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How Should the Next President Deal with the Bush White House's Crimes?

A debate between two progressive legal experts on the FISA bill and the idea of prosecuting of Bush and White House officials for criminal acts.
 
 
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Amy Goodman:The dominant role of corporations is one of a number of issues fueling skepticism around the 2008 campaign. Criticism has also mounted recently over presumptive Democratic nominee Barack Obama's perceived shift to the right.

In an apparent reversal, Obama backed a new bill authorizing the Bush administration's domestic spy program and granting immunity for the telecom companies that took part. He also supported a Supreme Court decision to overturn a D.C. handgun ban. On foreign policy, Obama said he'd be open to revise his pledge to withdraw US troops from Iraq and also called for a major increase to the size of the US occupation of Afghanistan. And like all top Democratic leaders, Obama has refused to support calls for the prosecution of President Bush and top White House officials for war crimes and other abuses of power.

The criticism of Obama's stances has come as part of a larger debate over whether efforts to hold the Bush administration accountable would jeopardize an ostensibly higher goal of ensuring a Democratic win this November.

I'm joined right now, in addition to Glenn Greenwald, who blogs at Salon.com, the legal scholar by Cass Sunstein, who's an informal adviser to Barack Obama, professor at Harvard University and the University of Chicago Law School. He is co-author of the book Nudge: Improving Decisions About Health, Wealth, and Happiness and is cited as one of the most-cited legal scholars in the country.

Cass Sunstein, your response to those who talk about -- particularly concerned about Barack Obama, for example, shifting on the FISA bill, saying he would filibuster and now actually voting for the bill that granting retroactive immunity to the telecoms.

Sunstein: Yes, I think it's -- this is widely misunderstood. What the bill isn't is basically a bill that -- whose fundamental purpose is to give immunity. It's a bill that creates a range of new safeguards to protect privacy, to ensure judicial supervision, to give a role for the inspector general. So it actually gives privacy and civil liberties a big boost over the previous arrangement.

It also does contain an immunity provision, which Senator Obama opposed. He voted for the substitute bill that didn't have that. But he thought that this was a compromise which had safeguards for going forward, which made it worth supporting on balance, compared to the alternative, which was the status quo. So there's been no fundamental switch for him. He's basically concerned with protecting privacy. And this is not his favorite bill, but it's a lot better than what the Bush administration had before, which was close to free reign.

Goodman: Glenn Greenwald, you've written a lot about this, as well.

Greenwald: Well, you know, it's one thing to defend Senator Obama and to support his candidacy, as I do. It's another thing to just make factually false claims in order to justify or rationalize anything that he does.

The idea that this wasn't a reversal is just insultingly false. Back in December, Senator Obama was asked, "What is your position on Senator Dodd's pledge to filibuster a bill that contains retroactive immunity?" And at first, Senator Obama issued an equivocal statement, and there were demands that he issue a clearer statement. His campaign spokesman said -- and I quote -- "Senator Obama will support a filibuster of any bill that contains retroactive immunity" -- "any bill that contains retroactive immunity." The bill before the Senate two weeks ago contained retroactive immunity, by everybody's account, and yet not only did Senator Obama not adhere to his pledge to support a filibuster of that bill, he voted for closure on the bill, which is the opposite of a filibuster. It's what enables a vote to occur. And then he voted for the underlying bill itself. So it's a complete betrayal of the very unequivocal commitment that he made not more than six months ago in response to people who wanted to know his position on this issue in order to decide whether or not to vote for him. That's number one.

Number two, the idea that this bill is an improvement on civil liberties is equally insulting in terms of how false it is. This is a bill demanded by George Bush and Dick Cheney and opposed by civil libertarians across the board. ACLU is suing. The EFF is vigorously opposed. Russ Feingold and Chris Dodd, the civil libertarians in the Senate, are vehemently opposed to it; they say it's an evisceration of the Fourth Amendment. The idea that George Bush and Dick Cheney would demand a bill that's an improvement on civil liberties and judicial oversight is just absurd. This bill vests vast new categories of illegal and/or unconstitutional and warrantless surveillance powers in the President to spy on Americans' communications without warrants. If you want to say that that's necessary for the terrorist threat, one should say that. But to say that it's an improvement on civil liberties is just propaganda.

Goodman: Cass Sunstein?

Sunstein: Well, I appreciate the passion behind that statement. I don't see it that way. And Morton Halperin, who's been one of the most aggressive advocates of privacy protections in the last decades, is an enthusiastic supporter of this bill on exactly the ground that I gave. My reading of it, just as a legal matter, is that it ensures exclusivity of the FISA procedure, which the Bush administration strongly resisted, it creates supervision both on the part of the inspector general and the legal system, which the Bush administration had said did not exist previously. So the view that this is an improvement over the Bush administration status quo, I believe, is widely accepted by those who have studied the bill with care.

