| November 21, 2014
Reagan's Ghost Haunts GOP on Immigration and Torture
Name an issue, foreign or domestic, and Republicans will turn to the holy ghost of Ronald Reagan for wisdom and guidance. But for two of the biggest controversies in the news this week--immigration and torture--conservatives won't like the answer they get when they ask, "What would Reagan do?" After all, President Reagan didn't just sign an amnesty bill for three million undocumented immigrants in 1986. He then acted unilaterally to keep thousands of immigrant families together by using the exact same executive authority President Obama turned to on Thursday night. And when it comes to the ongoing national shame that is the Bush administration's regime of detainee torture, it was Reagan who in 1988 signed the Convention Against Torture that not only codified waterboarding as a crime, but demanded that the United States prosecute those who ordered and perpetrated it.
As Foreign Policy and many other outlets have documented, the Obama administration and Senate Intelligence Committee Chairwoman Dianne Feinstein are battling over the final, declassified version of the long-overdue Senate torture report. But while that the confrontation continues in Washington over that purportedly scathing assessment, last week in Geneva the United States made a very matter of fact admission that it had, in fact, committed torture. As the New York Times reported:
In a two-day presentation in Geneva, the American delegation acknowledged that the United States had tortured terrorism suspects after the Sept. 11 attacks. It emphasized, however, that the government had since tightened its rules, including with a 2005 statute against using cruelty and a 2009 executive order by President Obama that limits interrogators to a list of techniques in an Army field manual.
During the required quadrennial review by the UN panel monitoring international compliance with the Convention Against Torture, Committee expert Alessio Bruni asked Assistant Secretary of State Tom Malinowski "f the delegation could give an example of prosecution of public official violating this legal provision, which is contained in section 1003 of the Detainee Treatment Act."
Ronald Reagan would have asked the same question. In his May 20, 1988 signing statement on the Convention Against Torture, Reagan noted that it "marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment." As the Gipper explained in his message to the Senate:
The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called "universal jurisdiction." Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.
To put it another way, American and international law doesn't give Barack Obama the choice to decide whether "to look forward as opposed to looking backwards" when it comes to torture practiced by the United States. As Marjorie Cohn detailed in October 2012, the United States has "a legal duty to prosecute torturers":
The US has a legal duty to prosecute those responsible for torture and abuse, or extradite them to countries where they will be prosecuted. When we ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention), we promised to prosecute or extradite those who commit, or are complicit in the commission, of torture. The Geneva Conventions also mandate that we prosecute or extradite those who commit, or are complicit in the commission of, torture.
As Scott Horton pointed, that's especially the case when the perpetrators proudly confessed to the crime, as Dick Cheney and George W. Bush did repeatedly.
But while the President does not enjoy "prosecutorial discretion" in complying with the nation's treaty agreements on torture, immigration enforcement is another matter. As Greg Sargent explained in the Washington Post:
Immigration statute empowers the president to deploy a specific tool -- known as "deferred action" -- to shield people from deportations, and courts have recognized executive authority to apply it to whole categories of people.
Well before the Obama presidency, Congress enshrined in statute the tools to institute such enforcement priorities. One tool is called "deferred action," and this includes work authorization. This status is merely a temporary reprieve (more on this later) and does not make the path to eventual legal status any more assured.
As the National Journal has documented, virtually every president since FDR has availed himself of deferred action to enable millions of Mexicans, Europeans, Vietnamese, Cubans, Haitians and countless other nationalities to remain in the United States without fear of deportation. Among them was President Ronald Reagan, who repeatedly used his executive authority as President Obama seeks to do now.
After the passage of the 1986 Immigration Reform and Control Act which provided "amnesty to more than 3 million immigrants who had come here illegally but had been working in the country since at least 1982," President Reagan still faced a quandary. "The new law did not address the fate of the spouses and children of those to whom it gave a path to legalization," Jay Bookman recounted, meaning." A father or mother who had been legalized through IRCA still faced the very real prospect of seeing their spouses and children taken from them and deported."
After Congress made sporadic and unsuccessful efforts to address what became known as the "family unity" issue, Reagan decided to act on his own. Citing his executive authority, he issued "Family Fairness Guidelines" in 1987 that ordered immigration enforcement officials to cease deporting children who were here illegally as long as both their parents -- or one parent in a single-parent household -- had qualified for amnesty.
That wasn't the only time The Gipper exercised his executive authority to defer action on immigration enforcement. As Erwin Chemerinsky and Samuel Kleiner detailed in the New Republic:
In 1987, the Reagan administration took executive action to limit deportations for 200,000 Nicaraguan exiles, even those who had been turned down for asylum.
Of course, Republicans don't call Ronald Reagan an "emperor" or a "monarch" for having done pretty much what Barack Obama is about to do now. That's why the GOP and its conservative allies aren't invoking the spirit of Ronald Reagan right now. They know exactly what Reagan would do.
| November 19, 2014
Republicans Use Gruber as Cover for Their Deadly Obamacare Lies
For Democrats, the discovery that Romneycare and Obamacare consultant Jonathan Gruber is, well, a schmuck represents a triple whammy. For starters, the arrogance of anyone calling American voters "stupid" (or even just 47 percent of them) helps perpetuate every conservative stereotype of pointy-headed Northeastern elites. Worse still, Gruber is simply wrong that key aspects of the Affordable Care Act's funding and structure--about individual mandate penalties, the "Cadillac tax" on high-end health plans and that younger, healthier enrollees would in essence subsidize--were somehow kept secret from the public. But most damaging, Gruber has given Republicans cover for perhaps the greatest campaign of political deception in modern American history, one that continues to misinform people about Obamacare while needlessly leaving millions without health insurance in the very states where GOP control is strongest.
All along, Republicans greatest fear hasn't been that the Affordable Care Act would fail, but that it would succeed. So to prevent that from happening, the Party of Lincoln turned to a strategy that perverts the wisdom of its namesake:
"You can fool some of the people all of the time, and that's our target market."
That Republican mantra may failed to stop the passage of Obamacare, but it was shockingly successful at ensuring that red states continue to have the worst health care systems in America. Consider just a handful of the GOP's killer lies about Obamacare:
"Government Takeover of Health Care" | "Death Panels" (Part 1) | "Death Panels" (Part 2) | "It May Cost You Your Life" | "Obamacare Adds Trillions to Our Deficits" | "A $700 Billion Raid on Medicare" | "Sticking It to Seniors" | "No One is Denied Health Care in America" | "You Just Go to the Emergency Room" | "Obamacare Will Destroy the Private-Insurance Market" | "Obamacare Will Bail Out Insurers" | "Felonious, Terrorist Obamacare Navigators" | "Obamacare Will Cost 2. 5 Million Jobs" | and More
Click a link above to jump to the details for each below.
Lie: "Government Takeover of Health Care." Politifact's 2010 Lie of the Year appeared near the very top of GOP spinmeister Frank Luntz's talking points in 2009. Aside from veterans (VA), the elderly (Medicare), the poor and the disabled (Medicaid), Americans get their health care from private insurers, private hospitals and private physicians. The only thing that really changed when Obamacare went into effect was that 15 million people joined the ranks of the insured.
Nevertheless, by 2010 the baseless slander about a "government takeover of health care" appeared 90 times on John Boehner's web site and had 200 instances on the RNC web site.
Lie: "Death Panels," Part 1. If John Boehner and Mitch McConnell's lie about "the Democrats' $2.6 trillion government takeover of health care" was more than a little deceptive, the "death panels" slander was downright disgusting.
Early versions of the Democratic health care overhaul contained a provision requiring Medicare to pay for end-of-life counseling its 50 million elderly beneficiaries. In the hands of Betsy McCaughey, the woman whose mythology helped torpedo the Clinton health care initiative in 1994, that statute which could have helped millions of Americans instead became "death panels." Sarah Palin, who later claimed she was speaking metaphorically, famously framed the GOP slander this way:
"The America I know and love is not one in which my parents or my baby with Down Syndrome will have to stand in front of Obama's "death panel" so his bureaucrats can decide, based on a subjective judgment of their "level of productivity in society," whether they are worthy of health care. Such a system is downright evil."
That would be evil, if it was true. But Palin's fraud didn't stop some of the GOP's more senior, and theoretically, more sentient leaders from regurgitating the bogus death panel sound bite. Senator Chuck Grassley (R-IA) declared, "We should not have a government program that determines if you're going to pull the plug on grandma." In the fall of 2009, Grassley went further, using the gravely ill Ted Kennedy to illustrate his lie:
"In countries that have government-run health care, just to give you an example, I've been told that the brain tumor that Sen. Kennedy has -- because he's 77 years old -- would not be treated the way it's treated in the United States. In other words, he would not get the care he gets here because of his age."
Lie: "Death Panels," Part 2. Grassley later apologized for his obscene fraud. But the damage he and his Republican colleagues had done was not erased. In fact, in 2010 conservative mythmakers launched "Death Panels, the Sequel."
This time, the smear described the Independent Payment Advisory Board (IPAB) created by the Affordable Care Act to help control Medicare costs. Sarah Kliff explained how it works:
The IPAB would only come into effect when Medicare's per-enrollee spending grew faster than the average of overall price growth (measured by the Consumer Price Index) and medical price growth. That way, Medicare costs wouldn't rise as quickly as the rest of the health-care sector, but also have some wiggle room to grow faster than the rest of the economy.
