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In the wake of President Bush's commutation of prison time for convicted felon Lewis Libby and a developing constitutional clash over important subpoenas, influential Democratic activists are pressing Congress to put impeachment back on the table.
Today MoveOn.org, the powerhouse group of 3.2 million political activists, launched an unprecedented petition calling on Congress to impeach Vice President Cheney if he defies congressional subpoenas issued to investigate the Bush administration's purge of prosecutors at the Justice Department. Leading bloggers have also launched a targeted campaign to specifically lobby Democratic members of the House Judiciary Committee to put impeachment back on the table, and as The Nation's John Nichols reports, some members of Congress say it is now time to "reconsider impeachment proceedings."
The Judiciary Committee is led by John Conyers, who introduced a bill last Congress to explore impeachment proceedings. It drew support from about one out of seven House Democrats at the time. But Speaker Nancy Pelosi said impeachment was off the table during the mid-term campaign, and Conyers later sent an email to his national supporter list echoing the Speaker's promise.
Leaving aside the detailed debate over when, how and why impeachment proceedings would ever begin, Congress should never have taken the prospect of impeachment off the table. It is a constitutionally protected check against runaway executive power and lawlessness -- problems that Americans are quite familiar with lately. (Politicians are fond of reiterating their willingness to keep the option of nuclear bombs "on the table" in foreign policy, so surely constitutional oversight and accountability can remain on the table too.) When Congress tries to govern without its full power, the President can act with impunity. Here's how the New York Times explained Bush's commutation today:
Mr. Bush comes at the decision a weakened leader, with his public approval ratings at historic lows for any president, his domestic agenda faltering on Capitol Hill and his aides facing subpoenas from the Democrats who control Congress. Those circumstances offer him a certain amount of freedom; as Mr. Black said, "He knows he's going to get hammered no matter what he does."
See? Without further consequences on the table, Bush's historically low support, refusal to work with democratically elected officials in the coequal branch and mounting investigations into serious wrongdoing only serve to give him more "freedom." And with that freedom, Bush and Cheney are fighting to preserve the freedom of a convicted felon, defy congressional investigations and continue to undermine the law and the Constitution through spying, torture and detention policies. How can they be stopped? At times like these, Americans might want to consider what the Founders would do.
"The true saint is the person who whips and kills the people for the good of the people."
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.
About four thousand people rallied in Washington today to advocate the restoration of habeas corpus and other constitutional rights undermined by the Bush Administration, according to estimates from the ACLU.
Organizers say they are delivering about 200,000 petition signatures to Congress that demand immediate action to "restore habeas corpus, fix the Military Commissions Act, end torture and rendition and restore our constitutional rights." This is not a one-day affair, either. The rally is designed to continue online until Congress acts. A coalition of over 50 organizations, led by the ACLU and Amnesty International, is recruiting supporters through an official website; Senate Judiciary Chairman Pat Leahy started a website asking people to pressure his Senate colleagues into supporting the habeas bill; and MoveOn has launched a new campaign to end torture, pass habeas legislation and "Restore the Rule of Law." MoveOn organizer Nita Chaudhary is leading the important effort, which includes support from retired Generals Robert Gard and John Johns, who spoke out in favor of closing Guantanamo this week.
Writing about the rally on the blog FireDogLake today, former prosecutor Christy Hardin Smith urged her netroots readers to lobby Congress. "We are better than jailing people in perpetuity without a determination of innocence or guilt. And we owe a debt, both to our founders and to future generations, to right this profound wrong," she wrote.
This push comes at a critical time. The Senate will consider legislation on defense issues and habeas corpus when it returns from recess in July. Several Democratic presidential candidates now raise these issues on the trail. Dodd and Edwards challenge Bush's entire approach to the Global War on Terror, while Obama has been singling out habeas corpus in his stump speech for months (which the AP recently noticed). And this week the Bush Administration publicly debated when to close Guantanamo – not if.
So even the people who created Gitmo won't defend it.
