How to Get the Bush Dead-Enders to Do What You Want
In addition to signing SCHIP yesterday, Obama sent this memo to the current Acting Secretary of Health and Human Services, ordering him to withdraw two Bush-era letters imposing limits on states’ SCHIP programs, particularly with regards to income eligibility standards.
On August 17, 2007, the Centers for Medicare & Medicaid Services (CMS) issued a letter to State health officials limiting the flexibility of States to set income eligibility standards for their SCHIP programs. On May 7, 2008, CMS issued a subsequent letter restating the policy set forth in the August 17, 2007, letter.
The August 17, 2007, letter imposes additional requirements that States must meet in order to cover children under SCHIP plans, including plans that CMS had previously approved. These requirements have limited coverage under several State plans that otherwise would have covered additional, uninsured children. As a result, tens of thousands of children have been denied health care coverage. Unless the August 17, 2007, letter is withdrawn, many more children will be denied coverage.
By this memorandum, I request that you immediately withdraw the August 17, 2007, and May 7, 2008, letters to State health officials and implement SCHIP without the requirements imposed by those letters.
I raise this not just to point to Obama’s efforts to make sure as many kids can be covered as possible. I do so to point to how Obama would get the Bush dead-enders to implement his policies at a time when Obama’s appointees are not yet in place.
We’ve been discussing Obama’s inaction on several key issues–notably warrantless wiretapping and, yesterday, on torture. While Obama can’t blame inaction in the Binyam Mohammed case on delays on his nominee getting approved, since Hillary is in place, we had a lengthy discussion about what Obama would have to do to implement his policy in a department–like DOJ at the time when the al-Haramain filings were submitted–where he did not yet have his nominee in place.
This memo gives us an idea of what Obama would have to do, I guess: send a damn letter to the Acting Secretary of the department, and order him to do what you want.
Which of course raises the question: if all it takes are one-page memoranda, then where are they on other key policy issues?
Chief Executive 101: You are in charge, direct your minions!
If direction un-heeded, correct your minions!
More of this, please.
Give him time. It’s easy to make quick decisions where you’re guided by mindless ideology, but reasoned decisions take longer.
A lot of work goes into the one line memo “The project has been cancelled”.
Boxturtle (We’ll fix the government one memo at a time)
set the policy.
communicate the policy.
circle back to confirm the policy was implemented.
if yes, great
if no, fire said administrator for insubordination/failure to perform
they serve at the pleasure of the president, right?
TiredFed has explained this in the past.
the political appointees get replaced, reduced to acting until their replacement is named.
IIRC, the rest can’t be fired, not if they are civil servants. then they cannot be fired. they can be marginalized as has happened to numerous people during the Bush years.
Civil service employees can be fired for cause. Documenting cause might be a headache, but insubordination or acting on agendas from the previous administration or violations of the Hatch Act most likely are valid for “cause”.
Not only can they be. They have been in previous administrations.
I know that “serve at the pleasure of the President” is the standard phrase and I almost got used to it while watching The West Wing, but I still can’t help it. Every time I hear it or read it, I say to myself: “self, no wonder we have problems in the form of stains on blue dresses.”
But this is really my issue than it is inherent to the phrase, isn’t it. So I’ll just hit the little red x, instead of Submit Commit, to make sure that I don’t make a complete ass of myself.
That’s been the point – all it takes is telling them to do it. For the actions that need to be accomplished via lawyers, like court filings to seek stays, the lawyers also have a duty to do what their client requests, within certain boundaries (can’t lie to the court if the client wants, for example, but do have to follow through on other directions) and can face not just being fired, but having suspended or revoked licenses if they blow off directions from the President.
Well, there are two points, and always have been.
1) Is it possible to get stuff done before Obama has his team in?
2) Do actions by the dead-enders with no apparent endorsement by Obama represent an affirmative endorsement of this policy.
I’ll note that Obama didn’t put this through on January 20. He did it on February 4, on a day he was otherwise dealing with SCHIP.
I disagree with you on the applicability of the client-lawyer analogy. The DoJ has a larger duty than to the president qua client, and should the AG be unable to carry out ‘instructions’ of the POTUS owing to that duty, the AG must advise the POTUS of such & that the AG’s only options are get the POTUS to withdraw the ‘instruction’ or the AG resigns.
Why is this so difficult for people to keep in their heads? Doesn’t anyone remember the Saturday Night Massacre?
