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The Nation

Bush Assaults Rule of Law to Save Libby

 

"The true saint is the person who whips and kills the people for the good of the people."

 

-Charles Baudelaire

 It is tempting to view the commutation of prison time for Lewis Libby, the disgraced White House aide convicted of lying and obstructing justice, as another instance of craven hypocrisy by President Bush. As a candidate in 1999, Bush assured voters, "I don't believe my role is to replace the verdict of a jury with my own," unless "new facts" arose or the trial was "unfair" -- a standard which the Libby case clearly fails.

Or perhaps the commutation will serve as a disturbing reminder of how the administration regularly lies with impunity in Washington. President Bush famously promised, in serious tones at a televised White House meeting, to both fire and punish anyone involved in the outing of CIA agent Valerie Plame. Instead, he retained all the senior officials embroiled in the scandal, even after their roles were exposed in trial testimony and news reports, with no visible consequences. Now the President is using his clemency power to protect the one official convicted on related crimes. In his surreal statement about that choice, Bush volunteered his belief that "if a person does not tell the truth, particularly if he serves in government and holds the public trust, he must be held accountable."

But it would be wrong to criticize Bush's decision as one more hypocritical or deceitful maneuver, because it is actually far more profound.

The commutation of the 30-month prison sentence for Lewis Libby, the highest-ranking White House official convicted of a felony since Iran-Contra, fits into a larger, systemic assault on American rule of law by the Bush Administration.

In fact, Libby's special treatment is a microcosm of current U.S. policy. Libby is basically receiving a post-conviction protection that the Bush Administration now routinely extends to many potential criminals in the U.S. government. The administration successfully pushed legislation last year granting immunity to officials who might someday be prosecuted for war crimes or torture. It is a policy that embodies the administration's distinctly un-American view that powerful government officials should operate above the law.

The same legislation, the Military Commissions Act, strips constitutional rights and habeas corpus in a direct attack on the protections that have grounded the rule of law in America since its founding, 231 years ago this week. The unconstitutional act, like the administration's illegal detention, torture, spying and secret prisons, will continue as long as the federal courts ignore the administration's criminal conduct in deference to claims of executive authority in the Global War on Terror.

Even when the courts have confronted Bush's assault on the rule of law -- overruling detention policies in two cases and one spying lawsuit -- the administration has stayed or circumvented the rulings, shielded law-breakers within the U.S. government, or simply lied by claiming all of its activities, including those found unconstitutional by U.S. courts, are legal. When pressed on illegal torture techniques, for example, Bush made the Nixonian declaration that "whatever we have done is legal." Then there is the slew of rear-guard actions that the administration uses to subvert the law and our democratic process. These include extreme secrecy, defying congressional subpoenas, extralegal signing statements and unprecedented assertions of the "state secrets privilege" - a courtroom tactic where the administration literally tells judges that cases should not proceed because they might jeopardize "state secrets." (It often works.)

The administration defends this assault on the rule of law as vital to defending the homeland. If anything, the most vocal Bush supporters are proud of their zeal to commit crimes that supposedly advance national security. The Republicans running to replace Bush frequently tout their willingness to whip the people for the good of the people, as Baudelaire would say, while Bush's leading Democratic opponents have rarely tackled these issues head on. (Kerry "rarely" mentioned torture in the 2004 campaign, since Democrats generally thought human rights were "political suicide" after 9/11, as Georgetown Law Professor David Cole argues in the new NYRB.)

Of course, Libby can't even claim a "trade-off" between law and security. He lied to FBI agents to cover up the outing of a CIA agent that compromised national security. The motivation for the leak was a potentially illegal hit job to discredit American citizens who had served in the U.S. government. It was as dirty and petty as Watergate, except this time the crooks broke into their own files to attack opponents.

Since the Libby commutation is part of a much broader problem, the President's opponents cannot afford to simply criticize it in isolation. They have a duty to outline an alternative agenda that prioritizes the rehabilitation of the rule of law. Which candidates will commit to rolling back the legislative immunity for war criminals? Who will commit to confronting every official responsible for mishandling classified information (including Libby and Cheney), practicing torture and illegally spying on American citizens? Who will pursue investigations now -- not "if elected" -- to follow the horrors of Abu Ghraib up the chain of command, past the Taguba Report, however high they go?

