Bush’s 11th-Hour Bid for Secrecy

http://www.truthdig.com/report/item/20081129_bushs_11th_hour_bid_for_secrecy/

Posted on Nov 29, 2008

By Stanley Kutler

The times are unprecedented. Not since 1861 have we watched the last gasps of an outgoing administration with such anxiety. Then the nation was concerned with drift and inertia; now we watch for further ideological mischief.

Republicans were aghast in 2001 to discover that President Bill Clinton’s staff allegedly had dropped the “W” from White House computer keyboards. Frat house stuff. George W. Bush has left a legacy significantly more troubling, measured by the breakdown of normal government processes, as well as of constitutional guarantees and practices. We watch last-minute rushes to implement new administrative rules, to transform and burrow political appointees into tenured civil servants, to further weaken environmental safeguards, to shift public funds to a desired end, and to lay down policy declarations to leave the current administration’s successors bound or embarrassed until they are undone.

Think, for example, about the fate of official records. Will they be removed or shredded to further obscure this administration’s doings? Nourished on secrecy from its inception, and carefully concealing many of its activities through the years, the Bush administration may be determined to make one last play for secrecy by taking its records and storing them in a Dallas warehouse, pending a Bush library. In these waning weeks, a group of us is locked in legal combat with Vice President Dick Cheney and his corps of unseen advisers, seeking an injunction to prevent them from leaving office with their e-mail records. [Citizens for Responsibility and Ethics in Washington, et al., v. Richard B. Cheney, et al, Civil Action No. 08-1548, U.S. District Court, District of Columbia]. Cheney and his team are resisting at every turn, following a strategy of running out the clock and thereby implicitly admitting their intention to destroy or take their records.

If Barack Obama as president would withdraw Bush’s infamous Executive Order 13233, which effectively repealed the Presidential Records Act of 1978, Bush and Cheney still can expect to seal their papers for at least 12 years. If Richard Nixon is their model, count on at least 20.

The president-elect’s Web site promises he will reverse Executive Order 13233 nullifying the timely, lawful release of presidential records. John Podesta, who heads the transition team, acknowledged that, as president, Obama will, “when appropriate,” reverse that order. Some will remember John F. Kennedy’s famous “stroke of the pen” promise for a federal fair housing ordinance in 1960—unfortunately, Kennedy’s pen paralysis resulted in an 18-month delay.

Bush’s order subverts the 1978 law’s provisions for public access to presidential records. It requires the Archivist of the United States to withhold materials if a former president asserts executive privilege, even if the incumbent president disagrees. Put another way, any assertions of privilege for the papers of Bush and his father must be honored by the incumbent president. Maybe now this is clearer.

Bush’s order also stands the right of access on its head. Now, the burden is on the researcher to show a “demonstrable, specific need.” In short, researchers retain a very expensive right to litigate. In 1988, the Circuit Court for the District of Columbia emphatically rejected President Ronald Reagan’s order directing the Archives to accept any claims advanced by former President Nixon to block release of his presidential materials, repudiating Reagan’s contention that the Archivist might legally and independently support a former president. The Bush order is no different, for it requires the Archivist to honor the former president’s claims even when the incumbent disagrees with them. Such a course constitutes nothing less than the incumbent’s abdication of his obligation of fidelity to the law.

Bush’s action provides no end to the mutual back-scratching for that fellowship of ex-presidents. If the incumbent and former president agree to block release, the president and his Department of Justice must defend the assertion of privilege, thus saving his predecessor potentially significant legal fees. Richard Nixon wrote endless volumes of memoirs to support his lawyer habit.

Make no mistake: the Bush order broke new ground. Allowing a former president’s family or personal representative to assert privilege is novel, if not bizarre. It delegates and brazenly enlarges an ever-more luxuriant executive privilege upon former presidents—something the Bush administration has been very adept at doing for itself. The shadowy doctrine of executive privilege has been elevated to a personal right, extending a lifetime, and even beyond. You can take it with you, if Bush has his way.