Fine and dandy, but I still see a critical distinction with the position of the DoJ & the role of the AG in relation to it – – as has been discussed before, that certain degree of ‘independence’ your Scottish Haggis & a few other Repod people on the Senate Judiciary Committee went on & on about. It’s not impossible for the president to direct an order to a functionary in the DoJ, but in doing so she or he would be invoking some principled use of authority beyond that of a civilian POTUS – – something the previous POTUS seems to have done like ordering up nachos, but that the current POTUS has actually written about, albeit briefly, in his second book.
Moreover — & I thought you’re first take on this on the report in WIRED had been pretty clearly proven out as accurate on the more recent report in the NYT — this motion-to-force-the-plaintiffs-to-hurry-up was a particularly sneaky bit of business on the part of Bushie dead-enders – & in that qualified for the Monty Python Exemption: “No one expect the Spanish Inquisition!”
oop: “your” for “you’re”
& while at it, I’ll add that the game changed completely on Monday when AG Holder was sworn into office.
Oh, I don’t think there’s really a question that that motion was put through by dead-enders trying to put it through under Obama’s name.
The question remains, though, will he reverse that course?
Right; but again: it isn’t for the POTUS – it’s for the AG.
OT- R.B. Ginsburg in the hospital for surgery… Obama might be picking someone new sooner than anticipated
She’s pretty tough. And if not, then there’s always Rep Eleanor Holmes Norton – a three-fer!
Like the letter to DoD Military Courts, this is a request. As shown by one Judges response, it’s not an order. Big difference. Obama still wants to play nice nice.
Bingo. And I am still waiting to be proved wrong by just such a reversal on al-Haramain. Not a peep.
Shall we write to remind him?
This is baloney. Obama is/was the President, the head of the executive branch. He simply exercises his desires through the acting AG at the time Mark Filip, and Filip makes it so. There is no magic wall such as you wish to erect here. It is really that simple. And if the DOJ people do not respond they have problems. Mary is exactly right.
I disagree with both of you.
Here’s the role of the POTUS: the DoJ has represented to the court that the executive branch asserts state secrets; that is a POTUS assertion, not an AG or DoJ authority. The protocol was for the government lawyer to seek instructions, in form [tho not substance] similar to that dog-and-pony exhibition AG Mukasey put on in releasing his letter to WHC Fielding about asserting executive privilege against releasing to Congress the Fitzgerald interview of material witness Cheney. The process requires an assessment by the AG as to whether the basis for the assertion still applies, and if any essential element to that has changed, for the AG to seek instructions in that regard, along with an analysis of the context [which is where the OLC would have a role]. The decision as to what to do next in the lawsuit is that of the AG, not the POTUS. Removal, or even substantive alteration, of the state secrets assertion may force the hand of the DoJ [tho not necessarily: Judge Walker is at a point past its assertion].
This assertion that the POTUS is the ‘boss’ of the AG & DoJ in every particular is the slippery slope the unitard theorists eagerly slide down at every opportunity. I’m from the school of two wrongs don’t cancel each other out. This situation is correctable within the proper standard and normal protocols. Despite impressions to the contrary from the Rich pardon- which for the most part serves confirms this- I think Holder is very much of that school as well.
“serves confirms” should read “serves to confirm”
A number of threads back, I made an observation that bmaz first went “whoa” at, and thereafter Ms E Wheel asked me to elucidate. I missed those- the next day brought lots of stuff from Fearless Leader, with lots of wheeling around from the rest of us, & I got stuck in Shiny Object Land.
What I was referring to then was this: The DoJ’ers on the al-Haramain case – whose titles give away how [I hesitate to use the term with Bushies but…] seriously the Bush administration DoJ took the case – made a secure “filing” – secure from not just the public, but from the plaintiffs’ lawyers, the plaintiffs, & even court staff because it’s not in the court’s control but over at a ‘place’ under DoJ control – which Judge Walker, as the DoJ lawyers noted more than once, was assiduous in avoiding. Superficially at least, that avoidance was consistent with Judge Walker’s post-first-appeal ruling; but I think it’s possible it goes deeper than that: I think it’s possible that there was [and possibly still is?] something in that ‘filing’ that Judge Walker wanted to avoid the possibility of being infected by – – & [my point in the comment that drew a “whoa” from bmaz] something the DoJ’ers needed time to figure out what to do about – – the sort of time a stay pending appeal might [I stress “might”, because if so, the glue was already setting over the filing.] provide time to … do something [I’m not suggesting I’m at all clear what that something might be, in part because the situation would be so desperate for the dead-enders they might not have any clear ideas either, except to buy a batch of time.].
