008

Bulgaroktonos: You cite concern that people won't be interested in entering government. Well if people won't enter government because they're worried violating The Oath will result in prosecution, then these are not people I want in government. I'm sure a complete lack of regulation in other industries would result in more involvement too, but that's not a society in which I'd want to live.

I'm troubled to see the lack of interest in holding people accountable for knowingly violating the laws and our basic constitutional freedoms. What Bush Administration has done is more than "offensive"--he has systematically torn down many of the basic legal rights that we have. If these people aren't punished, this will continue. Lack of criminal responsibility will only embolden future administrations.
posted by null terminated at 5:55 PM on November 9, 2008 [4 favorites]

Actually, for a government official "my government lawyer told me it was okay" is pretty much a get out of jail free card. There's a doctrine that a government official is not criminally responsible for actions taken in reliance on an official pronouncement of the law. OLC opinions count.

There's good reasons for this. The law is not clear, in fact a lot of the time it's very murky, especially in a field with little case law, like national security law. If a government official can not rely on their government lawyer's advice, then they have nothing to go on, and there's no incentive for the government official to ever do anything, and that's obviously bad.

Obviously, I'm not advocating for no consequences, there have been consequences for the Republican party. I'm saying that criminal prosecution in this area is so fraught with peril that it's a bad idea for the government to embark on it.

I understand the anger, a lot of what happened was horrifying and as an American I'm ashamed my government did these things in my name. Anger is not a good basis for policy, however, and an angry drive for "accountability" despite the costs of criminalizing making political decisions is not something our country should engage in.
posted by Bulgaroktonos at 5:56 PM on November 9, 2008

Actually, for a government official "my government lawyer told me it was okay" is pretty much a get out of jail free card. There's a doctrine that a government official is not criminally responsible for actions taken in reliance on an official pronouncement of the law. OLC opinions count.

I think this is reasonable, which is why I think the lawyers should be prosecuted.
posted by null terminated at 5:58 PM on November 9, 2008 [2 favorites]

from ericb's WaPo link,

The new president is also expected to lift a so-called global gag rule barring international family planning groups that receive U.S. aid from counseling women about the availability of abortion, even in countries where the procedure is legal

Hallelujah! and God please keep on protecting him and his family from wingnut forced-birthers, please
posted by cybercoitus interruptus at 6:01 PM on November 9, 2008 [1 favorite]

Prosecuting the lawyers would mean that no government lawyer would ever issue a controversial opinion on a difficult legal question that ever said the action was lawful. We don't want that. We want them to be somewhat risk averse, but subjecting them to criminal prosecution would swing too far in the opposite direction. Like it or not, John Yoo actually believes what he says. He believes that every piece of legal advice he gave was accurate, and the problems of legal interpretation are too difficult to show that he was wrong sufficiently to make prosecution appropriate.
posted by Bulgaroktonos at 6:04 PM on November 9, 2008

So Bulgaroktonos, how do you prevent a lawyer from issuing whatever opinion the administration wants?

Also, John Yoo's war crimes
posted by null terminated at 6:08 PM on November 9, 2008 [3 favorites]

Prosecution of elected officials at the local and state levels and of members of Congress for corruption and malfeasance is a routine occurrence that has resulted in none of the disastrous effects that are always predicted should we prosecute members of the federal executive branch.

(Tangentially, I hope that Obama is not thinking of taking Patrick Fitzgerald away to Washington just when things were starting to get interesting, no matter how fervently Mayor Daley may be recommending him for a nice beltway gig far, far away from the Northern District of Illinois.)
posted by enn at 6:08 PM on November 9, 2008

Obama can't undo his powers since he doesn't legally have any extra ones. What he should do is prosecute the lawbreakers we currently have to disincentivize further criminality.

I made a (small time) republican campaign manager get very dower looking with three words: Attorney General Clinton. How's that "can name enemies of the state" power looking now?

I hope that Obama doesn't just say "we're not doing this" but pursues/ has AG pursue a legal strategy to have the Court set constitutional precedent removing powers.
posted by a robot made out of meat at 6:12 PM on November 9, 2008 [1 favorite]

You prevent the executive branch from running amok the same way we always do, checks and balances and political accountability. The Senate strongly scrutinizes the people nominated to serve in capacities like at the OLC. You leave impeachment as an option for when the administration acts wrongly. The electorate imposes political accountability on those administrations who act illegally. This last outcome, is of course, exactly what happened.
posted by Bulgaroktonos at 6:17 PM on November 9, 2008

I think some of you guys are mixing up executive orders and signing statements. Executive orders are how the chief executive sets policy for the executive branch. While Bush's executive order blocking federal funding of stem cell research, for example, was idiotic, it's not an abuse of authority unless Congress passed a specific law mandating the funding.

