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Time for change's Journal
Posted by Time for change in General Discussion
Sun Apr 26th 2009, 02:00 PM
Of all the single actions that could lead towards the re-establishment of the rule of law and morality in our country, the confirmation of Dawn Johnsen to head the Office of Legal Counsel is perhaps the most important.
Our nation has a decision of monumental importance to make.

Throughout the eight years of the Bush/Cheney administration, top government officials have strayed further from the rule of law and moral decency than at any time since our nation first took the lead in establishing a system of international law and morality.

Following the Nazi Holocaust and World War II the recognition of the need for such a system became acute and widespread. The United Nations was conceived by President Roosevelt and led to fruition by President Truman, in an effort to make it a reality. Our nation also took the lead, through the Nuremberg trials, in holding the perpetrators of war crimes and crimes against humanity accountable for their actions.

But the Bush administration did away with all that. Not only did they set up a torture regime, but they used that torture regime largely to force false confessions to justify an illegal and immoral war of aggression.

If we allow that to stand; if we confer impunity upon the perpetrators of those crimes, then we effectively condone them and thereby allow a terrible precedent to stand.

Of all the single actions that could lead towards the re-establishment of the rule of law and morality in our country, the confirmation of Dawn Johnsen to head the Office of Legal Counsel is perhaps the most important.

It was from the OLC that John Yoo authored his infamous torture memos. As head of the OLC, Dawn Johnsen will be the principle legal advisor to the Attorney General and responsible for providing legal advice to the President and other Executive Branch agencies. She will be in the third most authoritative position, next to Eric Holder and Obama himself, to pursue the many serious crimes committed by the Bush/Cheney administration.

Johnsen graduated from Yale Law School and was an OLC official in the Clinton administration. Her strong and publicly vocal opposition to Bush administration crimes make it seem unlikely that she will stand for allowing those crimes to be ignored. If she is confirmed it seems highly likely that she will aggressively push for a full investigation into those crimes, with appropriate action taken in response to wherever those investigations lead.

Yet, Republicans are threatening to filibuster her confirmation – precisely because they are afraid that she will do that.


DAWN JOHNSEN ON TORTURE, THE LIMITS OF EXECUTIVE POWER, AND ACCOUNTABILITY

On Bush administration torture

In April 2008, Johnsen expressed her outrage over the revelation of the latest Bush OLC torture memo:

Where is the outrage, the public outcry?! The shockingly flawed content of this memo, the deficient processes that led to its issuance, the horrific acts it encouraged, the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it – all demand our outrage.

We must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power. Otherwise… will threaten the rule of law – and not just for the remaining nine months of this administration, but for years and administrations to come.

OLC, the office entrusted with making sure the President obeys the law instead here told the President that in fighting the war on terror, he is not bound by the laws Congress has enacted. That Congress lacks the authority to regulate the interrogation and treatment of enemy combatants. . . .

John Yoo, the memo's author, has the gall to continue to defend the legal reasoning in this memo, in the face even of Bush administration OLC head Jack Goldsmith's harsh criticism – and withdrawal – of the memo.

I know Yoo's statement to be false. And not merely false, but irresponsibly and dangerously false in a way that impugns OLC's integrity over time and threatens to undermine public faith in the possibility that any administration can be expected to adhere to the rule of law….

Recall that the last President who took the view that "when the President does it that means that it is not illegal" was forced to resign in disgrace. . . .

And Johnsen is definitely not one to limit accountability to low even high level personnel:

Is it possible John Yoo alone merits our outrage, as some kind of rogue legal advisor? Of course not…. Bush has not fired anyone responsible for devising the legal arguments that have allowed the Bush administration to act contrary to federal statutes with close to immunity… In fact, the ones at Justice who didn't last are the officials who dared to say "no" to the President – which, by the way, is OLC's core job description. . . .The correct response to all this? Outrage… directed where it belongs: at President Bush, as well as his lawyers.