That is the surest way to begin rescuing the rule of law in this country and restore the public trust. Because as Americans gather for July 4th celebrations, talk will likely turn to two convicted criminals who embody Bush's approach to the rule of law: Lewis Libby and Paris Hilton. So powerful and rich, they can live above the law, and they make no apologies for it. Americans overwhelmingly opposed a pardon for Libby, and initial polling suggests they oppose the commutation. The question for politicians is not whether they agree with the public on this fundamental matter of law and order, but what are they going to do about it?

UPDATE: Blogger and author Marcy Wheeler argues that Bush's preference for commutation instead of a pardon is also designed to subvert the rule of law. "He commuted Libby's sentence, guaranteeing not only that Libby wouldn't talk, but retaining Libby's right to invoke the Fifth," she writes. For congressional responses, blogger Phoenix Woman notes that House Judiciary Chairman John Conyers is expected to hold hearings on the commutation next week.

Bush Commutes Libby's Jail Sentence

It's appropriate.

The president who led the nation into a disastrous war in Iraq by peddling false statements and misrepresentations has come to the rescue of a White House aide convicted of lying by commuting his sentence. Before the ink was dry on today's court order denying Scooter Libby's latest appeal--a motion to allow him to stay out of jail while he was challenging his conviction--George W. Bush commuted Libby's sentence. Libby will no longer have to serve the 30-month prison sentence ordered by federal district court Judge Reggie Walton. He will, though, have to pay the $250,000 fine that was part of the sentence.

The commutation--which is not a pardon and does not erase Libby's conviction--is a reminder that Bush and his crew do not believe in accountability. Bush has been rather stingy in the use of his pardon power. And regulations issued by his Justice Department note that recipients of pardons should serve their sentences and demonstrate contrition before obtaining presidential absolution. (Libby had expressed no remorse and was not scheduled to report to jail for several weeks.) Yet with this commutation, Bush ducked those requirements, and he is allowing Vice President Dick Cheney's former chief of staff, who was found guilty of lying to federal investigators in the CIA leak case, to go unpunished. The fine will be no problem for Libby. His neoconservative friends and admirers will kick in to cover that tab. (Perhaps even Cheney will send a check.)

Libby had become a symbol of the Bush White House's problem with the truth. After all, his lies had been designed to block FBI agents and federal prosecutors from learning the full truth of a White House effort to discredit a critic who had accused the Bush administration of twisting the prewar intelligence. And now the final act in the long-running CIA leak scandal--Bush's commutation--stands as another symbol of this grand theme: lying doesn't really bother this crowd. In the 2000 presidential campaign, Bush claimed he would bring responsibility to the White House and, as a PR stunt, he dubbed his campaign jet Accountability One. Yet with this commutation, he takes the position that in his administration an aide who purposefully misleads government officials investigating a possible national security crime need not be held fully accountable.

This is no shocker. Early on in the CIA leak affair, the White House announced that anyone involved in the 2003 leak that disclosed the CIA employment of Valerie Wilson, an undercover Agency officer, would be booted out of the administration. But Karl Rove, who had disclosed classified information about Valerie Wilson to two reporters and who apparently lied about his actions to White House press secretary Scott McClellan, was not pink-slipped. Bush has never acknowledged this broken promise. (Libby left the White House only after he was indicted in the fall of 2005.)

Bush shielded Rove, and now--better late than never--he's doing the same for Libby. Ever since Libby's conviction in March, neoconservative and conservative Libby partisans have been urging--or demanding--that Bush pardon Libby. They have cried that his indictment, his conviction, and his sentence were travesties of justice. They blasted Bush for declining to intervene in the proceedings, branding the president (their pal!) a coward. They acted as if Bush's refusal to pardon Libby was a personal betrayal of each and everyone of them. They showed more concern for Libby than any of the civilians who have perished in Iraq in the years since they, Libby and their allies engineered the invasion of Iraq. Libby was their cause; he was one of them.