Now, in suggesting such a thing I realize this rubs up close to the line of tinfoil-hattery–& certainly justifies both bmaz’ exclamation & Fearless Leader’s call for clarification. The problem–my problem–is, I can’t figure out any other underlying explanation for the ‘hurry-up’ motion. Judge Walker’s order accommodating the plaintiffs’ lawyers being vetted preparatory to being read-in on state secrets could be the reason, but that implies the dead-enders actually [not just appeared to and disingenuously spun] misread the order – – which is certainly possible, particularly given the unitard mindset has a tendency to alter reality.
What I had [have] in mind is what the Bush administration has done in the past when painted into this sort of corner. The case of the Canadian who was scooped & renditioned to Syria to be tortured there comes to mind [not Khadr- Mahr?]. Recall the Canuck government set up a judicial commission that put out an humongous report, and yet even after, the Bush administration put out a statement saying it would continue to treat him as a terrorist threat & stand behind the state secrets fence in addressing his U.S.-side civil action. I have in mind that some impression was given out that the kid, Khadr, may have named Mahr in the context of “interrogation”. When this story comes out, assuming that’s what turns out to be the rationale, that’s not exactly going to play well for Bush & Cheney. By extension, my thinking was [is] that if the Bushies were capable of that once [and it’s not just once, let’s face], they’re capable of the same level of shenanigans in al Haramain – – particularly since the angle of cutting off terrorist financing is rapidly becoming the only jewel in the Bushie crown.
To be plain: what I was suggesting is that the panicked Bushie dead-enders made a panicky motion to buy time to figure out what if anything to do with a ‘filing’ designed to get this judge either to stop the proceedings or to disqualify himself from them, which contains something which even they could appreciate as way over the top, threatening by implication perhaps the entire underpinnings [being solely P.R.] of the warrantless wiretapping nonesense.
Easy example, right from the facts of al Haramain: al Haramain looks like a Muslim charity, with funds going at least one way, maybe both; lawyers for al Haramain are on the phone to update interested parties in the Middle East as to what’s going on with the investigation, the calls intercepted by the NSA warrantless wiretap program; from that, someone in USG analysis extrapolates the possibility of al Haramain’s defence being funded by funds from the ME – in itself not obviously contributing to terrorism, but these are Bushies in a Bushie fantasy, right?; and such wishful thinking finds itself in the ‘filing’ articulated as funding terrorism.
fwiw, i agree with you.
though perhaps not on legal terms, but political ones.
even though all these guys supposedly serve at the pleasure of the prez, what kind of presidential message would it send to come into office and just take a broad swipe at everything on the table, and off it goes?
some might say that looks presidential, but it doesn’t look that democratic. even if it is his legal authority, and even if the majority of the country elected him. this would be impolitic. and the prez is not just about doing what is legal; s/he is about doing what is polite, as well.
this seems to me the enormous difference between bush and obama. bush and his cronies made sure what they did was legal so they could use the loopholes to do what they want. to hell with polite; they just wanted that power. obama by contrast recognizes that kind of behavior is precisely what the american people voted OUT of power in november.
we keep having this same debate here. but really, think about the message it would send if obama came in and signed a stack of exec orders to undo his predecessor. and trust me, i nursed that very fantasy and made a list of those orders. helped me sleep at night. but such action now would not really bring me comfort, even if obama did exactly what i wanted him to do. and this was MY fantasy! it would be dictatorial, and not democratic.
oddly, i’m reminded of the very reason i voted against hillary, though i have adored her forever. besides the fact that i seriously doubted she could win, if she had, it would have been bush clinton bush clinton for at least a quarter century. that’s dynasty, not democracy.
that’s the sort of thinking i’m talking about here, avoiding the impolitic, avoiding the undemocratic, even the appearance of undemocratic. really glad to see obama is so sensitive to it.
Wouldn’t be the first baloney I have been forced to eat; we’ll see.
9- I actually think there are more than two points, but on those two
I don’t think it is that hard. You have macro and micro issues and on the macro issues I think the answers are yes and yes, while on the micro issues it is, for 1, yes but eventually you get to the micro level where there are too many things and too many issues to do them all before a team is in; and for 2 – a not necessarily.
But macro issues are set and addressed at the top of the policy pile and for the answer on either of 1 or 2 to be no at the macro level, you have to have incompetence at work. IMO. Which goes in part to your point in 11 – if people tried to do things at a macro level before he was in office, what does it take for him to deter those actions and to flip your question #2 from 9 around a bit, does the inaction by and silence of Obama on those decisions affecting macro policy points constitute acquiesence – does it after 1 hour, 1 day, 1 week, 1 month, 1 term etc.
