Usually a revolution leaves things in worse condition for the average citizens, and most often fails to bring about the dreamed of reforms.
Even our great American revolution made little change for the working poor. Right now we are very likely at exactly the place we would have been under the British Throne. The average person living in the Colonies did not see much change in their lives. Washington's troops were as rough on them as the British troops were. After the war the average American was about as well off, except for the need to settle the new nation's war debt.
The gains we made in the way of expanding the vote to non land owners and women and Blacks, would have come by the same route they did under the Union Jack as they did under the Red, White and Blue. Slavery would most likely have been ended, as it was in England and other British holdings. And the average citizen still would be on the outside looking in.
Curious Carl
----- Original Message -----From: Miriam VieniTo: 'Carl Jarvis'Sent: Tuesday, September 04, 2012 9:20 AMSubject: RE: John Cusack Interviews Law Professor Jonathan Turley About Obama Administration's War On the ConstitutionCarl, The article is very affecting because it does make a clear ethical
argument and after I read it, I felt totally destroyed. I still do. Remember
that I'm also reading, when I have the stomach to do so, Hopeless: Barack
Obama and the Politics of Illusion. It is a collection of articles that have
been written over the past four years which document all of the choices that
Obama has made, and all of the actions he's taken, which have been in
opposition to the interests of the 99%. So actually, I haven't learned
anything new. I'm still in the same horrible place that I was. I have no
illusions about Obama and the Democrats. I still feel that a Republican
sweep of the Presidency and Congress would be worse for all of us. I am
unable to share Bob's hope that somehow, if a revolution occurs in 10 or
more years, things will get better. After reading Stephen King's book, I
keep thinking about unintended consequences.
Miriam
________________________________
From: Carl Jarvis [mailto:carjar82@gmail.com]
Sent: Tuesday, September 04, 2012 11:19 AM
To: Miriam Vieni
Subject: John Cusack Interviews Law Professor Jonathan Turley About Obama
Administration's War On the Constitution
Miriam,
Okay, so my coffee hasn't taken effect yet.
This is the article being held up for moderator approval.
Both articles hit home, for me. More and more I am convinced that we are
screwed whichever way we turn. For so many years I backed the Democratic
Party, believing that at least we were better off. This has proven to be
like thinking that slow strangulation is better than being beaten to death
more quickly.
Carl Jarvis
Subject: John Cusack Interviews Law Professor Jonathan Turley About Obama
Administration's War On the Constitution
John Cusack Interviews Law Professor Jonathan Turley About Obama
Administration's War On the Constitution
Saturday, 01 September 2012 08:28 By John Cusack, Truthout | Interview
(Photo: Jonathan Thorne, Edited: Lance Page)
I wrote this a while back after Romney got the nom. In light of the blizzard
of bullshit coming at us in the next few months I thought I would put it out
now.
______________
Now that the Republican primary circus is over, I started to think about
what it would mean to vote for Obama...
Since mostly we hear from the daily hypocrisies of Mitt and friends, I
thought we should examine "our guy" on a few issues with a bit more scrutiny
than we hear from the "progressive left", which seems to be little or none
at all.
Instead of scrutiny, the usual arguments in favor of another Obama
presidency are made: We must stop fanatics; it would be better than the
fanatics-he's the last line of defense from the corporate barbarians-and of
course the Supreme Court. It all makes a terrible kind of sense and I agree
completely with Garry Wills who described the Republican primaries as " a
revolting combination of con men & fanatics- "the current primary race has
become a demonstration that the Republican party does not deserve serious
consideration for public office."
True enough.
But yet...
... there are certain Rubicon lines, as constitutional law professor
Jonathan Turley calls them, that Obama has crossed.
All political questions are not equal no matter how much you pivot. When
people die or lose their physical freedom to feed certain economic sectors
or ideologies, it becomes a zero sum game for me.
This is not an exercise in bemoaning regrettable policy choices or cheering
favorable ones but to ask fundamentally: Who are we? What are we voting for?
And what does it mean?
Three markers - the Nobel Prize acceptance speech, the escalation speech at
West Point, and the recent speech by Eric Holder - crossed that Rubicon line
for me...
Mr. Obama, the Christian president with the Muslim-sounding name, would heed
the admonitions of neither religion's prophets about making war and do what
no empire or leader, including Alexander the Great, could do: he would, he
assured us "get the job done in Afghanistan." And so we have our democratic
president receiving the Nobel Peace Prize as he sends 30,000 more troops to
a ten-year-old conflict in a country that's been war-torn for 5,000 years.
Why? We'll never fully know. Instead, we got a speech that was stone
bullshit and an insult to the very idea of peace.
We can't have it both ways. Hope means endless war? Obama has metaphorically
pushed all in with the usual international and institutional killers; and in
the case of war and peace, literally.
To sum it up: more war. So thousands die or are maimed; generations of
families and veterans are damaged beyond imagination; sons and daughters
come home in rubber bags. But he and his satellites get their four more
years.
The AfPak War is more H. G. Wells than Orwell, with people blindly letting
each other get fed to the barons of Wall Street and the Pentagon, themselves
playing the part of the Pashtuns. The paradox is simple: he got elected on
his anti-war stance during a perfect storm of the economic meltdown and
McCain saying the worst thing at the worst time as we stared into the abyss.
Obama beat Clinton on "I'm against the war and she is for it." It was simple
then, when he needed it to be.
Under Obama do we continue to call the thousands of mercenaries in
Afghanistan "general contractors" now that Bush is gone? No, we don't talk
about them... not a story anymore.
Do we prosecute felonies like torture or spying on Americans? No, time to
"move on"...
Now chaos is the norm and though the chaos is complicated, the answer is
still simple. We can't afford this morally, financially, or physically. Or
in a language the financial community can digest: the wars are ideologically
and spiritually bankrupt. No need to get a score from the CBO.
Drones bomb Pakistani villages across the border at an unprecedented rate.
Is it legal? Does anyone care? "It begs the question," as Daniel Berrigan
asks us, "is this one a "good war" or a "dumb war"? But the question betrays
the bias: it is all the same. It's all madness."
One is forced to asked the question: Is the President just another Ivy
League Asshole shredding civil liberties and due process and sending people
to die in some shithole for purely political reasons?
There will be a historical record. "Change we can believe in" is not using
the other guys' mob to clean up your own tracks while continuing to feed at
the trough. Human nature is human nature, and when people find out they're
being hustled, they will seek revenge, sooner or later, and it will be ugly
and savage.
In a country with desperation growing everywhere, everyday - despite the
"Oh, things are getting better" press releases - how could one think
otherwise?
Just think about the economic crisis we are in as a country. It could never
happen, they said. The American middle class was rock solid. The American
dream, home ownership, education, the opportunity to get a good job if you
applied yourself... and on and on. Yeah, what happened to that? It's gone.
The next question must be: "What happened to our civil liberties, to our due
process, which are the foundation of any notion of real democracy?" The
chickens haven't come home to roost for the majority but the foundation has
been set and the Constitution gutted.
Brian McFadden's cartoon says it all.
Here's the transcript of the telephone interview I conducted with Turley.
JONATHAN TURLEY: Hi John.
CUSACK: Hello. Okay, hey I was just thinking about all this stuff and
thought maybe we'd see what we can do to bring civil liberties and these
issues back into the debate for the next couple of months ...
TURLEY: I think that's great.
CUSACK: So, I don't know how you can believe in the Constitution and violate
it that much.
TURLEY: Yeah.
CUSACK: I would just love to know your take as an expert on these things.
And then maybe we can speak to whatever you think his motivations would be,
and not speak to them in the way that we want to armchair-quarterback like
the pundits do about "the game inside the game," but only do it because it
would speak to the arguments that are being used by the left to excuse it.
For example, maybe their argument that there are things you can't know, and
it's a dangerous world out there, or why do you think a constitutional law
professor would throw out due process?
TURLEY: Well, there's a misconception about Barack Obama as a former
constitutional law professor. First of all, there are plenty of professors
who are "legal relativists." They tend to view legal principles as relative
to whatever they're trying to achieve. I would certainly put President Obama
in the relativist category. Ironically, he shares that distinction with
George W. Bush. They both tended to view the law as a means to a particular
end - as opposed to the end itself. That's the fundamental distinction among
law professors. Law professors like Obama tend to view the law as one means
to an end, and others, like myself, tend to view it as the end itself.
Truth be known President Obama has never been particularly driven by
principle. Right after his election, I wrote a column in a few days warning
people that even though I voted for Obama, he was not what people were
describing him to be. I saw him in the Senate. I saw him in Chicago.
CUSACK: Yeah, so did I.
TURLEY: He was never motivated that much by principle. What he's motivated
by are programs. And to that extent, I like his programs more than Bush's
programs, but Bush and Obama are very much alike when it comes to
principles. They simply do not fight for the abstract principles and view
them as something quite relative to what they're trying to accomplish. Thus
privacy yields to immunity for telecommunications companies and due process
yields to tribunals for terrorism suspects.
CUSACK: Churchill said, "The power of the Executive to cast a man into
prison without formulating any charge known to the law, and particularly to
deny him the judgment of his peers, is in the highest degree odious and is
the foundation of all totalitarian government whether Nazi or Communist."
That wasn't Eugene Debs speaking - that was Winston Churchill.
And if he takes an oath before God to uphold the Constitution, and yet he
decides it's not politically expedient for him to deal with due process or
spying on citizens and has his Attorney General justify murdering US
citizens - and then adds a signing statement saying, "Well, I'm not going to
do anything with this stuff because I'm a good guy."- one would think we
would have to define this as a much graver threat than good or bad policy
choices- correct?
TURLEY: Well, first of all, there's a great desire of many people to relieve
themselves of the obligation to vote on principle. It's a classic
rationalization that liberals have been known to use recently, but not just
liberals. The Republican and Democratic parties have accomplished an amazing
feat with the red state/blue state paradigm. They've convinced everyone that
regardless of how bad they are, the other guy is worse. So even with 11
percent of the public supporting Congress most incumbents will be returned
to Congress. They have so structured and defined the question that people no
longer look at the actual principles and instead vote on this false
dichotomy.
Now, belief in human rights law and civil liberties leads one to the
uncomfortable conclusion that President Obama has violated his oath to
uphold the Constitution. But that's not the primary question for voters. It
is less about him than it is them. They have an obligation to cast their
vote in a principled fashion. It is, in my opinion, no excuse to vote for
someone who has violated core constitutional rights and civil liberties
simply because you believe the other side is no better. You cannot pretend
that your vote does not constitute at least a tacit approval of the policies
of the candidate.
This is nothing new, of course for civil libertarians who have always been
left behind at the altar in elections. We've always been the bridesmaid,
never the bride. We're used to politicians lying to us. And President Obama
lied to us. There's no way around that. He promised various things and
promptly abandoned those principles.
So the argument that Romney is no better or worse does not excuse the
obligation of a voter. With President Obama they have a president who went
to the CIA soon after he was elected and promised CIA employees that they
would not be investigated or prosecuted for torture, even though he admitted
that waterboarding was torture.
CUSACK: I remember when we were working with Arianna at The Huffington Post
and we thought, well, has anyone asked whether waterboarding is torture? Has
anyone asked Eric Holder that? And so Arianna had Sam Seder ask him that at
a press conference, and then he had to admit that it was. And then the next
question, of course, was, well, if it is a crime, are you going to prosecute
the law? But, of course, it wasn't politically expedient to do so, right?
That's inherent in their non-answer and inaction?
TURLEY: That's right.
CUSACK: Have you ever heard a more specious argument than "It's time for us
all to move on?" When did the Attorney General or the President have the
option to enforce the law?
TURLEY: Well, that's the key question that nobody wants to ask. We have a
treaty, actually a number of treaties, that obligate us to investigate and
prosecute torture. We pushed through those treaties because we wanted to
make clear that no matter what the expediency of the moment, no matter
whether it was convenient or inconvenient, all nations had to agree to
investigate and prosecute torture and other war crimes.
And the whole reason for putting this in the treaties was to do precisely
the opposite of what the Obama administration has done. That is, in these
treaties they say that it is not a defense that prosecution would be
inconvenient or unpopular. But that's exactly what President Obama said when
he announced, "I won't allow the prosecution of torture because I want us to
look to the future and not the past." That is simply a rhetorical flourish
to hide the obvious point: "I don't want the inconvenience and the
unpopularity that would come with enforcing this treaty."
CUSACK: Right. So, in that sense, the Bush administration had set the
precedent that the state can do anything it likes in the name of terror, and
not only has Obama let that cement harden, but he's actually expanded the
power of the executive branch to do whatever it wants, or he's lowered the
bar - he's lowered the law - to meet his convenience. He's lowered the law
to meet his personal political convenience rather than leaving it as
something that, as Mario Cuomo said, the law is supposed to be better than
us.
TURLEY: That's exactly right. In fact, President Obama has not only
maintained the position of George W. Bush in the area of national securities
and in civil liberties, he's actually expanded on those positions. He is
actually worse than George Bush in some areas.
CUSACK: Can you speak to which ones?
TURLEY: Well, a good example of it is that President Bush ordered the
killing of an American citizen when he approved a drone strike on a car in
Yemen that he knew contained an American citizen as a passenger. Many of us
at the time said, "You just effectively ordered the death of an American
citizen in order to kill someone else, and where exactly do you have that
authority?" But they made an argument that because the citizen wasn't the
primary target, he was just collateral damage. And there are many that
believe that that is a plausible argument.
CUSACK: By the way, we're forgetting to kill even a foreign citizen is
against the law. I hate to be so quaint...
TURLEY: Well, President Obama outdid President Bush. He ordered the killing
of two US citizens as the primary targets and has then gone forward and put
out a policy that allows him to kill any American citizen when he
unilaterally determines them to be a terrorist threat. Where President Bush
had a citizen killed as collateral damage, President Obama has actually a
formal policy allowing him to kill any US citizen.
CUSACK: But yet the speech that Eric Holder gave was greeted generally, by
those others than civil libertarians and a few people on the left with some
intellectual honesty, with polite applause and a stunning silence and then
more cocktail parties and state dinners and dignitaries, back the Republican
Hypocrisy Hour on the evening feed - and he basically gave a speech saying
that the executive can assassinate US citizens.
TURLEY: That was the truly other-worldly moment of the speech. He went to,
Northwestern Law School (my alma mater), and stood there and articulated the
most authoritarian policy that a government can have: the right to
unilaterally kill its citizens without any court order or review. The
response from the audience was applause. Citizens applauding an Attorney
General who just described how the President was claiming the right to kill
any of them on his sole inherent authority.
CUSACK: Does that order have to come directly from Obama, or can his
underlings carry that out on his behalf as part of a generalized
understanding? Or does he have to personally say, "You can get that guy and
that guy?"
TURLEY: Well, he has delegated the authority to the so-called death panel,
which is, of course, hilarious, since the Republicans keep talking about a
nonexistent death panel in national healthcare. We actually do have a death
panel, and it's killing people who are healthy.
CUSACK: I think you just gave me the idea for my next film. And the tone
will be, of course, Kafkaesque.
TURLEY: It really is.
CUSACK: You're at the bottom of the barrel when the Attorney General is
saying that not only can you hold people in prison for no charge without due
process, but we can kill the citizens that "we" deem terrorists. But "we"
won't do it cause we're the good guys remember?
TURLEY: Well, the way that this works is you have this unseen panel. Of
course, their proceedings are completely secret. The people who are put on
the hit list are not informed, obviously.
CUSACK: That's just not polite, is it?
TURLEY: No, it's not. The first time you're informed that you're on this
list is when your car explodes, and that doesn't allow much time for due
process. But the thing about the Obama administration is that it is far more
premeditated and sophisticated in claiming authoritarian powers. Bush tended
to shoot from the hip - he tended to do these things largely on the edges.
In contrast, Obama has openly embraced these powers and created formal
measures, an actual process for killing US citizens. He has used the
terminology of the law to seek to legitimate an extrajudicial killing.
CUSACK: Yeah, bringing the law down to meet his political realism, his
constitutional realism, which is that the Constitution is just a means to an
end politically for him, so if it's inconvenient for him to deal with due
process or if it's inconvenient for him to deal with torture, well, then why
should he do that? He's a busy man. The Constitution is just another
document to be used in a political fashion, right?
TURLEY: Indeed. I heard from people in the administration after I wrote a
column a couple weeks ago about the assassination policy. And they basically
said, "Look, you're not giving us our due. Holder said in the speech that we
are following a constitutional analysis. And we have standards that we
apply." It is an incredibly seductive argument, but there is an incredible
intellectual disconnect. Whatever they are doing, it can't be called a
constitutional process.