Once again, Bush, being nudged by the neocons, has sent a clear message: telling the truth doesn't matter. Bush has refused to acknowledge that he, Cheney, and other administration officials--to be polite about it--stretched the truth about Iraq and the threat it posed before the war. Today, he says that if you lie to protect the White House (especially the vice president), you can escape retribution. But if Bush, Cheney and the others could get away with big untruths about war, why shouldn't Libby get away with small lies about a cover-up? Fair's fair, right?

The foundation of a democratic judicial system is that the sentence fits the crime. In this instance, the commutation fits the administration.

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JUST OUT IN PAPERBACK: HUBRIS: THE INSIDE STORY OF SPIN, SCANDAL, AND THE SELLING OF THE IRAQ WAR by Michael Isikoff and David Corn. The paperback edition of this New York Times bestseller contains a new afterword on George W. Bush's so-called surge in Iraq and the Scooter Libby trial. The Washington Post said of Hubris: "Indispensable....This [book] pulls together with unusually shocking clarity the multiple failures of process and statecraft." The New York Times called it, "The most comprehensive account of the White House's political machinations...fascinating reading." Tom Brokaw praised it as "a bold and provocative book." Hendrik Hertzberg, senior editor of The New Yorker notes, "The selling of Bush's Iraq debacle is one of the most important--and appalling--stories of the last half-century, and Michael Isikoff and David Corn have reported the hell out of it." For highlights from Hubris, click here.

Bush Commutes Libby's Sentence

This afternoon, after three appeals court judges turned down Scooter Libby's latest appeal, George W. Bush commuted the convincted felon's sentence, wiping out the 30 month prison stay a federal judge had handed Libby. But the $250,000 fine remains. I'll have more on this later...

Party for the Planet

This Saturday, people around the world will attend more than 5,000 parties in honor of a much idolized, much abused celeb-of-the-moment. No, it's not Princess Di. These parties aim to help the planet, by committing the guests to work against climate change. It's the first time the political house party has ever been used globally, according to the organizers, and it's reached at least 114 countries so far, including Bosnia, Sierra Leone and the Philippines. (Note the rather severe troubles facing people in those countries. So, those of you thinking of not bothering because you have your own problems to deal with? You might want to think again.) Organized by Avaaz (which I've written about in this space before) and MoveOn, the house parties will coincide with the Live Earth concert. Big fat global concert events don't always accomplish much. (Remember Live Aid? Or worse, the dreadful "Feed the World" theme song? Block that 80s flashback!) But the organizers of these house parties believe Live Earth can be different, and they're aiming to, according to Ricken Patel, executive director of Avaaz, "turn the moment into a movement." Party guests will pledge not only to change consumption habits but more importantly, to engage in political action on this issue. They'll agree to pressure their governments to sign on to a global climate treaty agreeing to a 90% reduction in emissions over the next generation. What are you doing Saturday night?

Libby Turned Down Again, Getting Closer to Jail

Is Scooter Libby really going to jail now? Today a three-judge panel of the U.S. Court of Appeals in Washington, DC, turned down Libby's request to remain free on bond while his attorneys appeal his conviction on obstruction of justice charges. In a two-sentence ruling, the three judges said that Libby "has not shown that the appeal raises a substantial [legal] question." This means that Libby will have to report to a federal penitentiary as soon as the Bureau of Prisons finds a spot for him, and that could occur within weeks.

Libby's defenders--the folks who claimed he was wrongfully investigated, then wrongfully indicted, then wrongfully convicted by a jury, then wrongfully sentenced to 30 months and a $250,000 fine--will no doubt say this matter was wrongfully decided by these three judges (one of whom was a Ronald Reagan appointee and one of whom was a George H.W. Bush appointee). But (hopeless) legal arguments aside, this ruling will cause the neocons (and their conservative allies) to intensify the campaign for a Libby pardon. (I recently detailed the Let Libby Go crusade here.) Now the Libby Lobby will pump up the volume, pressing George W. Bush to intervene.

Libby's champions seem to be motivated, in part, by an intense sense of personal betrayal. Libby partisans have essentially accused Bush of being an ingrate and coward for not rushing to the rescue of Vice President Dick Cheney's former chief of staff. With the clock ticking on Jail Day for Libby, the Save Scooter advocates can be expected to voice further their frustration and resentment.

