I Don't Believe in Elvis

by Eric Martin

For the record, the Bill of Rights and the Constitution take precedence over Party or Party leader each and every day of the week.  What Glenn said:

Several weeks ago, I notedthat unlike the Right -- which turned itself into a virtual cult of uncritical reverence for George W. Bush especially during the first several years of his administration -- large numbers of Bush critics have been admirably willing to criticize Obama when he embraces the very policies that prompted so much anger and controversy during the Bush years.  Last night, Keith Olbermann -- who has undoubtedly been one of the most swooning and often-uncritical admirers of Barack Obama of anyone in the country (behavior for which I rather harshly criticized him in the past) -- devoted the first two segments of his show to emphatically lambasting Obama and Eric Holder's DOJ for the story I wrote about on Monday:  namely, the Obama administration's use of the radical Bush/Cheney state secrets doctrine and -- worse still -- a brand new claim of "sovereign immunity" to insist that courts lack the authority to decide whether the Bush administration broke the law in illegally spying on Americans.

The fact that Keith Olbermann, an intense Obama supporter, spent the first ten minutes of his show attacking Obama for replicating (and, in this instance, actually surpassing) some of the worst Bush/Cheney abuses of executive power and secrecy claims reflects just how extreme is the conduct of the Obama DOJ here.  Just as revealingly, the top recommended Kos diary today (voted by the compulsively pro-Obama Kos readership) is one devoted to attacking Obama for his embrace of Bush/Cheney secrecy and immunity doctrines.  Also, a front page Daily Kos post yesterday by McJoan vehemently criticizing Obama (and quoting my criticisms at length) sparked near universal condemnation of Obama in the hundreds of comments that followed.  Additionally, my post on Monday spawned vehement objections to what Obama is doing in this area from the largest tech/privacy sites, such as Boing Boing and Slashdot.

This is quite encouraging but should not be surprising.  As much as anything else, what fueled the extreme hostility towards the Bush/Cheney administration were their imperious and radical efforts to place themselves behind an impenetrable wall of secrecy and above and beyond the rule of law.  It would require a virtually pathological level of tribal loyalty and monumental intellectual dishonesty not to object just as vehemently as we watch the Obama DOJ repeatedly invoke these very same theories and, in this instance, actually invent a new one that not even the Bush administration espoused. 

To be clear:  there are important areas in which Obama has been quite commendable, and I've personally praised him fairly lavishly for those actions (see, for instance, here, here and here), but it is simply unacceptable -- no matter what else is true about him -- for Obama to claim for himself the very legal immunity and secrecy powers which characterized and enabled the worst excesses of Bush lawlessness.  Yet in a short period of time, he has taken one step after the next to do exactly that.

This legal wrangling has been the most troubling aspectof the early days of Obama's administration.  I can understand his decision to slightly alter his Iraq withdrawal timeline - while keeping it within the SOFA parameters - even if I disagree with the extension.  I can even acknowledge that there might be a value in ramping up our presence in Afghanistan to tilt the battlefield in (hopefully) anticipation of withdrawal in the eventual short term - even if I disagree with the strategy.  Maybe he has no choice but to offer a plan that does not do what is needed in terms of nationalizing insolvent banks.

But these legal maneuvers - repeating the discredited, unconstitutional arguments previously made by the Bush administration in an effort to radically expand executive power - are inexcusable and unjustifiable. 

Full stop.

Comments

[Madrocketscientist]

Thank you. The lemming like behavior of the right after Bush started burning the Bill of Rights in the name of Security Theater was very disturbing, and I truly hope that the left does not do the same thing just because Obama is their Golden Boy. He promised to not do this kind of crap.

Both sides of the aisle are guilty of naked power grabs, and we are negligent in our duty as citizens if we ignore such actions just because we voted for them.

[bedtimeforbonzo]

"and I truly hope that the left does not do the same thing just because Obama is their Golden Boy. He promised to not do this kind of crap."