Obama has asserted the right to kill any citizen that he believes is a
terrorist. He is not bound by this panel that only exists as an extension of
his claimed inherent absolute authority. He can ignore them. He can
circumvent them. In the end, with or without a panel, a president is
unilaterally killing a US citizen. This is exactly what the framers of the
Constitution told us not to do.
CUSACK: The framers didn't say, "In special cases, do what you like. When
there are things the public cannot know for their own good, when it's
extra-specially a dangerous world... do whatever you want." The framers of
the Constitution always knew there would be extraordinary circumstances, and
they were accounted for in the Constitution. The Constitution does not allow
for the executive to redefine the Constitution when it will be politically
easier for him to get things done.
TURLEY: No. And it's preposterous to argue that.
CUSACK: When does it become - criminal?
TURLEY: Well, the framers knew what it was like to have sovereigns kill
citizens without due process. They did it all the time back in the 18th
century. They wrote a constitution specifically to bar unilateral authority.
James Madison is often quoted for his observation that if all men were
angels, no government would be necessary. And what he was saying is that you
have to create a system of law that has checks and balances so that even
imperfect human beings are restrained from doing much harm. Madison and
other framers did not want to rely on the promises of good motivations or
good intents from the government. They created a system where no branch had
enough authority to govern alone - a system of shared and balanced powers.
So what Obama's doing is to rewrite the most fundamental principle of the US
Constitution. The whole point of the Holder speech was that we're really
good guys who take this seriously, and you can trust us. That's exactly the
argument the framers rejected, the "trust me" principle of government.
You'll notice when Romney was asked about this, he said, "I would've signed
the same law, because I trust Obama to do the right thing." They're both
using the very argument that the framers warned citizens never to accept
from their government.
CUSACK: So basically, it comes down to, again, just political expediency and
aesthetics. So as long as we have friendly aesthetics and likable people, we
can do whatever we want. Who cares what the policy is or the implications
for the future.
TURLEY: The greatest problem is what it has done to us and what our relative
silence signifies. Liberals and civil libertarians have lost their own
credibility, their own moral standing, with the support of President Obama.
For many civil libertarians it is impossible to vote for someone who has
blocked the prosecution of war crimes. That's where you cross the Rubicon
for most civil libertarians. That was a turning point for many who simply
cannot to vote for someone who is accused of that type of violation.
Under international law, shielding people from war-crime prosecutions is
itself a form of war crime. They're both violations of international law.
Notably, when the Spanish moved to investigate our torture program, we now
know that the Obama administration threatened the Spanish courts and the
Spanish government that they better not enforce the treaty against the US
This was a real threat to the Administration because these treaties allow
other nations to step forward when another nation refuses to uphold the
treaty. If a government does not investigate and prosecute its own accused
war criminals, then other countries have the right to do so. That rule was,
again, of our own creation. With other leading national we have long
asserted the right to prosecute people in other countries who are shielded
or protected by their own countries.
CUSACK: Didn't Spain pull somebody out of Chile under that?
TURLEY: Yeah, Pinochet.
CUSACK: Yeah, also our guy...
TURLEY: The great irony of all this is that we're the architect of that
international process. We're the one that always pushed for the position
that no government could block war crimes prosecution.
But that's not all. The Obama administration has also outdone the Bush
administration in other areas. For example, one of the most important
international principles to come out of World War II was the rejection of
the "just following orders" defense. We were the country that led the world
in saying that defendants brought before Nuremberg could not base their
defense on the fact that they were just following orders. After Nuremberg,
there were decades of development of this principle. It's a very important
point, because that defense, if it is allowed, would shield most people
accused of torture and war crime. So when the Obama administration -
CUSACK: That also parallels into the idea that the National Defense
Authorization Act is using its powers not only to put a chilling effect on
whistleblowers, but to also make it illegal for whistleblowers to bring the
truth out. Am I right on that, or is that an overstatement?
TURLEY: Well, the biggest problem is that when the administration was
fishing around for some way to justify not doing the right thing and not
prosecuting torture, they finally released a document that said that CIA
personnel and even some DOJ lawyers were "just following orders," but
particularly CIA personnel.
The reason Obama promised them that none of them would be prosecuted is he
said that they were just following the orders of higher authority in the
government. That position gutted Nuremberg. Many lawyers around the world
are upset because the US under the Obama administration has torn the heart
out of Nuremberg. Just think of the implications: other countries that are
accused of torture can shield their people and say, "Yeah, this guy was a
torturer. This guy ordered a war crime. But they were all just following
orders. And the guy that gave them the order, he's dead." It is the classic
defense of war criminals. Now it is a viable defense again because of the
Obama administration.
CUSACK: Yeah.
TURLEY: Certainly part of the problem is how the news media -
CUSACK: Oscar Wilde said most journalists would fall under the category of
those who couldn't tell the difference between a bicycle accident and the
end of civilization. But why is it that all the journalists that you see
mostly on MSNBC or most of the progressives, or so-called progressives, who
believe that under Bush and Cheney and Ashcroft and Alberto Gonzalez these
were great and grave constitutional crises, the wars were an ongoing moral
fiasco - but now, since we have a friendly face in the White House, someone
with kind of pleasing aesthetics and some new policies we like, now all of a
sudden these aren't crimes, there's no crisis. Because he's our guy? Go,
team, go?
TURLEY: Some in the media have certainly fallen into this cult of
personality.
CUSACK: What would you say to those people? I always thought the duty of a
citizen, and even more so as a journalist, had greatly to do with the idea
that intellectual honesty was much more important than political loyalty.
How would you compare Alberto Gonzalez to Eric Holder?
TURLEY: Oh, Eric Holder is smarter than Gonzalez, but I see no other
difference in terms of how they've conducted themselves. Both of these men
are highly political. Holder was accused of being improperly political
during his time in the Clinton administration. When he was up for Attorney
General, he had to promise the Senate that he would not repeat some of the
mistakes he made in the Clinton administration over things like the pardon
scandal, where he was accused of being more politically than legally
motivated.
In this town, Holder is viewed as much more of a political than a legal
figure, and the same thing with Gonzalez. Bush and Obama both selected
Attorney Generals who would do what they wanted them to do, who would enable
them by saying that no principles stood in the way of what they wanted to
do. More importantly, that there were no principles requiring them to do
something they didn't want to do, like investigate torture.
CUSACK: So would you say this assassination issue, or the speech and the
clause in the NDAA and this signing statement that was attached, was
equivalent to John Yoo's torture document?
TURLEY: Oh, I think it's amazing. It is astonishing the dishonesty that
preceded and followed its passage. Before passage, the administration told
the public that the president was upset about the lack of an exception for
citizens and that he was ready to veto the bill if there was a lack of such
an exception. Then, in an unguarded moment, Senator Levin was speaking to
another Democratic senator who was objecting to the fact that citizens could
be assassinated under this provision, and Levin said, "I don't know if my
colleague is aware that the exception language was removed at the request of
the White House." Many of us just fell out of our chairs. It was a
relatively rare moment on the Senate floor, unguarded and unscripted.
CUSACK: And finally simple.
TURLEY: Yes. So we were basically lied to. I think that the administration
was really caught unprepared by that rare moment of honesty, and that led
ultimately to his pledge not to use the power to assassinate against
citizens. But that pledge is meaningless. Having a president say, "I won't
use a power given to me" is the most dangerous of assurances, because a
promise is not worth anything.
CUSACK: Yeah, I would say it's the coldest comfort there is.
TURLEY: Yes. This brings us back to the media and the failure to strip away
the rhetoric around these policies. It was certainly easier in the Bush
administration, because you had more clown-like figures like Alberto
Gonzalez. The problem is that the media has tended to get thinner and
thinner in terms of analysis. The best example is that about the use of the
term "coerced or enhanced interrogation." I often stop reporters when they
use these terms in questions. I say, "I'm not too sure what you mean,
because waterboarding is not enhanced interrogation." That was a myth put
out by the Bush administration. Virtually no one in the field used that
term, because courts in the United States and around the world consistently
said that waterboarding's torture. Holder admitted that waterboarding's
torture. Obama admitted that waterboarding is torture. Even members of the
Bush administration ultimately admitted that waterboarding's torture. The
Bush Administration pushed this term to get reporters to drop the word
torture and it worked. They are still using the term.
Look at the articles and the coverage. They uniformly say "enhanced
interrogation." Why? Because it's easier. They want to avoid the
controversy. Because if they say "torture," it makes the story much more
difficult. If you say, "Today the Senate was looking into a program to
torture detainees," there's a requirement that you get a little more into
the fact that we're not supposed to be torturing people.
CUSACK: So, from a civil liberties perspective, ravens are circling the
White House, even though there's a friendly man in it.
TURLEY: Yeah.
CUSACK: I hate to speak too much to motivation, but why do you think MSNBC
and other so-called centrist or left outlets won't bring up any of these
things? These issues were broadcast and reported on nightly when John
Ashcroft and Alberto Gonzalez and Bush were in office.
TURLEY: Well, there is no question that some at MSNBC have backed away from
these issues, although occasionally you'll see people talk about -
CUSACK: I think that's being kind, don't you? More like "abandoned."
TURLEY: Yeah. The civil liberties perspective is rarely given more than a
passing reference while national security concerns are explored in depth.
Fox is viewed as protective of Bush while MSNBC is viewed as protective of
Obama. But both presidents are guilty of the same violations. There are
relatively few journalists willing to pursue these questions aggressively
and objectively, particularly on television. And so the result is that the
public is hearing a script written by the government that downplays these
principles. They don't hear the word "torture."
They hear "enhanced interrogation." They don't hear much about the treaties.
They don't hear about the international condemnation of the United States.
Most Americans are unaware of how far we have moved away from Nuremberg and
core principles of international law.
CUSACK: So the surreal Holder speech - how could it be that no one would be
reporting on that? How could it be that has gone by with not a bang but a
whimper?
TURLEY: Well, you know, part of it, John, I think, is that this
administration is very clever. First of all, they clearly made the decision
right after the election to tack heavily to the right on national security
issues. We know that by the people they put on the National Security
Council. They went and got very hardcore folks - people who are quite
unpopular with civil libertarians. Not surprisingly we almost immediately
started to hear things like the pledge not to prosecute CIA officials and
other Bush policies being continued.
Many reporters buy into these escape clauses that the administration gives
them, this is where I think the administration is quite clever. From a legal
perspective, the Holder speech should have been exposed as perfect nonsense.
If you're a constitutional scholar, what he was talking about is facially
ridiculous, because he was saying that we do have a constitutional
process-it's just self-imposed, and we're the only ones who can review it.
They created a process of their own and then pledged to remain faithful to
it.
While that should be a transparent and absurd position, it gave an out for
journalists to say, "Well, you know, the administration's promising that
there is a process, it's just not the court process." That's what is so
clever, and why the Obama administration has been far more successful than
the Bush administration in rolling back core rights. The Bush administration
would basically say, "We just vaporized a citizen in a car with a terrorist,
and we're not sorry for it."
CUSACK: Well, yeah, the Bush administration basically said, "We may have
committed a crime, but we're the government, so what the fuck are you going
to do about it?" Right? -and the Obama administration is saying, "We're
going to set this all in cement, expand the power of the executive, and pass
the buck to the next guy." Is that it?
TURLEY: It's the same type of argument when people used to say when they
caught a criminal and hung him from a tree after a perfunctory five-minute
trial. In those days, there was an attempt to pretend that they are really
not a lynch mob, they were following a legal process of their making and
their satisfaction. It's just... it's expedited. Well, in some ways, the
administration is arguing the same thing. They're saying, "Yes, we do
believe that we can kill any US citizen, but we're going to talk amongst
ourselves about this, and we're not going to do it until we're satisfied
that this guy is guilty."
CUSACK: Me and the nameless death panel.
TURLEY: Again, the death panel is ludicrous. The power that they've defined
derives from the president's role as Commander in Chief. So this panel -
CUSACK: They're falling back on executive privilege, the same as Nixon and
Bush.
TURLEY: Right, it's an extension of the president. He could just ignore it.
It's not like they have any power that exceeds his own.
CUSACK: So the death panel serves at the pleasure of the king, is what
you're saying.
TURLEY: Yes, and it gives him cover so that they can claim that they're
doing something legal when they're doing something extra-legal.
CUSACK: Well, illegal, right?
TURLEY: Right. Outside the law.
CUSACK: So when does it get to a point where if you abdicate duty, it is in
and of itself a crime? Obama is essentially creating a constitutional crisis
not by committing crimes but by abdicating his oath that he swore before God
- is that not a crime?
TURLEY: Well, he is violating international law over things like his promise
to protect CIA officials from any prosecution for torture. That's a direct
violation, which makes our country as a whole doubly guilty for alleged war
crimes. I know many of the people in the administration. Some of us were
quite close. And they're very smart people. I think that they also realize
how far outside the lines they are. That's the reason they are trying to
draft up these policies to give the appearance of the law. It's like a
Potemkin village constructed as a façade for people to pass through -
CUSACK: They want to have a legal patina.
TURLEY: Right, and so they create this Potemkin village using names. You
certainly can put the name "due process" on a drone missile, but it's not
delivering due process.
CUSACK: Yeah. And what about - well, we haven't even gotten into the
expansion of the privatization movement of the military "contractors" under
George Bush or the escalation of drone strikes. I mean, who are they
killing? Is it legal? Does anyone care - have we just given up as a country,
saying that the Congress can declare war?
TURLEY: We appear to be in a sort of a free-fall. We have what used to be
called an "imperial presidency."
CUSACK: Obama is far more of an imperial president than Bush in many ways,
wouldn't you say?
TURLEY: Oh, President Obama has created an imperial presidency that would
have made Richard Nixon blush. It is unbelievable.
CUSACK: And to say these things, most of the liberal community or the
progressive community would say, "Turley and Cusack have lost their minds.
What do they want? They want Mitt Romney to come in?"
TURLEY: The question is, "What has all of your relativistic voting and
support done for you?" That is, certainly there are many people who believe
-
CUSACK: Well, some of the people will say the bread-and-butter issues, "I
got healthcare coverage, I got expanded healthcare coverage."
TURLEY: See, that's what I find really interesting. When I talk to people
who support the administration, they usually agree with me that torture is a
war crime and that the administration has blocked the investigation of
alleged war crimes.
Then I ask them, "Then, morally, are you comfortable with saying, 'I know
the administration is concealing war crimes, but they're really good on
healthcare?'" That is what it comes down to.
The question for people to struggle with is how we ever hope to regain our
moral standing and our high ground unless citizens are prepared to say,
"Enough." And this is really the election where that might actually carry
some weight - if people said, "Enough. We're not going to blindly support
the president and be played anymore according to this blue state/red state
paradigm. We're going to reconstruct instead of replicate. It might not even
be a reinvented Democratic Party in the end that is a viable option. Civil
libertarians are going to stand apart so that people like Nancy Pelosi and
Barack Obama and others know that there are certain Rubicon issues that you
cannot cross, and one of them happens to be civil liberty.
CUSACK: Yeah, because most people reading this will sort of say, "Okay, this
is all fine and good, but I've got to get to work and I've got to do this
stuff, and I don't know what these fucking guys are talking about. I don't
really care."
So let's paint a scenario. My nephew, Miles, decides that he wants to grow
dreadlocks, and he also decides he's falling in love with the religion of
Islam. And he changes his name. Instead of his name being Miles, he changes
his name to a Muslim-sounding name.
He goes to Washington, and he goes to the wrong organization or meeting,
let's say, and he goes to an Occupy Washington protest. He's out there next
to someone with a speaker, and a car bomb explodes. He didn't set it off,
and he didn't do anything. The government can throw him in prison and never
try him, right?
TURLEY: Well, first of all, that's a very good question.
CUSACK: How do we illustrate the danger to normal people of these massive
overreaches and radical changes to the Constitution that started under bush
and have expanded under Obama?
TURLEY: I mean, first of all, I know Miles, and -
CUSACK: Yes.
TURLEY: -and he is a little dangerous.
CUSACK: Yes.
TURLEY: I played basketball with him and you and I would describe him as a
clear and present danger.
CUSACK: I mean, and I know Eric Holder and Obama won't throw him in prison
because they're nice guys, but let's say that they're out of office.
