From the Dish: The CIA Forces A Constitutional Crisis

Andrew Sullivan comments on the recent revelations that the CIA spied on the Senate Intelligence Committee when it was investigating allegations that the CIA used torture during the Iraq War during the Bush Administration.

He spends a good deal of time on the address made by the current chair Dianne Feinstein on the floor of the Senate as well as on whether this rises to the level of a constitutional crisis. By investigating Congress, the executive branch has used its power - in a manner not authorized by the Constitution - to check the legislature. Surveillance seems close to violating constitutional limits on the ability of the executive to arrest members of Congress while its in session.

Here are some posts worth walking through:

- Yes, The CIA Spied On Congress.
- The CIA Forces A Constitutional Crisis.
- The CIA Forces A Constitutional Crisis, Ctd
- Dissents Of The Day 

Constitution Project’s Report on Detainee Treatment

The Constitution Project has released a comprehensive report on detainee treatment after 9/11 that Andrew Sullivan argues effectively proves the US engaged in torture and systematically violated the Geneva Convention. meaning that some decision makers might be guilty of war crimes.

Read the report here.

Lawsuits, Torture and States Secrets

Here's an illustration of several principles we'll cover in both 2301 and 2302: An appeals court has ruled that the need for secrecy outweighs the right of alleged torture victims to sue an executive agency. The lawsuit itself might reveal information the agency -- the Central Intelligence Agency -- would rather not have revealed.

Here's where it applies:

It's simple checks and balances, except that in this case the judiciary has not checked the executive, it has in fact enhanced its strength. In a sense, the judiciary has rubber stamped a further expansion of executive power.

It involves an interpretation -- loose certainly --  of executive power, and whether the executive has the right to keep its actions secret. There is nothing about secrecy written in the Constitution, but there had always been an assumption that secrecy -- like executive privilege -- is central to executive effectiveness. The "states secrets doctrine" was established for the executive by the Supreme Court in a court case: United States v. Reynolds. Again, this is an expansion of executive authority established by how the Supreme Court decided to interpret constitutional language. Executive authority can also be expanded by Congress, in this case the creation of the CIA, and the intelligence community in general after World War Two. Congress effectively authorized the creation of a permanent peacetime military.

It also involves the rights of individuals (civil liberties), in this case of course the denial of such rights. We can look at those rights in two ways. One has to do with 4th Amendment rights against unreasonable searches and seizures. Interrogation -- whether by torture or otherwise -- is an attempt to seize evidence. The 5th Amendment right against self-incrimination was specifically established to prevent torture or similar coercive means to obtain information. The other right has to do with access to the courts, the right to sue. This is a form of the right to petition for a redress of grievances. In this case the right to sue has been considered less important that the ability of government to preserve state secrets.

A final point regards judicial process. Since this was an appellate court decision, it is likely to be appealed to the Supreme Court. They will have the last word on whether this, and other similar lawsuits can go forward. If they cannot it may be the same as stating that the executive does in fact have, if not a right to torture, the ability to do so without a substantive backlash against it.

The Senate Judiciary Committee v the Office of Legal Counsel

Great checking and balancing going on here.

The Office of Legal Counsel is an advisory office in the Justice Department. From its website:
[it] ..."provides authoritative legal advice to the President and all the Executive Branch agencies. The Office drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the Executive Branch, and offices within the Department. Such requests typically deal with legal issues of particular complexity and importance or about which two or more agencies are in disagreement. The Office also is responsible for providing legal advice to the Executive Branch on all constitutional questions and reviewing pending legislation for constitutionality."

The question is whether two previous members of the office broke the law when they wrote memos authorizing the use of torture when terrorist suspects were interrogated. The Judiciary Committee has jurisdiction over the office in the Senate and is investigating the question.

Related links:

- Senate Committee Hearing on Ethics Report Disappoints
- Inquiry into missing e-mails written by Bush lawyers is demanded
- The Total Legal Clarity On Torture
- Office of Legal Counsel - Wikipedia, the free encyclopedia

Padilla v. Yoo: Made in America

Accused dirty bomber Jose Padilla's lawsuit against former Bush Administration official John Yoo can go forward, so says Bush appointee Judge Jeffery White. This creates the following scenario of checks and balances:

a conservative judge putting pressure on the Democrats in Washington to create some system of accountability for the Bush administration.

The judge has argued that private citizens do have the right to sue federal officials for abusive treatment, in this case torture.


Read on ...