Using Olbermann as a yardstick -- I was really surprised to see him offer such sharp criticism of President Obama last night -- I don't think the left will put up with the kind of unethical behavior the right did during eight years of Bush and Cheney.

It sounds too crass to say we on the left are more principled than those on the right. But I often wondered why there was so little dismay and outrage expressed from the "we-manage-money-better" right while Bush ran up the budget deficit like no president before him. Same thing when he was stomping on the Constitution. It seemed as if Republicans were only concerned about staying in power no matter the expense.

The left is already voicing more displeasure over Obama than the right showed in eight years of Bush -- about the acceleration in Afghanistan, about the slow pull-out of Iraq, about not pushing for prosecutions of torture.

I, for one, did not think Olbermann had it in him.

[AB]

I think this view of what the DoJ is doing is wildly off base, a result of uncritical thinking and misunderstanding of the law. It also ignores everything we know for sure about Obama's views after reading his books and watching him campaign for over a year. It's ironic, and slightly terrifying, to see so much echo-chamber repetition and self-congratulatory misrepresentation in the name of thinking independently. I agree with this kos diarist: http://www.dailykos.com/storyonly/2009/4/8/717799/-DOJ-and-the-FISA-Lawsuit:-The-Lawyers-are-Doing-Their-Job-(Updated)

[Gary Farber]

"It's ironic, and slightly terrifying, to see so much echo-chamber repetition and self-congratulatory misrepresentation in the name of thinking independently."

And yet if people defend Obama and his administration, they're accused of echo-chamber repetition, mindless agreement, etc.

It turns out you can be accused of this no matter your opinion.

kos diarist: "But you can't blame the lawyers for defending their client. And you can't translate what they are doing to defend their client as a policy decision. At least not yet."

And yet what the administration does is going to be watched, and if criticizable, criticized. Has the administration taken a definitive, for-all-time, position on these issues? No. But administrations rarely do. And until new policy is set, they'll be criticized for the current policy they're engaged in, if people think their actions warrant it.

The Obama administration needs to change their approach to the state secrets doctrine; until they do, they need to be pushed as strongly as possible to do that.

Why anyone shouldn't do this, until the policy is changed for the better, I don't know.

[wonkie]

I'm all for accountability and all against being lemmings. On the other hand I think that it is possible that we observers are mistaking process for policy and jumping to unnecessarily negative conclusions based on misunderstanding.

But better that we criticize unnecessarily than be ditto heads, in my opinion.

[Nell]

@AB: Too many lawyers who have followed the NSA spying cases closely are dismayed for me to accept that the DoJ lawyers are simply doing their job.

The Obama DoJ has inherited a real mess in the intertwined spying cases, no question. Their choices are not appetizing. But the approach they have taken in this recent filing (or, probably more accurately, have allowed the litigation team still apparently led by Anthony Coppolino to take) is simply, baldly, terrible.

FISA is clear; if a person is surveilled in any way except as authorized in the statute, s/he has recourse to an action against the persons (federal employees and officials included) who did the surveillance, for the surveillance itself in violation of the act and for the misuse of information obtained (which misuse is not restricted to making it public, but can include long-term storage, run against other databases, etc.).

For the government to resort to arguing that recourse is only available if the government improperly makes public information obtained through surveillance in violation of the act is just pathetic. It's such a bad argument that it probably is a result, as Marcy Wheeler guesses, of trying to get the most favorable possible outcome for the government in the several interlocking issues on which Judge Walker is being asked to rule.

This approach requires the govt lawyers simply to put aside any thoughts of the fourth amendment -- because the sum of their arguments is that those illegally spied on have no remedy, against telecoms or government employees or officials.

Sen. Rockefeller, the architect of legislation of, by, and for the telcoms who violated the law at the request of the Bush administration, insisted during debate before passage that immunity for the telcoms would still allow suits against government officials. The feds are now saying, "Nope" even to that.