You can't really "abuse" executive orders unless they contradict a law made by congress. Signing statements, however, are extra legal. When they contradict part of the law, they are unconstitutional.
posted by spaltavian at 6:41 PM on November 9, 2008 [1 favorite]

Prosecuting the lawyers would mean that no government lawyer would ever issue a controversial opinion on a difficult legal question that ever said the action was lawful.

Ok, so how do you follow through on government lawyers issuing opinions that were egregiously awful and, well, wrong? If not through prosecution, then what? Are they just free to run amok saying whatever they want, so long as they can find an obscure clause in some weirdo law SOMEWHERE to back them up?

If prosecution isn't the answer, what exactly is there to discourage future government lawyers from just saying what the boss wants to hear?

The electorate imposes political accountability on those administrations who act illegally. This last outcome, is of course, exactly what happened.

Ok, so the electorate decided that it was done with the Bush regime. I don't consider that accountability for the over-reaching of their office while in power. I'd like to see some kind of follow-up. If not prosecution, well, what are the options?

I'll honestly take tarring and feathering, if that's what's on the table.
posted by grapefruitmoon at 7:05 PM on November 9, 2008

This is standard operating procedure when a new president takes office, particularly when the previous president was a member of the other party. It has nothing to do with his stance, whatever it might be, on the Bush administration's unconstitutional arrogation of power to the executive over the course of the past 8 years.

Seeing as how he's undoing that sort of executive overreach Bush's proposals put into play, I'd say it has everything to do with his stance on executive power. Moreover, I'd take a look at what he's proposed doing and has already been doing to try and bring more people into the decision-making process. Pointing to FISA as some sort of damning proof that Obama is not going to do anything to make government more inclusive is a pretty narrow view that ignores his entire raison d'etre.
posted by Marisa Stole the Precious Thing at 7:56 PM on November 9, 2008

You leave impeachment as an option for when the administration acts wrongly.

You strongly imply that Bush has never acted wrongly. I do not agree with you.

The electorate imposes political accountability on those administrations who act illegally.

What if the President shoots a guy during his inauguration address, looks to the camera, and says, "You voted me in suckers. As head of the executive and ultimately at the top of the law enforcement pyramid, I'm in charge of seeing to it that this crime is investigated and punished. This one's not."

Yeah, that's gross exaggeration, but Bush has been pushing it. Outright declaring laws don't apply to him? That's madness. He's effectively given himself the line-item veto in matters regarding restricting his authority!

This last outcome, is of course, exactly what happened.

If you allow that it happened years too late, and resulted in the loss of the election by a man who is not, actually, Bush.
posted by JHarris at 8:13 PM on November 9, 2008

As much as I wish DFW were still around just for the purposes of, oh, EVERYTHING, what does it specifically have to do with Obama dismantling the "sekrit executive fort" that Bush has created out of the Executive Branch? I ask because I honestly wonder if I'm missing some crucial link here, did DFW write about politics and I just missed it?

Yeah he wrote a whole book about how awesome John McCain was.

Prosecuting a government official for relying on government lawyers' advice, or prosecuting a lawyer for delivering that advice is a dangerous place to go.

Not as dangerous as torturing people. And that thinking has a pretty serious failure, since it would allow the government to take any action if they could find some lawyer somewhere who would OK it.

If someone breaks the law, they have to bear the consequences. Ignorance of the law is no excuse; and furthermore, everyone ought to have an intuitive sense that torture is illegal, even if the lawyer you hired to misinform you does his job.

(plus, we believe that the legal justifications were post-hoc, and that torture had already started before the memos were written up)

There's good reasons for this. The law is not clear, in fact a lot of the time it's very murky, especially in a field with little case law, like national security law. If a government official can not rely on their government lawyer's advice, then they have nothing to go on, and there's no incentive for the government official to ever do anything, and that's obviously bad.

If it's really important and the law is unclear, the proper approach is to go to congress and ask them to change the law. There are plenty of crackpot nutbars with law degrees. Having a government lawyer be able to sign off on any action means the administration would effectively be able to rewrite the laws and the constitution on a whim.