13 – I absolute do remember the Sat night massacre and I don’t think it applies in any way shape or form to the situations on surveillance and torture and I think you are not only not seeing the forest for the trees on that, but you are kind of confusing apples and root veggies.
What you would have with Obama coming into office where there is pending litigation on the torture cases is a situation where an incoming President comes in and directs the lawyers working on a single case or a body of cases that are cases where DOJ (yes – DOJ) is ASSERTING (yes, this is the argumetn by DOJ)a plenary power in the President (keep in mind what the DOJ argument is in the cases LD – that NO ONE can interfere with the PRESIDENT’s decisions) and the President comes in and says “hey buddies, see if the court will stay those cases for a bit while I review that argument as a policy argument” To equate lawyers in that situation refusing to follow the presidential direction with lawyers in the Sat Night Massacre refusing to fire the special counsel who was asseting limits on the Presidential powers and who had been appointed under a set of directives, reaching the point of almost regulations, that were negotiated with Congress on removal – that’s getting pretty inapposite.
And the truth of the matter is, when it comes to “dropping a suit” at a client’s direction, there are a host of different issues at play for a lawyer than when it comes to bringing a suit (which entail issues such as Rule 11, abuse of process, malicious prosectuion, etc.) It’s a distinction WITH a difference. That hasn’t been done yet, a direction to drop various suits or appeals, but even if it were, you bet there would be some different considerations at issue. That’s not to say that if the lawyers reasonably believed that the direction they were getting, whether it was sword or shield types of direction, was being given to obstruct justice that they would have any duty to comply, but absent that, they do.
So if the President asks for a stay of a case asserting his plenary power while he decides whether he thinks his office has that power, or should prudently asset it even if they do have it, etc. – uh, yeah, a lawyer refusing to comply with the President’s request that the lawyer at least attempt to ask the court for a stay is looking at professional misconduct if he/she ignores that directive. That ain’t hard and it doesn’t involve reliving the Sat Night massacre.
Now on the surviellance cases, there is a bit of a twofold duty for the DOJ. First off is the Presidential authority duty and secondly there is now also a duty that is tied to the Congressionally passed statute. But once again, the principal client in the proceedings is the President and he’s the head of the DOJ as well. And once again, But-For a reasonable and plausible argument that the Presidential directives are being given for the purpose of obstruction of justice (or maybe some similar theme – I can consider that others might exist but none come to mind right now) if the President directs that they request a stay, he should get that.
On the issue of the President directing more – dropping appeals, etc. – there would have to be an attempt to weigh the Presidential v. Congressional intersts (and it looks like Congress mostly punts back to the Presidentially run DOJ to make the ultimate decisions, so that weighing game should be ez) but absent some pretty astounding peripheral circumstances, the Presidential directives would win the denominative battle.
22 – I don’t have any problem with saying that the President is the boss of the DOJ and I don’t think that’s a slippery slope at all. He is the boss, he gets to call many shots. And just like any other “boss” of any other lawyers (be it a client, a senior partner, head DA in an office, usa in charge of ausa-s, etc.) if his requests to you don’t violate professional ethics and your understanding of law and don’t constitute obsturction, you pretty much have to follow them. You might not like your client taking or turning down a plea or settlement, but you can’t just disregard them.
It’s not as if having to be bound by the determinations of your boss or client are that much of a slippery slope, though, bc there are all kinds of tools that do exist, up to but not limited to just quitting if you really disagree (and lets’ face it, if a huffy Bushie quits the Judge will grant an extension anyway until new counsel is in place). In any event, if a “boss” significantly interferes in prosecutorial discretion to bring a case, that interference might constitute obstruction or a Rule 11 issue or malicious prosecution issue etc, all of which provide avenues of recourse and protections to a lawyer who won’t play ball. Similarly, if the “boss” wants the case against his pal dropped, obstruction issues, misuse or abuse of office, etc. are all on the plate too.
But those kinds of egregious settings and situations do not affect or change the issue of a client’s procedural, practical, professional and ethical duties to follow client and ‘boss’ directives.
On your specific in 22, you want to say both that making the state secrets assertion is: “that is a POTUS assertion, not an AG or DoJ authority” and then say that after it has been asseted by the POTUS, it is immutable unless the AG decides it should be changed, “The process requires an assessment by the AG as to whether the basis for the assertion still applies … The decision as to what to do next in the lawsuit is that of the AG, not the POTUS.