On the limits of executive authority

Johnsen is an expert on the limitations of Executive power and OLC’s role in enforcing those limitations, and she has written about that issue:

OLC must be prepared to say no to the President. For OLC instead to distort its legal analysis to support preferred policy outcomes would undermine the rule of law and our democratic system of government. The Constitution expressly requires the President to "take Care that the Laws be faithfully executed." This command cannot be reconciled with executive action based on preferred, merely plausible legal interpretations that support desired policies… If such advice were given with a wink and a nod so that the President was not actually misled, OLC would be wrongfully empowering the President to violate his constitutional obligations.

She has also written forcefully about the Bush administration’s abuse of its power, and her disgust with Congress for allowing it:

I'm afraid we are growing immune to just how outrageous and destructive it is, in a democracy, for the President to violate federal statutes in secret. Remember that much of what we know about the Bush administration's violations of statutes (and yes, I realize they claim not to be violating statutes) came first only because of leaks and news coverage. Incredibly, we still don't know the full extent of our government's illegal surveillance or illegal interrogations (and who knows what else) – despite Congress's failed efforts to get to the bottom of it. Congress instead resorted to enacting new legislation on both issues largely in the dark.

She has also dealt with the issue of how the OLC should seek to ensure Executive Branch compliance with the rule of law, and she has signed on to guidelines to that effect:

OLC should follow a presumption in favor of timely publication of its written legal opinions. Such disclosure helps to ensure executive branch adherence to the rule of law and guard against excessive claims of executive authority. Transparency also promotes confidence in the lawfulness of governmental action…


On holding criminals accountable for their crimes

If there was any doubt from the above writings by Dawn Johnsen that, as head of the OLC, she would be intent on holding the Bush administration accountable for its crimes, here is what she wrote on that subject in March 2008, in an article titled “Restoring our Nation’s Honor”:

I felt the sense of shame and responsibility for my government's behavior especially acutely in the summer of 2004, with the leaking of the infamous and outrageous Bush administration Office of Legal Counsel Torture Memo. . . .

Whenever any government or people act lawlessly, on whatever scale, questions of atonement and remedy and prevention must be confronted. And fundamental to any meaningful answer is transparency about the wrong committed. . . .

The question how we restore our nation's honor takes on new urgency and promise as we approach the end of this administration. We must resist Bush administration efforts to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege, and implausible claims that openness will empower terrorists. . . .

Here is a partial answer to my own question of how should we behave, directed especially to the next president and members of his or her administration but also to all of us who will be relieved by the change: We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation's past transgressions and reject Bush's corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation's honor be restored without full disclosure.


IF YOU AGREE

The above statements by Dawn Johnsen leave little doubt as to how she will proceed with this issue. If you agree with me that her appointment to head the OLC is likely to go a long way towards restoring the rule of law in our country and our moral standing in the world, then please consider contacting your Senators to urge them to support her confirmation. Here is a link you can use to do that. Add your own message to the comment box, or feel free to use mine:

Although President Obama has declared that our nation will no longer torture, the precedent set by the Bush administration that enabled our government to torture unknown numbers of our detainees remains in effect. That precedent will continue to remain in effect until we demonstrate as a nation that we will not allow crimes against humanity to be committed in our name with impunity.

Some U.S. Senators are threatening to filibuster the appointment of Dawn Johnsen to head the Office of Legal Counsel because they fear that she will work to uphold the rule of law by advocating the prosecution of government officials involved in torture or other crimes against humanity. We must not allow that to happen. We need an independent Office of Legal Counsel that will not be afraid to uphold the rule of law in our country and take steps to restore our moral standing in the world.

Please support the confirmation of Dawn Johnsen to head the Office of Legal Counsel.

For additional help, you can view the past 25 messages sent (of the current total of 5505) through the above link. Here is a New York Times editorial supporting Dawn Johnsen’s confirmation. And this article describes the support of former conservative OLC head Douglas Kmiec.

Glen Greenwald, referring to Johnsen’s writings, sums up the importance of Dawn Johnsen’s confirmation:

Anyone who can write this, in this unapologetic, euphemism-free and even impolitic tone, warning that the problem isn't merely John Yoo but Bush himself, repeatedly demanding "outrage," criticizing the Democratic Congress for legalizing Bush's surveillance program, arguing that we cannot merely "move on" if we are to restore our national honor… all while emphasizing that the danger is unchecked power not just for the Bush administration but "for years and administrations to come"… is someone whose appointment to such an important post is almost certainly a positive sign… It's hard not to consider this encouraging.