The order is beyond audacious. Incumbent presidents decide and judge the nature of national security, not former presidents. If the incumbent sees no national security issue at stake, why should a former president, ever anxious to preserve and enhance his reputation, make that determination?

Bush’s order already has freed his father from scholarly scrutiny, now some four years overdue. Only the timely and gracious intervention of Nancy Reagan prevented President Bush from sealing the Reagan papers. Those documents might tell us more about George H. W. Bush’s role in the Iran-Contra affair, other than having to go to the bathroom, or something like that, when the sordid business was discussed in the National Security Council’s proceedings.

Repudiating Executive Order 13233 is essential. This is not a partisan matter; even the Republican-controlled Congress favored repeal in 2004, but Tom DeLay effectively buried it for Bush, and Sen. Mitch McConnell, R-Ky., similarly blocked action in the Senate last year. Rep. Dan Burton, R-Ind.—of all people—led the move to repeal; apparently he believed this was the only way he could get at the Clinton papers.

The prospects of George W. Bush and Dick Cheney proclaiming executive privilege long after they fade from their official duties is staggering. Their penchant for secrecy undoubtedly would insure significant gaps in any attempts to fathom the history of their deeds and actions. President-elect Obama has given us a promise. It must be delivered.

Stanley Kutler wrote “The Wars of Watergate,” and he liberated the Nixon tapes.

AP photo / Ron Edmonds

Outgoing: President George W. Bush and Vice President Dick Cheney.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. I.U. has no affiliation whatsoever with the originator of this article nor is I.U endorsed or sponsored by the originator.)


The Nazis, Fascists and Communists were political parties before they became enemies of liberty and mass murderers.

When a Country Gets Lost --

And Finds Its Way Back

By Bernard Weiner, Co-Editor
The Crisis Papers

November 25, 2008

Let's face it. Countries, like individuals, get lost sometimes -- really lost, ignoring the maps of morality and civil behavior, bringing shame and disrepute on themselves.

In terms of individuals, good people do weird stuff on occasion: run off, or inexplicably go on a bender, or visit purveyors of easy virtue, or get addicted, or use hate-speech in extremes and so on. Stuff happens.

Nations, too, often take leave of their senses. Crises occur. Citizens get frightened by something and don't know how to respond. A strong leader comes along and channels that fright, usually aiming it at perceived enemies, real or invented, or at least highly exaggerated.

The powers-that-be love crises and catastrophes; at such nodal points, the public is more malleable, more easily rolled. (See Naomi Klein's brilliant book "The Shock Doctrine.")

And when these power-hungry rulers or elites grossly abuse their granted authority, the result often is social chaos, police-state laws, warped or broken economies, and often hundreds of thousands, even millions, of dead and maimed in ill-advised wars of choice.

AUTHORITARIAN RULERS

History is replete with examples of nations, even democratic ones, that go crazy like this for awhile, head off into authoritarian rule, and sometimes even totalitarian control. And it isn't easy to turn that ship around. Sometimes that reversal can be accomplished by the populace, who wake up to what atrocities are being carried out in their name and throw the bums out at the next election, or by a coup. Sometimes natural death intervenes, making intervention moot. Other times, it takes a village, so to speak: The regional or world community has to act in concert to force a change in behavior by removing the ruling elite from the country in question.

You know what I'm talking about. Mussolini, Hitler, Stalin, Mugabe, Amin, George W. Bush.

You may think it's unfair to throw Dubya into that line-up of political monsters, and I agree that not all miscreants are equal. George W. is no Hitler or Stalin or Idi Amin.

But it's fair to acknowledge that Bush does deserve to be in that continuum of grossly awful leaders who used and then abused their power and, by so doing, brought their countries to wrack and ruin and to worldwide condemnation and shame. Because Bush was in charge of the world's most powerful nation on earth, his crimes were magnified in their consequences and in their regional and global social impact, so his place in the pantheon of shame is correct.

WHY BUSH IS STILL A DANGER

So why am I bringing up Bush now, after a democratic election has, as it were, thrown out the bums? Am I being mean-spirited, just beating a dead horse?

