We like to think there are absolute truths…something like Plato’s Ideas. For example, we think there is some kind objective reality to the concept of illegality. Something is illegal or it is not. Something is constitutional or it is not.
But the Bush administration taught us otherwise. Is it illegal to blow off a congressional subpoena if neither the courts nor the attorney general will enforce the law? Are ratified treaties considered legally binding if the President says they are not? Are statutes against torture enforceable if the Office of Legal Counsel redefines torture? What I learned from the Bush administration is that however strongly I may feel something is illegal, it isn’t unless someone with authority will declare it so and act accordingly.
And what that means is that much of what the Bush administration did can be defined as illegal now if only people in Congress and the Obama administration and the Courts will define it so. It wouldn’t be too hard to define a wide swath of Bush’s activities as illegal and to tar pretty much his entire presidency as a criminal enterprise deserving of our enduring scorn and contempt as a nation.
The way to do that is to release classified information that demonstrates the degree to which we were lied to about intelligence, threats, and the nature of how we were conducting our affairs. If this is done, it won’t be just the Bush administration’s legacy that suffers, but all of his enablers. Some Democrats will look bad, but it is the Republican Party that will take the real hit. The worse the fall out, the more the GOP will take on the taint of other discredited parties we’ve seen in modern history…parties that are synonymous with disgust and moral condemnation.
And that is why the Republicans are doing this:
Senate Republicans are now privately threatening to derail the confirmation of key Obama administration nominees for top legal positions by linking the votes to suppressing critical torture memos from the Bush era. A reliable Justice Department source advises me that Senate Republicans are planning to “go nuclear” over the nominations of Dawn Johnsen as chief of the Office of Legal Counsel in the Department of Justice and Yale Law School Dean Harold Koh as State Department legal counsel if the torture documents are made public. The source says these threats are the principal reason for the Obama administration’s abrupt pullback last week from a commitment to release some of the documents. A Republican Senate source confirms the strategy. It now appears that Republicans are seeking an Obama commitment to safeguard the Bush administration’s darkest secrets in exchange for letting these nominations go forward.
The problem? Dawn Johnsen is willing to define torture as torture. In a piece she wrote for Slate in April of 2008, she said the following:
OLC, the office entrusted with making sure the President obeys the law instead here told the President that in fighting the war on terror, he is not bound by the laws Congress has enacted. That Congress lacks the authority to regulate the interrogation and treatment of enemy combatants…
…Is it possible John Yoo alone merits our outrage, as some kind of rogue legal advisor? Of course not.
As Dahlia points out, Bush has not fired anyone responsible for devising the legal arguments that have allowed the Bush administration to act contrary to federal statutes with close to immunity–or for breaking the laws. In fact, the ones at Justice who didn’t last are the officials (like Goldsmith) who dared to say “no” to the President-which, by the way, is OLC’s core job description.
And Harold Koh?
Koh, recall, dramatically testified at Alberto Gonzales’ confirmation hearing to become attorney general in 2005, calling the infamous August 2002 Office of Legal Counsel memo authorizing torture “perhaps the most clearly erroneous legal opinion that I have ever read” and a “stain on our national reputation.”
Here are two people that are willing to define what is clearly illegal as illegal. And all that remains to make ‘the illegal’ illegal is to give them the authority to make it so. If Bush’s crimes are defined as crimes, there can be no recovery for the GOP. They will do whatever they can to prevent that from happening.