TURLEY: Right, and the problem is that there is no guarantee. It has become
almost Fellini-esque. Holder made the announcement a couple of years ago
that they would try some defendants in a federal court while reserving
military tribunals for others. The speech started out on the high ground,
saying, "We have to believe in our federal courts and our Constitution.
We've tried terrorists before, and therefore we're transferring these
individuals to federal court."
Then he said, "But we're going to transfer these other individuals to
Guantanamo Bay." What was missing was any type of principle. You have Obama
doing the same thing that George Bush did - sitting there like Caesar and
saying, "You get a real trial and you get a fake trial." He sent Zacarias
Moussaoui to a federal court and then he threw Jose Padilla, who happened to
be a US citizen, into the Navy brig and held him without trial.
Yet, Obama and Holder publicly assert that they're somehow making a civil
liberties point, and say, "We're very proud of the fact that we have the
courage to hold these people for a real trial, except for those people.
Those people are going to get a tribunal." And what happened after that was
remarkable. If you read the press accounts, the press actually credits the
administration with doing the right thing. Most of them pushed into the last
paragraph the fact that all they did was split the people on the table, and
half got a real trial and half got a fake trial.
CUSACK: In the same way, the demonization, whether rightful demonization, of
Osama Bin Laden was so intense that people were thrilled that he was
assassinated instead of brought to trial and tried. And I thought, if the
Nuremberg principles were right, the idea would be that you'd want to take
this guy and put him on trial in front of the entire world, and, actually,
if you were going to put him to death, you'd put him to death by lethal
injection.
TURLEY: You'll recall reports came out that the Seals were told to kill
Osama, and then reports came out to say that Osama might not have been armed
when the Seals came in. The strong indication was that this was a hit.
CUSACK: Yeah.
TURLEY: The accounts suggest that this was an assassination from the
beginning to the end, and that was largely brushed over in the media. There
was never really any discussion of whether it was appropriate or even a good
idea not to capture this guy and to bring him to justice.
The other thing that was not discussed in most newspapers and programs was
the fact that we violated international law. Pakistan insisted that they
never approved our going into Pakistan. Think about it - if the government
of Mexico sent in Mexican special forces into San Diego and captured a
Mexican national, or maybe even an American citizen, and then killed him,
could you imagine what the outcry would be?
CUSACK: Or somebody from a Middle Eastern country who had their kids blown
up by Mr. Cheney's and Bush's wars came in and decided they were going to
take out Cheney-not take him back to try him, but actually just come in and
assassinate him.
TURLEY: Yet we didn't even have that debate. And I think that goes to your
point, John, about where's the media?
CUSACK: But, see, that's a very tough principle to take, because everybody
feels so rightfully loathsome about Bin Laden, right? But principles are not
meant to be convenient, right? The Constitution is not meant to be
convenient. If they can catch Adolf Eichmann and put him on trial, why not
bin Laden? The principles are what separate us from the beasts.
I think the best answer I ever heard about this stuff, besides sitting
around a kitchen table with you and your father and my father, was I heard
somebody, they asked Mario Cuomo, "You don't support the death penalty...?
Would you for someone who raped your wife?" And Cuomo blinked, and he looked
at him, and he said, "What would I do? Well, I'd take a baseball bat and I'd
bash his skull in... But I don't matter. The law is better than me. The law
is supposed to be better than me. That's the whole point."
TURLEY: Right. It is one thing if the president argued that there was no
opportunity to capture bin Laden because he was in a moving car, for
example. And then some people could say, "Well, they took him out because
there was no way they could use anything but a missile." What's missing in
the debate is that it was quickly brushed over whether we had the ability to
capture bin Laden.
CUSACK: Well, it gets to [the late] Raiders owner Al Davis' justice, which
is basically, "Just win, baby." And that's where we are. The Constitution
was framed by Al Davis. I never knew that.
And the sad part for me is that all the conversations and these
interpretations and these conveniences, if they had followed the
Constitution, and if they had been strict in terms of their interpretations,
it wouldn't matter one bit in effectively handling the war on terror or
protecting Americans, because there wasn't anything extra accomplished
materially in taking these extra leaps, other than to make it easier for
them to play cowboy and not cede national security to the Republicans
politically. Bin Laden was basically ineffective. And our overseas intel
people were already all over these guys.
It doesn't really matter. The only thing that's been hurt here has been us
and the Constitution and any moral high ground we used to have. Because
Obama and Holder are good guys, it's okay. But what happens when the
not-so-good guys come in, does MSNBC really want to cede and grandfather
these powers to Gingrich or Romney or Ryan or Santorum or whomever - and
then we're sitting around looking at each other, like how did this happen? -
the same way we look around now and say, "How the hell did the middle of
America lose the American dream? How is all of this stuff happening at the
same time?" And it gets back to lack of principle.
TURLEY: I think that's right. Remember the articles during the torture
debate? I kept on getting calls from reporters saying, "Well, you know, the
administration has come out with an interesting statement. They said that it
appears that they might've gotten something positive from torturing these
people." Yet you've had other officials say that they got garbage, which is
what you often get from torture...
CUSACK: So the argument being that if we can get good information, we should
torture?
TURLEY: Exactly. Yeah, that's what I ask them. I say, "So, first of all,
let's remember, torture is a war crime. So what you're saying is - "
CUSACK: Well, war crimes... war crimes are effective.
TURLEY: The thing that amazes me is that you have smart people like
reporters who buy so readily into this. I truly believe that they're earnest
when they say this.
Of course you ask them "Well, does that mean that the Nuremberg principles
don't apply as long as you can show some productive use?" We have treaty
provisions that expressly rule out justifying torture on the basis that it
was used to gain useful information.
CUSACK: Look, I mean, enforced slave labor has some productive use. You get
great productivity, you get great output from that shit. You're not
measuring the principle against the potential outcome; that's a bad business
model. "Just win, baby" - we're supposed to be above that.
TURLEY: But, you know, I'll give you an example. I had one of the leading
investigative journalists email me after one of my columns blasting the
administration on the assassin list, and this is someone I deeply respect.
He's one of the true great investigative reporters. He objected to the fact
that my column said that under the Obama policy he could kill US citizens
not just abroad, but could kill them in the United States. And he said, "You
know, I agree with everything in your column except that." He said, "You
know, they've never said that they could kill someone in the United States.
I think that you are exaggerating."
Yet, if you look at how they define the power, it is based on the mere
perceived practicality and necessity of legal process by the president. They
say the President has unilateral power to assassinate a citizen that he
believes is a terrorist. Now, is the limiting principle? They argue that
they do this "constitutional analysis," and they only kill a citizen when
it's not practical to arrest the person.
CUSACK: Is that with the death panel?
TURLEY: Well, yeah, he's talking about the death panel. Yet, he can ignore
the death panel. But, more importantly, what does practicality mean? It all
comes down to an unchecked presidential power.
CUSACK: By the way, the death panel - that room can't be a fun room to go
into, just make the decision on your own. You know, it's probably a gloomy
place, the death panel room, so the argument from the reporter was, "Look,
they can... if they kill people in England or Paris that's okay, but they -
"
TURLEY: I also don't understand, why would it make sense that you could kill
a US citizen on the streets of London but you might not be able to kill them
on the streets of Las Vegas? The question is where the limiting principle
comes from or is that just simply one more of these self-imposed rules? And
that's what they really are saying: we have these self-imposed rules that
we're only going to do this when we think we have to.
CUSACK: So, if somebody can use the contra-Nuremberg argument - that
principle's now been flipped, that they were only following orders - does
that mean that the person that issued the order through Obama, or the
President himself, is responsible and can be brought up on a war crime
charge?
TURLEY: Well, under international law, Obama is subject to international law
in terms of ordering any defined war crime.
CUSACK: Would he have to give his Nobel Peace Prize back?
TURLEY: I don't think that thing's going back. I've got to tell you... and
given the amount of authority he's claimed, I don't know if anyone would
have the guts to ask for it back.
CUSACK: And the argument people are going to use is,"Look, Obama and Holder
are good guys. They're not going to use this power." But the point is, what
about after them? What about the apparatchiks? You've unleashed the beast.
And precedent is everything constitutionally, isn't it?
TURLEY: I think that's right. Basically what they're arguing is, "We're
angels," and that's exactly what Madison warned against. As we discussed, he
said if all men were angels you wouldn't need government. And what the
administration is saying is, "We're angels, so trust us."
I think that what is really telling is the disconnect between what people
say about our country and what our country has become. What we've lost under
Bush and Obama is clarity. In the "war on terror" what we've lost is what we
need the most in fighting terrorism: clarity. We need the clarity of being
better than the people that we are fighting against. Instead, we've given
propagandists in Al Qaeda or the Taliban an endless supply of material -
allowing them to denounce us as hypocrites.
Soon after 9/11 we started government officials talk about how the US
Constitution is making us weaker, how we can't function by giving people due
process. And it was perfectly ridiculous.
CUSACK: Feels more grotesque than ridiculous.
TURLEY: Yeah, all the reports that came out after 9/11 showed that 9/11
could've been avoided. For years people argued that we should have locked
reinforced cockpit doors. For years people talked about the gaps in security
at airports. We had the intelligence services that had the intelligence that
they needed to move against this ring, and they didn't share the
information. So we have this long list of failures by US agencies, and the
result was that we increased their budget and gave them more unchecked
authority.
In the end, we have to be as good as we claim. We can't just talk a good
game. If you look at this country in terms of what we've done, we have
violated the Nuremberg principles, we have violated international treaties,
we have refused to accept-
CUSACK: And you're not just talking about in the Bush administration. You're
talking about -
TURLEY: The Obama administration.
CUSACK: You're talking about right now.
TURLEY: We have refused to accept the jurisdictional authority of sovereign
countries. We now routinely kill in other countries. It is American
exceptionalism - the rules apply to other countries.
CUSACK: Well, these drone attacks in Pakistan, are they legal? Does anyone
care? Who are we killing? Do they deserve due process?
TURLEY: When we cross the border, Americans disregard the fact that Pakistan
is a sovereign nation, let alone an ally, and they insist that they have not
agreed to these operations. They have accused us of repeatedly killing
people in their country by violating their sovereign airspace. And we just
disregard it. Again, its American exceptionalism, that we -
CUSACK: Get out of our way or we'll pulverize you.
TURLEY: The rules apply to everyone else. So the treaties against torture
and war crimes, sovereign integrity -
CUSACK: And this also speaks to the question that nobody even bothers to
ask: what exactly are we doing in Afghanistan now? Why are we there?
TURLEY: Oh, yeah, that's the real tragedy.
CUSACK: It has the highest recorded suicide rate among veterans in history
and no one even bothers to state a pretense of a definable mission or goal.
It appears we're there because it's not convenient for him to really get out
before the election. So in that sense he's another guy who's letting people
die in some shithole for purely political reasons. I mean, it is what it is.
TURLEY: I'm afraid, it is a political calculation. What I find amazing is
that we're supporting an unbelievably corrupt government in the Karzai
administration.
Karzai himself, just two days ago, called Americans "demons." He previously
said that he wished he had gone with the Taliban rather than the Americans.
And, more importantly, his government recently announced that women are
worth less than men, and he has started to implement these religious edicts
that are subjugating women. So he has American women who are protecting his
life while he's on television telling people that women are worth less than
men, and we're funding -
CUSACK: What are they, about three-fifths?
TURLEY: Yeah, he wasn't very specific on that point. So we're spending
hundreds of billions of dollars. More importantly, we're losing all these
lives because it was simply politically inconvenient to be able to pull out
of Afghanistan and Iraq.
CUSACK: Yeah. And, I mean, we haven't even touched on the whole
privatization of the military and what that means. What does it mean for the
state to be funding at-cost-plus private mercenary armies and private
mercenary security forces like Blackwater, or now their names are Xe, or
whatever they've been rebranded as?
TURLEY: Well, the United States has barred various international rules
because they would allow for the prosecution of war crimes by both military
and private forces. The US barred those new rules because we didn't want the
ability of other countries to prosecute our people for war crimes. One of
the things I teach in my constitutional class is that there is a need for
what's called a bright-line rule. That is, the value for bright-line rules
is that they structure relations between the branches, between the
government and citizens. Bright-line rules protect freedom and liberty.
Those people that try to eliminate bright-line rules quickly find themselves
on a slippery slope. The Obama administration, with the Bush administration,
began by denying rights to people at Guantanamo Bay.
And then they started to deny rights of foreigners who they accused of being
terrorists. And eventually, just recently, they started denying rights to
citizens and saying that they could kill citizens without any court order or
review. It is the fulfillment of what is the nightmare of civil liberties.
They crossed that bright line. Now they're bringing these same abuses to US
citizens and changing how we relate to our government. In the end, we have
this huge apparatus of the legal system, this huge court system, and all of
it has become discretionary because the president can go ahead and kill US
citizens if he feels that it's simply inconvenient or impractical to bring
them to justice.
CUSACK: Or if the great O, decides that he wants to be lenient and just
throw them in jail for the rest of their life without trial, he can do that,
right?
TURLEY: Well, you've got Guantanamo Bay if you're accused of being an enemy
combatant. There is the concept in law that the lesser is included in the
greater.
So if the president can kill me when I'm in London, then the lesser of that
greater is that he could also hold me, presumably, without having any court
involvement. It'd be a little bizarre that he could kill me but if he held
me he'd have to turn me over to the court system.
CUSACK: Yeah. We're getting into kind of Kafka territory. You know, with
Bush I always felt like you were at one of those rides in an amusement park
where the floor kept dropping and you kept kind of falling. But I think what
Obama's done is we've really hit the bottom as far as civil liberties go.
TURLEY: Yet people have greeted this erosion of civil liberties with this
collective yawn.
CUSACK: Yeah, yeah. And so then it gets down to the question, "Well, are you
going to vote for Obama?" And I say, "Well, I don't really know. I couldn't
really vote for Hillary Clinton because of her Iraq War vote." Because I
felt like that was a line, a Rubicon line -
TURLEY: Right.
CUSACK: - a Rubicon line that I couldn't cross, right? I don't know how to
bring myself to vote for a constitutional law professor, or even a
constitutional realist, who throws away due process and claims the authority
that the executive branch can assassinate American citizens. I just don't
know if I can bring myself to do it.
If you want to make a protest vote against Romney, go ahead, but I would
think we'd be better putting our energies into local and state politics -
occupy Wall Street and organizations and movements outside the system, not
national politics, not personalities. Not stadium rock politics. Not brands.
That's the only thing I can think of. What would you say?
TURLEY: Well, the question, I think, that people have got to ask themselves
when they get into that booth is not what Obama has become, but what have we
become? That is, what's left of our values if we vote for a person that we
believe has shielded war crimes or violated due process or implemented
authoritarian powers. It's not enough to say, "Yeah, he did all those
things, but I really like what he did with the National Park System."
CUSACK: Yeah, or that he did a good job with the auto bailout.
TURLEY: Right. I think that people have to accept that they own this
decision, that they can walk away. I realize that this is a tough decision
for people but maybe, if enough people walked away, we could finally
galvanize people into action to make serious changes. We have to recognize
that our political system is fundamentally broken, it's unresponsive. Only
11 percent of the public supports Congress, and yet nothing is changing -
and so the question becomes, how do you jumpstart that system? How do you
create an alternative? What we have learned from past elections is that you
don't create an alternative by yielding to this false dichotomy that only
reinforces their monopoly on power.
CUSACK: I think that even Howard Zinn/Chomsky progressives, would admit that
there will be a difference in domestic policy between Obama and a Romney
presidency.
But DUE PROCESS....I think about how we own it. We own it. Everybody's sort
of let it slip. There's no immediacy in the day-to-day on and it's just one
of those things that unless they... when they start pulling kids off the
street, like they did in Argentina a few years ago and other places, all of
a sudden, it's like, "How the hell did that happen?" I say, "Look, you're
not helping Obama by enabling him. If you want to help him, hold his feet to
the fire."
TURLEY: Exactly.
CUSACK: The problem is, as I see it, is that regardless of goodwill and
intent and people being tired of the status quo and everything else, the
information outlets and the powers that be reconstruct or construct the
government narrative only as an election game of 'us versus them,' Obama
versus Romney, and if you do anything that will compromise that equation,
you are picking one side versus the other. Because don't you realize that's
going to hurt Obama? Don't you know that's going to help Obama? Don't you
know... and they're not thinking through their own sort of self-interest or
the community's interest in just changing the way that this whole thing
works to the benefit of the majority. We used to have some lines we wouldn't
cross-some people who said this is not what this country does ...we don't do
this shit, you had to do the right thing. So it's going to be a tough
process getting our rights back, but you know Frankie's Law? Whoever stops
fighting first - loses.