Two reasons:

1. Bush will still be president for the next two months. Out of failed ideology and thoroughgoing ignorance and incompetence, he has left his successor with an ungodly mess to deal with. But he ain't through yet. He has concocted, so to speak, a scorched-earth welcome-to-the-White-House for Barack Obama, along with burrowing key political-appointed Bushies into civil-service positions of power in order to gum up the works even more for the incoming administration.

By executive order in the past several months, Bush, for example, has bent all sorts of environmental rules and regulations to give the exploiters and polluters even more leeway to take what they want, including permitting cutting some of the last old-growth forests in Oregon and oil/gas drilling in public lands and immediately adjacent to key National Parks, in particular in Utah. The idea is to get these projects started, with money in the federal pipeline, before Bush leaves office, making it more difficult for the Obama Administration to execute an immediate U-turn.

In addition, Bush has taken many of his mid-level political appointees and placed them under the civil-service umbrella in jobs overseeing energy and science experiments for which they are not trained or have no experience. Being civil service employees makes it virtually impossible for the new president to get rid of them. In effect, they would be moles inside the new government in key positions to harm or hamstring Obama's environmental policies. Among many others complaining about this last-minute tactic by Bush are scientists, angry that political ideologues with no scientific training will have important input on scientific policy.

AUTHORITARIAN-TYPE RULES

2. Many of the authoritarian rules and precedents established during the CheneyBush years are still in place, and could be abused by Obama or presidents who follow him. True, Obama's transition team has listed 200 of Bush's executive orders that they will rescind quickly with the stroke of a pen. But some of the larger issues are still hanging out there:

• The overuse of presidential "signing statements" to nullify aspects of laws passed by the Congress, as part of the "unitary executive" theory of government, which theory basically turns the president into a near-dictator;
  

• The policy of "pre-emptive war," attacking a country that is not an actual imminent threat to the U.S.;
  

• The use of torture as official state policy;
  

• The nullification of the legal concept of habeas corpus from American law, whereby a judge has to certify the legitimacy of an arrest;
  

• The employment of massive domestic spying on and data mining of American citizens, including eavesdropping without a court warrant on phone conversations, snooping into mail, examining personal computer files without the knowledge of the citizen, etc;
  

• The throwing of citizens into jail as suspected "terrorists" or "enemy combatants," with no access to lawyers; etc. etc.

All of these violations of the Constitution's Bill of Rights, in the Patriot Act and elsewhere, have been enacted on a regular basis during the past eight years of CheneyBush. How much of this will be quickly and aggressively reversed by Obama and how much will he keep some of these police-state tactics still in place, just in case he wants to use them?

TRUST OBAMA TO DO RIGHT THING?

Which brings us to a key dilemma facing the progressive base of the Democratic Party: After eight years under CheneyBush, during which the U.S. was lost in a dark ideological/corrupt shadow world, President-Elect Obama promises us, finally, the return of light in our politics so that we can find our way back to some higher level of moral/spiritual/social health. He probably won't take the country as far in that regard as many of us might wish, but his landslide victory did break the back of the CheneyBush HardRight as an all-powerful movement and offers us, yes, hope for significant change and progress in righting many of the wrongs of the past eight years.

As many of us have been saying for months now, if you believe Obama will do, or even can do, all of the many things he's promised, you're in for a rude surprise. Obama is not a radical or progressive in how he operates; he's a pragmatic centrist, with liberal leanings but beholden to many of the same economic and political forces that have great influence in contemporary politics. But he's an unusually intelligent politician, open to argument and persuasion. That's why we on the progressive left must speak out forcefully when we see him straying from positions that we think can be most useful in repairing the damage of the past eight years.

So here's the nub of our current dilemma, much talked about in liberal/progressive circles: How much should we trust Obama to do the right thing and thus hold back our criticisms of his actions and policies during this interregnum before he actually is inaugurated as President and during the first few-months "honeymoon" period? And how much should we start criticizing him now for his sins of omission and commission, especially with regard to his somewhat more hawkish foreign/military policies? (See Jeremy Scahill's "This Is Change? 20 Hawks, Clintonites and Neocons to Watch for in Obama's White House.")