[Eric Martin]

It also ignores everything we know for sure about Obama's views after reading his books and watching him campaign for over a year.

Which means what exactly if his actions as President contradict all those pretty words?

I don't care what his stated positions are, I care about the actual policies implemented, and the actual legal theories put forward.

Thus far, I have been quite disappointed that he doesn't seem to be governing in a manner consistent with his admirable stated positions.

[russell]

Hold his feet to the fire.

Nobody made him run. He wanted to be President, and he wanted to be President at a time when it was obvious that 10,000 different kinds of sh*t would be hitting the fan.

He's a big boy. He can not only take it, he signed up for it.

Hold his feet to the fire, and we'll see where it all lands.

[AB]

Eric, in my opinion, you are mistaking what Obama doesn't want to do--that is, a months-long post-mortem in court of what Bush did--for what Obama is himself doing (for what he's already done and what he repeatedly vows to do in office). I am flummoxed as to how pretrial motions could have undercut so much of the left's trust & so operatically. O's budget was the best Dems have seen in my long lifetime, and the stimulus package contained in-our-dreams levels of funding for a lot of things we like. Yet it got framed as, "It's an outrage he's not doing more!" I'm not going to list for you the things Obama's already gotten done. Or tally how many weeks he's had to do them.
But here's my perspective. I saw the left splinter and go crazy (Gitlin's The Sixties summed it up), then fade away till Clinton gave us NAFTA and welfare reform and otherwise governed as a Rep. I saw the disgusted left shoot all of us in the foot by voting Nader, and then I saw Dems lose all semblance of spine for six long years. But I never thought I'd see us finally elect so talented a candidate only to have the left cool so rapidly over (obviously again, imo) nothing.
Imo, this is nothing. It's DoJ lawyers doing their jobs, in a case about things totally in the past, and (if you trust Obama's word at all) things you can't think will be his policy in the future.
If lefties gets this emotional over it, is it any wonder right-wingers rave about Obama stealing our freedoms?

[Mike Schilling]

But a working-class hero *is* something to be.

[Jesurgislac]

in my opinion, you are mistaking what Obama doesn't want to do--that is, a months-long post-mortem in court of what Bush did--for what Obama is himself doing (for what he's already done and what he repeatedly vows to do in office).

Eh. I can see why Obama wants to avoid any criminal investigation of Bush's crimes. Letting Republican Presidents, once out of office, get away with the crimes they committed in office, worked so well for Jimmy Carter and for Bill Clinton that it's no wonder Obama feels it's important to copy their strategy.

The problem is that the people who were carrying out policy under Bush, are still in place under Obama. Given that Obama does not intend to launch any investigation or support any prosecution, it is impossible for Obama to make any significant change - and it's far from clear that he wants to.

[OCSteve]

No lobbyists, 5 days for public review before bills are signed, PAYGO, politicization of DOJ, DADT, ethics reform, veteran’s healthcare, earmarks, Iraq withdrawal, Telco immunity, hell - even recognizing the Armenian genocide…

I’ll give you guys credit though; you’re willing to call him on (some of) this stuff. I’ll even go so far as to say I’ve come to respect GG a little bit.

[Eric Martin]

politicization of DOJ

Huh?

veteran’s healthcare

Huh?

PAYGO

Huh?

No lobbyists

Huh?

DADT

Huh?

Care to explain some or all of those?

[Nell]

@OCSteve: politicization of DoJ

Could you elaborate on what Obama has done to politicize the Dept. of Justice?

He's barely got his top confirmation-required appointees in place (see here for semi-glacial progress, though I gather it's not much different than in previous administrations), and Holder has only just begun to make changes in heads of offices not requiring confirmation.

Holder has just dismissed the botched prosecution of a Republican politician, and has not yet acted to do anything comparable about the partisan railroading of Democratic politicians Don Siegelman, Paul Minor, or Cyril Wecht.

Obama/Holder have made almost no changes in the U.S. Attorneys, in contrast to what had become a fairly routine process of new administrations asking for resignations en masse and replacing most of them quickly.