Now, I do think it's reasonable to go after the lawyers if they gave this advice, but you seem to think the lawyers shouldn't be accountable either

Prosecuting the lawyers would mean that no government lawyer would ever issue a controversial opinion on a difficult legal question that ever said the action was lawful. We don't want that.

Of course we want that! You're seriously arguing that the government should be able to take any action that some random lawyers is willing to sign off on, and no matter how illegal or morally repugnant it is, no one should suffer any consequences for it! That's insane! It would mean that no law could constrain the executive branches actions at all! That would be a dictatorship!

Anyway look, it's pretty clear that any legal argument that allows for the government to torture people is incorrect. Since that's what your argument does, it's wrong.
posted by delmoi at 8:53 PM on November 9, 2008 [3 favorites]

Grapefruitmoon, it's my personal conjecture that DFW followed the political maelstrom of the past eight years very closely, and that the overwhelming cynicism and hopelessness of the Bush/Cheney era interacted disastrously with his clinical depression. That book on McCain delmoi linked to grew out of an article for Rolling Stone which is available online and I found very compelling reading. I only read it recently, but before this past tuesday, and I have to say, in all the catharsis of that day, the drunken tears and the relief of a weight I'd hadn't known I'd felt so strongly all these years... well, all I can say is to echo the upthread sentiment that I really wish he could have been here with us for this moment.
posted by kaspen at 9:19 PM on November 9, 2008

A Quiet Windfall For U.S. Banks

the auto industry is gunning for some and emanuel has essentially acquiesced...

yay! a stirling engine in every garage :P
posted by kliuless at 10:30 PM on November 9, 2008

This is why I'm thrilled Obama appealed to, and won with, the center. Now, he won't need the holier-than-thou left to govern. Thinking that a reluctant vote for a compromise bill in the midst of election is a validation of the Bush perversion of the constitution is an example of an obsession with purity that will never grow the party or win elections.

Even as someone who is pragmatic enough to know that relinquishing my support of Obama due to my vehement disagreement with his vote on that bill would have been a foolish idea, I see seeds of danger in this sentiment.

Your exact language says that even my feeling that way is disruptive to the success of the Democratic Party, but I'm sure that's not exactly what you meant to say. It's a sentiment that I imagine is directed more at the behavior of those who began declaring Obama a spineless shill after that vote happened. To complain about how they behaved is valid, because to turn on the one candidate who had both a reasonable chance of getting elected and a reasonable chance of enacting positive reform in our government is entirely a stupid and self-defeating strategy. What your language says to me, though, is that I should be okay with that vote, because the Democrats are ultimately the good guys and will make things better.

This sort of thinking is commonplace. Institutions are created that espouse certain values as fundamental to their being, and in people's minds, that institution continues to stand for those values long after the institution no longer reflects them in its behavior.

You can fuss about growing the party all you like, but my allegiance will continue to be to values, not people, or institutions. Rest assured that I'll always vote in what I believe to be the best interests of the country, but I refuse to abstract a party or a candidate from the policies they enact. That particular bill is one that very profoundly defies the notion that we, as citizens, were wronged by the actions of the Bush administration and the telecoms after 9/11, and even though it reaffirms the FISA court must take part in any future surveillance, it sets a precedent of no consequences for unlawful behavior, meaning that the other proscriptions of the bill could very well be treated by some future administration as blithely as the old FISA bill was treated by this one.

And I don't have to be okay with the fact that Obama had a hand in that, even if I voted for him.
posted by invitapriore at 10:52 PM on November 9, 2008 [4 favorites]

Grapefruitmoon, it's my personal conjecture that DFW followed the political maelstrom of the past eight years very closely, and that the overwhelming cynicism and hopelessness of the Bush/Cheney era interacted disastrously with his clinical depression

Thanks for clearing that up! I really do live under a bit of a rock sometimes.
posted by grapefruitmoon at 3:46 AM on November 10, 2008

As much as it stabs me in the gut me to say it, because I do believe that they should serve jail time, and are war criminals: a statement that he will not prosecute Bush, Cheney, or Rumsfeld. While I'm pretty sure a good deal of the surviving Republican caucus might go along with it, there is no guarentee that the old partisan "we protect our own" mentality might kick in in the face of criminal trials, leading to more of the same bickering we've had in the past.

