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.

Monday, July 03, 2006

Exemplary Americans - The Press asserts itself - Abrogating the Geneva Conventions

Several related issues of note:

(1) One of the most eloquent and forceful opponents of the Bush administration's abuses of executive power has been Bruce Fein, life-long doctrinaire conservative and former Reagan administration Justice Department official. Blogger Andrew Bard Schmookler has posted an e-mail interview he conducted with Fein which is highly worth reading. If I could force every self-proclaimed conservative to read one interview, it would be this one.

Fein is particularly persuasive when it comes to imparting the depressingly difficult-to-convey point that critiques of the Bush administration's theories of executive power have nothing to do with liberal or conservative ideology, except to the extent that unlimited executive power is squarely at odds with ostensible conservative principles:

I have never perceived our magnificent constitutional dispensation as a partisan issue. As Thomas Jefferson explained in his first inaugural, we are all Federalists, we are all Republicans when it comes to the rule of law and the Constitution’s sacred architecture. The Founding Fathers built on a profound understanding of human nature and the propensity of absolute power to deteriorate into absolute corruption and abuses.

My convictions about the signature features of the United States that occasioned its blossoming from a tiny nation into a global superpower made my criticisms of Bush’s usurpations natural and spontaneous, even though I voted for him twice and praised many of his measures or appointments, e.g., Chief Justice John Roberts and Associate Justice Sam Alito. . . . Bush’s precedents are dangerous, and will lie around like loaded weapons readily unleashed by any incumbent in times of strife or conflict, e.g., a second edition of 9/11.

At the risk of invoking a heinous -- and tragically soiled -- blogger cliche, permit me to recommend that you read the entire interview with Bruce Fein.

(2) Journalists are the frequent target of criticism in the blogosphere, and my blog is no different. The failure of journalists to perform their central function of acting as an adversarial watchdog against the Government is one of the most significant factors -- if not the most significant -- in why the Bush administration has been able to perpetrate abuse after abuse.

But if one is going to criticize journalists for not doing their job, one should give credit to journalists when they do. Just as I wish that every self-proclaimed conservative would read the Bruce Fein interview, I wish every journalist would watch this clip of Dana Priest on Meet the Press this weekend, in which she very forcefully and clearly explains the intended purpose and function of the media in our system of government.

With Bill Bennett, that odious advocate of imprisoning journalists, sitting next to her, the comment which Priest made about casino gambling has received most of the attention (and for those Beacons of Civil Discourse hand-wringing about the impropriety of her comment, I'd like to know how many of them could exercise the civility they oh-so-solemnly urge when sitting next to someone who has been publicly advocating their life-long imprisonment). But Priest's casino gambling comment is really just an insignificant distraction compared to the extremely critical and substantive points she made about the role of journalism and why these attacks on journalists are so misguided and dangerous.

Priest, who won the Pulitzer Prize this year for her story informing Americans that our government has created secret gulags in Eastern Europe to "interrogate" terrorist suspects beyond the reach of the law, is extremely smart and, more importantly, understands her role as a journalist and is courageous enough to fulfill that role regardless of the attacks to which she knows she will be subjected. Her boldness even inspired the other panelists, and the moderator, to be quite combative against Bennett's insistence that journalists who expose government secrets belong in prison.

As fundamentally flawed as the national media has been over the last five years -- and their journalistic crimes could fill a book (actually, they have filled a very good book) -- they are a vital and irreplaceable check on the government. We would not know about warrantless eavesdropping if the NYT and Jim Risen hadn't written about them, or secret European gulags if Priest and the WP hadn't uncovered them, or the domestic call monitoring program had USA Today not learned of it and courageously published an article about it. And the NYT just published reports of the administration's massive banking monitoring program and defied the pleas of the administration when doing so, knowing it would be subjected to exactly the whirlwind of vicious and dangerous accusations of treason which have spewed forth the entire week. They deserve credit, and support, for having done all of that.

