Civil libertarians have long objected to the continuation (and in some cases the expansion) of Bush policies in the national security areas by President Barack Obama. Obama has blocked the investigation and prosecution of Bush officials for torture, renewed the military tribunal system, extinguished dozens of public interest lawsuits against telecommunication companies and agencies as well as other controversial moves. Now, two former Bush officials are considered leading contenders to take over the FBI despite their involvement in some of the worst abuses during the Bush Administration. They are James Comey and Kenneth Wainstein. As discussed below, they are a case of the coronation of the one-eyed man as King of the land of the blind.
FBI Director Robert Mueller’s 10-year term expires on September 4th.
What is disturbing is how Comey has been embraced as a hero of civil liberties because he opposed Bush’s warrantless wiretapping program and threatened to resign. It is part of the relativism that set in during the Bush Administration. Before the Bush Administration, it would have been obvious and expected for all Justice Department attorneys to oppose a clearly unconstitutional program. However, in the Bush Administration, even the objection to unconstitutional acts suddenly transformed officials into instant civil libertarians despite their involvement in other abuses. This is an example of how, in the land of the blind, the one-eyed man is King. Comey was the one-eyed man.
Of course, Comey did not object to other aspects of the surveillance program deemed unconstitutional by civil libertarians. Moreover, while objecting to the surveillance program, Comey was the deputy attorney general involved in other abuses without a peep of protest. The most obvious was the case of Jose Padilla. Comey was personally involved in that case that shocked the world. Padilla was subjected to cruel treatment and was moved around the country to avoid judicial review. Comey and his staff adopted a series of conflicting arguments in court designed to avoid judicial review. Then, on the eve of a review by the Supreme Court, Comey dropped the prior charges and moved Padilla into the federal system on different claims. If you recall, Padilla was originally arrested under a claim by former Attorney General John Ashcroft that the Justice Department had stopped a nuclear attack on a major city. That claim was later denied by the White House. Yet, the Justice Department continued to hold and abuse Padilla.
In prior testimony, Comey made clear that he supported Padilla being denied access to the federal courts because he might win his release and take advantage of his constitutional rights:
Had we tried to make a case against Jose Padilla through our criminal justice system, something that I as the United States attorney in New York could not do at that time without jeopardizing intelligence sources, he would very likely have followed his lawyer’s advice and said nothing, which would have been his constitutional right. He would likely have ended up a free man, with our only hope being to try to follow him 24 hours a day, seven days a week and hope — pray, really — that we didn’t lose him.
Of course, he was ultimately charged with a federal crime and convicted. This occurred only after the Justice Department succeeded (under Comey’s direction) in evading review of his mistreatment and long confinement without access to counsel or the courts. Is this the model that we want for FBI Director?
For his part, Kenneth Wainstein was Assistant to the President for Homeland Security and Counterterrorism and held various national security positions with President Bush during the periods of greatest abuse of detainees and civil liberties. Wainstein did not resign in the face of those abuses but continued to advance the policies. Since leaving, he has shown the same casual view of constitutional claims, such as his view that Wikileaks can and should be prosecuted: “āBy clearly showing how WikiLeaks is fundamentally different, the government should be able to demonstrate that any prosecution here is the exception and is not the sign of a more aggressive prosecution effort against the press.” Most scholars and civil libertarians see a far more difficult case over Wikileaks that threaten first amendment rights. In his testimony, Wainstein continued the Bush-era approach of avoiding the constitutional question by attacking the defendant. Wainstein cited public statements by Julian Assange and assured Congress that this is not a concern over free speech or free press because the disclosures were āmore personal rather than simply a public-minded agenda.ā It is a dangerous argument since you could take the same tact for any reporter and seeks to avoid the constitutional analysis by engaging in an ad hominem attack.
Wainstein and Comey did raise concerns over the torture of detainees but notably did not threaten to resign over such abuses. They continued to advance policies that were condemned by civil libertarians around the world.
I cannot say that I am optimistic given Obama’s record. He continues to court the conservative base on the theory that liberals have to vote for him in the next election. Indeed, objections from civil libertarians are most likely to increase the attraction to these nominees.
Jonathan Turley
Swarthmore mom,
I highly doubt that. Besides, I bet you’re pretty hot stuff already!
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Elaine, I don’t know. Buddha might send me to the oven….
Swarthmore mom,
I don’t want to have to say goodbye to one of my fellow “little old ladies.” Ignore the folks who tell you that you’re evil. Heck, I’ve been called a “stoned junky bitch”–and a number of other things.
Stick around and continue to feed us links to interesting stories.
O.S. I read Daily Kos for years and posted occasionally. It is definitely more democrat friendly. They don’t call you “evil” if you prefer Pelosi. Can’t get used to the new format though.
Buckeye & Swarthmore mom, I hope you guys do not stay gone very long. Just make it TTFN instead of GBCW.