No and no. Giving people who authorized kidnapping, torture, and murder a pass is not an acceptable response. We've had entirely too much of that in our history, and it has to stop. It needs to be judged in court. If the Republicans want to try to defend those acts, let them, but the discussion must take place.


Executive branch officials have to make hard judgments in situations where the law is unclear, all the time. They rely on their lawyers to tell them what is or is not illegal, and like it or not, Bush's lawyers told him what he was doing was legal, and they did so based on legally reasoning that wasn't mindblowingly wrong.

The War Crimes Act is one of the least ambiguous, most explicit laws I've bothered to read. The President and his lawyers deliberately chose to ignore and violate it. Their "reasoning" was, in fact, stunningly, blatantly, mindblowingly wrong. We cannot allow that to go unpunished, or it's going to happen again. Laws without enforcement are just wishes.
posted by Kirth Gerson at 3:51 AM on November 10, 2008 [1 favorite]

Interesting that some of you should bring up FISA, because Obama's stated justification for his vote was based on the fact that it limited executive power by putting oversight in the hands of a court instead of the administration. You don't have to believe him or agree with him, but that's what he said publicly.

Talking about FISA here just exposes a common logical flaw: we're so eager to hold "them" accountable for the abuses of the last eight years, and we want to punish "them" as much as we can! Believe me, I sympathize. But while I still think FISA was wrong, it's a mistake to lump it into the same "evil imperial presidency" mold and conclude that Obama will be just like Bush.

Because practically, FISA explicitly enumerates surveillance powers, and takes the really scary ambiguous ones out of the president's hands. Being unable to punish telecoms (for obeying the government, when it comes down to it) was an acceptable sacrifice, in Obama's opinion, to get the important parts of the bill passed.

It's a compromise. It's a bitter one. But it's (purportedly) in the spirit of what Bora Horza Gobuchul was saying... fixing things for the future instead of focusing on the mistakes of the past. Personally, I think the real threat of prosecution would've been a good disincentive to fix things for the future, but I can respect that mine is not the only valid opinion.
posted by Riki tiki at 4:17 AM on November 10, 2008 [1 favorite]

The War Crimes Act is one of the least ambiguous, most explicit laws I've bothered to read.

The ambiguity is not in the laws themselves, but in their supposed conflict with the constitution. I hate to be devil's advocate here, but congress could pass a law that's perfectly explicit: "Yahweh is the Lord your God, you shall have no other Gods before Him". They could pass it with a veto-proof majority. I think a lot of people would change their tune about the universal awfulness of signing statements if the President declined to enforce that one. Maybe he or she should, even though it's egregiously unconstitutional, and leave it to the courts to nullify it. I'm honestly not sure, and as far as I know there's not firm guidance one way or another.

The last eight years have been a dramatic pendulum swing to the right. Insofar as the above uncertainty exists, Obama has the choice to swing the pendulum the other way, or freeze it in its current batshitinsane position just to keep it going further to the right.

We can hope he starts it swinging to the left and starts taking steps to slow it, limiting his own authority just as it starts to work for him, but that's a big risk and history's not really littered with people who gave up their power freely. I support the hell out of the guy, but I'm not sure even I can hope that audaciously.
posted by Riki tiki at 5:03 AM on November 10, 2008

The ambiguity is not in the laws themselves, but in their supposed conflict with the constitution.

Please explain how the War Crimes Act is in conflict with the Constitution.
posted by Kirth Gerson at 5:21 AM on November 10, 2008

it was GWB that killed DFW...
posted by kliuless at 5:29 AM on November 10, 2008

Please explain how the War Crimes Act is in conflict with the Constitution.

You misunderstand me. I don't have to explain it. I don't believe there is a conflict. But I'm not the one who made that argument. The Bush administration's position is that the president's constitutional authority is basically limitless when it comes to national defense, and thus that any legislative limits on it are unconstitutional.

You and I both disagree, but that's not the point. "The constitution says I can, therefore congress can't say I can't" is a valid argument for the president to make, as far as I know. It may not be correct, but it's valid.
posted by Riki tiki at 5:36 AM on November 10, 2008

"The constitution says I can, therefore congress can't say I can't"

But it doesn't. The constitution very clearly says that only congress has the power to authorize and fund wars. It also explicitly limits the powers of the executive only to those that are enumerated. Which should mean the president's only powers are to play the role of commander in chief over war-time forces (within the constraints of congress' power to define the scope and duration of the engagement). Historically, commander-in-chief authority was understood to mean only that the president can call the shots in the context of a lawfully declared war--i.e., the president gets final say over strategic decisions, troop movements, how funds are allocated, etc.