Will Bush yield? There's no telling. So far he's kept his distance from the Libby case--which stands as a reminder that Bush led the nation to an unpopular war on the basis of misrepresentations and false statements. But one thing's for sure: if Bush doesn't pardon this former White House aide, he will receive plenty of abuse from people who once hailed him for initiating the war they had craved for years. The pro-war neocons often appear distant from the disastrous consequences of the invasion of Iraq, including the civilian casualties of the war. But when it comes to the plight of Libby, an architect of the war convicted of lying, they feel his pain so passionately. We are all Scooter!, they practically proclaim. And in a way, they're right.

******

JUST OUT IN PAPERBACK: HUBRIS: THE INSIDE STORY OF SPIN, SCANDAL, AND THE SELLING OF THE IRAQ WAR by Michael Isikoff and David Corn. The paperback edition of this New York Times bestseller contains a new afterword on George W. Bush's so-called surge in Iraq and the Scooter Libby trial. The Washington Post said of Hubris: "Indispensable....This [book] pulls together with unusually shocking clarity the multiple failures of process and statecraft." The New York Times called it, "The most comprehensive account of the White House's political machinations...fascinating reading." Tom Brokaw praised it as "a bold and provocative book." Hendrik Hertzberg, senior editor of The New Yorker notes, "The selling of Bush's Iraq debacle is one of the most important--and appalling--stories of the last half-century, and Michael Isikoff and David Corn have reported the hell out of it." For highlights from Hubris, click here.

Obama Hits Another Homer

Barack Obama hit another one out of the park. By now you've heard all about the $32.5 million the Illinois Senator's campaign raised in the second quarter of this year. That's five million more than the big kahuna, Hillary Clinton, who was easily supposed to win the money chase. And well more than three times the amount of John Edwards.

Obama tapped over a quarter million donors en route to smashing all primary fundraising records. That's a very impressive number. But let's not lose sight of what it all means.

Obama's first quarter take was powered by a lot of small donors. And to his credit Obama doesn't accept money from lobbyists. But that didn't stop him from cozying up to powerful sectors such as Wall Street and raising a boatload from places like Goldman Sachs and Citigroup. We'll know the details of the second quarter take soon enough.

Money corrupts. Take one look at Washington today. Obama has said so himself. "We need a President who sees government not as a tool to enrich well-connected friends and high-priced lobbyists, but as the defender of fairness and opportunity for every American," he said in New Hampshire recently.

Obama has a natural instinct for reform. He's co-sponsored legislation to publicly finance political campaigns. But every time a politician holds a top-dollar fundraiser, it seems like another little piece of idealism gets bought.

While he's stuck in a system driven by dough, Obama should keep talking about how to change it.

To the Courts, Then, on Behalf of the Constitution!

The founder of the Republic, conscious of the excesses that resulted when King George III and his Parliament cooperated, endeavored to put the legislative and executive branches of the United States at odds with one another.

Jefferson believed: "The concentrating [of the legislative, executive and judicial powers] in the same hands is precisely the definition of despotic government."

To combat such despotism, the first democrat said, "The powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others."

Jefferson's frequent rival, John Adams, agreed with him on this point, arguing that, "[Checks and balances] are our only security."

During the first six years of the Bush-Cheney interregnum, the system of checks and balances established at the opening of the American experiment effectively collapsed. Republicans, who generally controlled the legislative branch of government during the period, were more concerned with party loyalty than their duties to the Republic. Democrats, who briefly controlled the Senate, operated as a compromised opposition party under the cowering "leadership" of House Minority Leader Dick Gephardt and Senate Majority Leader Tom Daschle.

Since the November, 2006, elections, which marked something of a breaking point in the pattern of executive dominance that had been in operation up to that point, there has been much talk about the restoration of the separation of powers required by the Constitution.

Only now, however, with the declaration by Senate Judiciary Committee chair Patrick Leahy, D-Vermont, that he will take the Bush-Cheney White House to court if the administration continues to refuse to cooperate with subpoenas, does the talk begin to have meaning.

"The president and vice president are not above the law anymore than you and I are," Leahy declared Sunday.