SLACK VS. PRESSURE

My inclination, given the enormity of the problems facing the new president, is to cut Obama some slack, at least until he takes office and starts messing up. On the other hand, he's making key decisions now, especially as he fills out his Cabinet and operational staff, and unless progressives take a stand now, it may be too late later.

For instance, as far as we can tell, most of his national-security appointments seem to come from the middle to the middle-right; there is not one true progressive who can balance out the arguments that will be made inside the Cabinet. Not a good sign.

I'll be interested to hear where you come down on this dilemma. How we act in the next few months may have much to do with how President Obama begins his Administration post-January 20. Join the debate and help "change the world."

Copyright 2008, by Bernard Weiner


(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. I.U. has no affiliation whatsoever with the originator of this article nor is I.U endorsed or sponsored by the originator.)


The Nazis, Fascists and Communists were political parties before they became enemies of liberty and mass murderers.

Bush's Last Days: The Lamest Duck

Wednesday, Nov. 26, 2008

By JOE KLEIN

We have "only one President at a time," Barack Obama said in his debut press conference as President-elect. Normally, that would be a safe assumption — but we're learning not to assume anything as the charcoal-dreary economic winter approaches. By mid-November, with the financial crisis growing worse by the day, it had become obvious that one President was no longer enough (at least not the President we had). So, in the days before Thanksgiving, Obama began to move — if not to take charge outright, then at least to preview what things will be like when he does take over in January. He became a more public presence, taking questions from the press three days in a row. He named his economic team. He promised an enormous stimulus package that would somehow create 2.5 million new jobs, and began to maneuver the new Congress toward having the bill ready for him to sign — in a dramatic ceremony, no doubt — as soon as he assumes office.

That we have slightly more than one President for the moment is mostly a consequence of the extraordinary economic times. Even if George Washington were the incumbent, the markets would want to know what John Adams was planning to do after his Inauguration. And yet this final humiliation seems particularly appropriate for George W. Bush. At the end of a presidency of stupefying ineptitude, he has become the lamest of all possible ducks. (See TIME's best pictures of Barack Obama.)

It is in the nature of mainstream journalism to attempt to be kind to Presidents when they are coming and going but to be fiercely skeptical in between. I've been feeling sorry for Bush lately, a feeling partly induced by recent fictional depictions of the President as an amiable lunkhead in Oliver Stone's W. and in Curtis Sittenfeld's terrific novel American Wife. There was a photo in the New York Times that seemed to sum up his current circumstance: Bush in Peru, dressed in an alpaca poncho, standing alone just after the photo op at the Asia Pacific Economic Cooperation forum, with various Asian leaders departing the stage, none of them making eye contact with him. Bush has that forlorn what-the-hell-happened? expression on his face, the one that has marked his presidency at difficult times. You never want to see the President of the United States looking like that.

So I've been searching for valedictory encomiums. His position on immigration was admirable and courageous; he was right about the Dubai Ports deal and about free trade in general. He spoke well, in the abstract, about the importance of freedom. He is an impeccable classicist when it comes to baseball. And that just about does it for me. I'd add the bracing moment of Bush with the bullhorn in the ruins of the World Trade Center, but that was neutered in my memory by his ridiculous, preening appearance in a flight suit on the deck of the aircraft carrier beneath the "Mission Accomplished" sign. The flight-suit image is one of the two defining moments of the Bush failure. The other is the photo of Bush staring out the window of Air Force One, helplessly viewing the destruction wrought by Hurricane Katrina. This is a presidency that has wobbled between those two poles — overweening arrogance and paralytic incompetence.(President Bush in the Middle East.)

The latter has held sway these past few months as the economy has crumbled. It is too early to rate the performance of Bush's economic team, but we have more than enough evidence to say, definitively, that at a moment when there was a vast national need for reassurance, the President himself was a cipher. Yes, he's a lame duck with an Antarctic approval rating — but can you imagine Bill Clinton going so gently into the night? There are substantive gestures available to a President that do not involve the use of force or photo ops. For example, Bush could have boosted the public spirit — and the auto industry — by announcing that he was scrapping the entire federal automotive fleet, including the presidential limousine, and replacing it with hybrids made in Detroit. He could have jump-started — and he still could — the Obama plan by releasing funds for a green-jobs program to insulate public buildings. He could start funding the transit projects already approved by Congress.