But thanks to the dramatic slowdown in the rate of Medicare cost growth, the 15 member expert panel has yet to come into being. Nevertheless, for Republicans IPAB became the second coming of Obamacare's death panels. While Sarah Palin returned to denounce "the use of 'death panel'-like rationing by way of the new Independent Payments Advisory Board," Georgia Republican Congressman Tom Price declared, "What we oppose is the president deciding who gets what."
Of course, Palin, Price and their fellow right-wing fabulists were lying to the American people, as Jonathan Cohn made clear in the New Republic:
It was a ridiculous accusation. As a briefing from the Kaiser Family Foundation explains, Obamacare explicitly prohibits IPAB from "submitting proposals that would ration care, increase taxes, change Medicare benefits or eligibility, increase beneficiary premiums and cost-sharing requirements, or reduce low-income subsidies under Part D."
Lie: "It May Cost You Your Life." In 2009, Rep. Virginia Foxx (R-NC) warned that the Affordable Care Act would "put seniors in a position of being put to death by their government." But Republicans didn't lie about what was in Obamacare; they lied about what wasn't in it as well. In October 2009, Senate Minority Leader Mitch McConnell told Dennis Miller that the so-called "public option" eventually dropped from Obamacare could have fatal consequences for those buying it from the government:
"I think if you have any kind of government insurance program, you're going to be stuck with it and it will lead us in the direction of the European style, you know, sort of British-style, single payer, government run system. And those systems are known for delays, denial of care and, you know, if your particular malady doesn't fit the government regulation, you don't get the medication...
And it may cost you your life. I mean, we don't want to go down that path."
Lie: "Obamacare Adds Trillions to Our Deficits." From the beginning, Republican opponents of the Affordable Care Act have been confronted by an inconvenient truth. Unlike President Bush's unfunded Medicare Part D prescription drug program, Obamacare reduces the national debt.
Time and again, the nonpartisan Congressional Budget Office (CBO) "scored" the ACA as a debt-reducer. That embarrassment for the GOP was most pronounced when CBO explained that a House bill (H.R. 2) proposing the repeal of Obamacare would actually increase the national debt. As the agency summed up the truth in 2012:
On net, CBO and JCT estimate, repealing the ACA would increase federal budget deficits by $109 billion over the 2013-2022 period. Repealing the coverage provisions discussed in this report would save $1,171 billion over that period, but repealing the rest of the act would increase direct spending and reduce revenues by a total of $1,280 billion.
But GOP leaders couldn't handle the truth. Then House Majority Leader Eric Cantor called the CBO assessment "budget gimmickry." 2012 White House hopeful Newt Gingrich went even further in November 2011:
"If you are serious about real health reform, you must abolish the Congressional Budget Office because it lies."
It's no surprise the 2012 Republican platform decried "the fiscal nightmare of Obamacare." On June 28, 2012, GOP presidential nominee Mitt Romney reacted to the Supreme Court ruling upholding the Affordable Care Act with this whopper:
"Obamacare raises taxes on the American people by approximately $500 billion. Obamacare cuts Medicare -- cuts Medicare by approximately $500 billion. And even with those cuts and tax increases, Obamacare adds trillions to our deficits and to our national debt, and pushes those obligations on to coming generations."
Lie: "A $700 Billion Raid on Medicare...Sticking It to Seniors." The Affordable Care Act is funded in part by $760 billion in savings from Medicare over its first decade. But those dollars come not from benefits for the nation's 50 million Medicare recipients, but in reduced payments to insurers, hospitals and providers. And every version of the Paul Ryan House Republican budget has pocketed those very same savings to help offset the enormous revenue losses from its massive tax cut windfall for the wealthy.
Nevertheless, for five years Mitch McConnell and his GOP allies have attacked Obamacare for that supposed "$700 billion raid on Medicare." As McConnell put it in July 2009:
"They are going to pay for this plan by cutting Medicare, that is cutting seniors."
The Republican demagoguery was extremely successful and more than a little ironic. Scaring the bejesus out of seniors was a key strategy in the GOP's overwhelming triumph in the 2010 midterms. But the Ryan budget 95 percent of Congressional Republicans voted for four years in a row didn't just depend on the very same Medicare reductions. As the CBO found, Ryan's underfunded voucher scheme would have dramatically shifted health care costs to seniors themselves. As Ezra Klein summed up Ryan's Medicare privatization plan:
It's hard, given the constraints of our current debate, to call something "rationing" without being accused of slurring it. But this is rationing, and that's not a slur. This is the government capping its payments and moderating their growth in such a way that many seniors will not get the care they need.
Lie: "No One is Denied Health Care in America...You Just Go to the Emergency Room." In 2013, Mississippi Republican Governor Phil Bryant explained his decision to reject the federally-funded expansion of Medicaid to 200,000 of his constituents this way:
"There is no one who doesn't have health care in America. No one. Now, they may end up going to the emergency room. There are better ways to deal with people that need health care than this massive new program."
If that formula sounds familiar, it should. It's the same GOP emergency room talking point Republicans have been using for years to prevent the passage of health care reform. In one form or another, Governor Bryant, Mitch McConnell, Tom Delay, Paul Broun and Mitt Romney all echoed President George W. Bush's 2005 jaw-dropper:
"I mean, people have access to health care in America. After all, you just go to an emergency room."
That probably came as a surprise to the millions with cancer, cardiac disease, diabetes or myriad other chronic conditions requiring regular care and treatment. When Obamacare was passed in March 2010, some 50 million Americans lacked health insurance altogether, another 25 million were underinsured and forty percent were delaying health care altogether. And with employers reducing coverage or dropping it altogether and up to 45,000 uninsured needlessly dying each year, Republicans stuck to their magic ER plan. As Romney put it in 2012:
"Well, we do provide care for people who don't have insurance, people -- we- if someone has a heart attack, they don't sit in their apartment and die. We pick them up in an ambulance, and take them to the hospital, and give them care."
Lie: "Obamacare Will Destroy the Private-Insurance Market." In August 2013, Jim Demint and his friends at the Heritage Foundation urged shutting down the federal government if the Affordable Care Act wasn't defunded. Among their arguments:
"Obamacare will destroy the private-insurance market."
But after five years of dire warnings from conservatives, the collapse of the private insurers never happened. Instead, they have flourished, thanks to the 8 million new customers Obamacare delivered them in just its first year. As I explained in earlier this year:
Even as Republicans decry the Affordable Care Act's mythical bail-out of the carriers, the insurers' CEO's and shareholders are very happy with Obamacare's prognosis for their firms.
As the New York Times reported on Monday:
Since the Affordable Care Act was enacted in 2010, the relationship between the Obama administration and insurers has evolved into a powerful, mutually beneficial partnership that has been a boon to the nation's largest private health plans and led to a profitable surge in their Medicaid enrollment.
Lie: "Obamacare Will Bail Out Insurers." When they weren't arguing that the Affordable Care Act will destroy private insurers, conservatives claimed Obamacare will bail them out. The charge stems from the ACA's "risk corridors," which through 2016 compensate insurance companies that end up with bigger costs than they expected or seek compensation from those whose profits exceed projections.
Of course, there are a few problems with Republican charges that Obamacare's risk corridors are a "slush fund" designed to bailout the insurance companies. For starters, the three-year program designed to keep premiums down will be budget neutral. Just as important, the Medicare Part D drug plan virtually all Republicans voted for in 2003 has a permanent risk corridor program. As Jonathan Cohn pointed out in the New Republic:
The reinsurance and risk corridors in Obamacare and Medicare Part D are remarkably similar, except that Obamacare's are temporary and Medicare Part D's are permanent--which is to say, they are still part of the program.
So much for the protests of James Capretta and Yuval Levin in The Weekly Standard that "It is hard to imagine that many Americans, regardless of their political leanings, want taxpayers to be on the hook for covering the losses of shareholder-owned insurance companies." In 2003, 204 of 229 House Republicans and 42 of 51 GOP Senators voted for precisely that.
Lie: "Felonious, Terrorist Obamacare Navigators." Risk corridors aren't the only feature Obamacare and Medicare share. The federally-funded "navigator" program, the network of community groups, churches, non-profits, hospitals and other organizations helping Americans sign up for insurance, is virtually identical in both the ACA and Medicare.
Nevertheless, Republicans at the state and federal level did their very best to obstruct the work of the Obamacare navigators, despite the fact that many of the same groups and individuals were also enrolling seniors in Medicare. While Rep. Darrell Issa's House Oversight and Government Reform Committee held hearings into the work of the Obamacare navigators, GOP-controlled states passed a raft of laws to make their work almost impossible. As a George Washington University study in January found:
States that have not expanded Medicaid as part of the Affordable Care Act and also passed laws limiting the ability of health care "navigators" to advise customers have compromised their residents' ability to gain access to health care.