But it will be a terrible, and very possibly fatal blow to our efforts to hold Bush administration officials accountable for their crimes if the U.S. Senate fails to confirm her nomination.
Discuss (51 comments) | Recommend (+62 votes)
U.S. Democracy in Crisis
Time for change


The Democratic Underground was born on one of the worst days in U.S history – The day that the worst President in U.S. history took office.

Now, here we are 8 years later, and we’ve managed to remove that cancer from our nation and replace it with something much better. Notwithstanding my many ambivalent feelings towards President Obama, I have no doubt that he will be infinitely better for our country than his predecessor.

Yet despite that, our country has been terribly scarred from the events of the past eight years, and it continues to suffer from all of the root problems that brought us the worst President in our history in 2000 and 2004. Therefore, it is worth taking a look at the root problems that brought us to this sorry state of affairs.


MAJOR IMPEDIMENTS TO DEMOCRACY IN THE UNITED STATES

One thing that we must keep in mind when considering our current problems is that they are not new. They were greatly exacerbated by eight years of Bush administration misrule, but they did not start with George W. Bush and Dick Cheney.


Money in politics

All but the most naïve of the American citizenry know that the wealthy and powerful in our country routinely influence our local and national elections through huge campaign contributions. And they also know that they are generally well rewarded for their “contributions”. And they also know that bribery is presumably against the law in our country. Yet, on the rare occasion that our politicians are actually accused of bribery, our news media makes a great big deal over it, as if bribery is actually a rare event in American politics.

The end result is that a great many of our politicians do everything they can to make their wealthiest constituents happy with them, at the expense of everyone else. They do that with the knowledge that the voters they lose in doing so will be more than compensated for by the disinformation that will be paid for by their wealthiest constituents. I discuss this situation in more detail here, here, and here.

There are a few dots to connect here, but any reasonable assessment of American politics tells us that bribery is routinely used to buy and sell elections in our country. So routine is it that it is actually built into our system and legalized. But that fact is never overtly spoken of. To do so would imply that our system of government is as much or more an aristocracy than it is a democracy.

Bill Moyers, in his book “Moyers on Democracy”, explains the situation bluntly:

We have lost the ability to call the most basic transaction by its right name. If a baseball player stepping up to home plate were to lean over and hand the umpire a wad of bills before he called the pitch, we’d call that a bribe. But when a real estate developer buys his way into the White House and gets a favorable government ruling that wouldn’t be available to you or me, what do we call that? A “campaign contribution”.

Let’s call it what it is: a bribe.

The legality of contributing money to political candidates, with the implicit (though not explicit) understanding that that money will buy political favoritism, has been defended by both our courts and our Congress by sanctimoniously pointing to the free speech provisions in the First Amendment to our Constitution and claiming that money is speech. But the absurdity of that contention should be obvious to anyone with some primary school education. Speech is of value from a political standpoint (or any other standpoint) only when it is heard. But if one billionaire has one thousand times as much opportunity to speak through a medium which reaches millions than several thousand other people added together, the speech of that one billionaire will drown out the speech of most other people, thereby interfering with their right to free speech.


Election fraud

Electronic vote switching with DRE (direct-recording electronic) machines poses a great danger to the integrity of our election system – by virtue of its ability to switch a voter’s vote without being noticed by the voter. In other words, someone tries to vote for John Kerry, and the machine registers a vote for George Bush instead. What makes matters worse is that many or most of these machines don’t even produce a piece of paper with the vote on it, which can then later be used for a recount. So, if fraud is suspected there is no recourse. And worse yet is the fact that most of these machines use proprietary (secret) code to determine who the voter voted for.