That’s just wrong. The state’s secrets privilege is asserted by the President and it belongs to the President and as such can be waived or modified at any time by the President. It’s a bit like the attorney client privilege that way. You can’t say that after a client invokes attorney client privilege on a matter, the client can never change their mind and agree to waive the privilege to some extent, or that, for example, someone who has invoked the 5th can never change their mind and that the lawyers in both those settings get carte blanche to keep or waive those privileges if, as and how they want after the initial invocation.
That’s just not correct.
“On your specific in 22, you want to say both that making the state secrets assertion is: “that is a POTUS assertion, not an AG or DoJ authority” and then say that after it has been asseted by the POTUS, it is immutable unless the AG decides it should be changed”
You’ve miscast what I wrote. The protocol I described is not some product of imagination or wishful thinking of lofty ideal; it’s the one that was in place when I was a fed decades ago, and was precisely the same as described in court by a fed lawyer as recently as 2004 in a case where I was on the other side, on an application for a stay of an order to seek instructions made to a judge who himself had also worked with the feds within two years before & acknowledge the same protocol being in place then. That the Bush administration DoJ perverted protocol, and that dead enders have continued in that vein, does not disprove its continuing existence, and says nothing as to its validity. Moreover, in several respects I see you here engaging not in argument but in gain-saying. Unless & until the Holder-led AG does something which adopts the dead-enders desperate move as its own, you can’t point to move as proof of anything about the new AG, or Obama for that matter.
Mak that, “a
client’slawyer’s procedural, practical, professional and ethical duties to follow client and ‘boss’ directives.”OT, sort of: NYT editorial board goes DFH [one of those rare occasions where a mere cut-n-paste to the link works]:
http://theboard.blogs.nytimes……to-cringe/
26 – Whatever the old protocols you remember, it is incorrect to say that the President can’t withdraw the assertion of state’s secrets. He can. Protocol notwithstanding, it is a privilege that belongs to the President and he can assert or withdraw it. I don’t know how that’s gainsaying, but if it is, it is. FOr that matter, since Bush never requested any withdrawal of the privilege assetions, I can’t make out what you are trying to say when you argue that “That the Bush administration DOJ perverted protocol, and the dead enders have continued in that vein, does not disprove its continuing existence”
Again, the point is that the state secrets privilege, while it may be invoked originally at lower agency levels, ultimately belongs to the President to keep or waive. Unless the decision to invoke or waive it is done for the purpose of obstruction or similar mal-motives, lawyers at DOJ have to go along. If it is invoked or waived for purposes of obstruction, they don’t. Protocol has nothing to do with the legal aspects of this.
When it comes to state of mind, what gets pointed to as “proof” is generally circumstantial, and what I have done on several occasions is not to say I know Obama’s inner thoughts, but to point out the circumstantial facts that seem to indicate one thing or another and I have also pointed out that it is just wrong to say that Obama can’t tell lawyers working on a case what to do until “his people” are in place. You want to say that he can’t tell them what to do and that’s wrong. He can. Absent obstruction and similar types of issues, he can. Is it good policy to micromanage another lawyer’s case? Nope, but is it good policy to take high profile cases asserting a major policy position and get everyone on the same page after you take office? Yep.
I think the Obama response and reaction to the “dead enders” and the Holder waffling etc. have been pretty predictive on a circumstantial level. The Binyam Mohamed situation, also, involves statements directly from the WH (thanks y’all) and no Bushie dead enders.
Add on this from Panetta – also not a Bush dead ender:
http://news.yahoo.com/s/ap/200…..BvVekDW7oF
Panetta: Waterboarders should not be prosecuted
If you want, I will absolutely concede that I don’t know Obama’s or Holder’s thoughts. But I won’t concede there is NO proof of what they are or are not going to do, just bc the proof is circumstantial. There is also other circumstantial proof that they may do the right thing. We can argue that back and forth and there’s no right or wrong on that. But there is a right or wrong on who gets to make the final decisions on assertion of States Secrets at ALL STAGES of litigation (it’s the President, not the lawyers working the case) and on the duty of the lawyers to abide by the President’s directives regarding cases unless they are inserted for improper purpose.
You set up a strawman several comments back & you’re just running on with it. What I wrote was that the authority to assert state secrets is exclusive to the POTUS, and that it’s the role of the AG to assess whether something material to continuing that assertion has changed such that the AG must go return to the POTUS for instructions on that assertion.