Candidate Cheney

Ross Douthat argues strongly in favor of the marketplace ideas, and of elections as the appropriate vehicle for the discussion of ideas. Had Cheney decided to run for president, and received the nomination of his party, we would have had the debate on torture that we are missing today:

. . . the argument isn’t going away. It will be with us as long as the threat of terrorism endures. And where the Bush administration’s interrogation programs are concerned, we’ve heard too much to just “look forward,” as the president would have us do. We need to hear more: What was done and who approved it, and what intelligence we really gleaned from it. Not so that we can prosecute – unless the Democratic Party has taken leave of its senses – but so that we can learn, and pass judgment, and struggle toward consensus.

Here Dick Cheney, prodded by the ironies of history into demanding greater disclosure about programs he once sought to keep completely secret, has an important role to play. He wants to defend his record; let him defend it. And let the country judge.

But better if this debate had happened during the campaign season. And better, perhaps, if Cheney himself had been there to have it out.

Another role for elections in a democracy

Democratic Ignorance

Here is a reactions to Peggy Noonan's suggestion that the public look away from certain things, like torture. Again, a suggestion that certain items be off the table in the marketplace of ideas.

Not to beat a dead horse, but this is a perfect example of the idea that we as a society may agree in the abstract about certain things, such as transparency, but disagree when we discuss concrete examples of that abstract principle.

Online Journalism

Apparently it exists, but you need to contribute to keep it alive.

Is this the future?

The DOJ and the Obama Administration

Here's a terrific response, from Zarik, to a Plum Line post that points out the relationship that should exist between the Department of Justice and the Presidential Admnistration. Does the president control the Justice Department, or is the Attorney General independent? The current dispute regarding what to do about the torture engaged in by the previous administration turns oout to be a teachable moment involving the limits of presidential--though not necessarily executive--power:

Let’s be clear on one thing. As Greenwald so astutely pointed out yesterday, this has nothing to do with Obama. Obama didn’t release anything. Obama didn’t “leave the door open” to prosecutions. This is the Justice Department. We’ve been so blinded by Alberto Gonzalez carrying out Bush’s brand of law that we’ve forgotten that the DOJ is supposed to operate and be independent of the Executive. Holder released the memos, Holder will do what he wants (or he should!) regardless of what Obama thinks. Obama can give his recommendation but it means nothing. Obama could strongly discourage him from prosecuting but again, it means nothing.

The reason why you’ve seen Obama and the people that actually have to listen to him (Rahm, Axelrod, Gibbs, et al)do all this shuffling in the past week is to appear to be against prosecutions at first and then seem to “soften ever so slightly” but still be generally wary of them.

That way, when Holder throws the hammer down on everyone (which is what SHOULD happen if everything goes right) Obama won’t be sucked into this because he’ll be able to say “Well, look, as you saw I was against going this far, but it’s the Department of Justice’s decision.” The media will try to say “But Mr President, the Atty General is supposed to listen to you” and THEN Obama can fire back at them with a teaching moment for everyone, telling them “Actually, he’s not, he’s supposed to be independent of me.”

The guy’s an expert on the Constitution, he knows what he’s doing. But again, let’s give credit where credit’s due — DOJ and Holder. Trials should and will happen, and the way it’s gone down so far, Obama can stay out of it. I think this will be the last you hear him talk about it.

Does this mitigate arguments that Obama is continuing to expand presidential power? By yielding to Holder he seems to be cutting against the theory of the unitary executive. Again, this doesn't mean that executive power in general is being limited, just presidential control of executive power.

Is this good or bad?

Torture and the Marketplace of Ideas

While discussing the marketplace ideas in my 2301 classes, and the related question regarding whether certain topics should be off the table, a debate was ignited over releasing the memos covering just how torture policy was carried out in recent years.

Some wonder whether it is appropriate to even discuss this at all, which suggests that some believe that torture -- whether it should be done, how it should be done and how effective it might be -- should not be part of the marketplace of ideas.

Here's what I think is a neat summary of the dilemma:

Had the torture debate been fully engaged when the Bush team was making the decisions it made in 2001-02, I think it is plausible that the political process would have produced a consensus that would have been far more sympathetic to the Bush position than the present day consensus appears to be. At a minimum, it would have made it impossible for Congressional Democrats to claim, as they implausibly do now, that despite all the briefings they received they just can't remember coming down one way or the other on the issue.