Asked on NBC's "Meet the Press" whether he would seek a congressional vote on contempt citations that would take the subpoena fight to the courts, Leahy said, "If they don't cooperate, yes I'll go that far."Speaking of White House stonewalling in the struggle to get to the bottom of the U.S. Attorneys scandal and related cases of executive excess, the senior senator from Vermont said of Bush and Cheney, "They've chosen confrontation rather than compromise or cooperation. The bottom line is in the U.S. attorney investigation, we have people manipulating law enforcement. Law enforcement can't be partisan."

Leahy's committee has, with support from Democrats and Republicans, issued subpoenas the White House seeking documents relating to the firings of eight U.S. Attorneys who were deemed to be insufficiently partisan in their investigations and prosecutions. The committee has also sent subpoenas to the White House and the office of Vice President Dick Cheney seeking documents detailing the legal debates around the administration's warrantless wiretapping program. And it has issued summons to key players in the administration and the Justice Department.

The administration's reaction has, so far, been one of refusal to cooperate in a serious manner. White House counsel Fred Fielding announced last week that the president was invoking "executive privilege" in refusing to turn over requested documents on the firings. Bush has also claimed the right to prevent former White House counsel Harriet Miers and former White House political director Sara Taylor from testifying under oath about their role in pressuring U.S. Attorneys to politicize prosecutions.

Leahy's statements Sunday indicate a willingness to have lawmakers vote to cite the White House for contempt of Congress. Ironically, the matter would then be referred to the U.S. Attorney for the District of Columbia to bring before a grand jury.

If the matter actually gets to court, it would be the first time that such a dispute has been so litigated since the Watergate-era clashes between Nixon White House and Congress. The value of those clashes, above all, was the role they played in restoring a measure of Constitutional order to the Republic.

What is amusing is that some media outlets have in recent days taken to speculating about whether a constitutional crisis might ensue if Leahy takes things to the courts.

In fact, the constitutional crisis has played out over the past six years. What Leahy proposes is to address it.

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John Nichols's book The Rise and Rise of Richard B. Cheney: Unlocking the Mysteries of the Most Powerful Vice President in American History (The New Press) is available nationwide at independent bookstores and at www.amazon.com. Publisher's Weekly describes it as "a Fahrenheit 9/11 for Cheney" and Esquire magazine says it "reveals the inner Cheney." The London Review of Books says The Rise and Rise of Richard B. Cheney "makes a persuasive case…that the vice-presidency is the real locus of power in the current administration: Cheney runs the show."

The Pulitzer Prize Winner and Her Husband

It was less than one year after winning a Pulitzer Prize that columnist Connie Schultz took a leave from her job with the Cleveland Plain Dealer. She wanted to campaign full-time for her husband, then-Congressman Sherrod Brown, in his run for the Senate. It turned out to be a shock to her system. In her just published book, … and His Lovely Wife, Schultz tells of sitting down at her kitchen table the day after her decision and writing in her journal, "WHAT'S TO BECOME OF ME?"

She quickly saw her identity "vaporizing," as tends to happen in campaigns in which a spouse is simply viewed as "a prop or a problem." In December 2005, at a restaurant in a southern county, a local party chairman introduced Schultz along with Brown as simply "his lovely wife." This quickly became the norm throughout the state ("his lovely wife, Candy," on a bad day), even in Cleveland where she had written for the Plain Dealer for twelve years. Schultz writes that the campaign trail would "test my every assumption about how far women have come in this country."

But over time Schultz learned something that will come as no surprise to devoted readers of her (now syndicated) biweekly column: "…I could write my own playbook. I didn't have to follow someone else's rules on how to be a political wife. In fact, I could just keep on being Sherrod's wife and do what I have always done: talk to people, take notes, and share their stories – and my own. It took a while for me to get there, but once I did, I never looked back."

What gave Schultz her moxie?

Schultz grew up in a working-class family in Ashtabula, Ohio, where – as she said on the campaign trail and in her book – her parents "wore their bodies out so that we would never have to." Her father worked "a factory job he hated every day of his thirty-six years at work"; her mother took a job as a nurse's aide, working for an hourly wage, so that her parents could "buy the first, and only, home they ever owned" when Schultz was in high school. Schultz was the first in her family to graduate from college – Kent State University – "ninety minutes and a whole world away" from Ashtabula.