Republicans passed measures demanding background checks, certified bonding requirements and even limitations on the speech by navigators precisely because the identical program utilizing State Health Insurance Partnerships (SHIPs) worked so well for Medicare Part D. In August 2008, Laura Summer and Jennifer Thompson of the Georgetown University Health Policy Institute authored an evaluation of the Medicare Part D outreach program for President Bush's HHS titled "Best Practices to Improve Take-Up Rates in Health Insurance Programs." Based in part on a survey of 660 counselors, program managers, and others who worked with beneficiaries, Summer and Thompson found:
Based on a careful analysis of all of the articles reviewed, two predominant findings emerge regarding efforts to promote successful take-up in health insurance programs. The first is that individuals are more likely to enroll in insurance programs and maintain their coverage when extensive personal assistance, geared to the needs of the individual, is available. The second major finding is that simpler enrollment and renewal processes increase the likelihood that individuals will obtain and retain coverage. Studies of publicity campaigns find much weaker evidence of effectiveness. In gauging the success of assistance efforts, the amount and type of assistance provided appears to be relevant as is the source of assistance. Individuals are more likely to seek and accept help from organizations and individuals that they trust and that provide culturally or linguistically appropriate assistance.
Lie: "Obamacare Will Cost 2. 5 Million Jobs." During the 2012 presidential campaign, Republicans trumpeted a CBO forecast that the U.S. jobs would decline by 800,000 due to the Affordable Care Act. When the Congressional scorekeeper upped that estimate to 2.3 million in early 2014, the GOP and its amen corner were almost orgasmic. As the National Republican Congressional Committee (NRCC) tweeted:
Non-partisan CBO report admits #ObamaCare is hurting the economy, will cost 2.5 millions jobs.
Sadly for the doomsday mythmakers of the GOP, that is not what the Congressional Budget Office said. In fact, CBO instead explained that Obamacare would free millions of Americans from "job lock" by enabling them to work part-time or even retire without fear of losing access to health insurance:
"The estimated reduction stems almost entirely from a net decline in the amount of labor that workers choose to supply, rather than from a net drop in businesses' demand for labor, so it will appear almost entirely as a reduction in labor force participation and in hours worked relative to what would have occurred otherwise rather than as an increase in unemployment (that is, more workers seeking but not finding jobs) or underemployment (such as part-time workers who would prefer to work more hours per week)."
Of course, that didn't stop House Speaker John Boehner from regurgitating the debunked sound bite:
"Pres. Obama's #hcr law expected to destroy 2.3 million jobs."
And so it goes. Those 16,000 new IRS agents were a myth. Contrary to claims from the likes of Rand Paul that Medicaid expansion will "bankrupt" Kentucky hospitals, it is precisely in Medicaid rejecting states like Georgia and North Carolina where the crisis of rural hospitals is occurring. It is not Obamacare, but draconian Republican abortion restrictions which is jeopardizing the GOP's supposedly beloved "doctor-patient relationship." Premiums didn't skyrocket for 2014 and they won't in 2015, either. And four and a half years after Mitch McConnell promised the GOP's 2010 slogan would be "repeal and replace, repeal and replace," Republicans in Congress have yet to put forward their supposed Obamacare replacement. Repealing Obamacare "root and branch," as McConnell proposes, doesn't mean his state's exchange "web site can continue," but that 520,000 Kentuckians will lose their new health insurance. Period.
But for the compliant U.S. media, those Republicans lies, the ones that helped deny millions insurance in red states and continue to sap Obamacare's support despite the popularity of its provisions, don't matter. As NBC Meet the Press host Chuck Todd famously described the success of the GOP's Obamacare misinformation campaign:
"What I always love is people say 'it's your fault in the media.' No, it's the President of the United States' fault for not selling it."
To put it another way, the GOP's killer lies about Obamacare don't matter because #Gruber.
| November 17, 2014
After months of delays, President Obama is poised to finally take executive action to address the crisis of America's 11 million undocumented immigrants, 85 percent of whom are estimated to have lived in the United States for at least five years. Relying on the same authority presidents of both parties have used for over 70 years to permit millions of Mexicans, European refugees, Cubans, Haitians, Vietnamese, and others to legally stay and work in the United States, Obama reportedly will issue executive orders "to protect up to five million undocumented immigrants from the threat of deportation and provide many of them with work permits."
Predictably, the Republican response has been--pun intended--fast and furious. On Capitol Hill, Rep. Hal Rogers (R-KY) and Sens. Mike Lee (R-UT) and Jeff Sessions (R-AL) are threatening to shut down the federal government rather than fund President Obama's new immigration enforcement policies. Ted Cruz (R-TX) and Orrin Hatch (R-UT) among others have warned they will block the nomination of Loretta Lynch if she--or any other Obama nominee for attorney general--refuses to repudiate the president's executive orders on immigration. But some Republicans in Congress and many among the GOP's hardest of hard-liners want to go even further by impeaching the president of the United States. As Rep. Joe Barton (R-TX) announced this week:
Well impeachment is indicting in the House and that's a possibility. But you still have to convict in the Senate and that takes a two-thirds vote. But impeachment would be a consideration, yes sir.
That extreme reaction to President Obama's supposed "lawless, reckless, a leap into the anti-democratic dark" is a little puzzling. After all, the Oval Office occupant Speaker John Boehner is suing for acting like "a king" has turned to executive orders much less frequently than his predecessors. And as Wisconsin Sen. Ron Johnson acknowledged, Congress has often acted after (even months or years after) to codify or modify presidential action on immigration enforcement. Presidents Ronald Reagan and George W. Bush were no exception.
But if the roles were reversed, we know Republicans would not be accusing the president "poisoning the well" or "burning himself" or "waving a red flag in front of a bull." Instead, the GOP and its amen corner would level a familiar charge at Democrats:
We know this for certain, and not merely because by Powerline's John Hinderaker used that exact title after the Obama White House released a set of memos the Bush administration used to justify its illegal regime of detainee torture. As it turns out, from Iran-Contra and Plamegate to the Bush administration's prosecutors purge and Hatch Act violations and so much more, Republicans have long turned to their tried-and-untrue sound bite that conservative criminality is instead merely their Democratic opponents trying to "criminalize politics" and even conservatism itself.
The idea that liberal elites were criminalizing politics as usual has a long heritage among the conservative faithful. Nixon himself described Watergate as "politics pure and simple." Right-wing radio host and former first director of the Nixon Presidential Library Hugh Hewitt offered an even more sinister explanation. As the Los Angeles Times explained, Hewitt's version of history described Watergate as "a 'coup' engineered by Nixon enemies."
But it is President George H.W. Bush who is most widely credited for formally introducing the criminalization of politics canard after the Iran-Contra affair.
In justifying his Christmas Day 1992 Iran-Contra pardons, Bush the Elder used the talking point that would come to define the discourse of his son's 21st century water carriers. Much like his son's defenders, Bush 41 sought to recast rampant Republican lawlessness in the Reagan White House as mere political disagreement. As the New York Times reported at the time:
Mr. Bush said today that the Walsh prosecution reflected "a profoundly troubling development in the political and legal climate of our country: the criminalization of policy differences."
He added: "These differences should have been addressed in the political arena without the Damocles sword of criminality hanging over the heads of some of the combatants. The proper target is the President, not his subordinates; the proper forum is the voting booth, not the courtroom."
The Iran-Contra scandal, as you'll recall, almost laid waste to the Reagan presidency. Desperate to free U.S. hostages held by Iranian proxies in Lebanon, President Reagan provided weapons Tehran badly needed in its long war with Saddam Hussein. In a clumsy and illegal attempt to skirt U.S. law, the proceeds of those sales were then funneled to the Contras fighting the Sandinista government in Nicaragua. And as the New York Times recalled, Reagan's fiasco started with his emissary to Tehran, Robert McFarlane, bearing a cake and a Bible as gifts from the Gipper himself.
The rest, as they say, is history. After the revelations regarding his trip to Tehran and the Iran-Contra scheme, a disgraced McFarlane attempted suicide. After his initial denials, President Reagan was forced to address the nation on March 4, 1987, and acknowledge he indeed swapped arms for hostages:
A few months ago I told the American people I did not trade arms for hostages. My heart and my best intentions still tell me that's true, but the facts and the evidence tell me it is not. As the Tower board reported, what began as a strategic opening to Iran deteriorated, in its implementation, into trading arms for hostages.
Of course, the sad saga didn't end there. Then Lt. Colonel and now Fox News commentator Oliver North saw his Iran-Contra conviction overturned by an appellate court led by faithful Republican partisan and later Iraq WMD commissioner Laurence Silberman. And in December 1992, outgoing President George H.W. Bush offered his Christmas pardons to Defense Secretary Caspar Weinberger and five other Iran-Contra scandal figures. Among them were Elliot Abrams and John Poindexter, men who eight years later reprised their roles in the administration of George W. Bush. And as it turns out, it was Rep. Dick Cheney, later Bush 41's secretary of defense and Bush 43's vice president, who authored the sneering 1987 Congressional Iran-Contra Committee minority report:
The bottom line, however, is that the mistakes of the Iran-contra affair were just that - mistakes in judgment, and nothing more. There was no constitutional crisis, no systematic disrespect for 'the rule of law,' no grand conspiracy, and no Administration-wide dishonesty or coverup. In fact, the evidence will not support any of the more hysterical conclusions the committees' report tries to reach.
The "criminalization of politics" arrow has been the first one pulled from the Republican scandal quiver ever since.
Take, for example, the outing of covert CIA operative Valerie Plame by the Bush administration in July 2003. After her husband, Ambassador Joe Wilson, wrote his New York Times op-ed about the yellow cake uranium he didn't find in Niger, Americans learned his wife worked for the CIA on, of all things, WMD proliferation issues. Neither Karl Rove nor others were ever charged with the technical and narrowly defined offense of revealing the identity of Valerie Plame to Robert Novak and others. But Cheney's chief-of-staff, Scooter Libby, was convicted on four counts of perjury and obstruction of justice. And to the shock troops of the conservative movement, Libby the felon was a victim of the criminalization of politics.