TURLEY: Right.
This interview first appeared on Alaska journalist Shannyn Moore's blog.
This piece was reprinted by Truthout with permission or license.
JOHN CUSACK
John Cusack makes films.
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John Cusack Interviews Law Professor Jonathan Turley About Obama
Administration's War On the Constitution
Saturday, 01 September 2012 08:28 By John Cusack, Truthout | Interview
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(Photo: Jonathan Thorne, Edited: Lance Page)
I wrote this a while back after Romney got the nom. In light of the blizzard
of bullshit coming at us in the next few months I thought I would put it out
now.
______________
Now that the Republican primary circus is over, I started to think about
what it would mean to vote for Obama...
Since mostly we hear from the daily hypocrisies of Mitt and friends, I
thought we should examine "our guy" on a few issues with a bit more scrutiny
than we hear from the "progressive left", which seems to be little or none
at all.
Instead of scrutiny, the usual arguments in favor of another Obama
presidency are made: We must stop fanatics; it would be better than the
fanatics-he's the last line of defense from the corporate barbarians-and of
course the Supreme Court. It all makes a terrible kind of sense and I agree
completely with Garry Wills who described the Republican primaries as " a
revolting combination of con men & fanatics- "the current primary race has
become a demonstration that the Republican party does not deserve serious
consideration for public office."
True enough.
But yet...
... there are certain Rubicon lines, as constitutional law professor
Jonathan Turley calls them, that Obama has crossed.
All political questions are not equal no matter how much you pivot. When
people die or lose their physical freedom to feed certain economic sectors
or ideologies, it becomes a zero sum game for me.
This is not an exercise in bemoaning regrettable policy choices or cheering
favorable ones but to ask fundamentally: Who are we? What are we voting for?
And what does it mean?
Three markers - the Nobel Prize acceptance speech, the escalation speech at
West Point, and the recent speech by Eric Holder - crossed that Rubicon line
for me...
Mr. Obama, the Christian president with the Muslim-sounding name, would heed
the admonitions of neither religion's prophets about making war and do what
no empire or leader, including Alexander the Great, could do: he would, he
assured us "get the job done in Afghanistan." And so we have our democratic
president receiving the Nobel Peace Prize as he sends 30,000 more troops to
a ten-year-old conflict in a country that's been war-torn for 5,000 years.
Why? We'll never fully know. Instead, we got a speech that was stone
bullshit and an insult to the very idea of peace.
We can't have it both ways. Hope means endless war? Obama has metaphorically
pushed all in with the usual international and institutional killers; and in
the case of war and peace, literally.
To sum it up: more war. So thousands die or are maimed; generations of
families and veterans are damaged beyond imagination; sons and daughters
come home in rubber bags. But he and his satellites get their four more
years.
The AfPak War is more H. G. Wells than Orwell, with people blindly letting
each other get fed to the barons of Wall Street and the Pentagon, themselves
playing the part of the Pashtuns. The paradox is simple: he got elected on
his anti-war stance during a perfect storm of the economic meltdown and
McCain saying the worst thing at the worst time as we stared into the abyss.
Obama beat Clinton on "I'm against the war and she is for it." It was simple
then, when he needed it to be.
Under Obama do we continue to call the thousands of mercenaries in
Afghanistan "general contractors" now that Bush is gone? No, we don't talk
about them... not a story anymore.
Do we prosecute felonies like torture or spying on Americans? No, time to
"move on"...
Now chaos is the norm and though the chaos is complicated, the answer is
still simple. We can't afford this morally, financially, or physically. Or
in a language the financial community can digest: the wars are ideologically
and spiritually bankrupt. No need to get a score from the CBO.
Drones bomb Pakistani villages across the border at an unprecedented rate.
Is it legal? Does anyone care? "It begs the question," as Daniel Berrigan
asks us, "is this one a "good war" or a "dumb war"? But the question betrays
the bias: it is all the same. It's all madness."
One is forced to asked the question: Is the President just another Ivy
League Asshole shredding civil liberties and due process and sending people
to die in some shithole for purely political reasons?
There will be a historical record. "Change we can believe in" is not using
the other guys' mob to clean up your own tracks while continuing to feed at
the trough. Human nature is human nature, and when people find out they're
being hustled, they will seek revenge, sooner or later, and it will be ugly
and savage.
In a country with desperation growing everywhere, everyday - despite the
"Oh, things are getting better" press releases - how could one think
otherwise?
Just think about the economic crisis we are in as a country. It could never
happen, they said. The American middle class was rock solid. The American
dream, home ownership, education, the opportunity to get a good job if you
applied yourself... and on and on. Yeah, what happened to that? It's gone.
The next question must be: "What happened to our civil liberties, to our due
process, which are the foundation of any notion of real democracy?" The
chickens haven't come home to roost for the majority but the foundation has
been set and the Constitution gutted.
Brian McFadden's cartoon says it all.
Here's the transcript of the telephone interview I conducted with Turley.
JONATHAN TURLEY: Hi John.
CUSACK: Hello. Okay, hey I was just thinking about all this stuff and
thought maybe we'd see what we can do to bring civil liberties and these
issues back into the debate for the next couple of months ...
TURLEY: I think that's great.
CUSACK: So, I don't know how you can believe in the Constitution and violate
it that much.
TURLEY: Yeah.
CUSACK: I would just love to know your take as an expert on these things.
And then maybe we can speak to whatever you think his motivations would be,
and not speak to them in the way that we want to armchair-quarterback like
the pundits do about "the game inside the game," but only do it because it
would speak to the arguments that are being used by the left to excuse it.
For example, maybe their argument that there are things you can't know, and
it's a dangerous world out there, or why do you think a constitutional law
professor would throw out due process?
TURLEY: Well, there's a misconception about Barack Obama as a former
constitutional law professor. First of all, there are plenty of professors
who are "legal relativists." They tend to view legal principles as relative
to whatever they're trying to achieve. I would certainly put President Obama
in the relativist category. Ironically, he shares that distinction with
George W. Bush. They both tended to view the law as a means to a particular
end - as opposed to the end itself. That's the fundamental distinction among
law professors. Law professors like Obama tend to view the law as one means
to an end, and others, like myself, tend to view it as the end itself.
Truth be known President Obama has never been particularly driven by
principle. Right after his election, I wrote a column in a few days warning
people that even though I voted for Obama, he was not what people were
describing him to be. I saw him in the Senate. I saw him in Chicago.
CUSACK: Yeah, so did I.
TURLEY: He was never motivated that much by principle. What he's motivated
by are programs. And to that extent, I like his programs more than Bush's
programs, but Bush and Obama are very much alike when it comes to
principles. They simply do not fight for the abstract principles and view
them as something quite relative to what they're trying to accomplish. Thus
privacy yields to immunity for telecommunications companies and due process
yields to tribunals for terrorism suspects.
CUSACK: Churchill said, "The power of the Executive to cast a man into
prison without formulating any charge known to the law, and particularly to
deny him the judgment of his peers, is in the highest degree odious and is
the foundation of all totalitarian government whether Nazi or Communist."
That wasn't Eugene Debs speaking - that was Winston Churchill.
And if he takes an oath before God to uphold the Constitution, and yet he
decides it's not politically expedient for him to deal with due process or
spying on citizens and has his Attorney General justify murdering US
citizens - and then adds a signing statement saying, "Well, I'm not going to
do anything with this stuff because I'm a good guy."- one would think we
would have to define this as a much graver threat than good or bad policy
choices- correct?
TURLEY: Well, first of all, there's a great desire of many people to relieve
themselves of the obligation to vote on principle. It's a classic
rationalization that liberals have been known to use recently, but not just
liberals. The Republican and Democratic parties have accomplished an amazing
feat with the red state/blue state paradigm. They've convinced everyone that
regardless of how bad they are, the other guy is worse. So even with 11
percent of the public supporting Congress most incumbents will be returned
to Congress. They have so structured and defined the question that people no
longer look at the actual principles and instead vote on this false
dichotomy.
Now, belief in human rights law and civil liberties leads one to the
uncomfortable conclusion that President Obama has violated his oath to
uphold the Constitution. But that's not the primary question for voters. It
is less about him than it is them. They have an obligation to cast their
vote in a principled fashion. It is, in my opinion, no excuse to vote for
someone who has violated core constitutional rights and civil liberties
simply because you believe the other side is no better. You cannot pretend
that your vote does not constitute at least a tacit approval of the policies
of the candidate.
This is nothing new, of course for civil libertarians who have always been
left behind at the altar in elections. We've always been the bridesmaid,
never the bride. We're used to politicians lying to us. And President Obama
lied to us. There's no way around that. He promised various things and
promptly abandoned those principles.
So the argument that Romney is no better or worse does not excuse the
obligation of a voter. With President Obama they have a president who went
to the CIA soon after he was elected and promised CIA employees that they
would not be investigated or prosecuted for torture, even though he admitted
that waterboarding was torture.
CUSACK: I remember when we were working with Arianna at The Huffington Post
and we thought, well, has anyone asked whether waterboarding is torture? Has
anyone asked Eric Holder that? And so Arianna had Sam Seder ask him that at
a press conference, and then he had to admit that it was. And then the next
question, of course, was, well, if it is a crime, are you going to prosecute
the law? But, of course, it wasn't politically expedient to do so, right?
That's inherent in their non-answer and inaction?
TURLEY: That's right.
CUSACK: Have you ever heard a more specious argument than "It's time for us
all to move on?" When did the Attorney General or the President have the
option to enforce the law?
TURLEY: Well, that's the key question that nobody wants to ask. We have a
treaty, actually a number of treaties, that obligate us to investigate and
prosecute torture. We pushed through those treaties because we wanted to
make clear that no matter what the expediency of the moment, no matter
whether it was convenient or inconvenient, all nations had to agree to
investigate and prosecute torture and other war crimes.
And the whole reason for putting this in the treaties was to do precisely
the opposite of what the Obama administration has done. That is, in these
treaties they say that it is not a defense that prosecution would be
inconvenient or unpopular. But that's exactly what President Obama said when
he announced, "I won't allow the prosecution of torture because I want us to
look to the future and not the past." That is simply a rhetorical flourish
to hide the obvious point: "I don't want the inconvenience and the
unpopularity that would come with enforcing this treaty."
CUSACK: Right. So, in that sense, the Bush administration had set the
precedent that the state can do anything it likes in the name of terror, and
not only has Obama let that cement harden, but he's actually expanded the
power of the executive branch to do whatever it wants, or he's lowered the
bar - he's lowered the law - to meet his convenience. He's lowered the law
to meet his personal political convenience rather than leaving it as
something that, as Mario Cuomo said, the law is supposed to be better than
us.
TURLEY: That's exactly right. In fact, President Obama has not only
maintained the position of George W. Bush in the area of national securities
and in civil liberties, he's actually expanded on those positions. He is
actually worse than George Bush in some areas.
CUSACK: Can you speak to which ones?
TURLEY: Well, a good example of it is that President Bush ordered the
killing of an American citizen when he approved a drone strike on a car in
Yemen that he knew contained an American citizen as a passenger. Many of us
at the time said, "You just effectively ordered the death of an American
citizen in order to kill someone else, and where exactly do you have that
authority?" But they made an argument that because the citizen wasn't the
primary target, he was just collateral damage. And there are many that
believe that that is a plausible argument.
CUSACK: By the way, we're forgetting to kill even a foreign citizen is
against the law. I hate to be so quaint...
TURLEY: Well, President Obama outdid President Bush. He ordered the killing
of two US citizens as the primary targets and has then gone forward and put
out a policy that allows him to kill any American citizen when he
unilaterally determines them to be a terrorist threat. Where President Bush
had a citizen killed as collateral damage, President Obama has actually a
formal policy allowing him to kill any US citizen.
CUSACK: But yet the speech that Eric Holder gave was greeted generally, by
those others than civil libertarians and a few people on the left with some
intellectual honesty, with polite applause and a stunning silence and then
more cocktail parties and state dinners and dignitaries, back the Republican
Hypocrisy Hour on the evening feed - and he basically gave a speech saying
that the executive can assassinate US citizens.
TURLEY: That was the truly other-worldly moment of the speech. He went to,
Northwestern Law School (my alma mater), and stood there and articulated the
most authoritarian policy that a government can have: the right to
unilaterally kill its citizens without any court order or review. The
response from the audience was applause. Citizens applauding an Attorney
General who just described how the President was claiming the right to kill
any of them on his sole inherent authority.
CUSACK: Does that order have to come directly from Obama, or can his
underlings carry that out on his behalf as part of a generalized
understanding? Or does he have to personally say, "You can get that guy and
that guy?"
TURLEY: Well, he has delegated the authority to the so-called death panel,
which is, of course, hilarious, since the Republicans keep talking about a
nonexistent death panel in national healthcare. We actually do have a death
panel, and it's killing people who are healthy.
CUSACK: I think you just gave me the idea for my next film. And the tone
will be, of course, Kafkaesque.
TURLEY: It really is.
CUSACK: You're at the bottom of the barrel when the Attorney General is
saying that not only can you hold people in prison for no charge without due
process, but we can kill the citizens that "we" deem terrorists. But "we"
won't do it cause we're the good guys remember?
TURLEY: Well, the way that this works is you have this unseen panel. Of
course, their proceedings are completely secret. The people who are put on
the hit list are not informed, obviously.
CUSACK: That's just not polite, is it?
TURLEY: No, it's not. The first time you're informed that you're on this
list is when your car explodes, and that doesn't allow much time for due
process. But the thing about the Obama administration is that it is far more
premeditated and sophisticated in claiming authoritarian powers. Bush tended
to shoot from the hip - he tended to do these things largely on the edges.
In contrast, Obama has openly embraced these powers and created formal
measures, an actual process for killing US citizens. He has used the
terminology of the law to seek to legitimate an extrajudicial killing.
CUSACK: Yeah, bringing the law down to meet his political realism, his
constitutional realism, which is that the Constitution is just a means to an
end politically for him, so if it's inconvenient for him to deal with due
process or if it's inconvenient for him to deal with torture, well, then why
should he do that? He's a busy man. The Constitution is just another
document to be used in a political fashion, right?
TURLEY: Indeed. I heard from people in the administration after I wrote a
column a couple weeks ago about the assassination policy. And they basically
said, "Look, you're not giving us our due. Holder said in the speech that we
are following a constitutional analysis. And we have standards that we
apply." It is an incredibly seductive argument, but there is an incredible
intellectual disconnect. Whatever they are doing, it can't be called a
constitutional process.
Obama has asserted the right to kill any citizen that he believes is a
terrorist. He is not bound by this panel that only exists as an extension of
his claimed inherent absolute authority. He can ignore them. He can
circumvent them. In the end, with or without a panel, a president is
unilaterally killing a US citizen. This is exactly what the framers of the
Constitution told us not to do.
CUSACK: The framers didn't say, "In special cases, do what you like. When
there are things the public cannot know for their own good, when it's
extra-specially a dangerous world... do whatever you want." The framers of
the Constitution always knew there would be extraordinary circumstances, and
they were accounted for in the Constitution. The Constitution does not allow
for the executive to redefine the Constitution when it will be politically
easier for him to get things done.
TURLEY: No. And it's preposterous to argue that.
CUSACK: When does it become - criminal?
TURLEY: Well, the framers knew what it was like to have sovereigns kill
citizens without due process. They did it all the time back in the 18th
century. They wrote a constitution specifically to bar unilateral authority.
James Madison is often quoted for his observation that if all men were
angels, no government would be necessary. And what he was saying is that you
have to create a system of law that has checks and balances so that even
imperfect human beings are restrained from doing much harm. Madison and
other framers did not want to rely on the promises of good motivations or
good intents from the government. They created a system where no branch had
enough authority to govern alone - a system of shared and balanced powers.
So what Obama's doing is to rewrite the most fundamental principle of the US
Constitution. The whole point of the Holder speech was that we're really
good guys who take this seriously, and you can trust us. That's exactly the
argument the framers rejected, the "trust me" principle of government.
You'll notice when Romney was asked about this, he said, "I would've signed
the same law, because I trust Obama to do the right thing." They're both
using the very argument that the framers warned citizens never to accept
from their government.
CUSACK: So basically, it comes down to, again, just political expediency and
aesthetics. So as long as we have friendly aesthetics and likable people, we
can do whatever we want. Who cares what the policy is or the implications
for the future.