Now, as a columnist (and as she campaigned for her husband), Schultz's spirit – her sensitivity, empathy and humor – authentically capture the way people are living their lives. While columnists such as EJ Dionne, Paul Krugman, Bob Herbert, Frank Rich, Eugene Robinson, Ellen Goodman, Maureen Dowd and others cover national and international politics in smart, sassy and often passionate ways, what sets Schultz apart is her attentiveness to the gritty detail of ordinary lives, and the personal, and the local. Credit the Pulitzer Committee for getting that right: the citation for her Pulitzer Award for Commentary noted "her pungent columns that provided a voice for the underdog and underprivileged."

There's also a fearlessness in her writing – and in Schultz herself – and that quality, along with her humor, reminds many of the late, great Texas columnist, Molly Ivins. Her fearlessness was striking on the campaign trail, and in the agreement she made with her husband before he entered the race: any time Republicans attacked, Sherrod would fight back.

Or, as a Washington Post profile last year on Schultz reported her telling a United Auto Worker rally, "We're going to fight back. You respond, you pivot, and you deck 'em." Schultz's humor was a great asset on the campaign trail too. Early in the race, Fox News identified Brown as a woman, and Rush Limbaugh described him as African American. In a speech the next day Schultz told an audience of women, "So, you see, I'm even more liberal than you thought. I'm actually married to an African American woman."

Schultz is now back at her job and understands how lucky she is to be able to step back into a career where she's made a name for herself. Other spouses aren't so lucky. Which brings us back to her book.

In these times, when a woman is the frontrunner for the Democratic presidential nomination, 16 women serve as senators, and a woman is Speaker of the House – is "Political Wife Syndrome" changing?

"I hope so, I hope it is," Schultz tells me. "I hope I'll help move that conversation along with the book, that's part of the reason I wrote it. And it's not just about spouses of politicians – it can be any woman married to a man in a prominent position, anywhere, even in a small town…. I hope that readers of my book start thinking about other women who they have dismissed as the less significant part of a couple."

We're lucky Connie Schultz has written about her life during the campaign. We would also be lucky if she decided to run for Ohio's other Senate seat. But don't count it. Schultz says she doesn't have the constitution for political office and she can make a difference doing just what she is doing. "But I'm a hypocrite," she says, "because I want lots and lots of other women to run."

It's probably for the best. Schultz's writing would be missed.

Bloomberg the Philanthropist

Veteran journalist Roger Simon put it well: " Should [Mayor Bloomberg] spend a billion dollars on a quixotic campaign for President or [does he] spend the same billion dollars to help cure AIDS, feed the hungry, house the homeless, fund the arts?" After reading the long list of grants Mayor Michael Bloomberg made last week--more than $30 million to 530 neighborhood-based cultural, health and social service groups --I vote for Bloomberg as philanthropist. Drop the Presidential ambitions. (For a full list of the Mayor's "anonymous" grants--given via the Carnegie Corporation of New York, go to www.carnegie.org/sub/news/2007anonymous)

Sure, if elected President Bloomberg might well use government funds to support needle exchange programs to help reduce the spread of H.I.V. or programs to help battered women or groups working to repeal the draconian Rockefeller Drug laws and organizations dedicated to ending violence against gays and lesbians. But let's get real here. Until we bust open our two party duopoly with a slew of vital electoral reforms, third party candidates just don't have a chance. (That's why we should demand that the Presidential candidates --and the parties' platforms--support pro-democracy reforms like Instant Runoff Voting.) But back to Bloomberg. Unless you've been too consumed reading the Washington Post's riveting (but two-years-too-late) four-part, 20,000 word series on Cheney, you know that New York's billionaire mayor is playing footsie with running for President as an independent. And you've probably heard the punditchatter about about how Bloomberg could become '08's Ross Perot. However, here's another reality check:while Perot got 19% of the vote, he didn't get a single electoral vote. And as we've learned the hard way these last few years, the College controls the endgame. (That's another pro-democracy reform we need to fight for--check out the National Popular Vote campaign at Fairvote.org) If Bloomberg is as savvy and sharp and concerned about the country's future direction as he says he is, he'd be wise to stick to his promise to devote his life to philanthropy when he leaves the mayor's office.