In fact, the only people left supporting Bush's detainee policy offer unintelligible slogans, like Mitt Romney's promise to "double Guantanamo," or embarrassing falsehoods, such as James Taranto's Wall Street Journal column today, which claims that the executive branch "protects our freedom" by "keeping" people "out of our justice system." Suspending habeas corpus and denying people their right to challenge government detention actually limits "freedom," of course, but with no logical defense of Gitmo available, Mr. Taranto just throws around inflammatory words. The same column attacks Colin Powell, former Chairman of the Joint Chiefs of Staff, for trying to "endanger the lives of American civilians." Why? Because Powell's proposal to close Gitmo supports "constitutional protections" for individuals in U.S. custody.
Yet this is one way to tell that the push for habeas corpus and human rights is working: With the administration openly planning to close the base, the diehard Gitmo defenders are getting desperate and shrill. Now they argue that Americans' lives are "endangered" by our generals and our constitution. Mr. Taranto and the diehards can loudly take their side against the constitution and the generals, but who will join them?
UPDATE: Phillip Carter, an attorney and former U.S. Army Officer who served in Iraq in 2005 and 2006, rebuts James Taranto's attack on Powell in a post on the blog Intel Dump. Carter emphasizes that as a realist, Powell was motivated primarily by the national security benefits to supporting the Geneva Conventions and closing Gitmo. Carter explains: "[Powell] felt, as I do, that taking a narrow, cribbed view of these international laws would undermine our security in the long run, and that America would be stronger if it continued to lead the world on issues of law in war [...] Powell is a hard-bitten realist, and always has been. His opinions on Gitmo relect a cost-benefit calculation about the benefits of keeping this facility open versus the costs to American interests of doing so."
Freshman Senator Sherrod Brown, a popular progressive leader who shocked his supporters by voting for the Military Commissions Act (MCA) last year, now says the vote was a mistake that he intends to "correct."
Speaking with Air America's Cenk Uyger at the Take Back America Conference yesterday, Brown said he regretted the "bad vote":
"I take responsibility. It was the heat of the campaign and I made a mistake."
After backing the MCA, commonly known as the "Torture Bill" in the liberal blogosphere, Brown was kicked out of the Blue America fundraising program. Howie Klein, one of three bloggers who runs the effort, says Brown is the "only person" who was ever booted after an endorsement.
I don't think there will ever be a way to understand how so many members of Congress, who take an oath to uphold the Constitution, could vote for such a patently unconstitutional and un-American bill. Some simply denied the reality that they were advancing torture and undermining our Constitutional rights, others buckled under perceived political pressure--although it was hardly a banner year for the bill's Republican sponsors--and some simply admitted they were betraying their oath and their country.
During the congressional debate, for example, then-Judiciary Chairman Arlen Specter admitted on the Senate floor that the bill was unconstitutional. The MCA is likely to go down in history with the Alien and Sedition Acts as one of the worst congressional assaults on the Constitution in American history, as International League for Human Rights President Scott Horton writes in this month's Harper's.
But it is still real progress for members of Congress to admit their mistake and promise to "correct" it, as Brown is doing, just as it was encouraging to see Senator Leahy lead the Judiciary Committee in backing legislation to restore habeas corpus this month.
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Letter to the Editor, The Nation
We'd like to reassure your readers, see your piece "Why Won't MoveOn Move on Habeas Corpus?" May 21, that MoveOn has moved, is moving and will continue to move on habeas corpus. We didn't include habeas corpus in our membership poll, as you noted, because we already knew our members consider the issue a high priority.
Earlier this Spring, we asked our members to call their Representatives on the House Armed Services Committee and demand that they restore habeas corpus language in the Defense Authorization Bill. Last year we mobilized against the Military Commissions Act, did a major campaign against the government's wiretapping program, supported Senator Feingold's call for censure, ran an ad against wiretapping that compared Bush to Nixon, mobilized members before every relevant committee vote in Congress, helped put together an event with the American Constitution Society and the Liberty Coalition where Al Gore attacked the Bush Administration's assault on civil liberties in detail, and another event where Senator Feingold did the same.
Right now, we're working in coalition with other organizations to find more opportunities to restore habeas corpus and other constitutional rights eliminated or undermined by the Bush Administration with Congressional complicity. We share your concern that everything possible be done to achieve this goal.