I do appreciate the concern about retroactive immunity. Senator Obama did oppose that, voted for the opposing bill. But I don't share the extreme negativity about this compromise that the speaker endorses.

Goodman: Glenn Greenwald?

Greenwald: Well, again, Senator Obama made a promise and then betrayed it. The idea that the bill is an improvement on civil liberties, like I said, is demonstrated by the fact that all civil libertarians, virtually across the board, vigorously oppose it and are suing over it. And I think --

Goodman: Glenn Greenwald, let me move on to another issue, and that is the issue of holding Bush administration officials accountable. This is also an issue, Professor Sunstein, that you addressed this weekend in Austin at the Netroots Nation conference. And on Friday, the House Judiciary Chair John Conyers is going to be holding a hearing around the issue of impeachment, with those for and against impeachment speaking through the day. Your assessment of the whole movement and your thoughts on this, Cass Sunstein?

Sunstein: Well, I speak just for myself and not for Senator Obama on this, but my view is that impeachment is a remedy of last resort, that the consequences of an impeachment process, a serious one now, would be to divide the country in a way that is probably not very helpful. It would result in the presidency of Vice President Cheney, which many people enthusiastic about impeachment probably aren't that excited about. I think it has an understandable motivation, but I don't think it's appropriate at this stage to attempt to impeach two presidents consecutively.

In terms of holding Bush administration officials accountable for illegality, any crime has to be taken quite seriously. We want to make sure there's a process for investigating and opening up past wrongdoing in a way that doesn't even have the appearance of partisan retribution. So I'm sure an Obama administration will be very careful both not to turn a blind eye to illegality in the past and to institute a process that has guarantees of independence, so that there isn't a sense of the kind of retribution we've seen at some points in the last decade or two that's not healthy.

Goodman: I recently spoke to Democratic Senator Russ Feingold of Wisconsin, who's been a leading congressional voice against the Bush spy program. This is some of what he had to say.

    Sen. Russ Feingold: The President takes the position that under Article II of the Constitution he can ignore the Foreign Intelligence Surveillance Act. We believe that that's absolutely wrong. I have pointed out that I think it is not only against the law, but I think it's a pretty plain impeachable offense that the President created this program, and yet this immunity provision may have the effect not only of giving immunity to the telephone companies, but it may also allow the administration to block legal accountability for this crime, which I believe it is.

Goodman: Cass Sunstein?

Cass Sunstein: Well, there has been a big debate among law professors and within the Supreme Court about the President's adherent authority to wiretap people. And while I agree with Senator Feingold that the President's position is wrong and the Supreme Court has recently, indirectly at least, given a very strong signal that the Supreme Court itself has rejected the Bush position, the idea that it's an impeachable offense to adopt an incorrect interpretation of the President's power, that, I think, is too far-reaching. There are people in the Clinton administration who share Bush's view with respect to foreign surveillance. There are past attorney generals who suggested that the Bush administration position is right. So, I do think the Bush administration is wrong -- let's be very clear on that -- but the notion that it's an impeachable offense seems to me to distort the notion of what an impeachable offense is. That's high crimes and misdemeanors. And an incorrect, even a badly incorrect, interpretation of the law is not impeachable.

Goodman: Glenn Greenwald?

Glenn Greenwald: You know, I think this mentality that we're hearing is really one of the principal reasons why our government has become so lawless and so distorted over the past thirty years. You know, if you go into any courtroom where there is a criminal on trial for any kind of a crime, they'll have lawyers there who stand up and offer all sorts of legal and factual justifications or defenses for what they did. You know, going back all the way to the pardon of Nixon, you know, you have members of the political elite and law professors standing up and saying, "Oh, there's good faith reasons not to impeach or to criminally prosecute." And then you go to the Iran-Contra scandal, where the members of the Beltway class stood up and said the same things Professor Sunstein is saying: we need to look to the future, it's important that we not criminalize policy debates. You know, you look at Lewis Libby being spared from prison.

And now you have an administration that -- we have a law in this country that says it is a felony offense, punishable by up to five years in prison and a $10,000 fine, to spy on Americans without the warrants required by law. We have a president who got caught doing that, who admits that he did that. And yet, you have people saying, "Well, there may be legal excuses as to why he did that." Or you have a president who admits ordering, in the White House, planning with his top aides, interrogation policies that the International Red Cross says are categorically torture, which are also felony offenses in the United States. And you have people saying, "Well, we can't criminalize policy disputes."

And what this has really done is it's created a two-tiered system of government, where government leaders know that they are free to break our laws, and they'll have members of the pundit class and the political class and law professors standing up and saying, "Well, these are important intellectual issues that we need to grapple with, and it's really not fair to put them inside of a courtroom or talk about prison." And so, we've incentivized lawlessness in this country. I mean, the laws are clear that it's criminal to do these things. The President has done them, and he -- there's no reason to treat him differently than any other citizen who breaks our laws.