We know for a fact that vote-switching occurred in the 2004 election. One study, based on voter reports to the national Electronic Incident Reporting System (EIRS), showed that vote switching incidents favored Bush over Kerry by a ratio of 12 to 1 nationally. A similar study showed that these vote switching incidents that favored Bush were 9 times as common in the heavily contested “swing states” than in non-swing states. To make the point that the EIRS reports represent only a small fraction of actual Election Day problems, an investigation by the Washington Post identified about 25 electronic voting machines in Youngstown, Mahoning County, Ohio, that were said to have been switching votes all day long. Yet only eight incidents of this nature from Mahoning County (all in favor of Bush) were reported to EIRS that day.

Clint Curtis, a computer programmer working in Florida prior to the 2004 election, testified before the Democratic staff of the House Judiciary Committee that he was requested in 2000 by his boss (at the request of a high level Republican operative, Tom Feeney) to “develop a prototype of a voting program that could alter the vote tabulation in an election and be undetectable”. Curtis’ testimony was followed by the death of Raymond Lemme, who while investigating Curtis’ allegations was found dead in a Georgia hotel room, just a couple weeks after telling Curtis that he had traced the corruption “all the way to the top”,

Another type of election fraud is the illegal purging of registered voters from the voter rolls. Like vote switching, the increasing computerization of voter registration is no doubt making it much easier to perpetrate this type of fraud on a mass basis.

This article describes a great deal of evidence that voter registration fraud played a major role in the 2004 presidential election, and in fact was probably the deciding factor in Ohio, which gave George Bush his electoral victory. Similarly, although the 2000 presidential election was stolen by a variety of means, voter registration fraud was quantitatively the most important method used. In 2000, the Florida Governor’s office used a computer program to purge tens of thousands of mostly black and Democratic voters.

There are many other means of election fraud that have been used in our country to destabilize our democracy. I discuss this issue in more detail, along with means for preventing election fraud, in this post.


Our corporate news media

If cash donated to their political campaigns is not enough to carry them through to victory, and if election fraud doesn’t happen to play a significant role, the corporate news media serves as another valuable tool for those seeking to sabotage our democracy. This problem overlaps with the role of money in politics, since those who own and control the corporate media are uniformly wealthy, and since it was their money that led to the acts that enabled our corporate media to become what it is today – Ronald Reagan’s veto of Democratic legislation to enforce the Fairness Doctrine in 1987, and the Telecommunications Act of 1996. This legislation allowed the monopoly consolidation of our news media to the point where today it is controlled by a very small number of extremely wealthy individuals.

Several excellent books have been written about the extent to which wealthy corporate interests control our news media today. I would highly recommend “Lapdogs – How the Press rolled Over for Bush”, by Eric Boehlert, “What Liberal Media – The Truth About BIAS and the News”, by Eric Alterman, and “Into the Buzzsaw – The Myth of a Free Press”, edited by Kristina Borjesson. And I have ranted about pseudo-journalists such as Tim Russert, who have made a largely successful, but hypocritical effort to appear unbiased to their viewers.

The bottom line, as Bill Moyers points out, is that the protection offered us by our First Amendment is based on the assumption of a separation of our government and a free press, which is supposed to protect us from government abuses. Moyers wrote this during the Bush administration:

What would happen, however, if the contending giants of big government and big publishing and broadcasting ever joined hands, ever saw eye to eye in putting the public's need for news second to free-market economics? That's exactly what's happening now under the ideological banner of "deregulation". Giant media conglomerates that our founders could not possibly have envisioned are finding common cause with an imperial state in a betrothal certain to produce not the sons and daughters of liberty but the very kind of bastards that issued from the old arranged marriage of church and state.

Consider the situation. Never has there been an administration so disciplined in secrecy, so precisely in lockstep in keeping information from the people at large and -- in defiance of the Constitution -- from their representatives in Congress. Never has the powerful media oligopoly ... been so unabashed in reaching like Caesar for still more wealth and power. Never have hand and glove fitted together so comfortably to manipulate free political debate, sow contempt for the idea of government itself, and trivialize the peoples' need to know.


Secrecy in government

Democracy suffers terribly when a nation’s citizens are uninformed – especially when they are uninformed with respect to the actions and motivations of their own government. If we don’t know what our government is doing, then how can we be expected to vote them out when they do something that we would consider deeply immoral had we known about it?