Even after the surprise attacks of Pearl Harbor, FDR waited for congress to issue a formal declaration of war before engaging American military power.

IMO, what we've been seeing over the last couple of decades is a kind of slow-moving constitutional crisis. There hasn't been a formal declaration of war since before the Vietnam era. Because, regardless of the fact that the constitution explicitly curtails the executive's authority to engage unilaterally in military action and the fact that congress enacted the War Powers act specifically to clarify the limits of executive power in this area, there's been a willingness on the part of enough "Real Americans," legislators, and military officials to ignore both the constitution and the law of the land that recent presidents have felt emboldened to take whatever military actions they see fit. It's really not a gray area in principle, only in practice, because as people, we no longer observe the constitutional separation of powers as they were established.

No law in the world makes a damn bit of difference if no one follows it, and there are no consequences for the breach.
posted by saulgoodman at 7:21 AM on November 10, 2008

"The constitution says I can, therefore congress can't say I can't" is a valid argument for the president to make, as far as I know. It may not be correct, but it's valid.

Now you're going to have to tell me just what you mean by 'valid,' because right now, it looks like you mean "any argument the Bushites choose to make, no matter how wrong." That does not correspond with my understanding of 'valid.'
posted by Kirth Gerson at 7:29 AM on November 10, 2008

Wish I had time to read all these, I'm getting called to bed, but I did very much want to say to the prosecute Bush vs. don't debate that I believe criminal prosecution is a bad idea. But civil lawsuits? I mean, all that time in power, and all that money they've accrued so illegally...let's sue the fuckers for the deficit, the wrongful war, misspent tax dollars, and illegal deaths. I'd love to see Bush, Cheney, and the rest of 'em handle poverty and dependence on the state. Dismantle their legacies and their fortunes. That's a precedent I could get behind.
posted by saysthis at 7:44 AM on November 10, 2008 [1 favorite]

tell me just what you mean by 'valid,'

This summarizes it. An argument can be valid and false. Read the second example in that section and compare:

1. If the constitution grants the president limitless power in regards to national defense, then congress cannot pass a law limiting the President's power in that scope.
2. The constitution grants the president limitless power in regards to national defense.
3. Therefore, congress cannot pass a law limiting the president's power in that scope.

That's the Bush administration's logic, and it is indeed valid, but you and I agree that it is not sound (correct) because 2 is a false premise.
posted by Riki tiki at 7:48 AM on November 10, 2008

The talk of prosecution also ignores two little words that we're going to see sometime in the next two months - Blanket Pardon.

You could wage war in the courts trying to overturn it as unconstitutional, but that could take a decade to sort out, and the good guys may not win that battle.

The Truth and Reconciliation style hearing are a better idea. "Contempt of Congresss," starting this spring, is something Dubya and his lawyers can't do much about - you testify, and you testify truthfully, or you sit your ass in jail. This will destroy the NeoCons politically, while avoiding the trap of "Well, now we're going to put all of =your= guys on trial!" if the GOP wins in 4 or 8 years.

A President worthy of the Office would welcome this kind of QA session, even if being badgered by the opposition, after his time in office is over - and it would be a powerful incentive to keep his nose clean.
posted by Slap*Happy at 9:25 AM on November 10, 2008

Bush Spy Revelations Anticipated When Obama Is Sworn In
posted by homunculus at 9:57 AM on November 11, 2008

Dems eye midnight regulations reversal
posted by homunculus at 9:36 AM on November 12, 2008

More good news about Obama and government transparency.

[T]he lawyers said Democratic President-elect Obama probably will seek to declassify more Justice Department legal memos — as well as documents across the federal government — than did the outgoing GOP administration.

Robert Litt, a former prosecutor and top Justice Department criminal lawyer during the Clinton administration, said it's safe to assume that "a serious review of the classification system is on the table."

posted by Marisa Stole the Precious Thing at 1:25 PM on November 12, 2008

Bush, Out of Office, Could Oppose Inquiries
posted by homunculus at 12:14 PM on November 13, 2008

Obama's plans for probing Bush torture: President Bush could pardon officials involved in brutal interrogations -- but he may also face a sweeping investigation under the new president.
posted by homunculus at 2:07 PM on November 13, 2008

John Brennan and Bush's interrogation/detention policies
posted by homunculus at 9:28 AM on November 16, 2008