I'm unhappy with the state secrets and other filings in detention, torture, and spying cases. That's not "politicization", but the apparent reflection of a conception of executive branch powers that is much closer to the Bush-Cheney approach than what many voters thought they were going to get in the new administration.

Please back up your characterization of politicization with specifics and links to support them.

[Eric Martin]

Eric, in my opinion, you are mistaking what Obama doesn't want to do--that is, a months-long post-mortem in court of what Bush did--for what Obama is himself doing (for what he's already done and what he repeatedly vows to do in office). I am flummoxed as to how pretrial motions could have undercut so much of the left's trust & so operatically.

First of all, I don't speak for the left. Norbiz does.

Second, this has not undercut my trust - be it in a mundane or operatic way. I still trust him to be a centrist democratic president who will make positive - albeit incremental - changes. I understand his limitations, and the restrictions of the political space within which he operates. I wasn't expecting the moon, so I won't be disillusioned when he doesn't deliver it to my door.

I simply disagree strongly on the way he is handling these legal cases - and don't think there is a compelling reason to make these arguments. He is making arguments that would grant enormous power to the executive branch going forward (if upheld).

I disagreed strongly when the Bush administration was making those same arguments. I'm not going to change my mind now because Obama is the POTUS. The sad truth is that rarely do Presidents willingly cede power that has previously accrued to the office. Obama appears no different in that respect.

However, that does not change the fact that I am pleased with many of the things that he has done - and will do - such as the items you listed. The two are separate issues really.

I saw the disgusted left shoot all of us in the foot by voting Nader, and then I saw Dems lose all semblance of spine for six long years.

I did not vote for Nader because I believed that there were serious differences between Bush and Gore, and that a vote for Nader would be a vote for Bush. It drove me crazy at the time that more people didn't see this truth.

I will not vote against Obama in the future (absent a dramatic turn of events). I have in the past, and will in the future, argue with anyone that suggests voting for Nader is a wise choice. Still, that does not change the fact that I seriously disagree with the Obama administration's take on these sensitive Constitutional issues.

Imo, this is nothing. It's DoJ lawyers doing their jobs, in a case about things totally in the past, and (if you trust Obama's word at all) things you can't think will be his policy in the future.

Laws do not only apply to the past. Even case law. These decisions and positions, if upheld, become the law (or define its parameters). Thus, any successful action by the Obama DOJ will help to set the parameters of what the next GOP administration can and will do.

I wouldn't trust President Palin with the powers that the Obama administration wants to ensure that she retains. Nor President Romney. Nor President Bush [whichever of that family's fell brood makes the next run].

Nor, even, the next Democratic president.

I'm a Bill of Rights guy because I don't trust in the good nature of our leaders. I think history supports my skepticism.

[wj]

It occurs to me to wonder: Suppose the administration is deliberately making a weak argument, intending to get a formal ruling against it. Would that not make future legal action against this kind of action easier?

Just possibly I have been spending too much time around some of the conspiracy theory enthusiasts I know. But I would think that having an adverse ruling would actually be better than merely not raising the argument in this particular case.

[Eric Martin]

wj: Oddly enough, the thought ran across my mind. But if such a tin foily undertaking was afoot, then there is no harm done by this post. If not, then we need to stand up for the priniciples enshrined in our Constitution above Party or Party leader.

At least, that's my take.

[cleek]

Elvis is everywhere, man.

and if you're expecting for radical change on anything, Obama's gonna disappoint you.

[bedtimeforbonzo]

"I'm unhappy with the state secrets and other filings in detention, torture, and spying cases. That's not 'politicization', but the apparent reflection of a conception of executive branch powers that is much closer to the Bush-Cheney approach than what many voters thought they were going to get in the new administration."

On Monday night's Olbermann program referenced in the Greenwald post, Newsweek columnist Howard Fineman made the point that an incoming President does not want to relinquish any powers that expanded the office in the previous administration.