The Bush team erred by not grounding the policy more firmly in the bedrock of the political process that the Framers identified for contentious issues -- namely, in involving Congress and the public -- and, instead, by relying on the penumbra of the Commander-in-chief clause. We non-lawyers have learned one thing from the abortion debate: The penumbra is a lousy place to park contentious issues.

I predict that, for better or worse, the political framework will be the decisive one going forward. At this point, debates about the legal or ethical arguments are probably impossibly entangled with political questions. And, should the larger worm turn -- should the terrorists succeed in launching another attack on the United States -- then I would not be surprised to see the political debate shift dramatically again.

At the center of this debate, it seems to me, is the question whether American can sensible and effectively discuss certain issues. Another question of course is whether elected leaders want to public to discuss certain things. How much of what government does ought to be secret?

Presidential Advising: Cheney and Addington on Bush

Here are a few q and a's in the New Republic which touch on how President Bush and VP Cheney used information in deciding whether and how to torture detainees:

Many have wondered what transformed Vice President Cheney into the Prince of Darkness. Why do you think he embraced Addington's radical legal vision so enthusiastically?

Of course, I don't really know; you can't get inside of his head. I wish I'd been able to interview him. I certainly think he had a pre-existing political agenda, which was to strengthen the executive branch. But people I've interviewed who know him well, including an old family friend who really likes him, said that he was altered in some profound way by 9/11. This particular friend said that he became steely, that he had seen something terrible that he could no longer talk about. And, of course, Lawrence Wilkerson, the former chief-of-staff to Colin Powell, actually comes out and says that he thinks Cheney became paranoid. Granted, that's a clinical term, and Lawrence Wilkerson is not a doctor. But there's more than ample evidence that he became obsessed with the terrorist threat, and you could question whether his judgment became skewed.

I think one of the interesting questions is whether after 9/11 the top people in the Bush administration didn't almost poison themselves with information. They removed all the filters on the kind of intelligence information that went to the president and vice president and other top people in the administration. Prior to 9/11, the CIA and the FBI screened out all the unreliable information about what kinds of threats were coming in. But after 9/11, Cheney in particular wanted to see everything. He no longer trusted that the CIA was able to screen it properly. So, according to one of the people I quote, Roger Cressey, who was at the National Security Council at the time, they started just bombarding themselves every morning with these reports filled with what Cressey describes as mostly garbage, but that were completely alarming. And so, in the words of Jim Comey again, he describes it as locking yourself in a room with Led Zeppelin every morning. You would just lose your mind.

Why did Bush turn over so much of his presidency to Cheney and Addington? Did he understand the radicalism of the positions taken in his name?

This is such a good question. I've interviewed people who are more moderate than Cheney in the administration, who like to think that if they had only been able to get more information to President Bush, he would have put the brakes on. And they blame Cheney and Addington and a small group of others around them for too radically narrowing the information that reached President Bush. Yet there were memos that did reach the president. He certainly had the basic outlines of what was going on. What I'm told is that Cheney really knew how to play him, and would say in meetings, If we don't continue to use the most extreme possible methods on terror suspects, if anything goes wrong, you'll be blamed. And nobody ever did a Plan B kind of analysis to see whether this radical course in fact was necessary for national security. The CIA never sent in a team to see whether they got better information out of torturing people or out of not torturing people. There was no alternative program that was ever given to the president about how to treat terrorist suspects.

What about Jack Goldsmith's thesis that Bush's excesses resulted from a failure to recognize that presidential power is the power to persuade. Was Bush's problem that he had contempt for politics?

No, I think that, again, what Cheney convinced Bush of was that if they did not go to the farthest possible regions of the law, the most outermost edges of what you could do to detainees, then they would be shirking their responsibility in terms of protecting the country. So rather than having a policy debate and a political debate on what the right thing to do was, and what the smartest thing to do was, they simply let the lawyers define policy by setting the outer limits of the law. You have John Yoo saying, "Well, I'm just a lawyer; I'm just telling you what you can do legally. It's above my pay grade to have a policy debate." But his judgments became the policy because they didn't have that debate.

John Yoo

John Yoo is an interesting guy, much reviled by some. He was responsible for developing arguments supporting further expansions of presidential power, the unitary executive it is called. He was also responsible for the memos justifying the use of torture, though it's use has been rejected by previous presidents--notably Washington.

The blogs have been on him recently for the logic he has used in further justifying torture. Here's Slate's; here's Balkinization's.

His premise is that war powers imply the power to kill, a greater power which includes within it all lesser powers, including the power to torture, which though it may make you wish you were dead, doesn't kill you.

The above writers take him on. We'll review in class.