Goodman: You've also, Glenn Greenwald, written about the President possibly granting preemptive pardons to officials involved in controversial counterterrorism programs.

Greenwald: Yeah, I think that's right. And you already see members of the right -- the New York Times reported about a week ago that certain right-wing legal analysts were already demanding that he issue a full-scale pardon of all members -- of all participants in these illegal detention and surveillance programs. And that's one of the interesting parts about what Senator Obama just did in supporting telecom amnesty, is that those lawsuits that exist, I mean, that were proceeding along, were really our only real avenue for finding out what the government did.

I think one critical thing here is that, you know, last year, James Comey, who was the number two person at the Justice Department, testified before Congress that they discovered that certain surveillance activities that the administration was engaged in, not what we end up knowing about, but other activities, were so patently illegal that the entire top level of the Justice Department had threatened to resign en masse unless it stopped immediately. And President Bush ordered that it continue for another forty-five days, even once he was told that, and it went on for two-and-a-half years.

We don't know what that is. Those lawsuits are really the only way that we would have found out and that there would have been a legal accountability, but because of telecom immunity, those lawsuits are now going to terminate, those crimes are likely to be covered up, and President Bush can simply issue pardons that would prevent any future administrations, Senator Obama's or anyone else's, from investigating it and vindicating the rule of law in this country. And that's what made it such a corrupt measure.

Goodman: Professor Sunstein, your response to Glenn Greenwald on the whole accountability issue? Also, one of the things you['ve] raised [is that] going after the Bush administration could start a cycle of criminalizing public service.

Sunstein: Right. We're talking about some pretty serious issues here, and I think it's good to distinguish among various ones. So, are we in favor of immunizing people who worked in the White House in the last eight years from accountability for criminal acts? I don't think anyone should be in favor of that. We're in agreement on the need to hold people accountable for criminal wrongdoing.

Then there's a second question, which is the impeachment question, which is analytically very different.

Then there's a third issue, which involves pardons. For the President to issue a preemptive pardon of all illegality on the part of those involved in his administration would be intolerable, and the political retribution for that should be extreme. I expect the President won't do that.

With respect to holding people accountable, the first things that's needed is sunlight. Justice Brandeis, the Supreme Court justice, said sunlight is the best of disinfectants. So I agree very much that we want clarity with respect to what's been done. It's important to think, not in a fussy way, but in a way that ensures the kind of fairness our system calls for. It's important to distinguish various processes by which we can produce accountability. I don't believe the courtroom is the exclusive route. Congress is our national lawmaker, and there are processes there that could have a bipartisan quality. There are also commissions that can be created, commissions that can try to figure out what's happened, what's gone wrong and how can we make this better.

When I talk about a fear of criminalizing political disagreement, I don't mean to suggest that we shouldn't criminalize crimes. Crimes are against the law, and if there's been egregious wrongdoing in violation of the law, then it's not right to put a blind eye to that. So I guess I'm saying that emotions play an important role in thinking about what the legal system should be doing. But under our constitutional order, we go back and forth between the emotions and the legal requirements, and that's a way of guaranteeing fairness. And as I say, very important to have a degree of bipartisanship with respect to subsequent investigations.

Goodman: You're cited as the most often cited legal scholar in the country. Yesterday, the military commissions trial began at Guantanamo, first time since World War II. Your take?

Sunstein: Well, I'd be honored but surprised if the military commissions cite some of my academic articles. In terms of military commissions, there's traditional nervousness in our system about holding people criminally to be tried in a not-an-ordinary tribunal, so there's reason for nervousness about that. I think any military commission, the first requirement is to ensure that the fundamental ingredients of American justice are included -- that is, a right to a lawyer, a right to an impartial tribunal, a right to confront contrary evidence. We don't want any convictions that don't fit with all of our fundamentals.

Goodman: We're going to come back to talk about your book Nudge , but I want to give Glenn Greenwald a final comment on this issue.

Greenwald: You know, it's interesting, about the military commissions, yesterday a military judge presiding over the military commission of the individual accused of being Osama bin Laden's driver, Salim Hamdan, ruled that certain evidence was inadmissible, because it was obtained by what he called, quote, "highly coercive conditions" while he was captive in Afghanistan. And so, you know, we don't need to say things like "if there was serious wrongdoing." We know that there was serious wrongdoing and serious illegality on the part of the Bush administration. But Congress, unfortunately, hasn't done its duty to investigate or oversight; what they've done instead is immunize the law-breaking and protect it and retroactively legalize it. And that's why courtrooms, unfortunately, are the only place where real judicial accountability can occur. That's where criminals are tried under a system of rule of law, is in a courtroom. And there's no reason to exempt the political class from that critical principle.

Amy Goodman is the host of the nationally syndicated radio news program, Democracy Now!

 
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