On the most basic of levels, this makes sense but does not make it right. President Obama's go-slow nature is betraying him on restoring the Constitution to its pre-Bush state -- or he is betraying us.

---

"Obama/Holder have made almost no changes in the U.S. Attorneys, in contrast to what had become a fairly routine process of new administrations asking for resignations en masse and replacing most of them quickly."

Nell: Agreeing with you on this, and your other points, why do you think this is? Why isn't President Obama addressing the Bushification of the Justice Department as a crisis that needs special attention?

[Eric Martin]

and if you're expecting for radical change on anything, Obama's gonna disappoint you.

Which is exactly what I said:

this has not undercut my trust - be it in a mundane or operatic way. I still trust him to be a centrist democratic president who will make positive - albeit incremental - changes. I understand his limitations, and the restrictions of the political space within which he operates. I wasn't expecting the moon, so I won't be disillusioned when he doesn't deliver it to my door.

I do not consider refuting the Bush administration's radical power grab to be, itself, radical change.

That's closer to baseline to me.

[cleek]

I do not consider refuting the Bush administration's radical power grab to be, itself, radical change.

i think with Obama, it's all about minimizing the rate of change, not about minimizing the deviation from the baseline.

[Nell]

Lawyers with experience in federal courts have thrown cold water on the 'trying to fail' theory.

If anyone can cite an actual example of an administration doing that kind of thing in court, I'll view it differently. At this point, it's the product of an almost desperate search for an excuse.

[Tony P.]

The thing I find curious is that it's lefties, not right-wingers, who are denouncing Obama on this issue.

A few years ago, I was taunting Republicans who applauded their darling Dubya's power grabs with the proposition that the powers they were eager to grant to President Bush would someday belong to a President Obama, or a President Hillary Clinton. I thought my taunts were ineffective merely because my GOP friends just could not fathom the possibility of a Democrat in the White House. Now, I wonder.

--TP

[Alex Russell]

The best answer I've seen - and I've seen it frequently - to the "trying to fail" notion has been, simply: "What if you win?"

And during your effort, whether you win or lose, you are legitimizing/boosting the arguments you're making and the positions you're defending in the eyes of a range of people. To take such a route under those circumstances and with those priorities would be idiotic.

I don't say such extraordinary stupidity would be completely impossible, but I'd say it's a vanishingly unlikely explanation.

[Nell]

btfb: Why isn't President Obama addressing the Bushification of the Justice Department as a crisis that needs special attention?

He never gave any sign of believing that it was a crisis, or of it being an area to which he was going to give special attention. It cuts against his whole postpartisan message and inclusive persona. He's not an experienced bureaucratic infighter, nor has he surrounded himself with them apart from Rahm Emanuel.

I never expected that he would give it the kind of attention that it deserves, which is why I found OCSteve's accusation of 'politicization' so startling.

Watching this Justice Dept. closely has made me aware of just how much time it does take to put an administration's stamp on things, even if there is a clear agenda and a desire to move quickly.

It takes someone who has actually experienced political warfare to appreciate the danger of the Bush political hiring. It could be that some of the people below Holder have the kinds of experience and perspective to keep a close eye on the suspect staff and surround them in ways that limit the harm they can do. But it's a big fat agency that operates on a lot of externally imposed deadlines, so would be a challenge to carry this out effectively even if there were the will and talent for doing so.

Obama and his people have prioritized several big jobs that are all "looking forward" kinds of things. They are seriously uninterested in investigations and accountability for past crimes (with the exception of immediate past screwups like the Stevens thing, which had several other things going for it: it enraged a personal friend of Eric Holder's, Emmett Sullivan; and dismissing the case gained big points for postpartisanship, magnanimity, justice, with senior senators and the pundits and Washington fixtures.)

I honestly have my doubts that Holder will do anything more to pursue the US Attorney firings and politicization scandal, and even that he will lift a finger to help the Democratic victims of their witchhunts. I hope they can find justice in appeals.