I happen to think something extremely material indeed has changed – but as to what the POTUS might end up doing with that power, we’re working here with breadcrumbs, not all of them indicating a single direction. One of course is the clear indication of this being a dead-ender initiative; another is that the new president flipped on the FISA Amendment Act.
Moreover, the suggestion is that we know all the information that’s pertinent here, when we clearly know we do not. Based on our best joint surmise of what’s happened in this case, in my view both the POTUS and the AG are required in their respective roles to face up to a mess – a mess not of their making – which is not without hazards no matter what each ends up doing. There are any number of scenarios in which one could see this mess never arising under President Obama: no seizure of the al Haramain accounts in the first place; no spying on their lawyers effecting a breach of the client-lawyer relationship in the first place; no tortured linking of the clusterf**k of their own making to some fantastical theory; no carrying forward of that fantasy into a court setting when harm done to private interests could be remedied without a court battle; thus no exposure of USG intell community tools to discovery by private interests; etc.
Now, maybe this will all turn out to be easy and obvious; but you don’t know that anymore than I do.
I would add in a circadian tone a reference to the January 21 notice from Orszag entitled “Implementation of Memorandum Concerning Regulatory Review”, which appears to have postponed a Bush Friday before innauguration order to publish to the fed reg instructions to auction our pristine coastline in our county to oilcos. Memo 09-08; Bush had stipulated sale to take place ~14 months into the Obama term. Admittedly, this is only regulatory discretion sphere, yet, seems a utilitarian avenue for executive action during this finalphase of interregnum.
TMauro recently has written about some related material. Here is an article describing argument in which Associate Justice Stevens asked a poignant question bearing on the morphing of government emphases. Two days ago LegalTimes posted a notice that EKagan joined Scotus bar as SG.
I appreciate the advanced level of discourse on this thread!
I’m not claiming to understand it all, however.
I think I need a neutral ‘color commentator’ to explain all the moves and “plays” involved herein. Thanks, everyone!
One question: I’m taking bets on what will be the first indictment issued by the DOJ with Holder’s sig on it? I may not be stating that correctly– I’m just wondering what will be the first high level case sent to trial by the Holder DOJ, or the first high level decision that will serve as a benchmark.
Bob in HI
Just happened. DOJ goes after Westar Energy, one of Tom DeLay’s best friends.
i’m guessing – again, fwiw – there will be several business as usual crimes that make the news, nothing of great flashy interest.
they’ll need time to dig on many of the scandals, tho some are facing those statutes, tis true. that will be tricky. especially since bush’s bushies were kind enough to leave all those moles, making it hard to get things done without the players learning about the details in and untimely fashion.
bmaz was right (that was you, right?) this is a cancer on the republic. but it is so terribly rare that a cancer can be cleanly excised. most are messy, spidery things that require great care, patience, and focus.
“bmaz was right”
Yes, he was; and not just on that to which you refer, but as well on the issue of whether as AG Holder seems likely to impose the dramatic reforms necessary to build the DoJ anew – as opposed to the bureaucratic equivalent of triage & HMO-quality rehab that-at best-aims at getting the DoJ back to acting like more like it did in the 1990s.
oh my. that would be just ….terrible.
30 – I really can’t follow parts of what you are trying to argue and maybe that is why your perception is that I am setting up strawmen – even though you won’t agree with even the straw argument, which would kind of make it – not such a straw argument. ????
In the context of this post and others, EW has been positing as to whether or not Obama can or can not accomplish direction of various depts with respect to various issues when his nominees are not in place. In particular, that has been posited with respect to having lawyers at the DOJ follow his requests for stays and possibly other actions such as revoking the invocation of states secrets, declassifying, ordering releases, etc.
From time to time, and seemingly here, you have said that Obama cannot accomplish direction of the DOJ – sometimes it seems you are saying he cannot bc he doesn’t have his picks in place, sometimes it seems that you are saying he cannot bc he has no right or ability to direct the existing cases on items like requesting stays, dropping appeals, withdrawing states secrets etc. bc that is unduly interfering with the prosecutorial function and prosecutorial discretion.
But I’m happy to admit that may not be what you are saying bc I’ve had a hard time following. So I don’t claim to know your thought process anymore than I do Obama’s and as with his process, I can only extrapolate from what I see and if I’ve got it wrong, you can clarify as and how you want – or not, up to you.