TURLEY: The greatest problem is what it has done to us and what our relative
silence signifies. Liberals and civil libertarians have lost their own
credibility, their own moral standing, with the support of President Obama.
For many civil libertarians it is impossible to vote for someone who has
blocked the prosecution of war crimes. That's where you cross the Rubicon
for most civil libertarians. That was a turning point for many who simply
cannot to vote for someone who is accused of that type of violation.
Under international law, shielding people from war-crime prosecutions is
itself a form of war crime. They're both violations of international law.
Notably, when the Spanish moved to investigate our torture program, we now
know that the Obama administration threatened the Spanish courts and the
Spanish government that they better not enforce the treaty against the US
This was a real threat to the Administration because these treaties allow
other nations to step forward when another nation refuses to uphold the
treaty. If a government does not investigate and prosecute its own accused
war criminals, then other countries have the right to do so. That rule was,
again, of our own creation. With other leading national we have long
asserted the right to prosecute people in other countries who are shielded
or protected by their own countries.
CUSACK: Didn't Spain pull somebody out of Chile under that?
TURLEY: Yeah, Pinochet.
CUSACK: Yeah, also our guy...
TURLEY: The great irony of all this is that we're the architect of that
international process. We're the one that always pushed for the position
that no government could block war crimes prosecution.
But that's not all. The Obama administration has also outdone the Bush
administration in other areas. For example, one of the most important
international principles to come out of World War II was the rejection of
the "just following orders" defense. We were the country that led the world
in saying that defendants brought before Nuremberg could not base their
defense on the fact that they were just following orders. After Nuremberg,
there were decades of development of this principle. It's a very important
point, because that defense, if it is allowed, would shield most people
accused of torture and war crime. So when the Obama administration -
CUSACK: That also parallels into the idea that the National Defense
Authorization Act is using its powers not only to put a chilling effect on
whistleblowers, but to also make it illegal for whistleblowers to bring the
truth out. Am I right on that, or is that an overstatement?
TURLEY: Well, the biggest problem is that when the administration was
fishing around for some way to justify not doing the right thing and not
prosecuting torture, they finally released a document that said that CIA
personnel and even some DOJ lawyers were "just following orders," but
particularly CIA personnel.
The reason Obama promised them that none of them would be prosecuted is he
said that they were just following the orders of higher authority in the
government. That position gutted Nuremberg. Many lawyers around the world
are upset because the US under the Obama administration has torn the heart
out of Nuremberg. Just think of the implications: other countries that are
accused of torture can shield their people and say, "Yeah, this guy was a
torturer. This guy ordered a war crime. But they were all just following
orders. And the guy that gave them the order, he's dead." It is the classic
defense of war criminals. Now it is a viable defense again because of the
Obama administration.
CUSACK: Yeah.
TURLEY: Certainly part of the problem is how the news media -
CUSACK: Oscar Wilde said most journalists would fall under the category of
those who couldn't tell the difference between a bicycle accident and the
end of civilization. But why is it that all the journalists that you see
mostly on MSNBC or most of the progressives, or so-called progressives, who
believe that under Bush and Cheney and Ashcroft and Alberto Gonzalez these
were great and grave constitutional crises, the wars were an ongoing moral
fiasco - but now, since we have a friendly face in the White House, someone
with kind of pleasing aesthetics and some new policies we like, now all of a
sudden these aren't crimes, there's no crisis. Because he's our guy? Go,
team, go?
TURLEY: Some in the media have certainly fallen into this cult of
personality.
CUSACK: What would you say to those people? I always thought the duty of a
citizen, and even more so as a journalist, had greatly to do with the idea
that intellectual honesty was much more important than political loyalty.
How would you compare Alberto Gonzalez to Eric Holder?
TURLEY: Oh, Eric Holder is smarter than Gonzalez, but I see no other
difference in terms of how they've conducted themselves. Both of these men
are highly political. Holder was accused of being improperly political
during his time in the Clinton administration. When he was up for Attorney
General, he had to promise the Senate that he would not repeat some of the
mistakes he made in the Clinton administration over things like the pardon
scandal, where he was accused of being more politically than legally
motivated.
In this town, Holder is viewed as much more of a political than a legal
figure, and the same thing with Gonzalez. Bush and Obama both selected
Attorney Generals who would do what they wanted them to do, who would enable
them by saying that no principles stood in the way of what they wanted to
do. More importantly, that there were no principles requiring them to do
something they didn't want to do, like investigate torture.
CUSACK: So would you say this assassination issue, or the speech and the
clause in the NDAA and this signing statement that was attached, was
equivalent to John Yoo's torture document?
TURLEY: Oh, I think it's amazing. It is astonishing the dishonesty that
preceded and followed its passage. Before passage, the administration told
the public that the president was upset about the lack of an exception for
citizens and that he was ready to veto the bill if there was a lack of such
an exception. Then, in an unguarded moment, Senator Levin was speaking to
another Democratic senator who was objecting to the fact that citizens could
be assassinated under this provision, and Levin said, "I don't know if my
colleague is aware that the exception language was removed at the request of
the White House." Many of us just fell out of our chairs. It was a
relatively rare moment on the Senate floor, unguarded and unscripted.
CUSACK: And finally simple.
TURLEY: Yes. So we were basically lied to. I think that the administration
was really caught unprepared by that rare moment of honesty, and that led
ultimately to his pledge not to use the power to assassinate against
citizens. But that pledge is meaningless. Having a president say, "I won't
use a power given to me" is the most dangerous of assurances, because a
promise is not worth anything.
CUSACK: Yeah, I would say it's the coldest comfort there is.
TURLEY: Yes. This brings us back to the media and the failure to strip away
the rhetoric around these policies. It was certainly easier in the Bush
administration, because you had more clown-like figures like Alberto
Gonzalez. The problem is that the media has tended to get thinner and
thinner in terms of analysis. The best example is that about the use of the
term "coerced or enhanced interrogation." I often stop reporters when they
use these terms in questions. I say, "I'm not too sure what you mean,
because waterboarding is not enhanced interrogation." That was a myth put
out by the Bush administration. Virtually no one in the field used that
term, because courts in the United States and around the world consistently
said that waterboarding's torture. Holder admitted that waterboarding's
torture. Obama admitted that waterboarding is torture. Even members of the
Bush administration ultimately admitted that waterboarding's torture. The
Bush Administration pushed this term to get reporters to drop the word
torture and it worked. They are still using the term.
Look at the articles and the coverage. They uniformly say "enhanced
interrogation." Why? Because it's easier. They want to avoid the
controversy. Because if they say "torture," it makes the story much more
difficult. If you say, "Today the Senate was looking into a program to
torture detainees," there's a requirement that you get a little more into
the fact that we're not supposed to be torturing people.
CUSACK: So, from a civil liberties perspective, ravens are circling the
White House, even though there's a friendly man in it.
TURLEY: Yeah.
CUSACK: I hate to speak too much to motivation, but why do you think MSNBC
and other so-called centrist or left outlets won't bring up any of these
things? These issues were broadcast and reported on nightly when John
Ashcroft and Alberto Gonzalez and Bush were in office.
TURLEY: Well, there is no question that some at MSNBC have backed away from
these issues, although occasionally you'll see people talk about -
CUSACK: I think that's being kind, don't you? More like "abandoned."
TURLEY: Yeah. The civil liberties perspective is rarely given more than a
passing reference while national security concerns are explored in depth.
Fox is viewed as protective of Bush while MSNBC is viewed as protective of
Obama. But both presidents are guilty of the same violations. There are
relatively few journalists willing to pursue these questions aggressively
and objectively, particularly on television. And so the result is that the
public is hearing a script written by the government that downplays these
principles. They don't hear the word "torture."
They hear "enhanced interrogation." They don't hear much about the treaties.
They don't hear about the international condemnation of the United States.
Most Americans are unaware of how far we have moved away from Nuremberg and
core principles of international law.
CUSACK: So the surreal Holder speech - how could it be that no one would be
reporting on that? How could it be that has gone by with not a bang but a
whimper?
TURLEY: Well, you know, part of it, John, I think, is that this
administration is very clever. First of all, they clearly made the decision
right after the election to tack heavily to the right on national security
issues. We know that by the people they put on the National Security
Council. They went and got very hardcore folks - people who are quite
unpopular with civil libertarians. Not surprisingly we almost immediately
started to hear things like the pledge not to prosecute CIA officials and
other Bush policies being continued.
Many reporters buy into these escape clauses that the administration gives
them, this is where I think the administration is quite clever. From a legal
perspective, the Holder speech should have been exposed as perfect nonsense.
If you're a constitutional scholar, what he was talking about is facially
ridiculous, because he was saying that we do have a constitutional
process-it's just self-imposed, and we're the only ones who can review it.
They created a process of their own and then pledged to remain faithful to
it.
While that should be a transparent and absurd position, it gave an out for
journalists to say, "Well, you know, the administration's promising that
there is a process, it's just not the court process." That's what is so
clever, and why the Obama administration has been far more successful than
the Bush administration in rolling back core rights. The Bush administration
would basically say, "We just vaporized a citizen in a car with a terrorist,
and we're not sorry for it."
CUSACK: Well, yeah, the Bush administration basically said, "We may have
committed a crime, but we're the government, so what the fuck are you going
to do about it?" Right? -and the Obama administration is saying, "We're
going to set this all in cement, expand the power of the executive, and pass
the buck to the next guy." Is that it?
TURLEY: It's the same type of argument when people used to say when they
caught a criminal and hung him from a tree after a perfunctory five-minute
trial. In those days, there was an attempt to pretend that they are really
not a lynch mob, they were following a legal process of their making and
their satisfaction. It's just... it's expedited. Well, in some ways, the
administration is arguing the same thing. They're saying, "Yes, we do
believe that we can kill any US citizen, but we're going to talk amongst
ourselves about this, and we're not going to do it until we're satisfied
that this guy is guilty."
CUSACK: Me and the nameless death panel.
TURLEY: Again, the death panel is ludicrous. The power that they've defined
derives from the president's role as Commander in Chief. So this panel -
CUSACK: They're falling back on executive privilege, the same as Nixon and
Bush.
TURLEY: Right, it's an extension of the president. He could just ignore it.
It's not like they have any power that exceeds his own.
CUSACK: So the death panel serves at the pleasure of the king, is what
you're saying.
TURLEY: Yes, and it gives him cover so that they can claim that they're
doing something legal when they're doing something extra-legal.
CUSACK: Well, illegal, right?
TURLEY: Right. Outside the law.
CUSACK: So when does it get to a point where if you abdicate duty, it is in
and of itself a crime? Obama is essentially creating a constitutional crisis
not by committing crimes but by abdicating his oath that he swore before God
- is that not a crime?
TURLEY: Well, he is violating international law over things like his promise
to protect CIA officials from any prosecution for torture. That's a direct
violation, which makes our country as a whole doubly guilty for alleged war
crimes. I know many of the people in the administration. Some of us were
quite close. And they're very smart people. I think that they also realize
how far outside the lines they are. That's the reason they are trying to
draft up these policies to give the appearance of the law. It's like a
Potemkin village constructed as a façade for people to pass through -
CUSACK: They want to have a legal patina.
TURLEY: Right, and so they create this Potemkin village using names. You
certainly can put the name "due process" on a drone missile, but it's not
delivering due process.
CUSACK: Yeah. And what about - well, we haven't even gotten into the
expansion of the privatization movement of the military "contractors" under
George Bush or the escalation of drone strikes. I mean, who are they
killing? Is it legal? Does anyone care - have we just given up as a country,
saying that the Congress can declare war?
TURLEY: We appear to be in a sort of a free-fall. We have what used to be
called an "imperial presidency."
CUSACK: Obama is far more of an imperial president than Bush in many ways,
wouldn't you say?
TURLEY: Oh, President Obama has created an imperial presidency that would
have made Richard Nixon blush. It is unbelievable.
CUSACK: And to say these things, most of the liberal community or the
progressive community would say, "Turley and Cusack have lost their minds.
What do they want? They want Mitt Romney to come in?"
TURLEY: The question is, "What has all of your relativistic voting and
support done for you?" That is, certainly there are many people who believe
-
CUSACK: Well, some of the people will say the bread-and-butter issues, "I
got healthcare coverage, I got expanded healthcare coverage."
TURLEY: See, that's what I find really interesting. When I talk to people
who support the administration, they usually agree with me that torture is a
war crime and that the administration has blocked the investigation of
alleged war crimes.
Then I ask them, "Then, morally, are you comfortable with saying, 'I know
the administration is concealing war crimes, but they're really good on
healthcare?'" That is what it comes down to.
The question for people to struggle with is how we ever hope to regain our
moral standing and our high ground unless citizens are prepared to say,
"Enough." And this is really the election where that might actually carry
some weight - if people said, "Enough. We're not going to blindly support
the president and be played anymore according to this blue state/red state
paradigm. We're going to reconstruct instead of replicate. It might not even
be a reinvented Democratic Party in the end that is a viable option. Civil
libertarians are going to stand apart so that people like Nancy Pelosi and
Barack Obama and others know that there are certain Rubicon issues that you
cannot cross, and one of them happens to be civil liberty.
CUSACK: Yeah, because most people reading this will sort of say, "Okay, this
is all fine and good, but I've got to get to work and I've got to do this
stuff, and I don't know what these fucking guys are talking about. I don't
really care."
So let's paint a scenario. My nephew, Miles, decides that he wants to grow
dreadlocks, and he also decides he's falling in love with the religion of
Islam. And he changes his name. Instead of his name being Miles, he changes
his name to a Muslim-sounding name.
He goes to Washington, and he goes to the wrong organization or meeting,
let's say, and he goes to an Occupy Washington protest. He's out there next
to someone with a speaker, and a car bomb explodes. He didn't set it off,
and he didn't do anything. The government can throw him in prison and never
try him, right?
TURLEY: Well, first of all, that's a very good question.
CUSACK: How do we illustrate the danger to normal people of these massive
overreaches and radical changes to the Constitution that started under bush
and have expanded under Obama?
TURLEY: I mean, first of all, I know Miles, and -
CUSACK: Yes.
TURLEY: -and he is a little dangerous.
CUSACK: Yes.
TURLEY: I played basketball with him and you and I would describe him as a
clear and present danger.
CUSACK: I mean, and I know Eric Holder and Obama won't throw him in prison
because they're nice guys, but let's say that they're out of office.
TURLEY: Right, and the problem is that there is no guarantee. It has become
almost Fellini-esque. Holder made the announcement a couple of years ago
that they would try some defendants in a federal court while reserving
military tribunals for others. The speech started out on the high ground,
saying, "We have to believe in our federal courts and our Constitution.
We've tried terrorists before, and therefore we're transferring these
individuals to federal court."
Then he said, "But we're going to transfer these other individuals to
Guantanamo Bay." What was missing was any type of principle. You have Obama
doing the same thing that George Bush did - sitting there like Caesar and
saying, "You get a real trial and you get a fake trial." He sent Zacarias
Moussaoui to a federal court and then he threw Jose Padilla, who happened to
be a US citizen, into the Navy brig and held him without trial.
Yet, Obama and Holder publicly assert that they're somehow making a civil
liberties point, and say, "We're very proud of the fact that we have the
courage to hold these people for a real trial, except for those people.
Those people are going to get a tribunal." And what happened after that was
remarkable. If you read the press accounts, the press actually credits the
administration with doing the right thing. Most of them pushed into the last
paragraph the fact that all they did was split the people on the table, and
half got a real trial and half got a fake trial.
CUSACK: In the same way, the demonization, whether rightful demonization, of
Osama Bin Laden was so intense that people were thrilled that he was
assassinated instead of brought to trial and tried. And I thought, if the
Nuremberg principles were right, the idea would be that you'd want to take
this guy and put him on trial in front of the entire world, and, actually,
if you were going to put him to death, you'd put him to death by lethal
injection.
TURLEY: You'll recall reports came out that the Seals were told to kill
Osama, and then reports came out to say that Osama might not have been armed
when the Seals came in. The strong indication was that this was a hit.
CUSACK: Yeah.
TURLEY: The accounts suggest that this was an assassination from the
beginning to the end, and that was largely brushed over in the media. There
was never really any discussion of whether it was appropriate or even a good
idea not to capture this guy and to bring him to justice.
The other thing that was not discussed in most newspapers and programs was
the fact that we violated international law. Pakistan insisted that they
never approved our going into Pakistan. Think about it - if the government
of Mexico sent in Mexican special forces into San Diego and captured a
Mexican national, or maybe even an American citizen, and then killed him,
could you imagine what the outcry would be?