In the end, though, it will not be the creative paralysis that defines Bush. It will be his intellectual laziness, at home and abroad. Bush never understood, or cared about, the delicate balance between freedom and regulation that was necessary to make markets work. He never understood, or cared about, the delicate balance between freedom and equity that was necessary to maintain the strong middle class required for both prosperity and democracy. He never considered the complexities of the cultures he was invading. He never understood that faith, unaccompanied by rigorous skepticism, is a recipe for myopia and foolishness. He is less than President now, and that is appropriate. He was never very much of one.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. I.U. has no affiliation whatsoever with the originator of this article nor is I.U endorsed or sponsored by the originator.)


The Nazis, Fascists and Communists were political parties before they became enemies of liberty and mass murderers.

Recommendations From Bush War Crimes Prosecution Conference

Submitted by davidswanson on Thu, 2008-09-18 15:01.

• Criminal Prosecution

By Sherwood Ross

ANDOVER , MASS. (Special) -- Twenty recommendations made at a conference on prosecuting President George Bush for war crimes are under consideration for action, according to conference convener Lawrence Velvel, a prominent law school dean.

"Attendees discussed the violations of international and domestic law that were committed and are now studying recommendations for action," said Velvel. “All of us feel that those who committed war crimes and other crimes against humanity must be held accountable," he said. “The continued viability of Nuremberg Principles barring aggressive war and torture depends on it.”

More than 120 public officials, lawyers, academics, and authorities on the U.S. Constitution and international law attended the two day conference, which was held in Andover , Massachusetts on September 13th and 14th.

The conference resulted in recommendations ranging from asking the next U.S. Attorney General to prosecute Bush, to having any of some 2,700 county district attorneys launch proceedings against him for murder, to having Bush prosecuted for war crimes in other countries.

A newly formed committee will decide which of the suggestions can practicably be pursued.

The complete list of possible actions is:

1. Working for the election of district attorneys who pledge to prosecute high level war criminals for murder under state law, and working for the reelection of district attorneys who pledge to prosecute such criminals for murder.

2. Working for the election of state attorneys general who pledge to prosecute high level war criminals for murder under state law.

3. Working for the election of local executive and legislative officials (e.g., city council members) in specified localities who will formally denounce war crimes and might even seek to take action against them, as apparently has occurred in Vermont.

4. Mandamus proceedings to force local prosecutors to act.

5. Requesting state bar authorities to disbar the lawyers who were part of the executive cabal to authorize torture and other abuses that are crimes under international law, domestic law, or both.

6. Teach-ins at universities on the question of war crimes.

7. Asking universities to conduct hearings on whether certain individuals (e.g., John Yoo, Jack Goldsmith) should be dismissed from faculties for aiding and abetting criminal acts.

8. A march of many thousands of American lawyers on the Department of Justice (a la Civil Rights or Viet Nam war marches or the million man march). The purpose of the march would be to highlight lawyers’ belief that crimes were committed and must be punished.

9. Seeking prosecutions of high level war criminals before foreign courts or before international tribunals such as the International Criminal Court.

10. Asking the next federal Attorney General to prosecute war criminals.

11. Seeking major congressional investigations of what occurred.

12. Obtaining inspector general reports of what was done in given federal departments like the Department of Justice, the Pentagon, the State Department, the CIA, etc.

13. A truth and reconciliation commission.

14. Impeachment, even after the culprits leave office. And, unless he resigns from the federal bench, Jay Bybee, who collaborated with John Yoo on the first torture papers, will still be in office after the election.

15. Legislative or judicial action to dramatically cut back on, and sometimes totally eliminate, the present vast overuse by the federal government of the state secrets doctrine, executive privilege and other such doctrines.

