While it is undoubtedly true that some liberals on some occasions have underestimated the dangers posed to the United States and its democratic institutions by its adversaries, it is no less true, and perhaps far more significant, that we all–including the most alarmist “Bush haters” among us–underestimated the dangers posed to same by the Bush administration.
The ACLU request for, and Justice Department release of, previously secret memos force us to focus on just how eager Bush administration members were to destroy American democracy and replace it with a presidential dictatorship. According to Justice’s Office of Legal Counsel, the Bush administration believed it had the right to use the military to seize alleged terrorists in their homes without a warrant, thereby defenestrating the Fourth Amendment protection against unreasonable search and seizure and the Posse Comitatus Act, which prohibits the military from carrying out law enforcement operations at home. The First Amendment right of free speech was also considered the product of a bygone era. What’s more, Congress, the memos insisted, could be safely ignored and treaties torn up on presidential whim. In a related matter, we’ve learned that Jose Rodriguez Jr., as CIA directorate of operations chief, ordered the destruction of ninety-two interrogation videotapes because then-CIA director Michael Hayden worried that they posed “a serious security risk.” An intelligence agency that violates the law and destroys evidence with impunity is yet another step on the path to a police state.
These memos demonstrate the extent to which violations of our civil liberties went unreported, and therefore unremarked upon, during the Bush years. Shortly after 9/11, for instance, George Washington University law professor and New Republic legal affairs editor Jeff Rosen prematurely announced that “the real story after September 11 is that America hasn’t yet come close to abandoning any immutable principles of its national identity.” My guess is that Rosen would like to have those words back, and, indeed, he spent a great deal of time later criticizing abuses that did come to light. And while many such abuses were discussed in the mainstream media, few alarm bells were sounded. Instead we were instructed by the luminaries of the punditocracy not to worry our pretty little heads about it. As Andrew Sullivan told us just after Bush & Co. managed its Supreme Court victory in 2000, the “adults” were in control. Sullivan eventually came to his senses–albeit not before he hinted that extraconstitutional measures might be necessary to assure the loyalty of citizens in the states that had supported Al Gore (including the one attacked on 9/11). But to call into question the Bush administration’s good-faith commitment to democracy and civil liberties was, for the first seven years of his presidency, enough to read oneself out of polite company in Washington. As late as November 2004, the much admired Washington Post columnist–and “dean” of the Washington press corps–David Broder instructed the rest of us that although Bush did win the election, “he will have to work within the system for whatever he gets. Checks and balances are still there,” he said. “The nation does not face ‘another dark age,’ unless you consider politics with all its tradeoffs and bargaining a black art.” In fact, Broder had no idea what he was talking about. But that didn’t stop him from lecturing the rest of us to mind our own business and leave our liberties in the hands of power-mad right-wing ideologues (just as he did nearly twenty years before, complaining about the “expensive legal exercise” then under way to determine the criminal culpability of Ronald Reagan, George H.W. Bush, Caspar Weinberger, Elliott Abrams, Oliver North et al., when they, too, threatened the Constitution during the Iran/Contra affair).
What’s doubly infuriating about the memos–created by then-Deputy Assistant Attorney General John Yoo and then-Special Counsel Robert Delahunty–is the flimsiness of their legal reasoning. Duke University legal scholar Walter Dellinger told a reporter he found it impossible to “get over how bad these opinions were.” Stephen Gillers of NYU law school called them “sloppy, one-sided and incompetent.” Reached by a reporter from an Orange County newspaper, Yoo admitted that the memos “lack a certain polish” but insisted he would not change their substance today. But five days before leaving office, the last remnant of the Bush Justice Department, apparently worried about the implications of such laws in the hands of their successors, issued a “memorandum for the files” that explained that many memos issued between 2001 and 2003 no longer reflected the views of the Justice Department, and besides, some had already been secretly withdrawn.
Since the memos’ publication, we’ve seen some strongly worded condemnations in unsigned newspaper editorials and in the liberal blogosphere, but few MSM pundits have demanded the legal accountability that is the only reliable prophylactic against future abuses. The only question raised during Obama’s first White House press conference about the myriad crimes committed by the previous administration–asked by Sam Stein of the Huffington Post–was an inquiry about whether the president would seek to “rule out” future prosecution of the guilty. While some Democrats, led by Patrick Leahy in the Senate and John Conyers Jr. in the House, are refusing to let the issue die, few in the press corps appear to have much interest or stomach for further investigation of just how many of our liberties had been lost. (All the memos haven’t even been released yet.) Obama’s calculation is clear: investigations would threaten the aura of bipartisanship he seeks in order to pass his ambitious agenda. But in the case of the mainstream media, the motivation is simply the mindset: admit the dangers posed to our democracy by the Bush administration, and you’re admitting that democracy’s watchdog was sleeping (or cowering) just when he, and she, were most needed.