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: ““By 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 “more personal rather than simply a public-minded agenda.” 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
Hey Hickory Nut…..what am I gonna do when I don’t see that thing that I still don’t know what it is….but have been taught that you call it a Buckyeye….but I can say that I don’t think that I have ever really seen one that I am aware of….Please stay….I am not an Obama supporter….but I support the office of president….if that makes sense….We need people like you to stay and make this a more balanced blawg…Please….
Gyges,
I agree!
We all have to find our comfort zone and I wish you all the best if you’ve found yours here. It seems a little too much like RedState and the Tea Party in the constant anti-Obama and anti-government flavor for my particular comfort. But that’s my problem, not yours.
I’ve admired the thoughtful, incisive, and informed comments of many even when I didn’t always agree. You’ve all been kind and generous about my small contributions and I wish you all only the best.
“Primum non nocere”.
For my part, I think it speaks incredibly well of JT that he’s outspoken in his criticisms of President Obama as he was of President Bush. Further more, I’m as proud of the members of this community that my predictions that if Obama committed the same acts as Bush, we’d criticism him just as strongly was accurate as I am dismayed that we had to the opportunity to find out.
I think it might be time to remind ourselves that it’s a blog run by an expert on Constitutional law, as opposed to a political blog. Expectations play a large role in enjoyment.
Bdaman:
KUDOS!!!
“Twice I went to the hospital and bathed my mother.”
You cherish every moment and act that you do regarding your Mother,I know I don’t have to say that but I had too.
Swarthmore mom:
“We can be sure that the greatest hope for maintaining equilibrium in the face of any situation rests within ourselves.
Francis J. Braceland, O Magazine, April 2003”
The measure of a person’s love is always truly taken when the times of the beloved get tough and they are in need. It is indescribably hard to be the one having to care for one’s parent, but it is a price we must pay for our devotion.
Twice I went to the hospital and bathed my mother. You could see the look in the staffs face of them knowing my mother is well cared for. The other is people have a hard time believing she is my mother because she’s white and I’m not. But when they here the story they soon figure it out. The gross part was they thought me and my sister were husband and wife.
Kids on spring break, off to the pool. Are you back swimming yet?
I shall become an Itinerant Blog Monk going from site to site selling Blog Indulgences … maybe a monthly renewable subscription … just give me your credit card number and never have to apologize again …
Anonymously Yours
1, March 22, 2011 at 1:41 pm
To All the People that I offended with my language and the One’s I have not Yet offended:
Please accept my apologies for such language….The regulars are aware of the reticent conflict and the insidious insults that one can say. I apologize for my words and even to the one that they are directed at…I lost my cool and responded…For this I regret my actions…..and will try not to intentionally offend……
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We can all be bought … how much are you willing to spend on a blog Indulgence?
My god it is a love fest. I hope everyone remembered to “Wash their Winkies” and don’t forget to catch the new Arthur movie coming soon to theater near you.
http://www.washyourwinkie.com
AY,
Do what you have to do, you will hear no complaint from me.
Besides, sometimes colorful language can cleanse the soul … I clean mine at least three or four times a day 😉
AY,
I am sure that the Florida Taliban minister will forgive you! 🙂
To All the People that I offended with my language and the One’s I have not Yet offended:
Please accept my apologies for such language….The regulars are aware of the reticent conflict and the insidious insults that one can say. I apologize for my words and even to the one that they are directed at…I lost my cool and responded…For this I regret my actions…..and will try not to intentionally offend……
Swarthmore mom
1, March 22, 2011 at 11:43 am
Blouise, I am only on vacation from the blog. If you want my email ask AY for it when he calls you the next time. Miss you,too, Blouise.
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Will do … AY, tomorrow?
We can plot policy and discuss tactics of the upcoming election off-blog
Bdaman,
I’m not going anywhere, hopefully. It is a tough thing with your Mom. I went through it with mine when she had the third stroke that
eventually killed her. The measure of a person’s love is always truly taken when the times of the beloved get tough and they are in need. It is indescribably hard to be the one having to care for one’s parent, but it is a price we must pay for our devotion.
Enjoy your vacation.
She just had one in Florida. You don’t need another one SWM.
Roll up your sleeves and duke it out. You got your first Repub in the hat for 2012.
No. There was no slip.
I know I misread the post. I thought Mike was taking a break.
Smom,
I make no bones about the fact that I am non-partisan in my criticism as both parties have actively participated in destroying the rule of law in this country.
If that upsets you?
Sorry, but too bad. It’s my choice to make. Not yours to dictate. And my choice is not to pick a team and stick with them when they violate the Constitution and the letter of the law simply because they are “my team”. I will continue to call out bad actors from ANY party.
It is my nature.
Enjoy your vacation.
so you figure its ok, so long as you screw them first because they were going to do it to you all along…
Are you saying I’m like the Donald
“I rented him a piece of land,” Trump explained, saying Gaddafi paid “more for one night than the land was worth for two years, and then I didn’t let him use the land.” Trump explained that that’s the kind of tough negotiating he’d bring to international affairs, or something. “That’s what we should be doing. I don’t want to use the word ’screwed’, but I screwed him. That’s what we should be doing.”
No. There was no slip. I didn’t mention you once in connection to the context, but if you thought of yours and Mike’s past conflict – which I have not mentioned since Mike forgave you, might I suggest a re-reading of “The Tell-tale Heart” by Poe. A guilty conscience is a terrible thing to waste.
But no. There was no slip up. I use hyperbole with purpose, bdaman. And I match its severity with that of the problem being addressed.
The lawlessness of government is as serious a problem as a society can face.