MoveOn.org Political Action Executive Director
Michael Moore's new health care documentary "SiCKO" premiered in Manhattan last night, with an unusual group of movie stars walking the red carpet at the famous Ziegfeld Theatre. The paparazzi were reduced to snapping pictures of non-celebrities, like rescue workers who were denied health care for ailments they contracted on September 11, and dozens of nurses decked out in maroon "SiCKO" scrubs. The nurses are part of a national alliance advocating health care reform, including several labor unions, doctors' organizations, consumer groups and MoveOn.org, which cosponsored the premiere with The New York Observer.
In his opening remarks, Harvey Weinstein, co-chairman of the company that produced "SiCKO," singled out MoveOn for helping promote and defend Moore's last documentary, "Fahrenheit 9/11." (The group hosted house parties across the country and urged its members to make the film a "huge hit.") Then Weinstein blasted the timid entertainment industry and overbearing insurance companies that stifle hard-hitting documentaries, telling the audience how Moore persevered in this challenging environment because he is a "true American hero."
Moore told the crowd that production was delayed five months because it was hard to find an insurance company to back an expose of insurance companies. Smaller insurers were worried that suits could put them out of business, Moore explained, but his fact-checkers are so good he's never been successfully sued.
The audience enthusiastically cheered Moore, and interrupted the film several times with applause, although it doesn't actually offer many red meat moments. The tone is more "Roger and Me" than "Fahrenheit 9/11," pushing fundamental questions instead of political jeremiads. If we really value the heroes of 9/11, why are some suffering without health care for the injuries they sustained while protecting us? How can this nation celebrate the quarterly returns of HMOs that minimize human life to maximize profits? Why does our public discourse demonize the health care systems of our fellow industrialized democracies, which generally prioritize universal coverage? And in one stretch of aggressive agit-prop that even Karl Rove would admire, Moore asks why the detainees at Guantanamo get better health care than the heroes of 9/11, as he sits among those heroes in a boat along the Cuba-U.S. border.
Vito Valenti, a 9/11 rescue worker with pulmonary fibrosis who dragged his oxygen tank down the red carpet last night, said after the screening that it's obvious the U.S. needs "to reform health care and get everybody covered." Currently on disability, he volunteers to help 9/11 first responders with the nonprofit FealGood Foundation. Valenti is praying the public will see the film and take action. "It really opened my eyes and I hope to God it opens up America's eyes," he said. "If other countries can do it, why can't we?"
MoveOn.org is surveying its members' enthusiasm for a campaign to restore constitutional rights in an online poll that may shape the group's "next steps." The initial poll began circulating among MoveOn's 3.3 million members last week, without referencing constitutional rights, but MoveOn has now added a choice for a "Campaign to restore Constitutional Rights and Liberties."
The change was first noticed by a Nation reader, "RLAWRENCE," who wrote a comment about it in response to a blog post on The Notion Monday afternoon. MoveOn Executive Director Eli Pariser confirmed the addition today. The constitutional rights item was inserted in place of a potential campaign to "Stop Republicans from pardoning the President for his illegal wiretapping program before Democrats take power."
The attention on habeas corpus is coming at a crucial time. Today the Senate Judiciary Committee held a hearing on "Restoring Habeas Corpus," which former prosecutor Christy Hardin Smith live-blogged here. Chairman Pat Leahy outlined the stakes in his prepared opening statement:
Habeas corpus was recklessly undermined in last year's legislation. Senator Specter and I urged caution before taking that dangerous step, but fell just a few votes shy on our amendment to restore these protections. It is now six months later with the election behind us. I hope that the new Senate will reconsider this historic error in judgment and set the matter right. It is urgent that we restore our legal traditions and reestablish this fundamental check on the ability of the Government to lock someone away without meaningful judicial review of its action. The time to act is now.
Leahy's bipartisan bill has 16 cosponsors, and there are probably enough votes for it to pass the Senate if it were brought to a vote today. But a stand-alone bill will face a certain veto from President Bush. The Democratic Congress must attach habeas restoration to essential legislation, such as defense spending bills, to force a confrontation with Bush.