The usual cavalcade of apologists for Republican lawbreaking swarmed to Libby's defense. With Libby's looming indictment in the fall of 2005, Texas Sen. Kay Bailey Hutchison compared him to Martha Stewart, and offered a new variant of the old sound bite, the "perjury technicality." Hutchison said she hoped:
That if there is going to be an indictment that says something happened, that it is an indictment on a crime and not some perjury technicality where they couldn't indict on the crime and so they go to something just to show that their two years of investigation was not a waste of time and taxpayer dollars.
Hutchison, of course, had plenty of company in offering the criminalization of politics canard in the CIA leak case. On October 14, 2005, Bill Kristol complained, "I am worried about what happens to the administration if Rove is indicted," adding, "I think it's the criminalization of politics that's really gotten totally out of hand." In succeeding days, Kristol's Fox News colleagues Bill O'Reilly, Sean Hannity, Stuart Varney, and Chris Wallace joined the chorus. On October 24, Kristol took to the pages of the Weekly Standard to denounce a supposed Democratic strategy of criminalizing conservatives. When Libby was later convicted, the Wall Street Journal editorial page called for a pardon. The WSJ cited grave dangers if the Libby verdict were to stand: "Perhaps the worst precedent would be normalizing the criminalization of policy differences."
Fox News regular Tucker Carlson tried to normalize a precedent of his own. While failing to mention that his father, Richard, was on the board of the Scooter Libby Legal Defense Fund, Carlson launched a smear campaign against special prosecutor Patrick Fitzgerald. In November 2005, he insisted Fitzgerald was "accusing Libby--falsely and in public--of undermining this country's security," adding, "Fitzgerald should apologize, though of course he never will." Reversing his past position in support of independent counsels, Carlson in February 2007 blasted "this lunatic Fitzgerald, running around destroying people's lives for no good reason." After Fitzgerald in a May 2007 court filing confirmed Plame's covert status, Carlson called the Bush appointee a liar:
CIA clearly didn't really give a shit about keeping her identity secret if she's going to work at f**king Langley...I call bullshit on that, I don't care what they say.
Former House Majority Leader Tom Delay called bullshit, too, when he was indicted on money laundering charges. Delay, who had previously been reprimanded by the House and saw several of his aides convicted in the Jack Abramoff and other scandals, declared as early as April 2005 of the ethics charges then swirling around him, "Democrats have made clear that their only agenda is the politics of personal destruction and the criminalization of politics." Amazingly, that comment came before Delay's own October 2005 indictment in Texas for money laundering in association with his Texans for a Republican Majority (TRMPAC).
Unsurprisingly, the conservative echo chamber rushed to Delay's defense and amplified his talking point. Days after Delay's indictment by District Attorney Ronnie Earle, Robert Novak penned a column titled Criminalizing Politics, concluding:
Democrats are ecstatic. The criminalization of politics may work, even if the case against DeLay is as threadbare as it looks.
Tom Delay, who on the day of his booking said, "Let people see Christ through me," had a similar message following his conviction in November 2010:
This is an abuse of power. It's a miscarriage of justice. I still maintain my innocence. The criminalization of politics undermines our very system.
Back in August, Delay warned newly indicted Gov. Rick Perry about the Travis County prosecutor's office: "This is what they do, this is how they intimidate the elected officials in the state Legislature and the governor and around the state." As for The Hammer, he claimed vindication when a Texas appeals court by a 2-to-1 vote threw out his money laundering conviction last year. But he's not in the clear yet: In March the Texas Court of Criminal Appeals announced it would review that decision. Either way, the two Texans will be singing from the same "criminalization of politics" hymnal.
So, too, did congressional Republicans sing during the imbroglio surrounding the politically motivated firings of U.S attorneys in 2006. In May 2007, Republican California Congressman Dan Lundgren was only too happy to offer the criminalization of politics ruse for Monica Goodling and Alberto Gonzales alike. Just moments after acknowledging Goodling's admission of violating civil service rules and Hatch Act prohibitions ("she did admit that she made mistakes in that regard"), Lundgren returned to the script:
Let me just say this -- and I think it's an important point -- there is too much of a tendency in this environment to try and criminalize political disputes. That's been the effort here. They have found no basis for criminality, so the suggestion is now a vote of no confidence. Who knows what is next?
But it was Rep. Mike Pence (R-IN) who beat Lundgren to the punch, defending Goodling in the opening moments of her testimony. Pence, who famously compared his March 2007 visit to a Baghdad market to shopping in his home state of Indiana, trotted out the tired GOP talking point for her:
I'm listening very intently. I'm studying this case. And I want to explore this issue of illegal behavior with you. Because it seems to me so much of this--and even something of what we've heard today in this otherwise cordial hearing--is about the criminalization of politics. In a very real sense, it seems to be about the attempted criminalization of things that are vital to our constitutional system of government, namely the taking into consideration of politics in the appointment of political officials within the government.
Later that morning, of course, Monica Goodling admitted her own lawbreaking and suggested that Attorney General Gonzales may have obstructed justice in trying to coach her. Acknowledging, "I believe I crossed the line, but I didn't mean to," when screening out civil service job applicants who happened to be Democrats, Goodling clarified for all why she sought immunity in the first place:
I do acknowledge that I may have gone too far in asking political questions of applicants for career positions, and I may have taken inappropriate political considerations into account on some occasions, and I regret those mistakes.
As it turned out, the DOJ's own inspector general later rejected Goodling's criminalization of politics maneuver. But in a July 2010 report for the Department of Justice, Bush appointee Nora Dannehy effectively brushed the prosecutor purge under the rug, concluding the Bush administration's actions in sacking seven U.S. attorneys were inappropriately political, but not criminal.
The same, however, cannot be said of the President Bush's regime of detainee torture implemented after the devastating attacks of September 11, 2001. As I have documented elsewhere, U.S. and international law not only define waterboarding as torture, but require the legal prosecution of the torturers. As Scott Horton explained after Vice President Cheney (soon followed by President Bush) boasted of their support for waterboarding and other so-called "enhanced interrogation techniques:
Section 2340A of the federal criminal code makes it an offense to torture or to conspire to torture. Violators are subject to jail terms or to death in appropriate cases, as where death results from the application of torture techniques. Prosecutors have argued that a criminal investigation into torture undertaken with the direction of the Bush White House would raise complex legal issues, and proof would be difficult. But what about cases in which an instigator openly and notoriously brags about his role in torture?...
What prosecutor can look away when a perpetrator mocks the law itself and revels in his role in violating it? Such cases cry out for prosecution. Dick Cheney wants to be prosecuted. And prosecutors should give him what he wants.
Alas, it was not to be. Despite the agreement by President Obama, Attorney General Holder, and the Senate Intelligence Committee's John McCain that waterboarding constitutes torture, Bush, Cheney, and their henchmen never faced justice for authorizing torture and forever staining the honor of the United States.
As a candidate for the presidency, then-Sen. Barack Obama denounced waterboarding as torture: "It's time to stop the political parsing and to close the legal loopholes," Obama said on October 29, 2007. "Waterboarding is torture, and so are other 'enhanced interrogation techniques' like 'head-slapping' and 'extreme temperatures.' It's time to reclaim our values and reaffirm our Constitution." As president, Obama reiterated his belief in the illegality of the Bush administration torture techniques. As recently as his May 2013 speech at the National Defense University, President Obama declared:
In some cases, I believe we compromised our basic values -- by using torture to interrogate our enemies, and detaining individuals in a way that ran counter to the rule of law... We unequivocally banned torture, affirmed our commitment to civilian courts, worked to align our policies with the rule of law, and expanded our consultations with Congress.
Yet even he before he was sworn in, President-elect Obama made it clear that the Bush torture team need not fear punishment from him:
We need to look forward as opposed to looking backwards.
From a political and economic perspective, Obama's fear of looking into that rearview mirror was understandable. After all, the economy he inherited from President Bush was in free fall. In the last quarter of 2008, GDP collapsed by 8.9 percent; 2.2 million jobs evaporated in the first quarter of 2009 alone. With the economy requiring immediate action and his ambitious agenda for 2009, President Obama was afraid to risk a total political conflagration in Washington by launching the kind of investigation the Bush administration's possible war crimes demanded.
So Obama signaled to Team Bush and its Republicans allies there would be no accountability for their high crimes and misdemeanors. And he did so by reducing war crimes to a talking point conservatives love most: criminalizing politics. During his confirmation hearings on January 16, 2009, Attorney General nominee Eric Holder declared, "Waterboarding is torture." But he also reassured Republicans on the Senate Judiciary Committee about something else:
I think President-elect Obama has said it well. We don't want to criminalize policy differences that might exist between the outgoing administration and the administration that is about to take over. We certainly don't want to do that.
Ultimately, President Barack Obama never prosecuted anyone involved in the design and execution of President Bush's program of detainee torture. While the memos authorizing these potential war crimes have seen the light of day, those who ordered and perpetrated them did not. Attorney General Holder announced, "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department." (Ultimately, none were, as Holder in August 2012 ended his last investigation into two detainee deaths.) President Obama went further in seemingly backing away from any legal action against the Bush torture team:
In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution...
