Setting the example

The current scandal involving the governor of Illinois, who was caught on tape discussing the sale of the Senate seat there to the highest bidder, has managed to eclipse the ongoing economic crisis, the no-strings-attached gift to Wall Street banks, and the damning Senate Armed Services Committee report indicating that torture was sanctioned and fostered at the highest levels of government.

We all wonder how the foolish governor thought he could get away with it, bragging about his power and cursing out the politicians who wouldn’t play his game, especially since he knew he was the subject of an investigation. Perhaps the governor saw what the rest of us did – that high-level officials from the Oval Office on down are getting away with their crimes and incompetence. The Bush administration lied us into a disastrous war, disregarded US laws and the Geneva Conventions and then made sure that a few low-level soldiers faced the legal consequences for the use of “enhanced interrogation techniques”. Administration officials were so sure that they could trot out Article 2 of the Constitution as an excuse for their every deed that earlier this week the Vice-President confirmed that he had authorized techniques such as waterboarding while insisting that “we don’t do torture.” Sadly, but not surprisingly, the interviewer did not press Mr. Cheney on the contradictory nature of his statements, or on how a technique that had previously been prosecuted by the United States as a war crime was at the very least unacceptable.

Thanks to the media’s abdication of their watchdog responsibility, the Bush administration was also able to

- institute ideological litmus tests for government appointments and overlook such important elements as qualifications;

- break the Foreign Intelligence Surveillance Act law and and continue its illegal wiretapping of American citizens for a year while the New York Times sat on its reporters story;

- order a supine Congress to amend the 1978 FISA legislation by raising the specter of more devastating attacks and the need for the now mythical Article 2 powers (true to form, Congress, including the President-Elect, acquiesced, immunizing administration officials and their telecommunication allies).

Since that same Congress refused to consider impeachment, the President has been free to bid the country a fond rather than humiliating farewell on the major networks, as reporters render puff pieces detailing what Mr. Bush will do post-presidency. Mr. Bush got a less cozy reception in Iraq, where one journalist delivered a damning message via his shoes.

Is it any wonder then, that Governor Blagojevich would think himself immune from legal consequences and vow to fight until exoneration or death? Still, the country, denied justice in the Bush debacle, may finally see the impeachment of a corrupt government official. Media organizations are attacking the governor with a gusto unseen in their approach to the Bush administration. The shocking attempt to sell the President-Elect’s Senate seat has done what nonexistent weapons of mass destruction, destructive cronyism and erosion of the Constitution could not accomplish.

Culture of impunity

The president is a big fan of personal responsibility. As Governor of Texas he presided over the execution of more than 150 people, this in a state where an underfunded public defender system has made a mockery of the 8th Amendment. But Mr Bush’s notion of personal responsibility clearly ends where he and his cronies begin, and his legal team has given administration officials an ingenious way to avoid the consequences of their actions – simply invoke the power of the Commander-in-Chief of the military to conduct the “war on terror” and anything goes – from torture to wiretapping to immunity from prosecution.

So far this administration has presided over the following gems of personal responsibility:

the protection from prosecution in Iraqi courts of all contractors working for occupation forces, courtesy of L. Paul Bremer’s Order 17. This has allowed mercenaries from companies like Blackwater to escape responsibility for such events as the Nisour Square massacre of September16, 2007 and the killing of an Iraqi official’s bodyguard inside the Green Zone. The contractors also operate in a legal gray zone as far as American courts are concerned – are they private companies not subject to the Uniform Code of Military Justice or government contractors who can’t be tried in civilian courts? The answer is still out on this.

The protection of any telecommunication companies involved in the Bush administration’s illegal wiretapping of American citizens, immunity granted through the FISA Modernization legislation passed by Congress this month. Interestingly, one member of Congress, Steve King (R-IA) used the contractor immunity as precedent:

To me I think those are the closest two comparisons that we can get. We protect contractors when they went to that smoking hole in that war zone. Why wouldn’t we protect telecommunications companies when they stepped up in good faith and believed that they were legally operating under the law.

An attempt in 2006 to amend the War Crimes Act of 1996 to grant immunity from prosecution to administration officials for pronouncements and legal opinions regarding interrogation techniques and the scope of the Geneva Conventions – officials like Alberto Gonzalez, who issued an opinion in 2002 that the Geneva Conventions did not apply to prisoners captured in Afghanistan, an opinion invalidated by the Supreme Court’s Hamdan v. Rumsfeld decision.