CUSACK: Or somebody from a Middle Eastern country who had their kids blown
up by Mr. Cheney's and Bush's wars came in and decided they were going to
take out Cheney-not take him back to try him, but actually just come in and
assassinate him.
TURLEY: Yet we didn't even have that debate. And I think that goes to your
point, John, about where's the media?
CUSACK: But, see, that's a very tough principle to take, because everybody
feels so rightfully loathsome about Bin Laden, right? But principles are not
meant to be convenient, right? The Constitution is not meant to be
convenient. If they can catch Adolf Eichmann and put him on trial, why not
bin Laden? The principles are what separate us from the beasts.
I think the best answer I ever heard about this stuff, besides sitting
around a kitchen table with you and your father and my father, was I heard
somebody, they asked Mario Cuomo, "You don't support the death penalty...?
Would you for someone who raped your wife?" And Cuomo blinked, and he looked
at him, and he said, "What would I do? Well, I'd take a baseball bat and I'd
bash his skull in... But I don't matter. The law is better than me. The law
is supposed to be better than me. That's the whole point."
TURLEY: Right. It is one thing if the president argued that there was no
opportunity to capture bin Laden because he was in a moving car, for
example. And then some people could say, "Well, they took him out because
there was no way they could use anything but a missile." What's missing in
the debate is that it was quickly brushed over whether we had the ability to
capture bin Laden.
CUSACK: Well, it gets to [the late] Raiders owner Al Davis' justice, which
is basically, "Just win, baby." And that's where we are. The Constitution
was framed by Al Davis. I never knew that.
And the sad part for me is that all the conversations and these
interpretations and these conveniences, if they had followed the
Constitution, and if they had been strict in terms of their interpretations,
it wouldn't matter one bit in effectively handling the war on terror or
protecting Americans, because there wasn't anything extra accomplished
materially in taking these extra leaps, other than to make it easier for
them to play cowboy and not cede national security to the Republicans
politically. Bin Laden was basically ineffective. And our overseas intel
people were already all over these guys.
It doesn't really matter. The only thing that's been hurt here has been us
and the Constitution and any moral high ground we used to have. Because
Obama and Holder are good guys, it's okay. But what happens when the
not-so-good guys come in, does MSNBC really want to cede and grandfather
these powers to Gingrich or Romney or Ryan or Santorum or whomever - and
then we're sitting around looking at each other, like how did this happen? -
the same way we look around now and say, "How the hell did the middle of
America lose the American dream? How is all of this stuff happening at the
same time?" And it gets back to lack of principle.
TURLEY: I think that's right. Remember the articles during the torture
debate? I kept on getting calls from reporters saying, "Well, you know, the
administration has come out with an interesting statement. They said that it
appears that they might've gotten something positive from torturing these
people." Yet you've had other officials say that they got garbage, which is
what you often get from torture...
CUSACK: So the argument being that if we can get good information, we should
torture?
TURLEY: Exactly. Yeah, that's what I ask them. I say, "So, first of all,
let's remember, torture is a war crime. So what you're saying is - "
CUSACK: Well, war crimes... war crimes are effective.
TURLEY: The thing that amazes me is that you have smart people like
reporters who buy so readily into this. I truly believe that they're earnest
when they say this.
Of course you ask them "Well, does that mean that the Nuremberg principles
don't apply as long as you can show some productive use?" We have treaty
provisions that expressly rule out justifying torture on the basis that it
was used to gain useful information.
CUSACK: Look, I mean, enforced slave labor has some productive use. You get
great productivity, you get great output from that shit. You're not
measuring the principle against the potential outcome; that's a bad business
model. "Just win, baby" - we're supposed to be above that.
TURLEY: But, you know, I'll give you an example. I had one of the leading
investigative journalists email me after one of my columns blasting the
administration on the assassin list, and this is someone I deeply respect.
He's one of the true great investigative reporters. He objected to the fact
that my column said that under the Obama policy he could kill US citizens
not just abroad, but could kill them in the United States. And he said, "You
know, I agree with everything in your column except that." He said, "You
know, they've never said that they could kill someone in the United States.
I think that you are exaggerating."
Yet, if you look at how they define the power, it is based on the mere
perceived practicality and necessity of legal process by the president. They
say the President has unilateral power to assassinate a citizen that he
believes is a terrorist. Now, is the limiting principle? They argue that
they do this "constitutional analysis," and they only kill a citizen when
it's not practical to arrest the person.
CUSACK: Is that with the death panel?
TURLEY: Well, yeah, he's talking about the death panel. Yet, he can ignore
the death panel. But, more importantly, what does practicality mean? It all
comes down to an unchecked presidential power.
CUSACK: By the way, the death panel - that room can't be a fun room to go
into, just make the decision on your own. You know, it's probably a gloomy
place, the death panel room, so the argument from the reporter was, "Look,
they can... if they kill people in England or Paris that's okay, but they -
"
TURLEY: I also don't understand, why would it make sense that you could kill
a US citizen on the streets of London but you might not be able to kill them
on the streets of Las Vegas? The question is where the limiting principle
comes from or is that just simply one more of these self-imposed rules? And
that's what they really are saying: we have these self-imposed rules that
we're only going to do this when we think we have to.
CUSACK: So, if somebody can use the contra-Nuremberg argument - that
principle's now been flipped, that they were only following orders - does
that mean that the person that issued the order through Obama, or the
President himself, is responsible and can be brought up on a war crime
charge?
TURLEY: Well, under international law, Obama is subject to international law
in terms of ordering any defined war crime.
CUSACK: Would he have to give his Nobel Peace Prize back?
TURLEY: I don't think that thing's going back. I've got to tell you... and
given the amount of authority he's claimed, I don't know if anyone would
have the guts to ask for it back.
CUSACK: And the argument people are going to use is,"Look, Obama and Holder
are good guys. They're not going to use this power." But the point is, what
about after them? What about the apparatchiks? You've unleashed the beast.
And precedent is everything constitutionally, isn't it?
TURLEY: I think that's right. Basically what they're arguing is, "We're
angels," and that's exactly what Madison warned against. As we discussed, he
said if all men were angels you wouldn't need government. And what the
administration is saying is, "We're angels, so trust us."
I think that what is really telling is the disconnect between what people
say about our country and what our country has become. What we've lost under
Bush and Obama is clarity. In the "war on terror" what we've lost is what we
need the most in fighting terrorism: clarity. We need the clarity of being
better than the people that we are fighting against. Instead, we've given
propagandists in Al Qaeda or the Taliban an endless supply of material -
allowing them to denounce us as hypocrites.
Soon after 9/11 we started government officials talk about how the US
Constitution is making us weaker, how we can't function by giving people due
process. And it was perfectly ridiculous.
CUSACK: Feels more grotesque than ridiculous.
TURLEY: Yeah, all the reports that came out after 9/11 showed that 9/11
could've been avoided. For years people argued that we should have locked
reinforced cockpit doors. For years people talked about the gaps in security
at airports. We had the intelligence services that had the intelligence that
they needed to move against this ring, and they didn't share the
information. So we have this long list of failures by US agencies, and the
result was that we increased their budget and gave them more unchecked
authority.
In the end, we have to be as good as we claim. We can't just talk a good
game. If you look at this country in terms of what we've done, we have
violated the Nuremberg principles, we have violated international treaties,
we have refused to accept-
CUSACK: And you're not just talking about in the Bush administration. You're
talking about -
TURLEY: The Obama administration.
CUSACK: You're talking about right now.
TURLEY: We have refused to accept the jurisdictional authority of sovereign
countries. We now routinely kill in other countries. It is American
exceptionalism - the rules apply to other countries.
CUSACK: Well, these drone attacks in Pakistan, are they legal? Does anyone
care? Who are we killing? Do they deserve due process?
TURLEY: When we cross the border, Americans disregard the fact that Pakistan
is a sovereign nation, let alone an ally, and they insist that they have not
agreed to these operations. They have accused us of repeatedly killing
people in their country by violating their sovereign airspace. And we just
disregard it. Again, its American exceptionalism, that we -
CUSACK: Get out of our way or we'll pulverize you.
TURLEY: The rules apply to everyone else. So the treaties against torture
and war crimes, sovereign integrity -
CUSACK: And this also speaks to the question that nobody even bothers to
ask: what exactly are we doing in Afghanistan now? Why are we there?
TURLEY: Oh, yeah, that's the real tragedy.
CUSACK: It has the highest recorded suicide rate among veterans in history
and no one even bothers to state a pretense of a definable mission or goal.
It appears we're there because it's not convenient for him to really get out
before the election. So in that sense he's another guy who's letting people
die in some shithole for purely political reasons. I mean, it is what it is.
TURLEY: I'm afraid, it is a political calculation. What I find amazing is
that we're supporting an unbelievably corrupt government in the Karzai
administration.
Karzai himself, just two days ago, called Americans "demons." He previously
said that he wished he had gone with the Taliban rather than the Americans.
And, more importantly, his government recently announced that women are
worth less than men, and he has started to implement these religious edicts
that are subjugating women. So he has American women who are protecting his
life while he's on television telling people that women are worth less than
men, and we're funding -
CUSACK: What are they, about three-fifths?
TURLEY: Yeah, he wasn't very specific on that point. So we're spending
hundreds of billions of dollars. More importantly, we're losing all these
lives because it was simply politically inconvenient to be able to pull out
of Afghanistan and Iraq.
CUSACK: Yeah. And, I mean, we haven't even touched on the whole
privatization of the military and what that means. What does it mean for the
state to be funding at-cost-plus private mercenary armies and private
mercenary security forces like Blackwater, or now their names are Xe, or
whatever they've been rebranded as?
TURLEY: Well, the United States has barred various international rules
because they would allow for the prosecution of war crimes by both military
and private forces. The US barred those new rules because we didn't want the
ability of other countries to prosecute our people for war crimes. One of
the things I teach in my constitutional class is that there is a need for
what's called a bright-line rule. That is, the value for bright-line rules
is that they structure relations between the branches, between the
government and citizens. Bright-line rules protect freedom and liberty.
Those people that try to eliminate bright-line rules quickly find themselves
on a slippery slope. The Obama administration, with the Bush administration,
began by denying rights to people at Guantanamo Bay.
And then they started to deny rights of foreigners who they accused of being
terrorists. And eventually, just recently, they started denying rights to
citizens and saying that they could kill citizens without any court order or
review. It is the fulfillment of what is the nightmare of civil liberties.
They crossed that bright line. Now they're bringing these same abuses to US
citizens and changing how we relate to our government. In the end, we have
this huge apparatus of the legal system, this huge court system, and all of
it has become discretionary because the president can go ahead and kill US
citizens if he feels that it's simply inconvenient or impractical to bring
them to justice.
CUSACK: Or if the great O, decides that he wants to be lenient and just
throw them in jail for the rest of their life without trial, he can do that,
right?
TURLEY: Well, you've got Guantanamo Bay if you're accused of being an enemy
combatant. There is the concept in law that the lesser is included in the
greater.
So if the president can kill me when I'm in London, then the lesser of that
greater is that he could also hold me, presumably, without having any court
involvement. It'd be a little bizarre that he could kill me but if he held
me he'd have to turn me over to the court system.
CUSACK: Yeah. We're getting into kind of Kafka territory. You know, with
Bush I always felt like you were at one of those rides in an amusement park
where the floor kept dropping and you kept kind of falling. But I think what
Obama's done is we've really hit the bottom as far as civil liberties go.
TURLEY: Yet people have greeted this erosion of civil liberties with this
collective yawn.
CUSACK: Yeah, yeah. And so then it gets down to the question, "Well, are you
going to vote for Obama?" And I say, "Well, I don't really know. I couldn't
really vote for Hillary Clinton because of her Iraq War vote." Because I
felt like that was a line, a Rubicon line -
TURLEY: Right.
CUSACK: - a Rubicon line that I couldn't cross, right? I don't know how to
bring myself to vote for a constitutional law professor, or even a
constitutional realist, who throws away due process and claims the authority
that the executive branch can assassinate American citizens. I just don't
know if I can bring myself to do it.
If you want to make a protest vote against Romney, go ahead, but I would
think we'd be better putting our energies into local and state politics -
occupy Wall Street and organizations and movements outside the system, not
national politics, not personalities. Not stadium rock politics. Not brands.
That's the only thing I can think of. What would you say?
TURLEY: Well, the question, I think, that people have got to ask themselves
when they get into that booth is not what Obama has become, but what have we
become? That is, what's left of our values if we vote for a person that we
believe has shielded war crimes or violated due process or implemented
authoritarian powers. It's not enough to say, "Yeah, he did all those
things, but I really like what he did with the National Park System."
CUSACK: Yeah, or that he did a good job with the auto bailout.
TURLEY: Right. I think that people have to accept that they own this
decision, that they can walk away. I realize that this is a tough decision
for people but maybe, if enough people walked away, we could finally
galvanize people into action to make serious changes. We have to recognize
that our political system is fundamentally broken, it's unresponsive. Only
11 percent of the public supports Congress, and yet nothing is changing -
and so the question becomes, how do you jumpstart that system? How do you
create an alternative? What we have learned from past elections is that you
don't create an alternative by yielding to this false dichotomy that only
reinforces their monopoly on power.
CUSACK: I think that even Howard Zinn/Chomsky progressives, would admit that
there will be a difference in domestic policy between Obama and a Romney
presidency.
But DUE PROCESS....I think about how we own it. We own it. Everybody's sort
of let it slip. There's no immediacy in the day-to-day on and it's just one
of those things that unless they... when they start pulling kids off the
street, like they did in Argentina a few years ago and other places, all of
a sudden, it's like, "How the hell did that happen?" I say, "Look, you're
not helping Obama by enabling him. If you want to help him, hold his feet to
the fire."
TURLEY: Exactly.
CUSACK: The problem is, as I see it, is that regardless of goodwill and
intent and people being tired of the status quo and everything else, the
information outlets and the powers that be reconstruct or construct the
government narrative only as an election game of 'us versus them,' Obama
versus Romney, and if you do anything that will compromise that equation,
you are picking one side versus the other. Because don't you realize that's
going to hurt Obama? Don't you know that's going to help Obama? Don't you
know... and they're not thinking through their own sort of self-interest or
the community's interest in just changing the way that this whole thing
works to the benefit of the majority. We used to have some lines we wouldn't
cross-some people who said this is not what this country does ...we don't do
this shit, you had to do the right thing. So it's going to be a tough
process getting our rights back, but you know Frankie's Law? Whoever stops
fighting first - loses.
TURLEY: Right.
This interview first appeared on Alaska journalist Shannyn Moore's blog.
This piece was reprinted by Truthout with permission or license.
JOHN CUSACK
John Cusack makes films.
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John Cusack Interviews Law Professor Jonathan Turley About Obama
Administration's War On the Constitution
Saturday, 01 September 2012 08:28 By John Cusack, Truthout | Interview
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(Photo: Jonathan Thorne, Edited: Lance Page)
I wrote this a while back after Romney got the nom. In light of the blizzard
of bullshit coming at us in the next few months I thought I would put it out
now.
______________
Now that the Republican primary circus is over, I started to think about
what it would mean to vote for Obama...
Since mostly we hear from the daily hypocrisies of Mitt and friends, I
thought we should examine "our guy" on a few issues with a bit more scrutiny
than we hear from the "progressive left", which seems to be little or none
at all.
Instead of scrutiny, the usual arguments in favor of another Obama
presidency are made: We must stop fanatics; it would be better than the
fanatics-he's the last line of defense from the corporate barbarians-and of
course the Supreme Court. It all makes a terrible kind of sense and I agree
completely with Garry Wills who described the Republican primaries as " a
revolting combination of con men & fanatics- "the current primary race has
become a demonstration that the Republican party does not deserve serious
consideration for public office."
True enough.
But yet...
... there are certain Rubicon lines, as constitutional law professor
Jonathan Turley calls them, that Obama has crossed.
All political questions are not equal no matter how much you pivot. When
people die or lose their physical freedom to feed certain economic sectors
or ideologies, it becomes a zero sum game for me.
This is not an exercise in bemoaning regrettable policy choices or cheering
favorable ones but to ask fundamentally: Who are we? What are we voting for?
And what does it mean?
Three markers - the Nobel Prize acceptance speech, the escalation speech at
West Point, and the recent speech by Eric Holder - crossed that Rubicon line
for me...