Consider war for example. If Americans understood the real motivations for its nation’s wars, they would probably be much more likely to strenuously object to those wars. That would make war much less politically feasible, and our country would therefore be led into war much less frequently than it has been in the past.

That is why I so hate the “national security” excuse for withholding information from us, the American people – which has become so routine that it is willingly or passively accepted by the good majority of Americans. I very much doubt that the “national security” excuse for withholding information from the American people has anything to do with national security more than 5% of the time. Rather, the reason for withholding such information from us is almost always something totally different. It is to blind us to the real reasons for war or other nefarious acts, so that we will accept them and willingly support or even risk our lives in their cause.


Rampant U.S. nationalism and the GAME

Two months ago I wrote a DU post that I titled “The GAME”, which I began by discussing “Unmentionable things in U.S. politics” – including such things as the stealing of a U.S. presidential election, calling American military or covert actions immoral rather than merely “misguided”, and imputing bad intentions rather than mere incompetence to a U.S. president.

I find this to be terribly repressive, not because I personally can’t mention these things, but because our elected representatives are under tremendous pressure not to discuss them. We elect them to represent us and our nation, and except for some rare courageous exceptions such as Dennis Kucinich, Cynthia McKinney, and Robert Wexler, they refuse to even talk about some of our very most important issues.

It has occurred to me that this provides the backdrop for a huge GAME that has been foisted upon us. A prerequisite of the GAME is to create an alternate reality that must be believed by a critical mass of people in order for the GAME to proceed. Why is that necessary? I believe it’s necessary because the reality is so terrible that if enough people consciously recognized it they would rise up and simply refuse to play the GAME.

Although the GAME’s masters set the rules, there are two related character traits of many Americans that cause them to play along: Rampant nationalism and a propensity for denial. Rampant nationalism is the attitude that our country is inherently better than any other country – so much so that it can do no wrong. This attitude is drummed into the American people from the time that most of us learn how to talk. We are made to feel that to believe or speak otherwise demonstrates a dangerous lack of “patriotism”, which makes us deserving of being shunned – or worse.

The other character trait that persuades too many Americans to play the GAME is denial. Believing terrible things about one’s country can be very painful. Accepting reality as it is, rather than as one would like it to be, can be very painful. To make this point, in a recent post titled “12 Things that Never Happened in American History”, I discuss the following official stories that we have been told (or not told):

The U.S. is not an imperialist country; FDR’s New Deal was not instrumental in ending the Great Depression; the Cold War was just about fighting totalitarian Communism; JFK was assassinated by a lone gunman; bribery is infrequent in American politics; Iran-Contra was not a criminal abuse of presidential power; U.S. presidential elections cannot be stolen; Bush and Cheney did everything they could to protect us against the 9/11 attacks; the Bush administration’s crimes are not serious enough to warrant impeachment or prosecution; and, we’re barely told about our nation’s killing of more than a million Iraqi civilians, the October Surprise, or Operation Northwoods.


CONSEQUENCES

These impediments to democracy work together to surrender great amounts of power into the hands of a small number of elites, who use that power in the cause of increasing their wealth and power at the expense of everyone else. It is a vicious cycle that is very difficult to break. Here are some of the major tragic consequences.


Rampant militarism and illegal aggression against sovereign nations

We are so often told how good and pure our nation and its people are that only a minority of Americans are aware of the extent of our many illegal and immoral activities. Many or most who aren’t aware of these activities would be shocked to learn about them and quite resistant to accepting that information as the truth.

In myriad instances we have overthrown or assisted in the overthrow of sovereign nations. In the good majority of these instances we have substituted a repressive right wing government for one that was much more responsive to the needs and desires of the nation’s citizenry. Sometimes genocide was used to accomplish our goals. The purpose of these activities has most often been to create a government that is friendlier to the desires of American businesses or corporations – though we always have some sort of rationalization for our actions.

In “Excuses for War” I discuss many of the phony excuses that the United States government has used to lead us into war, including its Indian wars, the Mexican-American War, the Spanish-American War, and the Vietnam War.