I divide my time mostly between here and Daily Kos. Since DK just came out with the new fourth edition, or DK4 for short, it is now a gigantic site. There are special interest groups on every conceivable subject. The most popular group seems to be the “Cranky Users” group. I you do go over there and register, please keep your usernames so we can find you. Here is my personal page:
http://www.dailykos.com/user/Otteray%20Scribe/
SM,
Don’t be gone long….
rafflaw, Thanks, but don’t think so.
Swarth more and Buckeye,
Hang in there and try to stick around. Your views will be missed!
Buckeye, Sounds like a plan.
I’m with you, Swarthmore Mom. I’ve been looking around at other sites but haven’t settled on one yet. Maybe you and I can pop in occasionally and offer each other another choice.
Ovens indeed.
Elaine,
That is a wonderful story! I can only hope that the Supremes allow the rule of law to prevail…finally.
From Salon (3/21/2011)
Court allows constitutional challenge to new FISA law
BY GLENN GREENWALD
http://www.salon.com/news/opinion/glenn_greenwald/
Excerpts:
Immediately upon enactment of the Bush/Obama-supported FISA Amendments Act, the ACLU filed a lawsuit seeking to enjoin its enforcement on the ground that the law’s expanded warrantless eavesdropping powers violated the Fourth Amendment. Aside from its warped and radically enlarged “state secret” doctrine, the Bush administration’s standard tactic for avoiding judicial review of their illegal eavesdropping programs was a two-step “standing” exercise grounded in extreme cynicism: (1) they shrouded their eavesdropping actions in total secrecy so that nobody knew who was targeted for this eavesdropping, and they then (2) exploited that secrecy to insist that since nobody could prove they were actually subjected to this eavesdropping, nobody had “standing” to contest its legality in courts (that’s how the Bush DOJ got an appeals court to dismiss on procedural grounds a lower court ruling that their NSA program broke the law and violated the Constitution).
In the case brought by the ACLU, the plaintiffs were a variety of human rights activists, lawyers and journalists (including Naomi Klein and Chris Hedges), who argued that both they and their sources have a reasonable fear of being subjected to this expanded surveillance, and that fear– by rendering them unable to perform their jobs and exercise their Constitutional rights — constitutes sufficient harm to vest them with “standing” to challenge the new eavesdropping law. In response, the Bush administration argued — as always — that the plaintiffs’ inability to prove that they were actually targeted by this expanded surveillance precluded their suing; their mere “fear” of being targeted, argued the Bush DOJ, was insufficient to confer standing to sue.
In late 2008, a lower court judge granted the Bush argument and dismissed the ACLU’s lawsuit on “standing” grounds. On appeal, the Obama DOJ — needless to say — faithfully adopted exactly the Bush argument to demand dismissal of the ACLU’s lawsuit on procedural grounds of “standing,” i.e., without assessing the merits of whether this law violates the Fourth Amendment.
But today, a three-judge appellate court dealt a serious blow to the Bush/Obama tactic for shielding government eavesdropping from judicial review (i.e., placing secret executive surveillance above and beyond the rule of law). The unanimous court ruled that the plaintiffs’ fear that they will be subjected to this expanded warrantless eavesdropping is reasonable given the sweeping powers the law vests in the Executive, that these fears substantially impede their work, and that these impediments constitute actual harm sufficient to allow them to challenge the constitutionality of the FISA Amendments Act…
**********
Today’s ruling puts at least some brakes — for now — on that license of lawlessness. It rejected the Bush/Obama claim that citizens must prove they have been targeted by an illegal presidential program before they have the right to ask a court to declare it illegal. Instead, a plaintiff’s reasonable fear that their rights are being violated due to enactment of an allegedly unconstitutional law — combined with actual harm suffered as a result of that fear — suffices to allow them to challenge the legality of those actions. It is, of course, possible that the Supreme Court can review and reverse this ruling, but the Second Circuit is a well-regarded court — situated on the level immediately below the Supreme Court — and this well-reasoned decision will have significant sway. At the very least, this is an important ruling in eroding what is easily one of the worst political problems plaguing America in the post-9/11 world: the ease with which Presidents and their underlings can insulate their secret actions from the rule of law.
Swarthmore,
Don’t go away for too long. You will be missed.
Buddha,
Welcome back to the ranks of the living!
Rorschach: Never compromise. Not even in the face of Armageddon. That’s always been the difference between us, Daniel.
This blog is the wrong place for me. I think I need a vacation from it. Slarti left but I am taking a break. It is too negative…. ovens.
Swarthmore Mom–wasn’t O-Bomb-a supposed to be a liberal?
They are not even picked yet and we are being sent to ovens.
Thanks Blouise and eniobob. Actually, as the doctor predicted, I’m feeling much better today and it’s the first day in weeks I haven’t had a fever of any sort all day (knock on wood) and the pain is down to mostly just a dull ache. I feel well enough that I’m not going to start the second course of A/Bs but just continue the course I am on. I’ll be back in fighin’ shape in no time. š
Buddha,
Please take care of yourself. I’m not worried about the crazies right now … I am worried about you
Hang in there BIL,the cranberry juice works and besides,with Libya and the Tsunami and Palin going to Israel you are going to need your strength:=)