The Democrats have tons of support here: 71 percent of Americans back habeas corpus for all, including detainees; a huge bipartisan group of legal experts support habeas; Democratic voters and the netroots care deeply about this issue; and MoveOn is ready to take up the fight. Matt Stoller, a nationally recognized leader in netroots organizing, wrote yesterday that from his frequent work with MoveOn, it's clear that habeas corpus is "an organizational priority" for the group and a "core issue to their members." (He also offered a thoughtful critique of my post about MoveOn.) So that should be motivating for Congressional Democrats: The netroots, grassroots and public opinion writ large support restoring the great writ. In a healthy democracy, this kind of public consensus would drive policy, be it restoring the Constitution or ending the Iraq occupation.
MoveOn.org is circulating a new survey asking its 3.3 million members to plan the group's "next steps," offering a dozen choices ranging from issues on the national agenda, like ending the Iraq War and climate change, to less mainstream items such as impeachment. But the survey does not even mention Bush's worst domestic transgression: the suspension of habeas corpus and other fundamental rights in last year's Military Commissions Act (MCA).
The omission is particularly glaring because habeas corpus and constitutional rights are one of the top priorities of the netroots activists who comprise the membership of MoveOn.org. In a Democrats.com survey of over 400 netroots activists after the November election, restoring habeas corpus ranked first for legislative priorities - above even Iraq withdrawal. MoveOn members have said "restoring the Constitution" should be one of the top priorities for the Democratic Congress, according to MoveOn spokesperson Jennifer Lindenauer, and several leading bloggers recently pressed Congressional Democrats to jam habeas restoration into a defense spending bill. Restoring habeas "is something that we elected them to get done," blogged MyDD's Matt Stoller. [Update: MoveOn sent out an action alert to members about the issue as well.]
But House Democrats failed to take action. Armed Services Committee Chairman Ike Skelton meekly argued Democrats could restore habeas in a "separate bill," a futile strategy since Bush can easily veto stand-alone human rights legislation.
While it may seem like MoveOn is planning its "next steps" with habeas off the radar, Executive Director Eli Pariser says the group simply does not survey all of its campaigns. "Surveying is just a way for us to get a sense of the relative priorities -- absent strategic opportunities that we're sure our members will want to seize," he told me via email. The group is looking to find out where it can "play a constructive role," but they haven not "seen that moment yet," he added.
But if MoveOn keeps holding its fire on habeas corpus, it may wind up looking like the diffident Democrats in Congress who refuse to lead on human rights. The battle lines are already drawn. Most Democrats voted to protect habeas corpus during the MCA fight last year, while Bush backed the bill and will surely veto any attempt to undo it. That is why Congress must attach a human rights provision to essential bills and force Bush's hand. Netroots leaders like MoveOn don't need to wait for the right "moment." They have the power to create the moment, (as I've argued before). An editorial in the St. Petersburg Times recently hammered this point: "If the Democrats were serious about returning the checks and balances to our legal system, they would add a habeas corpus amendment to every vital piece of relevant legislation until the president capitulates or there are enough votes for an override."
In addition to bloggers' activism on this front, there are important efforts by the Alliance for Justice, Amnesty International, Sen. Chris Dodd's Restore-habeas.org, and the ACLU, which launched a high-profile campaign including legislative meetings with bloggers, ads on the New York Times homepage and a MySpace profile for habeas corpus. But these initiatives do not have the financial or political clout of MoveOn, which spent more than every other liberal PAC in the last election cycle except for EMILY's List. But without more activism, especially within the netroots, it looks like habeas corpus may stay on the backburner for MoveOn and the Democratic Congress.
UPDATE (Monday morning): Eli Pariser adds that MoveOn sent out an action alert about restoring habeas corpus in the Defense Authorization bill, an example of how the group has been working with their members on this issue.
UPDATE 2 (Monday afternoon): Reader Leah Adler adds that Working Assets has launched Lawyers for Habeas, a petition drive to rally the legal community around restoring habeas corpus. "This petition was posted in collaboration with Alliance for Justice and Equal Justice Society and needs thousands of members from the legal community across the country to sign up," she explained.