This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past.
But spending that time and energy was never about "laying blame for the past," but redeeming American values by holding America's leaders to account for failing to uphold those values--and the law. As George Washington University Professor Jonathan Turley, now a supporter of the House GOP lawsuit against the president, put it in 2010:
Because it would have been politically unpopular to prosecute people for torture, the Obama Administration has allowed officials to downgrade torture from a war crime to a talking point.
And a Republican talking point at that. After all, what Eric Holder called "criminalizing policy differences," is the standard defense Republican miscreants have used for decades to fight off scandals, including Iran-Contra, the Valerie Plame affair, illicit domestic surveillance by the NSA, and the Bush administration's prosecutors' purge. And when the Obama administration in April 2009 released those four torture memos authored by Bush attorneys Jay Bybee, Stephen Bradbury, and John Yoo, Republicans in Congress and their amen corner in the media charged that the new president was "criminalizing conservatism."
That's Powerline's Hinderaker made that exact charge in a piece by the same title. "Many liberals don't just want to defeat conservatives at the polls, they want to send them to jail," he wrote, adding, "Toward that end, they have sometimes tried to criminalize what are essentially policy differences." In a scathing editorial on April 23, 2009, titled, "Presidential Poison," the Wall Street Journal went on the attack using the GOP's tried-and-untrue criminalizing politics canard:
Mark down the date. Tuesday, April 21, 2009, is the moment that any chance of a new era of bipartisan respect in Washington ended. By inviting the prosecution of Bush officials for their antiterror legal advice, President Obama has injected a poison into our politics that he and the country will live to regret...
Above all, the exercise will only embitter Republicans, including the moderates and national-security hawks Mr. Obama may need in the next four years. As patriotic officials who acted in good faith are indicted, smeared, impeached from judgeships or stripped of their academic tenure, the partisan anger and backlash will grow...
Mr. Obama is more popular than his policies, due in part to his personal charm and his seeming goodwill. By indulging his party's desire to criminalize policy advice, he has unleashed furies that will haunt his Presidency.
But over five years later, no "patriotic official" has been indicted, no judges have been impeached and no professor has been stripped of his academic tenure--not even the one who defined torture as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." In June, John Yoo was awarded an endowed faculty chair at the UC Berkeley School of Law. Bush appointee Jay Bybee remains on the federal bench. Cheney's legal alchemist David Addington is now creating alternative realities at the Heritage Center. Psychologist James Mitchell, one of the consultants who helped the Bush administration render the Geneva Conventions quaint, didn't lose his professional credentials, even after claiming, "I'm just a guy who got asked to do something for his country." Jose Rodriguez, who as head of the CIA's clandestine service personally ordered the destruction of dozens of interrogation videotapes, is a conservative hero who has smeared the long overdue Senate Intelligence Committee report on the CIA torture program despite having never read a word of it. Meanwhile, Dick Cheney appears regularly on your television screen to accuse President Obama of treason. As for Cheney's former Oval Office sock puppet, George W. Bush, he's free to paint himself in the shower and give speeches to "replenish the ol' coffers."
All of these Republicans--and more--have joined Bush in laughing all the way to bank. The "criminalization of politics" defense not only works for conservatives, it pays well, too. Former Bush GSA chief Lurita Doan, forced from office as a result of her Hatch Act violations, is a columnist and Fox News regular paid to attack the congressional Democrats who uncovered her wrongdoing. Conservatives pointing to the new GAO study concluding President Obama violated the law when he ordered the prisoner swap that resulted in the release of Army Sgt. Bowe Bergdahl had no issue with the Bush administration's program of illicit domestic surveillance by the NSA, a program that flouted the Foreign Intelligence Surveillance Act (FISA). Many of its architects, like Michael Hayden and Keith Hayden, are now enjoying life in the private sector. (Ironically, most of Bush's Justice Department leadership did have a problem with it, and threatened to resign en masse in March 2004 over the program.. Then again, in their defense, Republicans like Sens. Jeff Sessions (R-AL), Pat Roberts (R-KS), and John Cornyn (R-TX) used a different--if similarly disgusting--talking point to explain it away in December 2005:
None of your civil liberties matter much after you're dead.
And, for Republicans, a sense of irony doesn't matter much if you're still living. After all, it was former Bush Attorney General Michael Mukasey who in 2013 suggested President Obama could be impeached for the prisoner swap by which U.S. Army Sgt. Bowe Bergdahl was freed by the Taliban in exchange for five detainees held at Guantanamo Bay.
"Whether you impeach somebody doesn't depend on whether they violate the law," Mukasey said. "The president can stay within his lawful powers and still commit an impeachable offense. He can pardon anybody he wants. If he decided tomorrow to pardon everybody in the U.S. prison system, that would be lawful, but it would raise serious questions about whether he should continue in office. The same is true of the wholesale release of dangerous people."
By that logic, Mukasey should have supported the impeachment of the lame-duck President Bush who both nominated him and released 500 Gitmo detainees in exchange for--wait for it--nothing.
But when it comes to Republican wrongdoing and criminality, Democrats, as Sarah Palin is so fond of saying, don't roll that way. Mukasey himself, after all, was confirmed by a new Democratic Senate majority in 2007 despite his refusal to denounce waterboarding and other torture techniques. (It appears the new Republican-controlled Senate will not return the courtesy to President Obama's AG pick, Loretta Lynch.) While many liberal commentators have defended Texas Gov. Rick Perry against the abuse of power charges he faces, plenty of conservatives cheered as Alabama Democratic Gov. Don Siegelman was sent to prison. And in November 2006, incoming House Speaker Nancy Pelosi (D-CA) said what neither John Boehner nor Mitch McConnell will declare now:
I have said it before and I will say it again: Impeachment is off the table.
Fast forward to 2014. In GOP-dominated states across the nation, draconian voter identification laws keeping lower income and minority voters from the polls are working as desired. Meanwhile, Congressional Republicans, backed by two-thirds of GOP voters who say they want their party to "stand up to Obama even if less gets done in Washington," are starting to talk seriously about impeaching the president for exercising long-standing executive power over immigration enforcement.
But Democrats aren't bemoaning "the criminalization of politics." Yet, if they were like Republicans, they might even coin a term for what's going on:
| November 14, 2014
GOP Threatens to Block Loretta Lynch over Executive Power They Demanded for Lame-Duck Bush
A growing number of Republican senators are suggesting they will block the nomination of Loretta Lynch over the issue of "executive amnesty." If so, then no choice President Obama might make for attorney general could possibly be confirmed by the new GOP-controlled Senate. After all, the next head of the Justice Department will obviously agree with the president that he has both constitutional authority and historical precedent on his side when it comes to using executive orders to set rules for immigration enforcement and deportation.
But that total obstruction by the GOP of any Obama selection for attorney general wouldn't just be unprecedented. It would be hypocritical, too. After all, Republicans howled when many in the new Democratic Senate majority raised questions about unlimited executive power and torture policy when the lame-duck President Bush nominated Judge Michael Mukasey to replace the disgraced Alberto Gonzales in the fall. Yet despite his refusals to state whether waterboarding constituted torture in violation of U.S. and international law, Mukasey was nevertheless confirmed by the Democratic Senate 53-40 less than two months later.
Of course, you'd never know that from the preemptive strikes against Loretta Lynch already being launched by Senate Republicans. "The nominee must demonstrate full and complete commitment to the law," Sens. Ted Cruz (R-TX) and Mike Lee (R-UT) warned, adding "Loretta Lynch deserves the opportunity to demonstrate those qualities, beginning with a statement whether or not she believes the president's executive amnesty plans are constitutional and legal." As Politico reported, Senator Orrin Hatch (R-UT) plans on making the limitation of Obama's executive power a litmus test for Lynch's confirmation as attorney general:
"Decisions and actions by President Obama and Attorney General Holder have made the proper bounds of executive power a critically important issue for this confirmation process," Sen. Orrin Hatch (R-Utah) said Monday, signaling that will be a priority in deciding whether to confirm Lynch.
Of course, when Republican George W. Bush sat in the Oval Office and the issue was his authority to implement his policy of detainee torture in clear violation of American law and treaty obligations, Orrin Hatch had the opposite view. Michael Mukasey, Bush's nominee to head the Justice Department, shouldn't have to answer those kinds of questions at all from the Democratic Senate. As Hatch put it on September 18, 2007:
Sen. Orrin Hatch, R-Utah, said the Senate should focus on Mukasey's qualifications and almost 40 years of experience in the U.S. legal system. "I know some in this body want to use nominations to fight unrelated policy or political battles. Those fights are for the legislative process or the oversight process, but not the confirmation process," he said.
Things worked perfectly for Hatch and his GOP allies. After all, Michael Mukasey was confirmed in seven weeks and, to date, there has been no oversight of Bush's torture team or its policies. And for their willingness to let the constitutional process go forward with a replacement for the comically corrupt Alberto Gonzales, Democrats were rewarded with a hyper-partisan attack dog whose dirty work for the GOP continues to this day.
On September 17, 2007, President Bush nominated Judge Michael Mukasey, a former U.S. attorney, to replace Gonzales. (A close friend of former New York Mayor Rudy Giuliani, Mukasey pledged to recuse himself from any cases involving disgraced Bush Homeland Security nominee Bernard Kerik or the law firm where Mukasey's son worked, Bracewell & Giuliani.) Needing to get his man through a Senate now controlled by Democrats, Bush had selected a man CNN's Jeffrey Toobin represented as "an extraordinary difference from John Ashcroft and Alberto Gonzales." As Americans later learned, it didn't turn out that way.