The MTP panel discussion was actually quite encouraging because, for the first time in a long time, one could see national journalists actually showing some genuine and self-evidently justifiable signs of anger and fight over the very deliberate attacks on a free press which have been waged for some time by this administration and its followers. Bush followers hate anything which serves as a limit on the power of the Leader -- the media, whistleblowers, the Supreme Court, disobedient Senators, the opposition party, the Constitution. They see each of these balancing forces as something which -- to use Alberto Gonzales' revealing description -- "hampers" the power of the President. One can hope that they have become so brazen in their intent to wage war against the media that journalists will finally awaken to what has been obvious for some time and realize that they need to begin to defend themselves. Priest's performance yesterday, and really the panel discussion as a whole, was an encouraging sign.

(3) Katherine at Obsidian Wings has an excellent analysis on the intended maneuvers of Congress to circumvent the Hamdan ruling through legislation aimed at legalizing the President's military commissions. There is a certain smugness in most of the Congressional comments about this decision. They are treating it as though the decision turned on nothing other than some minor legislative oversight -- that all Congress has to do is enact a quick law making clear that they "bless" the military commissions and then all will be well.

But the crux of the Court's decision was that -- regardless of federal law -- the Geneva Conventions themselves prohibit the type of military commissions which the administration created. Although it is likely that the Court is without jurisdiction to enforce the mandates of the Conventions themselves (Hamdan was grounded in enforcement of federal law mandating compliance with the Conventions, not the mandates of the Conventions themselves), it is still the case that the Court held that the military commissions are violations of the Conventions (and, therefore, executing a prisoner based on the findings of such a commission would be a war crime, the Court strongly suggested).

Thus, the only way for Congress to empower the President to proceed with these military commissions would be to abrogate the Geneva Conventions. That is something which the President and Congress are unquestionably empowered to do -- treaties are like any other law and can be reversed or negated at any time through the democratic process (i.e., through an act of Congress) -- but is that really something that we are prepared to do?

The "war" we are fighting is a war, claims the President, about changing "hearts and minds" among Middle Eastern Muslims towards the United States, about blocking the ability of Al Qaeda to recruit and receive support by making clear that the U.S. is a force for good in the world. That is the rhetoric that is used to justify our military occupation of Iraq (once the original principal justification became problematic) and it is supposedly the central precept of our foreign policy overall. What could be more inconsistent with that putative goal than repudiating the mandates of the Geneva Conventions?

As the Supreme Court made clear -- and this proposition is not in real dispute -- the U.S. could hold these prisoners without any military commissions until "the end of hostilities." That is how all countries treat all prisoners of war. Prisoners of war aren't entitled to trials and they are not released until the war ends.

There are only two possible reasons why the Bush administration would want to try Guantanamo detainees in a military trial: (i) to justify their execution; or (ii) to address international protest that these prisoners should not be held forever without establishing their guilt. Is executing these prisoners (or trying them in a military commission as opposed to a regular court-martial proceeding) really worth the heavy cost that we will incur if we abrogate the Geneva Conventions? And if international protest is the reason to give them military trials, isn't it obviously better to hold them without such trials than to be seen by the world abrogating the Conventions?

Rightly or wrongly, our nation's highest court has held that the Geneva Conventions which we signed -- and which are part of American law -- bars the use of military commissions. Thus, the only way to proceed with them is to violate or abrogate the Conventions themselves. What possible benefit could justify the heavy cost of doing that?

(4) I want to express my sincere appreciation to Barbara O'Brien, Anonymous Liberal, and Hume's Ghost for their superb guest blogging last month during my book tour. It is very difficult for most bloggers to be unable to blog for extended periods of time because one feels an obligation to provide worthwhile content to one's readers. But the quality of their blogging made my required absence much easier and more relaxing. Their posts were provacative and well-reasoned and I consider them a credit to this blog. You can continue to read each of them, as I do, at their regular blogs, linked to above.


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