16. Repeal of immunity amendments (which, even if not repealed, may have tremendous holes in them with regard to federal prosecutions, are unlikely to have any immunizing effect at the state level (though they may nonetheless be claimed as a defense), and whose only effect on foreign and international prosecutions would be to encourage them because these amendments indicate that the American federal government (like the governments of Argentina and Chile for many years) refuses to take action against federal criminals.

17. Resisting pardons, particularly advance pardons by Bush or the next president before there are convictions.

18. Creating an office of Chief Prosecutor(s), with Vince Bugliosi as Chief Prosecutor for domestic actions and perhaps a Co-Chief Prosecutor, with international prosecutorial experience, as Chief Prosecutor for foreign and international actions. This office would handle prosecutions in which governmental officials are willing to use “our” designated chief prosecutor as the lead lawyer, and would advise governmental prosecutors who desire to handle the prosecutions themselves but are willing to use “our” chief prosecutor as an adviser.

19. Setting up an internet-accessible repository, or library, of information on the pertinent war crimes, so that persons will have ready access to all relevant information. The repository, or library, should be cross indexed by subject matter, and should include briefs, articles, books, memos, speeches, etc. -- anything that sheds light on what was done.

20. Considering what, if anything, can be done to overcome the current ineptitude, failure and sometimes even deliberate hiding of facts by the corporate mass media, and to consider how the web might be used to accomplish this.

Vincent Bugliosi, former Los Angeles county prosecutor, extensively explained the legal reasoning under which Bush can be prosecuted for murder once he is no longer president. Bugliosi added that “No Federal, state or local statute says there is any person who can't be prosecuted for murder."

Bugliosi said that, of the 2,700 district and county attorneys having the power to prosecute, "There should be one prosecutor bold enough to say 'No man is above the law'. I am looking for that courageous prosecutor and I am not going to be satisfied until I see George W. Bush in an American courtroom prosecuted for murder."

Bugliosi said the evidence of U.S. war crimes in Iraq was overwhelming. "There are over 100 books” providing facts to underpin“ bringing Bush to prosecution for the deaths of 4,000 American soldiers under false pretenses," Bugliosi said.

Philippe Sands, director of the Centre of International Courts and Tribunals at University College , London , discussed violations of law such as torture. He said that "Under the Convention Against Torture, any person who has tortured anywhere in the world can be arrested in the United Kingdom " if they enter that country.

Political scientist Christopher Pyle of Mt. Holyoke College , S. Hadley, Mass. , spoke for many Conference attendees when he said, “The evidence is overwhelming. The torture, kidnapping, and degradation of suspected terrorists was part of a deliberate policy, hatched and concealed at the highest levels of the Bush administration.” Pyle said the nation does not need any “truth commission” that will offer immunity to suspects who confess their crimes because “if there is no threat of punishment, and therefore no prospect of plea bargains, why would underlings admit anything?”

Any attempt by President Bush to pre-pardon himself or any of his aides involved in war crimes and torture would be “an obstruction of justice,” said Pyle.

He suggested one approach could be to appoint “a non-partisan prosecutor with considerable independence,” much as Attorney General Elliot Richardson did when he chose Archibald Cox to lead the Watergate team. “A special prosecutor could be chosen by the next attorney general from among any number of distinguished Republican attorneys.”

Professor Amy Bartholomew of Carleton University , Ottawa , told the conference that the Bush administration was attempting to replace the Nuremberg Principles adopted after World War Two with “a global and transnational state of exception” under which the U.S. can invade countries with impunity.

Peter Weiss of the Center For Constitutional Rights pointed out that there is no need for any new legislation to outlaw aggressive war, since “It is already outlawed by Article 2 of the United States Charter.”

Dean Velvel summarized the conference proceedings by saying, “In a nutshell, this conference was about giving continued life to the Nuremberg principles, which our country itself established, instead of allowing guilty members of the Bush Administration to destroy those principles wholesale by committing aggressive war and torture with impunity.”

(For additional information contact Sherwood Ross, sherwoodr1@yahoo.com)

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. I.U. has no affiliation whatsoever with the originator of this article nor is I.U endorsed or sponsored by the originator.)


The Nazis, Fascists and Communists were political parties before they became enemies of liberty and mass murderers.