At first, Democrats gave President Bush more than the benefit of the doubt. While Mitch McConnell proclaimed Mukasey possessed "the qualities my Democratic colleagues said they want: experience, integrity and intellect," Senate Majority Leader Harry Reid (D-NV) praised Bush for choosing a nominee who is not "another partisan administration insider." Judiciary Committee Chairman Pat Leahy (D-VT) pledged to give Mukasey's nomination "serious and deliberate" consideration." Democratic Sen. Charles Schumer went even further on behalf of Mukasey, a fellow New Yorker:
While he is certainly conservative, Judge Mukasey seems to be the kind of nominee who would put rule of law first and show independence from the White House, our most important criteria.
Ironically, Bruce Fein, a former deputy attorney general in the Reagan administration, warned that Mukasey is "not the right person for the job":
I do not believe, despite certainly substantial credentials, that he has the national stature and strength in Congress to resist White House overtures to insist that he bend the law to assist the political agenda.
As it turned out, Fein was prescient. Mukasey would prove then and now to be a dedicated water carrier for President Bush and the Republican Party. The first sign of his loyalty to party over the law became clear during his confirmation hearings.
Following in the footsteps of Alberto Gonzales, who during his own February 2005 confirmation hearings deemed senators' questions on presidential authorization for torture as a "hypothetical situation," Mukasey tried to skirt the issue of the legality of the practices in question. As ThinkProgress recounted, Mukasey in a written response to Democratic senators in October 2007 took the same line as his predecessor:
In the four-page letter, Mukasey called the interrogation technique "over the line" and "repugnant" on "a personal basis," but added that he would need the "actual facts and circumstances" to strike a "legal opinion":
"Hypotheticals are different from real life and in any legal opinion the actual facts and circumstances are critical."
And like Gonzales, Mukasey refused to disavow specific "enhanced interrogation techniques" such as waterboarding. Entering the realm of semantics and circular logic, Mukasey followed Gonzales' 2005 approach in characterizing discussions of presidential power to authorize given interrogation procedures as hypothetical. As the Washington Post detailed, Mukasey in essence claimed the legality of "torture" all depends what the meaning of "torture" is:
"I'm hoping that you can at least look at this one technique and say that clearly constitutes torture, it should not be the policy of the United States to engage in waterboarding," said Sen. Dick Durbin, D-Ill.
"It is not constitutional for the United States to engage in torture in any form, be it waterboarding or anything else," Mukasey answered.
During terse questioning by Sen. Sheldon Whitehouse, D-R.I., Mukasey said he did not know if waterboarding is torture because he is not familiar with how it is done.
"If it's torture?" Whitehouse responded incredulously. "That's a massive hedge. I mean, it either is or it isn't."
"If it amounts to torture, it is not constitutional," Mukasey answered.
"I'm very disappointed in that answer," Whitehouse said. "I think it is purely semantic."
As Sen. Lindsey Graham (R-SC), himself a judge advocate general (JAG) in the military, noted at the time, there was no ambiguity about the legality of the techniques in question.
If he does not believe that waterboarding is illegal, then that would really put doubts in my own mind because I don't think you have to have a lot of knowledge about the law to understand this technique violates the Geneva Convention and other statutes.
Graham nevertheless joined all of the Judiciary Committee's Republicans in voting to send Mukasey's nomination to the full Senate. But while Leahy rejected Mukasey and his torture ploy, Bush's man received the blessing of Democrats Chuck Schumer and Dianne Feinstein. As NPR reported:
Schumer said he eventually decided to support Mukasey after the judge assured him "that if Congress passed further legislation in this area, the president would have no legal authority to ignore it and Judge Mukasey would enforce it."
Schumer and Feinstein had fallen for Bush's "trust but don't verify" ruse on torture. As Press Secretary Dana Perino put it on the eve of the vote on Mukasey:
"The president will say [that] the attorney general is a critical member of the nation's war on terror team and that he needs to be confirmed immediately. And once he is confirmed, then the Congress has the capability to ask him to come to Congress and to testify on all sorts of matters, including this one.
On November 9, 2007, Mukasey was confirmed by a 53-40 vote. Joining Feinstein and Schumer were Sens. Landrieu (D-LA), Carper (D-DE), Nelson (D-NE), Bayh (D-IN) and Lieberman (I-CT). And almost immediately, Bush's new AG began, as Bruce Fein had warned, to "bend the law to assist the political agenda."
For example, on February 29, 2008, Mukasey told Congress that White House aides Josh Bolten and Harriet Miers could not prosecuted for contempt for refusing to appear in response to subpoenas regarding Bush's prosecutors' purge. In July, Attorney General Mukasey blocked a House committee's attempt to obtain internal FBI reports about the leak of covert CIA officer Valerie Plame's identity. That same month, he rejected calls to appoint a special counsel to investigate Bush administration officials who approved the use of coercive interrogation techniques against terrorism suspects:
I am aware of no basis for appointing a special counsel to investigate the policymakers who approved the CIA interrogation program or the national security lawyers who concluded that the program was lawful.
It was with good reason that Dan Froomkin concluded in Mukasey the Obstructionist that "Michael Mukasey has President Bush's back." But after George W. Bush finally ambled out of the White House for good on January 20, 2009, Mukasey the Obstructionist turned into Mukasey the Hatchet Man.
When the new President Obama and his Attorney General Eric Holder released four Bush-era torture memos in April 2009, Mukasey and Michael Hayden co-authored an op-ed darkly predicting, "The president has tied his own hand on terror." Rejecting any notion that the Bush administration's so-called enhanced interrogation techniques "disgraced us before the world," Mukasey argued:
The release of these opinions was unnecessary as a legal matter, and is unsound as a matter of policy. Its effect will be to invite the kind of institutional timidity and fear of recrimination that weakened intelligence gathering in the past, and that we came sorely to regret on Sept. 11, 2001.
Mukasey went further, regurgitating the serially debunked claim that the techniques he refused to describe as torture had worked. Al Qaeda's Abu Zubaidi, he insisted, was "coerced into disclosing information that led to the capture of Ramzi bin al Shibh" and by extension, 9/11 mastermind, Khalid Sheikh Mohammed.
The former attorney general wasn't done. In May 2011, he helped lead the ranks of Republican revisionists insisting George W. Bush--and not Barack Obama--deserved credit for killing Osama Bin Laden. Writing in the Wall Street Journal on May 6, 2011, Mukasey gushed about "the waterboarding trail to Osama Bin Laden." One year later, Mukasey returned to attack the president on the anniversary of Obama's greatest success and Bush's greatest failure. Days after his Wall Street Journal op-ed claiming that Obama's Bin Laden "bragging" compared unfavorably to Lincoln, Eisenhower and--wait for it--George W. Bush, Mukasey took to Fox News to charge that "the Obama Administration drafted a memo to protect the president from blame if the mission to kill or capture Osama Bin Laden would have failed." As right-wing blogs excitedly quoted:
That was a highly lawyered memo (designed to protect the president politically) ... I think there's going to be more that's going to be tumbling out about that escapade but so far that memo is enough.
Of course, there was no such memo. But when it came to a Democrat in the White House, no amount of slander was enough. So when President Obama authorized the trade of five Taliban prisoners in exchange for U.S. Army Sergeant Bowe Bergdahl, Mukasey declared it an impeachable offense:
Whether you impeach somebody doesn't depend on whether they violate the law," Mukasey said. "The president can stay within his lawful powers and still commit an impeachable offense. He can pardon anybody he wants. If he decided tomorrow to pardon everybody in the U.S. prison system, that would be lawful, but it would raise serious questions about whether he should continue in office. The same is true of the wholesale release of dangerous people.
The call for impeachment was more than a little ironic coming from Mukasey. After all, he wasn't just once the top law enforcement official in the land. He served George W. Bush, who as president released 500 detainees from Gitmo in exchange for--wait for it--nothing. As ThinkProgress helpfully explained at the time:
Statistics from the Office of the Director of National Intelligence show that only 6 percent (5 in total) of Guantanamo detainees released during the Obama administration have been assessed to have potentially engaged in militant activities. That compares with a rate of nearly 30 percent under the Bush administration. While these statistics have been criticized as including activities that no one should consider threatening the security of the United States, such as writing op-eds critical of U.S. policy, no one is arguing that they are undercounting those detainees who potentially have committed violent acts upon release.
And so it goes.
In the fall of 2007, George W. Bush was the lamest of lame-duck presidents. Nevertheless, Orrin Hatch demanded the up-or-down vote for Michael Mukasey he refuses to promise to Loretta Lynch now:
Hatch said he has seen nine previous attorneys general go through the Senate Judiciary Committee with a three-week average time frame between their nomination and confirmation.
On November 6, 2007, Bush's fellow Texan and Republican Sen. John Cornyn was furious:
Judge Mukasey's nomination has been delayed now for almost seven weeks. It is imperative that the president has his national security team at full strength and the unnecessary delay of Judge Mukasey's nomination has prevented that. He deserves an immediate up-or-down vote by the full Senate.