My posts have been based on EW’s posits and what you seemed to say and I pretty much stand by them. If you think that it is a ’strawman’ (iow, obviously CORRECT, but not responsive) that the President can indeed direct DOJ (even without ‘his people’ in place) on matters of case disposition such as whether or not he needs to have them seek a stay or extension for him to review policy issues or positions taken in the cases or to withdraw, modify or amend states secretes invocations etc., provided he isn’t acting to obstruct justice or abuse his office for personal profit or to profit another individual etc., and your argument is about something else entirely, then yep, my argument is straw to your entirely different proposition; I just don’t know what your entirely different proposition is for those points.
EW asks if it is as easy as the memo process to kick deadenders butts into gear and I think yes, in general it is. If you think not, but for reasons having nothing to do with my strawman argument, that’s fine, but I’m not understanding what your other argument is.
After I made my arguments on what Obama can and can’t do, and why I think that, you seem to have some kind of emotional reaction that I am attempting to “prove” what Obama is going to do in the future and I just can’t do that. IMO, that is a kind of strawman argument on its own, bc I think in this thread what I pretty much did was explain what Obama can do (including revoking the invocation of state secrets). But if the heart of what you are getting at is that we can’t predict the future and in specific, I can’t predict that Obama will not be a knight in shining armor on illegal surveillance and torture, I will agree that you are right and I cannot predict that – maybe that will make this less emotional?
I do believe, and this is in line with my training as well, that failure to act, silence when you can speak, etc. are, indeed, evidentiary and elements of proof re: the almost always circumstantial issue of intent. But we haven’t seen the final and last words on intent yet, so if that’s your main issue then yes, there are arguments that can be made both ways. I am making one set, you can make the other. The set I make is that Obama was not restricted and has not been restricted since taking office from directing the disposition of torture and illegal surveillance cases and that his failure to act has an evidentiary value and has also been predictive to date.
His failure to ever stand up over illegal surveillance was predictive, despite last minute efforts to win a WI primary and the puffery associated with that – of his ultimate FISA amendments vote. His failure to ever take a strong stand on prosecution of torturers and his AG nominee’s statements about not thinking torturers had mens rea if they were relying on OLC advice is evidentiary to me – maybe not to you or maybe you feel it offset by other circumstantial evidence and you can make that case.
But when you make it you also need to address the increasing list of Obama nominees who are now saying not only that we shouldn’t charge (or even investigate as Panetta has claimed) torturers, and the fact patterns presented by situations like the Binyam Mohamed case. Bc there the “he doesn’t have people in place” (if that is your argument?), falls.
Maybe none of those are your arguments? Maybe your argument is that you agree torturers shouldn’t be investigated or charged, just those who gave the orders to torture (I don’t believe that, but I don’t even know if that’s the discussion you are wanting to have?)? I don’t know, but for the the factual points, such as on who can direct, I don’t think those are opinion – I think Obama can direct and I’ve laid out why. For the “intent” issues, I agree the future can’t be predicted and disagree we can’t discuss what we believe may happen and why and also disagree that circumstantial actions and inactions and silence are not elements of proof. They are not dispositive and don’t in and of themselves, any of them, prove beyond scintillas but they are the kinds of things that are normal to reference and use as elements of proof of intent.
On to something else, but related, David Kravets at Wired has a pretty good, interesting piece up:
http://blog.wired.com/27bstrok…..ilemm.html
that explores a bit of the conundrum of Obama on the one hand disavowing torture and on the other hand his DOJ defending those accused of torture and torture conspiracies.
It raises some of the same kinds of estoppel type issues that bmaz was bringing up vis a vis the issue of OLC opinions and AG sign offs authorizing activities such as the illegal surveillance program and any subsequent efforts to try and convict by the same “entity” that gave the sign offs.
32 – IMO, Holder and Obama will try to make their first high profile splash into taking one of the actual al-Qaeda from GITMO, one against whom a case can still be made even after “scrubbing” their trial of the torture info, and push to get that to a civilian court death penalty conviction. To show he’s serious about terrorists.
And I think they will try to cut deals left and right on lower profile cases like al-Marri to try to avoid having any of the Bush policy and powers issues actually end up in the Sup Ct, but while undercutting any theme of “Obama turning terrorists loose”
And if they begin to turn loose of power or of information on torture and the disease in DOJ and Intel, it will only be bc it has been made political impossible for them to act in any other way – and that won’t happen while everyone sits back, keeping powder dry, and saying, “I bet he’s going to do the right thing, one day”
Meanwhile, he issues, from the WH, a formal thank you to the UK for succumbing to his blackmail and covering up the Binyam Mohamed torture.