Mr. Obama, the Christian president with the Muslim-sounding name, would heed
the admonitions of neither religion's prophets about making war and do what
no empire or leader, including Alexander the Great, could do: he would, he
assured us "get the job done in Afghanistan." And so we have our democratic
president receiving the Nobel Peace Prize as he sends 30,000 more troops to
a ten-year-old conflict in a country that's been war-torn for 5,000 years.
Why? We'll never fully know. Instead, we got a speech that was stone
bullshit and an insult to the very idea of peace.
We can't have it both ways. Hope means endless war? Obama has metaphorically
pushed all in with the usual international and institutional killers; and in
the case of war and peace, literally.
To sum it up: more war. So thousands die or are maimed; generations of
families and veterans are damaged beyond imagination; sons and daughters
come home in rubber bags. But he and his satellites get their four more
years.
The AfPak War is more H. G. Wells than Orwell, with people blindly letting
each other get fed to the barons of Wall Street and the Pentagon, themselves
playing the part of the Pashtuns. The paradox is simple: he got elected on
his anti-war stance during a perfect storm of the economic meltdown and
McCain saying the worst thing at the worst time as we stared into the abyss.
Obama beat Clinton on "I'm against the war and she is for it." It was simple
then, when he needed it to be.
Under Obama do we continue to call the thousands of mercenaries in
Afghanistan "general contractors" now that Bush is gone? No, we don't talk
about them... not a story anymore.
Do we prosecute felonies like torture or spying on Americans? No, time to
"move on"...
Now chaos is the norm and though the chaos is complicated, the answer is
still simple. We can't afford this morally, financially, or physically. Or
in a language the financial community can digest: the wars are ideologically
and spiritually bankrupt. No need to get a score from the CBO.
Drones bomb Pakistani villages across the border at an unprecedented rate.
Is it legal? Does anyone care? "It begs the question," as Daniel Berrigan
asks us, "is this one a "good war" or a "dumb war"? But the question betrays
the bias: it is all the same. It's all madness."
One is forced to asked the question: Is the President just another Ivy
League Asshole shredding civil liberties and due process and sending people
to die in some shithole for purely political reasons?
There will be a historical record. "Change we can believe in" is not using
the other guys' mob to clean up your own tracks while continuing to feed at
the trough. Human nature is human nature, and when people find out they're
being hustled, they will seek revenge, sooner or later, and it will be ugly
and savage.
In a country with desperation growing everywhere, everyday - despite the
"Oh, things are getting better" press releases - how could one think
otherwise?
Just think about the economic crisis we are in as a country. It could never
happen, they said. The American middle class was rock solid. The American
dream, home ownership, education, the opportunity to get a good job if you
applied yourself... and on and on. Yeah, what happened to that? It's gone.
The next question must be: "What happened to our civil liberties, to our due
process, which are the foundation of any notion of real democracy?" The
chickens haven't come home to roost for the majority but the foundation has
been set and the Constitution gutted.
Brian McFadden's cartoon says it all.
Here's the transcript of the telephone interview I conducted with Turley.
JONATHAN TURLEY: Hi John.
CUSACK: Hello. Okay, hey I was just thinking about all this stuff and
thought maybe we'd see what we can do to bring civil liberties and these
issues back into the debate for the next couple of months ...
TURLEY: I think that's great.
CUSACK: So, I don't know how you can believe in the Constitution and violate
it that much.
TURLEY: Yeah.
CUSACK: I would just love to know your take as an expert on these things.
And then maybe we can speak to whatever you think his motivations would be,
and not speak to them in the way that we want to armchair-quarterback like
the pundits do about "the game inside the game," but only do it because it
would speak to the arguments that are being used by the left to excuse it.
For example, maybe their argument that there are things you can't know, and
it's a dangerous world out there, or why do you think a constitutional law
professor would throw out due process?
TURLEY: Well, there's a misconception about Barack Obama as a former
constitutional law professor. First of all, there are plenty of professors
who are "legal relativists." They tend to view legal principles as relative
to whatever they're trying to achieve. I would certainly put President Obama
in the relativist category. Ironically, he shares that distinction with
George W. Bush. They both tended to view the law as a means to a particular
end - as opposed to the end itself. That's the fundamental distinction among
law professors. Law professors like Obama tend to view the law as one means
to an end, and others, like myself, tend to view it as the end itself.
Truth be known President Obama has never been particularly driven by
principle. Right after his election, I wrote a column in a few days warning
people that even though I voted for Obama, he was not what people were
describing him to be. I saw him in the Senate. I saw him in Chicago.
CUSACK: Yeah, so did I.
TURLEY: He was never motivated that much by principle. What he's motivated
by are programs. And to that extent, I like his programs more than Bush's
programs, but Bush and Obama are very much alike when it comes to
principles. They simply do not fight for the abstract principles and view
them as something quite relative to what they're trying to accomplish. Thus
privacy yields to immunity for telecommunications companies and due process
yields to tribunals for terrorism suspects.
CUSACK: Churchill said, "The power of the Executive to cast a man into
prison without formulating any charge known to the law, and particularly to
deny him the judgment of his peers, is in the highest degree odious and is
the foundation of all totalitarian government whether Nazi or Communist."
That wasn't Eugene Debs speaking - that was Winston Churchill.
And if he takes an oath before God to uphold the Constitution, and yet he
decides it's not politically expedient for him to deal with due process or
spying on citizens and has his Attorney General justify murdering US
citizens - and then adds a signing statement saying, "Well, I'm not going to
do anything with this stuff because I'm a good guy."- one would think we
would have to define this as a much graver threat than good or bad policy
choices- correct?
TURLEY: Well, first of all, there's a great desire of many people to relieve
themselves of the obligation to vote on principle. It's a classic
rationalization that liberals have been known to use recently, but not just
liberals. The Republican and Democratic parties have accomplished an amazing
feat with the red state/blue state paradigm. They've convinced everyone that
regardless of how bad they are, the other guy is worse. So even with 11
percent of the public supporting Congress most incumbents will be returned
to Congress. They have so structured and defined the question that people no
longer look at the actual principles and instead vote on this false
dichotomy.
Now, belief in human rights law and civil liberties leads one to the
uncomfortable conclusion that President Obama has violated his oath to
uphold the Constitution. But that's not the primary question for voters. It
is less about him than it is them. They have an obligation to cast their
vote in a principled fashion. It is, in my opinion, no excuse to vote for
someone who has violated core constitutional rights and civil liberties
simply because you believe the other side is no better. You cannot pretend
that your vote does not constitute at least a tacit approval of the policies
of the candidate.
This is nothing new, of course for civil libertarians who have always been
left behind at the altar in elections. We've always been the bridesmaid,
never the bride. We're used to politicians lying to us. And President Obama
lied to us. There's no way around that. He promised various things and
promptly abandoned those principles.
So the argument that Romney is no better or worse does not excuse the
obligation of a voter. With President Obama they have a president who went
to the CIA soon after he was elected and promised CIA employees that they
would not be investigated or prosecuted for torture, even though he admitted
that waterboarding was torture.
CUSACK: I remember when we were working with Arianna at The Huffington Post
and we thought, well, has anyone asked whether waterboarding is torture? Has
anyone asked Eric Holder that? And so Arianna had Sam Seder ask him that at
a press conference, and then he had to admit that it was. And then the next
question, of course, was, well, if it is a crime, are you going to prosecute
the law? But, of course, it wasn't politically expedient to do so, right?
That's inherent in their non-answer and inaction?
TURLEY: That's right.
CUSACK: Have you ever heard a more specious argument than "It's time for us
all to move on?" When did the Attorney General or the President have the
option to enforce the law?
TURLEY: Well, that's the key question that nobody wants to ask. We have a
treaty, actually a number of treaties, that obligate us to investigate and
prosecute torture. We pushed through those treaties because we wanted to
make clear that no matter what the expediency of the moment, no matter
whether it was convenient or inconvenient, all nations had to agree to
investigate and prosecute torture and other war crimes.
And the whole reason for putting this in the treaties was to do precisely
the opposite of what the Obama administration has done. That is, in these
treaties they say that it is not a defense that prosecution would be
inconvenient or unpopular. But that's exactly what President Obama said when
he announced, "I won't allow the prosecution of torture because I want us to
look to the future and not the past." That is simply a rhetorical flourish
to hide the obvious point: "I don't want the inconvenience and the
unpopularity that would come with enforcing this treaty."
CUSACK: Right. So, in that sense, the Bush administration had set the
precedent that the state can do anything it likes in the name of terror, and
not only has Obama let that cement harden, but he's actually expanded the
power of the executive branch to do whatever it wants, or he's lowered the
bar - he's lowered the law - to meet his convenience. He's lowered the law
to meet his personal political convenience rather than leaving it as
something that, as Mario Cuomo said, the law is supposed to be better than
us.
TURLEY: That's exactly right. In fact, President Obama has not only
maintained the position of George W. Bush in the area of national securities
and in civil liberties, he's actually expanded on those positions. He is
actually worse than George Bush in some areas.
CUSACK: Can you speak to which ones?
TURLEY: Well, a good example of it is that President Bush ordered the
killing of an American citizen when he approved a drone strike on a car in
Yemen that he knew contained an American citizen as a passenger. Many of us
at the time said, "You just effectively ordered the death of an American
citizen in order to kill someone else, and where exactly do you have that
authority?" But they made an argument that because the citizen wasn't the
primary target, he was just collateral damage. And there are many that
believe that that is a plausible argument.
CUSACK: By the way, we're forgetting to kill even a foreign citizen is
against the law. I hate to be so quaint...
TURLEY: Well, President Obama outdid President Bush. He ordered the killing
of two US citizens as the primary targets and has then gone forward and put
out a policy that allows him to kill any American citizen when he
unilaterally determines them to be a terrorist threat. Where President Bush
had a citizen killed as collateral damage, President Obama has actually a
formal policy allowing him to kill any US citizen.
CUSACK: But yet the speech that Eric Holder gave was greeted generally, by
those others than civil libertarians and a few people on the left with some
intellectual honesty, with polite applause and a stunning silence and then
more cocktail parties and state dinners and dignitaries, back the Republican
Hypocrisy Hour on the evening feed - and he basically gave a speech saying
that the executive can assassinate US citizens.
TURLEY: That was the truly other-worldly moment of the speech. He went to,
Northwestern Law School (my alma mater), and stood there and articulated the
most authoritarian policy that a government can have: the right to
unilaterally kill its citizens without any court order or review. The
response from the audience was applause. Citizens applauding an Attorney
General who just described how the President was claiming the right to kill
any of them on his sole inherent authority.
CUSACK: Does that order have to come directly from Obama, or can his
underlings carry that out on his behalf as part of a generalized
understanding? Or does he have to personally say, "You can get that guy and
that guy?"
TURLEY: Well, he has delegated the authority to the so-called death panel,
which is, of course, hilarious, since the Republicans keep talking about a
nonexistent death panel in national healthcare. We actually do have a death
panel, and it's killing people who are healthy.
CUSACK: I think you just gave me the idea for my next film. And the tone
will be, of course, Kafkaesque.
TURLEY: It really is.
CUSACK: You're at the bottom of the barrel when the Attorney General is
saying that not only can you hold people in prison for no charge without due
process, but we can kill the citizens that "we" deem terrorists. But "we"
won't do it cause we're the good guys remember?
TURLEY: Well, the way that this works is you have this unseen panel. Of
course, their proceedings are completely secret. The people who are put on
the hit list are not informed, obviously.
CUSACK: That's just not polite, is it?
TURLEY: No, it's not. The first time you're informed that you're on this
list is when your car explodes, and that doesn't allow much time for due
process. But the thing about the Obama administration is that it is far more
premeditated and sophisticated in claiming authoritarian powers. Bush tended
to shoot from the hip - he tended to do these things largely on the edges.
In contrast, Obama has openly embraced these powers and created formal
measures, an actual process for killing US citizens. He has used the
terminology of the law to seek to legitimate an extrajudicial killing.
CUSACK: Yeah, bringing the law down to meet his political realism, his
constitutional realism, which is that the Constitution is just a means to an
end politically for him, so if it's inconvenient for him to deal with due
process or if it's inconvenient for him to deal with torture, well, then why
should he do that? He's a busy man. The Constitution is just another
document to be used in a political fashion, right?
TURLEY: Indeed. I heard from people in the administration after I wrote a
column a couple weeks ago about the assassination policy. And they basically
said, "Look, you're not giving us our due. Holder said in the speech that we
are following a constitutional analysis. And we have standards that we
apply." It is an incredibly seductive argument, but there is an incredible
intellectual disconnect. Whatever they are doing, it can't be called a
constitutional process.
Obama has asserted the right to kill any citizen that he believes is a
terrorist. He is not bound by this panel that only exists as an extension of
his claimed inherent absolute authority. He can ignore them. He can
circumvent them. In the end, with or without a panel, a president is
unilaterally killing a US citizen. This is exactly what the framers of the
Constitution told us not to do.
CUSACK: The framers didn't say, "In special cases, do what you like. When
there are things the public cannot know for their own good, when it's
extra-specially a dangerous world... do whatever you want." The framers of
the Constitution always knew there would be extraordinary circumstances, and
they were accounted for in the Constitution. The Constitution does not allow
for the executive to redefine the Constitution when it will be politically
easier for him to get things done.
TURLEY: No. And it's preposterous to argue that.
CUSACK: When does it become - criminal?
TURLEY: Well, the framers knew what it was like to have sovereigns kill
citizens without due process. They did it all the time back in the 18th
century. They wrote a constitution specifically to bar unilateral authority.
James Madison is often quoted for his observation that if all men were
angels, no government would be necessary. And what he was saying is that you
have to create a system of law that has checks and balances so that even
imperfect human beings are restrained from doing much harm. Madison and
other framers did not want to rely on the promises of good motivations or
good intents from the government. They created a system where no branch had
enough authority to govern alone - a system of shared and balanced powers.
So what Obama's doing is to rewrite the most fundamental principle of the US
Constitution. The whole point of the Holder speech was that we're really
good guys who take this seriously, and you can trust us. That's exactly the
argument the framers rejected, the "trust me" principle of government.
You'll notice when Romney was asked about this, he said, "I would've signed
the same law, because I trust Obama to do the right thing." They're both
using the very argument that the framers warned citizens never to accept
from their government.
CUSACK: So basically, it comes down to, again, just political expediency and
aesthetics. So as long as we have friendly aesthetics and likable people, we
can do whatever we want. Who cares what the policy is or the implications
for the future.
TURLEY: The greatest problem is what it has done to us and what our relative
silence signifies. Liberals and civil libertarians have lost their own
credibility, their own moral standing, with the support of President Obama.
For many civil libertarians it is impossible to vote for someone who has
blocked the prosecution of war crimes. That's where you cross the Rubicon
for most civil libertarians. That was a turning point for many who simply
cannot to vote for someone who is accused of that type of violation.
Under international law, shielding people from war-crime prosecutions is
itself a form of war crime. They're both violations of international law.
Notably, when the Spanish moved to investigate our torture program, we now
know that the Obama administration threatened the Spanish courts and the
Spanish government that they better not enforce the treaty against the US
This was a real threat to the Administration because these treaties allow
other nations to step forward when another nation refuses to uphold the
treaty. If a government does not investigate and prosecute its own accused
war criminals, then other countries have the right to do so. That rule was,
again, of our own creation. With other leading national we have long
asserted the right to prosecute people in other countries who are shielded
or protected by their own countries.
CUSACK: Didn't Spain pull somebody out of Chile under that?
TURLEY: Yeah, Pinochet.
CUSACK: Yeah, also our guy...
TURLEY: The great irony of all this is that we're the architect of that
international process. We're the one that always pushed for the position
that no government could block war crimes prosecution.
But that's not all. The Obama administration has also outdone the Bush
administration in other areas. For example, one of the most important
international principles to come out of World War II was the rejection of
the "just following orders" defense. We were the country that led the world
in saying that defendants brought before Nuremberg could not base their
defense on the fact that they were just following orders. After Nuremberg,
there were decades of development of this principle. It's a very important
point, because that defense, if it is allowed, would shield most people
accused of torture and war crime. So when the Obama administration -
CUSACK: That also parallels into the idea that the National Defense
Authorization Act is using its powers not only to put a chilling effect on
whistleblowers, but to also make it illegal for whistleblowers to bring the
truth out. Am I right on that, or is that an overstatement?
TURLEY: Well, the biggest problem is that when the administration was
fishing around for some way to justify not doing the right thing and not
prosecuting torture, they finally released a document that said that CIA
personnel and even some DOJ lawyers were "just following orders," but
particularly CIA personnel.