Two days later, a United States Senate controlled by Democrats gave Mukasey that up-or-down vote, and confirmed a partisan hack as attorney general. But with Democrat Barack Obama in the White House, Cornyn announced he had a new standard for confirmation:
There is a 60-vote threshold for every nomination.
Of course, that wasn't the only the Republicans' only turnabout when a Democrat replaced the Republican in the White House. Now, the Republicans controlling the Senate insist, unlimited executive power is for me, not thee.
| November 12, 2014
Bush's Only Iraq Regret? His Paternity for ISIS
Just in time for Veteran's Day, former President George W. Bush is promoting a new book dedicated to his father's military service. As part of his PR swing, Bush explained that he has only one regret about his 2003 invasion of Iraq. Unsurprisingly, Dubya's sole lament is not for the enormous cost in American blood and treasure sacrificed in a needless war launched under false pretenses. In fact, 43 didn't even single out--as he did many times in the past--"using bad language like, you know, 'bring them on'" as the lone mistake of his presidency. No, President Bush's only regret now about his Iraq war is the rise of ISIS, a development which, he implicitly suggests, is the fault of his successor:
"I think it was the right decision. My regret is that a violent group of people has risen up again. This is al Qaeda plus. I put in the book that they need to be defeated. And I hope they are. I hope the strategy works."
But if George W. Bush is looking for a scapegoat in the emergence of the Islamic State, he need only look in the mirror. You don't have to take my word for it that paternity for ISIS is his. President Bush told us so.
ISIS, or what Bush calls "Al Qaeda Plus," owes its stunning battlefield victories to a deadly alliance of Sunni tribesmen alienated by his man in Baghdad Nouri al-Maliki, some of Saddam's former officers who "should have surrendered or been done in" in 2003, and, of course, Al Qaeda fighters Bush himself admitted he attracted to Iraq.
President Bush couldn't agree more. After all, in his December 2008 interview with Martha Raddatz of ABC News he acknowledged that it was the American presence that drew Al Qaeda fighters to Iraq, and not the reverse:
BUSH: One of the major theaters against al Qaeda turns out to have been Iraq. This is where al Qaeda said they were going to take their stand. This is where al Qaeda was hoping to take -
RADDATZ: But not until after the U.S. invaded.
BUSH: Yeah, that's right. So what? The point is that al Qaeda said they're going to take a stand. Well, first of all in the post-9/11 environment Saddam Hussein posed a threat. And then upon removal, al Qaeda decides to take a stand.
And the defeat of Al Qaeda in the western provinces of Iraq would not have been possible with the Sunni Awakening in which the United States purchases the allegiance of tribal sheiks and armed 90,000 of their fighters. But those "Sons of Iraq" of Iraq would only stay bought if Prime Minister Nouri al-Maliki and his Shiite majority integrated them into the nation's security forces. But accommodating the Sunni groups was precisely was Maliki--George W. Bush's man in Baghdad--refused to do. As Dexter Filkins explained earlier this year:
In the two and a half years since the Americans' departure, Maliki has centralized power within his own circle, cut the Sunnis out of political power, and unleashed a wave of arrests and repression. Maliki's march to authoritarian rule has fueled the reemergence of the Sunni insurgency directly. With nowhere else to go, Iraq's Sunnis are turning, once again, to the extremists to protect them.
In 2006, the committed Shiite sectarian Nouri al-Maliki was President Bush's hand-picked choice for the premiership. But by the summer of 2007, Robert Draper reported, Bush, John McCain and Lindsey Graham were all worrying that Maliki would undo the gains of the surge made possible by General David Petraeus' Sunni Awakening:
It suddenly seemed that the efforts of the surge might be for naught. And so, shortly after returning from Iraq, McCain and Graham visited President Bush at the White House. According to three individuals with knowledge of the July 11 conversation, the pair advised Bush to cut all ties with al-Maliki unless he showed immediate signs of engagement. Such a move on Bush's part would be tantamount to encouraging a coup against Iraq's first democratically elected prime minister, but McCain and Graham saw the situation as a desperate one. We've got a military strategy that's working, they told the president. And it's being undercut by an Iraqi government that's dysfunctional.
Bush was sympathetic. He'd been giving al-Maliki pep talks for more than six months now, with little to show for the effort. But, he told the two senators, "Who's going to replace him?"
We don't have a good answer for that, they replied. But unless al-Maliki changes, we can't get there.
As it turned out, Maliki didn't change. The idea of a pluralistic Iraqi government, dependent as it was on the Shiite majority's inclusion of the Sunni minority previously represented by Saddam Hussein, soon began to fade. As I worried in November 2007 ("Bush's M.C. Escher Strategy for Iraq"), Shiite wariness and Sunni distrust threatened to undermine any hope for a peaceful, nonsectarian future:
More and more, President Bush's strategy in Iraq resembles an M.C. Escher illustration. Like the hands drawing each other or the elegant depiction of stairways that cannot possibly meet, the military progress of the U.S. surge is producing an image of a future Iraq that, while glorious to behold, can never be built. The very American alliances with Sunni tribal leaders that are reducing sectarian violence and the threat from Al Qaeda also threaten to undermine the Shiite majority government in Baghdad. And the "enduring" U.S. presence announced by President Bush this week may serve only to protect the Maliki government from its domestic enemies, not its friend and American foe Iran. If anything, the surge may be making the prospect of Iraqi national reconciliation even more remote.
As Zack Beauchamp summed it up in Vox in August:
The most obvious way in which the US bears responsibility for ISIS's rise is the 2003 invasion of Iraq. The United States invaded Iraq, accidentally sparked a sectarian civil war, and generally created the conditions for what was then al-Qaeda in Iraq to flourish. Without the American invasion, al-Qaeda in Iraq never would have been so strong, and ISIS never would have grown out of it.
Eleven years after opening Pandora's Box by replacing the Sunni dictator Saddam Hussein with the Shiite partisan al-Maliki, George W. Bush cannot escape blame for the inevitable sectarian conflict he unwittingly unleashed in Iraq. Now, Maliki is gone and many of the fighters once led Abu Musab al-Zarqawi in Iraq have reorganized--and metastasized--into the Islamic State in Iraq and Syria under the self-proclaimed emir Abu Bakr al-Baghdadi. As Vox rightly explains, there's plenty of blame to go around when it comes to the rise of ISIS. But as the Obama administration continues to mount air strikes and build alliances to destroy the Islamic State, there should be little doubt that his predecessor played the vital role in inadvertently creating it in the first place. Victory may have a thousand fathers and defeat may be an orphan, but Dubya wants someone else to own paternity for his bastard love child. Or to put it in a way that Republicans will understand: ISIS? George W. Bush built that.
| November 11, 2014
Memo to GOP: Obama Sent a Letter to Iran; Reagan Sent U.S. Weapons
Among the many unintended--and disastrous--consequences of President Bush's war in Iraq was to replace the Sunni dictator in Baghdad with a sectarian Shiite government whose closest ally was naturally Iran. So, it was only common sense that President Obama would send a letter to the Supreme Leader Ayatollah Ali Khamenei in Tehran regarding the ISIS threat that both U.S. and Iranian forces were already combatting in Iraq. Needless to say, Republicans are apoplectic. As Sarah Palin put it in her latest jihad against the English language, President Obama's letter shows he is "willing to negotiate with terrorists" and was "an anti-Reagan move."
Here's a newsflash for Sarah Palin, John McCain, Mitt Romney and their ilk. Barack Obama only sent Iran a letter. Ronald Reagan sent a cake, a Bible and U.S. weapons.
Of course, you'd never know that from Palin's rant, "President Palling Around with Terrorists":
Good God, Mr. President. To partner with Iran is to trust the enemy, which is insane. Iran has complicity in the rise of ISIS as it supports radical militias and arms Islamic terrorists...
In the 2008 campaign Sen. McCain and I warned, on behalf of every reasonable person, that your willingness to negotiate with terrorists would get Americans killed; that pulling an anti-Reagan move by taking our Big Stick of strength and putting it in the hands of any foe could be insurmountably devastating for our allies.
Leave aside for the moment that Iran has sent units of its Revolutionary Guard to protect Baghdad from Islamic State fighters, extremist Sunni forces who also happen to pose a threat to Tehran's Alawite client in Syria, Bashar Al-Assad. As the record shows, the "Reagan move" would be for the United States to try to buy the cooperation of Iran and its Hezbollah proxies with American blood on their hands by shipping U.S. arms to Tehran.
The Iran-Contra scandal, as you'll recall, almost laid waste to the Reagan presidency. Desperate to free U.S. hostages held by Iranian proxies in Lebanon, President Reagan provided weapons Tehran badly needed in its long war with Saddam Hussein (who, of course, was backed by the United States). In a clumsy and illegal attempt to skirt U.S. law, the proceeds of those sales were then funneled to the contras fighting the Sandinistas in Nicaragua. And as the New York Times recalled, Reagan's fiasco started with an emissary bearing gifts from the Gipper himself:
A retired Central Intelligence Agency official has confirmed to the Senate Intelligence Committee that on the secret mission to Teheran last May, Robert C. McFarlane and his party carried a Bible with a handwritten verse from President Reagan for Iranian leaders.
According to a person who has read the committee's draft report, the retired C.I.A. official, George W. Cave, an Iran expert who was part of the mission, said the group had 10 falsified passports, believed to be Irish, and a key-shaped cake to symbolize the anticipated ''opening'' to Iran.