But I’m sure he’s going to do the right thing.
One day.
I really should quit pushing.
http://blog.wired.com/27bstrok…..ilemm.html
I wonder if you are ignoring the distinction between those who implement the torture policy, and those who formulated it?
IIRC, I think Holder said that he won’t go after the former, but may go after the latter.
In Nuremburg terms, I don’t think those who implemented the policy are off the hook. But perhaps Holder is going to let other parties pursue their adjudication.
Thanks for your many contributions on this thread.
Bob in HI
An awful lot of what you’ve written here falls in the category of provocation for provocation’s sake. EG “emotional response” speaks to your style of discourse, not anything I’ve raised.
I do note, however, responses from others that suggest this discussion might have lapsed into abstraction, so I’m going to suggest [yet another tiresome, experience-based, boring old real world] scenario.
First: Consider the office titles of the dead-enders whose names and offices appear for the USG side in the latest pleadings; some of them are quite definitely not career schlubs, but are either appointees or latent genetic tendencies rendered active in the service of Bush policies.
Next: Consider the great number & diversity of the interests somehow represented in their appearance: FBI, NSA, Homeland Security, Counter-Terrorism, telecommunications liaison, US Postal Service, Customs, State, Treasury [IRS], & on & on. The number of fingers in the USG “Intelligence Community” & “national security” pies is truly staggering, & each of them is attached to some official or officials with her or his own bureaucratic empire interest to offer up & protect & grow, such that the logistics of just convening a single meeting where all of them attend & get their 2 cents in approach the impossible.
Third: We know from a number of other exposes on how the Bush-Cheney gang did their work that they crashed around like bulls in a china shop, going where they wanted without regard to the interests of any government agency or association beyond their own, leave aside the greater interest of the American people, such that it is not merely likely, but overwhelmingly so, that at several stages of the operation that ensnared al Haramain & at several more in the government response to the al Haramain lawsuit, Bushie interests, both cold-eyed & hot-headed, barreled right over protocol & by that created otherwise avoidable, unnecessary risks to some number of USG programs that weren’t even directly involved, and quite possibly have no muck at all on them but for being co-opted in some short-sighted attempt by the dead-enders to wriggle off the hook of this lawsuit.
Eventually someone [emphasis one] has to make decisions about where to go & how far, someone not carrying the burden of suspicion of Bushism, & thus at the very least someone who has not previously been read into all aspects of this clusterf**k – – because I very much doubt the combination of Cheney, McConnell & other departed demi-gods of the Bush underworld left behind any such animal.
More than once now Cheney, on the pretext of the Legacy Tour, has been reported as urging Obama not to dismantle the parts of what he clearly would like us all to understand is the Bush national security blanket – – while I keep hearing a little person in my head saying:
He’s lied before & indeed is obviously lying here about so much else: Why isn’t he up to mischief on top of mischief here? Machiavellian Desk Flying 101 is, after all, divide to conquer; what if the only persons who know the the full picture are psycho Dick & the irretrievably compromised McConnell? Would that create problems in even getting a handle on this before going to the new president with options?
Of course. Would you expect otherwise?
This is probably in EPUland by now, but in the off-chance that that the discussants are still around, let me offer my profound thanks for this extensive discussion. It is a subject that has my interest, but aside from that, the conversation itself is a treat to behold. It is an example of public education to observe how two well-trained minds engage a topic and wring it to a conclusion. I see it isn’t completed, and it may fade as time and other matters intrude. However, thanks to you both.
whew, talk about premature commentation.
my point at 38 was only about what mary said at 20, clearly out of a context that went on from there to develop in a quite different direction than i was assuming.
the substance of my point remains, but sorry to get derailed of the thrust of the debate.
BTW, realizing we’re in EPU-land, what made the dialogue on this thread so helpful is that there was (amiable) disagreement among some of the principals. There is always a risk of such dialogue veering off into ad hominem, such as the comments about what might or might not have been an “emotional response.”
But overall, the tone of the debate was quite good, and I appreciate it!
Bob in HI
One of the things the leviathan at DoJ might be likely to effect is freshening the range of possibilities in various fora to encourage exploration of multiple approaches to scaling the barnacles. Consider the motion to compel in re Qahtani based on Crawford public statements recent, filed by Ccr this week. It may loosen part of the construct which bulls thought was mere shards of china of the identical whole artifact, but in fact was flawed.