On Monday, the Obama administration released a declassified version of the 2004 CIA Inspector General's report on the use of torture during the Bush years. The same day, Attorney General Eric Holder appointed a special prosecutor, DOJ veteran John Durham, to investigate those Bush-era abuses.
This news comes near the end of an August recess during which several leading Republicans have made it clear they won't support a health care reform bill, regardless of its specifics, because they want President Obama to suffer a political defeat a'la President Clinton in 1993, in hopes of recapturing Congress in 2010. Is the timing mere coincidence? Has President Obama ordered a "partisan witch hunt" to get even for GOP obstruction of his health care bill, as Republicans are sure to argue? Might it be neither coincidence nor a "partisan witch hunt?"
More below the fold....
A Political DOJ, or Apolitical DOJ
By now we've all heard how the Bush administration politicized the Department of Justice. From demanding investigations of Democrats in key electoral regions to manufactured charges of voter fraud in key districts to firing U.S. Attorneys who refused to play along, it's become clear the Bush White House had a policy of criminalizing political opposition. Rather than risk losing elections in swing states and districts, the Bush strategy was to prosecute Democratic candidates and organizers. That's hardly a new political tactic, but its history makes it no less repugnant.
Now that it's become clear Republicans will oppose health care reform, regardless of the specifics of the bill, the Obama administration has released the 2004 CIA Inspector General's report on Bush-era torture, and green-lighted Attorney General Eric Holder to name a special prosecutor and begin a DOJ investigation of those crimes. And as surely as the night follows the day, Republicans will claim the investigation is a "partisan witch hunt" to embarrass the GOP going into the 2010 midterms. They will claim the Obama administration is doing what the Bush administration did: criminalizing political opposition.
Don't expect President Obama to meet that charge head-on. Despite some progressives' calls for him to "show leadership" on this issue, President Obama will say exactly what he must say: this is a DOJ investigation and the White House will not interfere. Rebutting the GOP's "partisan witch hunt" charges will fall to the rest of us. And we can.
The investigation must not be political.
As buhdydharma, Patriot Daily News Clearinghouse, and countless others have documented over the past months and years, investigating abuses of power is not mere political gamesmanship. It is fundamental to our constitutional system and the rule of law.
The United States was not set up to be an elected monarchy where the president can make up the law as he goes. President Richard Nixon's infamous quote notwithstanding, sometimes it is illegal, even when the president does it. That principle was established in the 1803 case of Marbury v. Madison, one of the most famous and important decisions in our constitutional history. Countless cases since have affirmed that basic principle: the President of the United States serves the law, and not vice-versa. When an adminstration authorizes or tolerates violations of law, the Department of Justice has a duty to investigate those abuses and to prosecute where it finds evidence of a crime. The primacy of law, the foundation of our system of government, demands no less.
And while it's likely that most of the targets of this investigation will be Republicans, some might not be. Some may be career government workers whose political party is irrelevant. Some may even be Democrats who knew of the abuses and had a legal duty to try to halt them. Let those chips fall where they may. This investigation is neither political nor partisan.
But the timing of its announcement probably was.
President Obama campaigned on a promise of working across the aisle and trying to gather bipartisan support for his agenda. While I think he would have made that promise regardless, given what he's said and written about it, it's also a fact that he made that promise at the start of his campaign, long before he could know what the party splits in the Senate and House would be. Whether born of philosophical commitment or simply not knowing whether he would need Republican support for legislation, the promise was made.
Then he tried to keep it ... far more than many of us would have liked.
Had the president given the go-ahead for an investigation of Bush-era crimes back in February, all hope of bipartisan cooperation would have ended immediately. Republicans would have screamed that he was betraying his promise to work across the aisle by launching criminal investigations of a GOP administration, and many independents may well have bought that argument. However unlikely we progressives thought GOP support would be, and however unlikely the White House might have estimated that support, that likelihood would have dropped to zero. It doesn't take a Ph.D in political science to work that out, and I'm sure the White House knew it.
But the president never ruled out investigations either. His words on the subject were carefully measured, and always left open the possibility that government agents who knowingly broke the law could be prosecuted. Similarly, Attorney General Holder's comments on several occasions hinted that the DOJ was quietly reviewing the actions of the Bush administration and that he had not yet decided whether there was evidence to warrant a special prosecutor.
Meanwhile, President Obama made a sincere effort to work with the GOP. As I've written before, I think this was a strategy of contrast, where one goes out of one's way to be cooperative, forcing the other party to either cooperate in return or reveal his bad faith. This was the core of the nonviolence strategies of Gandhi and Martin Luther King, Jr., both of whom the president has mentioned in his books and speeches. I believe he was practicing political nonviolence - getting hit without hitting back - to spotlight his opponents' malicious intentions.
Malice in the spotlight.
And over the past month, those malicious intentions became crystal clear to all but the GOP's most ardent supporters. The Republicans publicly and unequivocally rejected his offers to cooperate, with Senator Jim DeMint saying health care reform would be "his Waterloo; this will break him." Even Senator Chuck Grassley, who had put on a show of negotiating in the Senate Finance Committee, publicly announced that he'd merely been stalling to allow time for the orchestrated rage we've seen during the August recess.
When Senators Grassley, Orrin Hatch, and others said last week that the president "should be trying to get 80 votes," and Grassley said he'd vote against any health care bill that wouldn't get a majority of support in his party, the GOP had finally and fully revealed the extent of their malice, demanding nothing less than a minority veto. Oh, and you're "trying to kill grandma." Add in GOP lawmakers' silent acceptance of the Obama=Hitler narrative and the stream of racist invective from their talk radio mouthpieces, and their malice was undeniable.
That display of intransigence relieved President Obama of his promise to be cooperative. He's not going to get Republican support for his agenda, no matter what. And any reasonable observer - including the independent voters who switched sides in 2006 and 2008 - could no longer doubt where the malice lay.
This cleared the way for Attorney General Holder to appoint a special prosecutor. Bipartisanship is now fully under the bus, not because the president abandoned it but because the GOP would not cooperate, no matter how sincerely the president tried. The investigation is not revenge for Republicans' refusal to cooperate on health care. The GOP's refusal to cooperate merely ended any rational, political basis for further delay.
For many of us, it's tempting to say to President Obama, "It's about damn time."
Instead I'll simply say to the GOP, "You asked for it."
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Happy Thursday!