As his diaries published in 2005 show, President Ronald Reagan was under no illusions about either the illegality of the scheme or that it constituted anything other than a swap of arms for hostages. On Thursday, December 5, 1985, Reagan wrote in his diary:
N.S.C. briefing--probably Bud's last. Subject was our undercover effort to free our 5 hostages held by terrorists in Lebanon. It is a complex undertaking with only a few of us in on it. I won't even write in the diary what we're up to.
Nevertheless, just two days later the Gipper wrote about that very topic. On Saturday, December 7, Reagan noted in his diary:
Day opened with "Rex" (our new dog) on our bed. I then had a meeting with Don R., Cap W. and Bud M., John P., Geo. Schultz and Mahan of C.I.A. This had to do with the complex plan which could return our 5 hostages & help some officials in Iran who want to turn that country from its present course & on to a better relationship with us. It calls for Israel selling some weapons to Iran. As they are delivered in installments by air our hostages will be released. The weapons will go to the moderate leaders in the army who are essential if there is to be a change to a more stable govt. We then sell Israel replacements for the delivered weapons. None of this is a gift--the Iranians pay cash for the weapons--so does Israel.
George S. Cap and Don are opposed--Cong. has imposed a law that we can't sell Iran weapons or sell any other country weapons for resale to Iran. Geo. also thinks this violates our policy of not paying off terrorists. I claim the weapons are for those who want to change the govt of Iran & no ransom is being pd. for the hostages. No direct sale would be made by us to Iran but we would be replacing the weapons sold by Israel.
In case there was any doubt that Ronald Reagan blessed the delivery of hundreds of advanced anti-tank weapons to Tehran, the President himself removed it with his January 17, 1986 diary entry, "I agreed to sell TOWs to Iran."
The rest, as they say, is history. Or more accurately, rewritten history. As President Reagan told the American people in a nationally televised address on March 4, 1987:
"A few months ago I told the American people I did not trade arms for hostages. My heart and my best intentions still tell me that's true, but the facts and the evidence tell me it is not. As the Tower board reported, what began as a strategic opening to Iran deteriorated, in its implementation, into trading arms for hostages."
Of course, the pathetic saga didn't end there. Then Lt. Colonel and now Fox News commentator Oliver North saw his Iran-Contra conviction overturned by an appellate court led by faithful Republican partisan and later Iraq WMD commissioner Laurence Silberman. And in December 1992, outgoing President George H.W. Bush offered Christmas pardons to Defense Secretary Caspar Weinberger and five other Iran-Contra scandal figures. Among them were John Poindexter and Elliott Abrams, men who eight years later reprised their roles in the administration of George W. Bush. (As it turns out, Abrams--one of the people who brought you the Iraq War--also served as an adviser for Mitt Romney during the 2012 presidential campaign. In that capacity, he argued that Congress should give the President the authorization to use force against Iran for a preventive war to destroy Tehran's nuclear program.)
Nevertheless, Republicans are once again furious at Barack Obama's handling of America's Iran policy. During the 2012 campaign, Mitt Romney forgot about Iran-Contra altogether, declaring, "Ronald Reagan made it crystal clear that the Iranians would pay a very stiff price for continuing their criminal behavior" and that the right course toward Tehran's nuclear program was "what Ronald Reagan called 'peace through strength.'" In June, 2016 White House hopeful Ted Cruz (R-TX) protested the trade that freed U.S. Army soldier Bowe Bergdahl, "What does this tell the terrorists, that if you capture a U.S. soldier you can trade that soldier for five terrorists?" Then again, back in January Senator Cruz tweeted a front page picture of Ronald Reagan's first inauguration with the message:
"Now there is a man who knew how to deal with the Iranians."
Five months after Cruz' historical revisionism, Sarah Palin added her own as she spoke for her 4.5 million Facebook followers when she said:
What is wrong with you, Barack Obama? You cannot pal around with terrorists and expect us to survive.
Of course, her Fox News colleague Oliver North didn't just survive, he prospered from palling around with terrorists. As for those U.S. weapons the Gipper delivered to Iran even after the Beirut Marine barracks bombing and the executions of American prisoners held by Hezbollah in Lebanon, the Reagan Library probably has the receipts.
| November 10, 2014
Media Ignore Bush, GOP's All-Out Obstruction After Losing Majority in 2006 Midterm Rout
In the wake of the GOP's triumph in last week's midterm election, conservative commentators are demanding President Obama and his Democratic allies abandon their agenda and submit to the will of the new Republican majority. "The chastened President," Peggy Noonan lectured, should "reach out, be humble," but instead is "doubling down on hostility, antagonism and distance." GOP supplicant Byron York even offered Obama a role model for dealing with his lame duck, midterm "thumpin'": George W. Bush.
By the time Bush lost Congress, his mandate was gone, and he was reduced to exercising the core constitutional powers of the presidency...Bush's acceptance of defeat was [a] model of reality-based politics.
Alas, to believe this pathetic right-wing revisionism is to be unencumbered by both the truth and recent history. Leave aside for the moment that Obama and his policies are more popular than a free-falling Dubya was six years in. The record shows that President Bush responded to his thumping by turning to a "veto strategy" designed to halt any Democratic bills that hit his desk. And to keep the number of those bills to an absolute minimum, the GOP minority in the Senate launched its record-setting wave of filibusters that only accelerated when Barack Obama entered the Oval Office
Just six months into the new 110th Congress, a July 2007 analysis by McClatchy showed that Republicans had already resorted to the filibuster 42 times and were on track to block Senate action over 150 times that term, shattering the previous record by almost a factor of three. As Robert Borosage detailed, while Democrats in the House have kept their promise to pass a raft of legislation including Medicare drug negotiation, the minimum wage, student loan reform and more, Republicans in the Senate have stymied overwhelmingly popular bills at every turn:
"Bills with majority support -- raising the minimum wage, ethics reform, a date to remove troops from Iraq, revoking oil subsidies and putting the money into renewable energy, fulfilling the 9/11 commission recommendations on homeland security--get blocked because they can't garner 60 votes to overcome a filibuster."
Senate Minority Whip Trent Lott (R-MS) was one of the essential architects of the filibuster fever in the Grand Obstruction Party. While decrying that "the Senate is spiraling into the ground to a degree that I have never seen before" and "all modicum of courtesy is going out the window," Lott was also brutally frank about his strategy to prevent any Democratic wins come hell or high water:
"The strategy of being obstructionist can work or fail. So far it's working for us."
But when even Congressional Republicans couldn't resist the demands of the American public, President Bush was waiting with his veto pen. In October 2007, both houses passed an expansion of the State Children's Health Insurance Program (S-CHIP). A $35 billion program fully paid for with higher cigarette taxes, the S-CHIP expansion would have extended coverage from 6.6 million to 10 million children nationwide. But Bush, who four years earlier championed the unfunded, $400 billion Medicare Part D prescription drug program for seniors, said no to "socialized medicine" for millions of American kids.
As the late Robert Novak documented, the veto was a feature and not a bug of the last two years of the Bush presidency. Bush, who in eight years increased federal spending by half and nearly doubled the national debt, supposedly had a come to Jesus moment. In the summer of 2007, Novak (who previously had done the Bush administration's dirty work in outing covert CIA operative Valerie Plame) reported in "Bush's Veto Strategy":
Addressing a Republican fundraising dinner at the Washington Convention Center on Wednesday night, President Bush declared: "If the Democrats want to test us, that's why they give the president the veto. I'm looking forward to vetoing excessive spending, and I'm looking forward to having the United States Congress support my veto." That was more than blather for a political pep rally. Bush plans to veto the homeland security appropriations bill nearing final passage, followed by vetoes of eight more money bills sent him by the Democratic-controlled Congress.
But the Democrats didn't really test President Bush or the Republican minorities in the House and Senate. Harry Reid's Democratic Senate didn't give Bush's hyper-partisan Attorney General nominee Michael Mukasey a fair hearing; they confirmed him by a 53-40 vote. Despite conservative demands for the "nuclear option" to end judicial filibusters requiring a 60 vote threshold, Bush selections like the extremist Leslie Southwick still ended up on the federal bench. Of course, when Democrat Barack Obama was elected in November 2008, Republicans like Arizona Senator John Kyl professed their new-found love for the judicial filibuster.
But that was then, and this is now. And now, a Democratic President is the one who has lost his Senate majority. For conservatives, Obama's determination to stay the course, especially in regards to his long-standing promise to take executive action on immigration, represents "petulance and denial" and worse. As MSNBC's Steve Benen explained, Republicans and their water carriers are outraged--outraged!--this week that President Obama won't do what President Bush and his allies would never have even considered: meekly submit.
As Alexandrea Boguhn noted, the conservative pundits' reactions were over the top, even by their standards. Fox News' Sean Hannity whined about Obama's "breathtaking arrogance." Erick Erickson, without a hint of irony, called the president a "petulant man child" who gave "the middle finger" to Americans." Drudge said Obama intends to "do whatever he wants anyway" because Republicans "won't arrest him." Another Fox News contributor concluded, simply, "Obama's insane."
No, President Obama isn't insane. Obama's only doing what John Boehner ("When you play with matches, you take the risk of burning yourself") and Mitch McConnell ("waving a red flag in front of a bull") would insist he and his Congressional minority should do if he and Harry Reid were Republicans.