Yet this generosity around forgiving possible criminal activity or lack of personal responsibility does not extend beyond the president’s own sphere of influence. He still has little sympathy for homeowners who have borrowed beyond their means after falling for his blather on the “culture of ownership”; his justice department has prosecuted as criminals immigrants using the stolen social security numbers supplied to them whether they understood the concept of fraudulent paperwork or not; and he was quick to point out the criminality of those “few bad apples” at Abu Ghraib who carried out the policies from on high even as he sought immunity for the authors of those policies. It should come as no surprise, then, that FEMA has requested immunity from civil lawsuits stemming from its use of toxic trailers to house displaced residents after the 2005 Gulf Coast hurricanes.

Perhaps Congress should have left impeachment on the table after all.

Pain and justice

Two items in the news last week serve as reminders of how invested this country has become in the use and abuse of pain, so much so that our leaders are willing to use the Constitution to justify and legitimize abhorrent behavior.

The Justice Department’s Office of Professional Responsibility is finally able to investigate whether government lawyers improperly advised the president that he was not bound by laws and treaties on the treatment of prisoners of war. At issue is John Yoo’s now invalidated March 2003 memo to the Defense Department General Counsel about military interrogation of Taliban and al-Qaeda prisoners overseas. It concludes that the 5th and 8th Amendments do not apply and neither do the Geneva Conventions or war crime statutes. The memo also notes that harsh techniques could be used as long as interrogators did not intend to torture their prisoners. The memo also stresses the President’s Article 2 powers as a shield against prosecution. Other memos and opinions have cataloged acceptable interrogation techniques, and one such document infamously describes torture as “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Short of this threshold, interrogators have plenty of leeway.

Also last week the Supreme Court ruled that lethal injection as it is practiced in at least 30 states does not violate the Constitution’s 8th Amendment ban on cruel and unusual punishment. In order to arrive at the voluminous 97-page decision, which includes seven opinions, the justices focused on such issues as whether there is an “objectively intolerable risk” of pain, whether the pain, if it occurs, was deliberately inflicted, and whether cruel and unusual punishment includes the pain and terror of suffocation caused by an improper administration of anesthesia, or is limited to the live disembowelments, quarterings, beheadings and burning alive with which the founders were familiar. Justice Thomas’ opinion is particularly instructive on prior methods of execution.

Most justices concurred that the plaintiffs had not proved that the three-drug regimen administered in 30 states met the definition of cruel and unusual. After all, how can there be an “objectively intolerable risk of harm” when thirty states use the procedure. They also noted that plaintiffs had not proved that the single drug administration of barbiturates used now in veterinary practice would be more humane. The ruling notes that veterinary practice is not “an appropriate guide for humane practices for humans.” Some vets might dispute that contention, as they find the preferred method of executing humans too cruel to use on the animals in their charge. Justice Stevens renounces the death penalty as an acceptable method of punishment in his opinion, an apparent sacrilege for which he was roundly criticized by Justice Scalia, who sees the sole Constitutional mention of capital crimes – “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…” as ample illustration of the acceptability of the death penalty. Yet Stevens too does not find that the plaintiffs have proved their case as to the cruel and unusual nature of execution by lethal injection.

Only Justices Ginsburg and Souter noted that the execution process lacked the safeguards necessary to minimize the risk of torturous pain, especially adequate checks to ensure that the condemned is actually unconscious prior to administration of the paralytic and the heart stopper. The Ginsburg opinion notes that a visual inspection by the prison warden for the appearance of unconsciousness is not enough, and that other states have instituted more elaborate checks out of concerns about the level of unconsciousness. As to the arbitrary nature of the imposition of the death penalty and the possibility of mistakes, this was mentioned by some of the justices, but either dismissed as improbable by the plurality or not considered germane to the proceedings.

As states now resume their schedules of executions a little perspective is in order. Whether the topic is use of torture in prisoner interrogations or the infliction of pain during state-sanctioned executions, our government has investigated pain and found ways to excuse it. I realize there is voluminous legal scholarship on the meaning and interpretation of constitutional clauses. Nonetheless, the term “capital” is mentioned once in the Constitution (5th amendment, in a statement that begins with a negative). The President’s “commander in chief” status is spelled out in the following sentence fragment in Article 2 Section 2: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States”. Just for the sake of comparison, impeachment is stressed on at least three occasions as the proper method of removal from office – perhaps indicating an important yet all too often ignored tool of government functioning.