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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Tuesday, May 23, 2006

Snapshots of the U.S. under the Bush administration

Several articles and events over the past couple of days provide a thorough picture of what the U.S. is becoming, and has become, under the Bush administration:

Increasingly, there is simply no role for courts to review the President's actions, nor for citizens to challenge the legality and constitutionality of those actions. A month or so ago I wrote about the administration's rapidly increasing use of the "state secrets privilege" -- once a rarely invoked weapon used by the Government to prevent litigation from exposing critical national security secrets, but now something which the Bush administration routinely exploits to prevent any legal challenge to its behavior. As lawyer Henry Lanman details in Slate today:

Never heard of the "state secrets" privilege? You're not alone. But the Bush administration sure has. Before Sept. 11, this obscure privilege was invoked only rarely. Since then, the administration has dramatically increased its use. According to the Washington Post, the Reporters' Committee for Freedom of the Press reported that while the government asserted the privilege approximately 55 times in total between 1954 (the privilege was first recognized in 1953) and 2001, it's asserted it 23 times in the four years after Sept. 11. For an administration as obsessed with secrecy as this one is, the privilege is simply proving to be too powerful a tool to pass up.

The Bush administration has now invoked this doctrine in virtually every pending legal proceeding devoted to challenging the legality of the warrantless NSA eavesdropping program - all but assuring, yet again, that no court can rule on the legality of that program. The administration also just used the same tactic to compel dismissal of a lawsuit brought by Khalid El-Masri, a German citizen who alleges -- with the support of German prosecutors -- that the U.S. Government abducted him, drugged him, flew him to multiple different torture-using countries as part of the administration's "rendition" program, only to then release him after five months when the U.S. realized it had abducted the wrong person. There is no dispute about the accuracy of El-Masri's allegations:

This year, German investigators confirmed most of Masri's allegations, which have received extensive publicity in Europe.

In December, during a joint news conference with Secretary of State Condoleezza Rice, German Chancellor Angela Merkel said Rice had admitted the mistake.

But no matter. The Bush administration believes that its actions -- like the court of the British King -- are above being scrutinized by some lowly federal court or subjected to principles of law intended only for plebeians. As courts almost always do, the Federal Judge in El-Masri's case deferred to the administration's "state secrets" claim and dismissed the lawsuit. The Bush administration used the same maneuver last year to compel "dismissal of a lawsuit by a Canadian citizen who claimed that he was taken to Syria by U.S. officials for detention and was tortured."

So the Bush administration goes around the world abducting other countries' citizens and torturing them. It then claims that the legality of its actions cannot be judged by anyone -- even American federal courts -- because American national security would be harmed if its actions were subjected to such review. Under the circumstances, it is so very difficult to understand why the rest of the world mocks, ridicules, and scoffs at the Bush administration's lectures to the world about principles of freedom and democracy, along with the administration's belief that it can even invade other countries around the world in order to impose what it understands to be "freedom and democracy."

Yesterday, President Bush gave a speech in Chicago on immigration and the "war on terror," and took questions afterwards. In response to a question about Venezuela and Bolivia (where the new leftist Government has begun nationalizing oil and gas resources, including breaking contracts with and expelling Latin American companies), the President issued this lecture to South America:

I am going to continue to remind our hemisphere that respect for property rights and human rights is essential for all countries in order for there to be prosperity and peace. I'm going to remind our allies and friends in the neighborhood that the United States of America stands for justice; that when we see poverty, we care about it and we do something about it; that we care for good -- we stand for good health care.

I'm going to remind our people that meddling in other elections is -- to achieve a short-term objective is not in the interests of the neighborhood. . . . I want to remind people that the United States stands against corruption at all levels of government, that the United States is transparent. The United States expects the same from other countries in the neighborhood, and we'll work toward them.

Thank you very much. I'm concerned -- let me just put it bluntly -- I'm concerned about the erosion of democracy in the countries you mentioned.

Who has less credibility to deliver these sermons to the world than George Bush? The stories of the U.S. abducting people, torturing them, and then blocking any judicial review of its behavior are read around the world. Photographs from Guantanamo and Abu Ghraib are ingrained in the minds of anyone around the world with a television set, as is the Bush administration's insistence that it is unbound by the Geneva Conventions and legal prohibitions on the use of torture. The threat by Alberto Gonzales over the weekend to imprison American journalists was reported prominently in international newspapers, as are stories of the U.S. Government eavesdropping on its own citizens in secret, the creation of secret Eastern European prisons, and the general lawlessness which has prevailed in this country since September 11.

In Brazil last week, an organized crime faction in São Paolo launched a wave of extremely violent, terrorist-like attacks on the city's police stations, banks, hospitals, and transportation systems, killing scores of police officers and creating havoc in that city for days. In response, the São Paolo Police engaged in what appears to be all sorts of reprisals against the gangs, including summary executions and indiscriminate killings of male youths in the gangs' principal neighborhoods.

The ensuing debate among Brazilians almost invariably emphasized the need to avoid giving into the emotional temptation to engage in extreme behavior, violate human rights, and abandon any principles of restraint in responding to the gang attacks. And, by far, the most commonly cited example of the dangers of those temptations is the manner in which the U.S. responded to the 9/11 attacks -- by torturing people, invading countries with no connection to the attacks, and generally abandoning the principles and values which had previously defined the country's sense of justice. When one wants to illustrate the hazards of abandoning all restraint in the face of an outrageous act, the U.S. is the example which now most readily springs to minds around the world.

As we lecture the world about the need for transparency and democracy, and as we continue to proclaim that our foreign policy is based principally on the objective of spreading our ideas about democracy to other countries -- even by military invasion, if necessary -- the U.S. has become a symbol of human rights abuses and anti-democratic measures around the world. We have squandered almost every molecule of moral credibility which we justifiably possessed for most of the 20th Century, particularly since World War II. In so many ways during the last five years, we have become a country which engages in those very practices which always characterized other countries, the ones we were grateful not to live in because they failed to protect the liberties and principles which defined the United States.

A detailed profile in this week's U.S. News & World Report of David Addington, Dick Cheney's top advisor who is a sightly more extreme version of John Yoo, provides the perfect snapshot which conveys why this has all happened:

Whether or not he became the de facto leader of the group, as some administration officials say, Addington's involvement made for a formidable team. "You put Addington, Yoo, and Gonzales in a room, and there was a race to see who was tougher than the rest and how expansive they could be with respect to presidential power," says a former Justice Department official. "If you suggested anything less, you were considered a wimp."

The crux of the Bush administration for the last five years has basically been a competition of contrived, cheap manliness where the winner is he who can wage the most aggressive and fundamental war on American principles of government which have defined our country since its founding. Vesting increased power in the Commander-in-Chief and compiling ever-increasing powers of secrecy have been the only two principles with any recognized value. Those most steadfastly loyal to those two objectives have flourished and consolidated power. As a result, the role of the judiciary and the Congress in our system of government has never been smaller, while the power of the President has never been greater. And the greatest enemy of the administration are checks and balances of any kind -- whether from Congress, the courts or the media.

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