Oh, and to the 'trying to fail' dead-enders:
this crowd has no plans to change the Bush approach to state secrets in any case but one (unspecified). Despite having specifically campaigned promising to do so. So quit making excuses for them and decide just how important the system of checks and balances is to you. You won't have Benevolent King Obama forever.

Pressure on accountability for torture, spying, and other crimes of the previous and now current administration is going to have to come from Congress and from organized public campaigning. Congressional action is to be preferred in many cases anyway, if a good outcome can be obtained, because then it's the law, not just dependent on the goodwill of whoever is president. State secrets privilege abuse, don't ask don't tell, and several other issues are things where bills exist; time to get behind them and quit pinning any hopes on the administration.

I haven't trusted Obama since he first appeared; he lost me in Sept 2006, when he took the floor speech opportunity he'd been given to speak for habeas protections and went with a utilitarian anti-terrorism argument -- after lecturing the party for repeatedly about how we've frowned on pols letting faith inform their policies.

I'm not surprised at his commitment to protecting big finance and complete unwillingness to make serious changes there. I'd be amazed if anyone who could get the nomination of either major party would be any different.

But I did think he'd keep his promise on state secrets, I believed that he'd do more to ease conditions at Guantanamo in the prisoners' remaining times there, and I thought he'd have freed the Uighurs into the U.S. by now, if only to make it easier to ask other countries to take other prisoners.

We've got a big, deep structural problem with excessive executive power in this country, the completely predictable result of having become an empire. (Just when that happened is a fun but not entirely relevant debate; it's been at least sixty years.)

[bedtimeforbonzo]

That was a big Obama downer, Nell, but a good dose of reality just the same.

[Gary Farber]

"Just when that happened is a fun but not entirely relevant debate; it's been at least sixty years."

1947.

One could make a case for 1945, but 1947 was when our governmental structure changed and codified our new national security state.

One could also make a fair case for the Spanish-American War, and the taking of overseas territories subsequent to the resolution of the war, or even to the conquest of Hawaii in 1893, but I'd say that those efforts only began the process, and didn't significantly change the nature of our government. 1947 did.

[Nell]

Thanks, btfb. I didn't realize just how much I'd stored up until I saw the length of that comment. Now I'm going to go breathe deeply and weed the garden. :>

I'm a left winger. No one who could become President is ever going to make me truly happy. And this one has a lot of fine qualities for the job.

One of them is the practice of hearing a lot of sides of a debate in meetings before making a decision -- which makes it all the more painful that almost no one in those meetings is to the left of Obama himself; hell, no one is to the left of Rahm Emanuel (except occasionally Axelrod on issues with mass appeal).

[Eric Martin]

I tend to agree with Gary on that timeline FWIW. And with Nell on that righteous rant.

Particularly:

this crowd has no plans to change the Bush approach to state secrets in any case but one (unspecified). Despite having specifically campaigned promising to do so. So quit making excuses for them and decide just how important the system of checks and balances is to you. You won't have Benevolent King Obama forever.

[Nell]

Am I imagining things, or has a link that was part of my comment at 1:44 pm above disappeared?

It was to the Washington Independent report on Attorney General Holder's stated intention in an interview on CBS Wednesday night, to take the same position as the Bush administration on assertion of state secrets privilege in almost all cases now before the courts.

[Nell]

This is bizarre. Since I've refreshed the page, the link has reappeared in its original place. Oh well, an important piece of news, on-topic on this thread, so worth repeating.

[243]

Nell, FWIW, the link was there when you first wrote your post, and I was going to reply that it was, but then I thought I should refresh, and lo it was gone (I think), so I refreshed again and it was back, so if you are thinking that maybe you are seeing things, then maybe you aren't, or maybe I am, or who knows....

Anyway thanks for the post(s)

[Nell]

@243,

Thanks, it does help to know I didn't just imagine that...