In “The Roots and Consequences of U.S. Overseas Imperialism” I note or discuss our covert and overt illegal and immoral overthrowing of the sovereign nations of Hawaii (1893), Cuba (1898), Puerto Rico (1898), the Philippines (1899-1902), Nicaragua (1910), Honduras (1911-1912), Iran (1953), Guatemala (1954), South Vietnam (1963), Chile (1973), Grenada (1983), Panama (1989), Afghanistan (2001), and Iraq (2003).

In “The Meaning of U.S. Imperialism, Genocide and Militarism” I note U.S. perpetrated genocides, as described in “State of Darkness” by David Model, including our atomic bombing of Japan (1945), those perpetrated against Guatemala (1954), Vietnam (1954-73), Indonesia (1965), Cambodia (1970-75), Laos (1969-74), and East Timor (1975), and our two wars against Iraq.

Other atrocities include our invasion of Cuba in 1961; U.S. Marine invasion of the Dominican Republic in 1965 to put down a rebellion against their repressive right wing government; U.S. military support of Haitian tyrant and mass murderer, Francois Duvalier; and numerous brutal interventions in several Latin American and African nations.


Massive Income and wealth inequality

Inequality of wealth in the United States is truly astounding – and it is increasing at a fast rate. In the United States in 2001, 1% of the population controlled 38% of the wealth, whereas the bottom 40% owned just 1%. That means that, on average, individuals in the top 1% owned about 1,500 times more wealth than individuals in the bottom 40%.

The rising level of income inequality in our country recently exceeded the point where it stood just prior to the stock market crash of 1929, which led to the worst depression in U.S. history. There are many who see a connection between the income inequality preceding that depression and our current situation. This graph, which plots income inequality measured as the ratio between the average income of the top 0.01% of U.S. families compared to the bottom 90%, over time, makes that point.

I discuss the subject of income and wealth inequality here, here, and here.


The loss of the rule of law

During the Bush Presidency I often argued that he should be impeached for his many crimes. Now that he can no longer be impeached, I have argued that our Justice Department should prosecute him for those crimes, and if it fails to do so then the International Criminal Court (ICC) should step in.

While Bush was still President, President Obama weighed in against impeachment, saying that impeachment should be reserved for only the most serious crimes. Now that he is President he has thus far given little or no indication that he intends to have his Justice Department prosecute George Bush or any other high level Bush administration official for their crimes. But if widespread torture, an illegal war of aggression, spying on American citizens, suspending of the right of habeas corpus, and numerous other violations of our Constitution don’t constitute serious crimes, then what does?

What would people say if a prosecuting attorney failed to prosecute a rapist and murderer simply because he had high level political connections? Who would accept that? Then why when far more serious crimes are committed by a President of the United States are there so many people who seem to think that it is ok to sit passively by and make no attempt to hold the perpetrators accountable for their crimes?

I’ll tell you why. It’s like I said earlier in this post. Saying that a former U.S. President might be guilty of prosecutable crimes is simply against the rules of the GAME. Given that and the failure to hold the Reagan administration accountable for its Iran-Contra crimes, George Bush and Dick Cheney connected the dots and thought that they might be able to get away with just about anything. Testing that assumption by moving ahead with prosecutions might be politically risky for the Obama administration. The Republican Party would no doubt raise holy hell if there was an attempt to prosecute high level Bush administration officials.

Consequently, we live in country in which, protestations to the contrary notwithstanding, certain people are indeed above the law. That fact, taken together with all of the impediments to democracy discussed in the first part of this post, means that democracy and the rule of law in our country are in grave danger. Indeed, some believe that we narrowly averted a military coup perpetrated by the Bush administration.

The American people and their leaders need to reassess what our country stands for. Is our democracy important enough to take steps to remove the role of money in politics, reform our election system, break up the corporate monopoly on our news media, require government actions to be much more transparent than they now are, and dare to look more objectively at who we are and what we do? Can we give up imperialism and warfare for the sake a world in which nations live and work together to further the cause of peace and justice? Can we make our nation one in which all of its citizens truly have the opportunity for life, liberty and the pursuit of happiness? And do our laws apply to all people, not just to those who lack the political influence to avoid them?

If we think that these things are important we have a great deal of work to do, lest our country sinks into a tyranny from which it may never recover.
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