The reason Obama promised them that none of them would be prosecuted is he
said that they were just following the orders of higher authority in the
government. That position gutted Nuremberg. Many lawyers around the world
are upset because the US under the Obama administration has torn the heart
out of Nuremberg. Just think of the implications: other countries that are
accused of torture can shield their people and say, "Yeah, this guy was a
torturer. This guy ordered a war crime. But they were all just following
orders. And the guy that gave them the order, he's dead." It is the classic
defense of war criminals. Now it is a viable defense again because of the
Obama administration.
CUSACK: Yeah.
TURLEY: Certainly part of the problem is how the news media -
CUSACK: Oscar Wilde said most journalists would fall under the category of
those who couldn't tell the difference between a bicycle accident and the
end of civilization. But why is it that all the journalists that you see
mostly on MSNBC or most of the progressives, or so-called progressives, who
believe that under Bush and Cheney and Ashcroft and Alberto Gonzalez these
were great and grave constitutional crises, the wars were an ongoing moral
fiasco - but now, since we have a friendly face in the White House, someone
with kind of pleasing aesthetics and some new policies we like, now all of a
sudden these aren't crimes, there's no crisis. Because he's our guy? Go,
team, go?
TURLEY: Some in the media have certainly fallen into this cult of
personality.
CUSACK: What would you say to those people? I always thought the duty of a
citizen, and even more so as a journalist, had greatly to do with the idea
that intellectual honesty was much more important than political loyalty.
How would you compare Alberto Gonzalez to Eric Holder?
TURLEY: Oh, Eric Holder is smarter than Gonzalez, but I see no other
difference in terms of how they've conducted themselves. Both of these men
are highly political. Holder was accused of being improperly political
during his time in the Clinton administration. When he was up for Attorney
General, he had to promise the Senate that he would not repeat some of the
mistakes he made in the Clinton administration over things like the pardon
scandal, where he was accused of being more politically than legally
motivated.
In this town, Holder is viewed as much more of a political than a legal
figure, and the same thing with Gonzalez. Bush and Obama both selected
Attorney Generals who would do what they wanted them to do, who would enable
them by saying that no principles stood in the way of what they wanted to
do. More importantly, that there were no principles requiring them to do
something they didn't want to do, like investigate torture.
CUSACK: So would you say this assassination issue, or the speech and the
clause in the NDAA and this signing statement that was attached, was
equivalent to John Yoo's torture document?
TURLEY: Oh, I think it's amazing. It is astonishing the dishonesty that
preceded and followed its passage. Before passage, the administration told
the public that the president was upset about the lack of an exception for
citizens and that he was ready to veto the bill if there was a lack of such
an exception. Then, in an unguarded moment, Senator Levin was speaking to
another Democratic senator who was objecting to the fact that citizens could
be assassinated under this provision, and Levin said, "I don't know if my
colleague is aware that the exception language was removed at the request of
the White House." Many of us just fell out of our chairs. It was a
relatively rare moment on the Senate floor, unguarded and unscripted.
CUSACK: And finally simple.
TURLEY: Yes. So we were basically lied to. I think that the administration
was really caught unprepared by that rare moment of honesty, and that led
ultimately to his pledge not to use the power to assassinate against
citizens. But that pledge is meaningless. Having a president say, "I won't
use a power given to me" is the most dangerous of assurances, because a
promise is not worth anything.
CUSACK: Yeah, I would say it's the coldest comfort there is.
TURLEY: Yes. This brings us back to the media and the failure to strip away
the rhetoric around these policies. It was certainly easier in the Bush
administration, because you had more clown-like figures like Alberto
Gonzalez. The problem is that the media has tended to get thinner and
thinner in terms of analysis. The best example is that about the use of the
term "coerced or enhanced interrogation." I often stop reporters when they
use these terms in questions. I say, "I'm not too sure what you mean,
because waterboarding is not enhanced interrogation." That was a myth put
out by the Bush administration. Virtually no one in the field used that
term, because courts in the United States and around the world consistently
said that waterboarding's torture. Holder admitted that waterboarding's
torture. Obama admitted that waterboarding is torture. Even members of the
Bush administration ultimately admitted that waterboarding's torture. The
Bush Administration pushed this term to get reporters to drop the word
torture and it worked. They are still using the term.
Look at the articles and the coverage. They uniformly say "enhanced
interrogation." Why? Because it's easier. They want to avoid the
controversy. Because if they say "torture," it makes the story much more
difficult. If you say, "Today the Senate was looking into a program to
torture detainees," there's a requirement that you get a little more into
the fact that we're not supposed to be torturing people.
CUSACK: So, from a civil liberties perspective, ravens are circling the
White House, even though there's a friendly man in it.
TURLEY: Yeah.
CUSACK: I hate to speak too much to motivation, but why do you think MSNBC
and other so-called centrist or left outlets won't bring up any of these
things? These issues were broadcast and reported on nightly when John
Ashcroft and Alberto Gonzalez and Bush were in office.
TURLEY: Well, there is no question that some at MSNBC have backed away from
these issues, although occasionally you'll see people talk about -
CUSACK: I think that's being kind, don't you? More like "abandoned."
TURLEY: Yeah. The civil liberties perspective is rarely given more than a
passing reference while national security concerns are explored in depth.
Fox is viewed as protective of Bush while MSNBC is viewed as protective of
Obama. But both presidents are guilty of the same violations. There are
relatively few journalists willing to pursue these questions aggressively
and objectively, particularly on television. And so the result is that the
public is hearing a script written by the government that downplays these
principles. They don't hear the word "torture."
They hear "enhanced interrogation." They don't hear much about the treaties.
They don't hear about the international condemnation of the United States.
Most Americans are unaware of how far we have moved away from Nuremberg and
core principles of international law.
CUSACK: So the surreal Holder speech - how could it be that no one would be
reporting on that? How could it be that has gone by with not a bang but a
whimper?
TURLEY: Well, you know, part of it, John, I think, is that this
administration is very clever. First of all, they clearly made the decision
right after the election to tack heavily to the right on national security
issues. We know that by the people they put on the National Security
Council. They went and got very hardcore folks - people who are quite
unpopular with civil libertarians. Not surprisingly we almost immediately
started to hear things like the pledge not to prosecute CIA officials and
other Bush policies being continued.
Many reporters buy into these escape clauses that the administration gives
them, this is where I think the administration is quite clever. From a legal
perspective, the Holder speech should have been exposed as perfect nonsense.
If you're a constitutional scholar, what he was talking about is facially
ridiculous, because he was saying that we do have a constitutional
process-it's just self-imposed, and we're the only ones who can review it.
They created a process of their own and then pledged to remain faithful to
it.
While that should be a transparent and absurd position, it gave an out for
journalists to say, "Well, you know, the administration's promising that
there is a process, it's just not the court process." That's what is so
clever, and why the Obama administration has been far more successful than
the Bush administration in rolling back core rights. The Bush administration
would basically say, "We just vaporized a citizen in a car with a terrorist,
and we're not sorry for it."
CUSACK: Well, yeah, the Bush administration basically said, "We may have
committed a crime, but we're the government, so what the fuck are you going
to do about it?" Right? -and the Obama administration is saying, "We're
going to set this all in cement, expand the power of the executive, and pass
the buck to the next guy." Is that it?
TURLEY: It's the same type of argument when people used to say when they
caught a criminal and hung him from a tree after a perfunctory five-minute
trial. In those days, there was an attempt to pretend that they are really
not a lynch mob, they were following a legal process of their making and
their satisfaction. It's just... it's expedited. Well, in some ways, the
administration is arguing the same thing. They're saying, "Yes, we do
believe that we can kill any US citizen, but we're going to talk amongst
ourselves about this, and we're not going to do it until we're satisfied
that this guy is guilty."
CUSACK: Me and the nameless death panel.
TURLEY: Again, the death panel is ludicrous. The power that they've defined
derives from the president's role as Commander in Chief. So this panel -
CUSACK: They're falling back on executive privilege, the same as Nixon and
Bush.
TURLEY: Right, it's an extension of the president. He could just ignore it.
It's not like they have any power that exceeds his own.
CUSACK: So the death panel serves at the pleasure of the king, is what
you're saying.
TURLEY: Yes, and it gives him cover so that they can claim that they're
doing something legal when they're doing something extra-legal.
CUSACK: Well, illegal, right?
TURLEY: Right. Outside the law.
CUSACK: So when does it get to a point where if you abdicate duty, it is in
and of itself a crime? Obama is essentially creating a constitutional crisis
not by committing crimes but by abdicating his oath that he swore before God
- is that not a crime?
TURLEY: Well, he is violating international law over things like his promise
to protect CIA officials from any prosecution for torture. That's a direct
violation, which makes our country as a whole doubly guilty for alleged war
crimes. I know many of the people in the administration. Some of us were
quite close. And they're very smart people. I think that they also realize
how far outside the lines they are. That's the reason they are trying to
draft up these policies to give the appearance of the law. It's like a
Potemkin village constructed as a façade for people to pass through -
CUSACK: They want to have a legal patina.
TURLEY: Right, and so they create this Potemkin village using names. You
certainly can put the name "due process" on a drone missile, but it's not
delivering due process.
CUSACK: Yeah. And what about - well, we haven't even gotten into the
expansion of the privatization movement of the military "contractors" under
George Bush or the escalation of drone strikes. I mean, who are they
killing? Is it legal? Does anyone care - have we just given up as a country,
saying that the Congress can declare war?
TURLEY: We appear to be in a sort of a free-fall. We have what used to be
called an "imperial presidency."
CUSACK: Obama is far more of an imperial president than Bush in many ways,
wouldn't you say?
TURLEY: Oh, President Obama has created an imperial presidency that would
have made Richard Nixon blush. It is unbelievable.
CUSACK: And to say these things, most of the liberal community or the
progressive community would say, "Turley and Cusack have lost their minds.
What do they want? They want Mitt Romney to come in?"
TURLEY: The question is, "What has all of your relativistic voting and
support done for you?" That is, certainly there are many people who believe
-
CUSACK: Well, some of the people will say the bread-and-butter issues, "I
got healthcare coverage, I got expanded healthcare coverage."
TURLEY: See, that's what I find really interesting. When I talk to people
who support the administration, they usually agree with me that torture is a
war crime and that the administration has blocked the investigation of
alleged war crimes.
Then I ask them, "Then, morally, are you comfortable with saying, 'I know
the administration is concealing war crimes, but they're really good on
healthcare?'" That is what it comes down to.
The question for people to struggle with is how we ever hope to regain our
moral standing and our high ground unless citizens are prepared to say,
"Enough." And this is really the election where that might actually carry
some weight - if people said, "Enough. We're not going to blindly support
the president and be played anymore according to this blue state/red state
paradigm. We're going to reconstruct instead of replicate. It might not even
be a reinvented Democratic Party in the end that is a viable option. Civil
libertarians are going to stand apart so that people like Nancy Pelosi and
Barack Obama and others know that there are certain Rubicon issues that you
cannot cross, and one of them happens to be civil liberty.
CUSACK: Yeah, because most people reading this will sort of say, "Okay, this
is all fine and good, but I've got to get to work and I've got to do this
stuff, and I don't know what these fucking guys are talking about. I don't
really care."
So let's paint a scenario. My nephew, Miles, decides that he wants to grow
dreadlocks, and he also decides he's falling in love with the religion of
Islam. And he changes his name. Instead of his name being Miles, he changes
his name to a Muslim-sounding name.
He goes to Washington, and he goes to the wrong organization or meeting,
let's say, and he goes to an Occupy Washington protest. He's out there next
to someone with a speaker, and a car bomb explodes. He didn't set it off,
and he didn't do anything. The government can throw him in prison and never
try him, right?
TURLEY: Well, first of all, that's a very good question.
CUSACK: How do we illustrate the danger to normal people of these massive
overreaches and radical changes to the Constitution that started under bush
and have expanded under Obama?
TURLEY: I mean, first of all, I know Miles, and -
CUSACK: Yes.
TURLEY: -and he is a little dangerous.
CUSACK: Yes.
TURLEY: I played basketball with him and you and I would describe him as a
clear and present danger.
CUSACK: I mean, and I know Eric Holder and Obama won't throw him in prison
because they're nice guys, but let's say that they're out of office.
TURLEY: Right, and the problem is that there is no guarantee. It has become
almost Fellini-esque. Holder made the announcement a couple of years ago
that they would try some defendants in a federal court while reserving
military tribunals for others. The speech started out on the high ground,
saying, "We have to believe in our federal courts and our Constitution.
We've tried terrorists before, and therefore we're transferring these
individuals to federal court."
Then he said, "But we're going to transfer these other individuals to
Guantanamo Bay." What was missing was any type of principle. You have Obama
doing the same thing that George Bush did - sitting there like Caesar and
saying, "You get a real trial and you get a fake trial." He sent Zacarias
Moussaoui to a federal court and then he threw Jose Padilla, who happened to
be a US citizen, into the Navy brig and held him without trial.
Yet, Obama and Holder publicly assert that they're somehow making a civil
liberties point, and say, "We're very proud of the fact that we have the
courage to hold these people for a real trial, except for those people.
Those people are going to get a tribunal." And what happened after that was
remarkable. If you read the press accounts, the press actually credits the
administration with doing the right thing. Most of them pushed into the last
paragraph the fact that all they did was split the people on the table, and
half got a real trial and half got a fake trial.
CUSACK: In the same way, the demonization, whether rightful demonization, of
Osama Bin Laden was so intense that people were thrilled that he was
assassinated instead of brought to trial and tried. And I thought, if the
Nuremberg principles were right, the idea would be that you'd want to take
this guy and put him on trial in front of the entire world, and, actually,
if you were going to put him to death, you'd put him to death by lethal
injection.
TURLEY: You'll recall reports came out that the Seals were told to kill
Osama, and then reports came out to say that Osama might not have been armed
when the Seals came in. The strong indication was that this was a hit.
CUSACK: Yeah.
TURLEY: The accounts suggest that this was an assassination from the
beginning to the end, and that was largely brushed over in the media. There
was never really any discussion of whether it was appropriate or even a good
idea not to capture this guy and to bring him to justice.
The other thing that was not discussed in most newspapers and programs was
the fact that we violated international law. Pakistan insisted that they
never approved our going into Pakistan. Think about it - if the government
of Mexico sent in Mexican special forces into San Diego and captured a
Mexican national, or maybe even an American citizen, and then killed him,
could you imagine what the outcry would be?
CUSACK: Or somebody from a Middle Eastern country who had their kids blown
up by Mr. Cheney's and Bush's wars came in and decided they were going to
take out Cheney-not take him back to try him, but actually just come in and
assassinate him.
TURLEY: Yet we didn't even have that debate. And I think that goes to your
point, John, about where's the media?
CUSACK: But, see, that's a very tough principle to take, because everybody
feels so rightfully loathsome about Bin Laden, right? But principles are not
meant to be convenient, right? The Constitution is not meant to be
convenient. If they can catch Adolf Eichmann and put him on trial, why not
bin Laden? The principles are what separate us from the beasts.
I think the best answer I ever heard about this stuff, besides sitting
around a kitchen table with you and your father and my father, was I heard
somebody, they asked Mario Cuomo, "You don't support the death penalty...?
Would you for someone who raped your wife?" And Cuomo blinked, and he looked
at him, and he said, "What would I do? Well, I'd take a baseball bat and I'd
bash his skull in... But I don't matter. The law is better than me. The law
is supposed to be better than me. That's the whole point."
TURLEY: Right. It is one thing if the president argued that there was no
opportunity to capture bin Laden because he was in a moving car, for
example. And then some people could say, "Well, they took him out because
there was no way they could use anything but a missile." What's missing in
the debate is that it was quickly brushed over whether we had the ability to
capture bin Laden.
CUSACK: Well, it gets to [the late] Raiders owner Al Davis' justice, which
is basically, "Just win, baby." And that's where we are. The Constitution
was framed by Al Davis. I never knew that.
And the sad part for me is that all the conversations and these
interpretations and these conveniences, if they had followed the
Constitution, and if they had been strict in terms of their interpretations,
it wouldn't matter one bit in effectively handling the war on terror or
protecting Americans, because there wasn't anything extra accomplished
materially in taking these extra leaps, other than to make it easier for
them to play cowboy and not cede national security to the Republicans
politically. Bin Laden was basically ineffective. And our overseas intel
people were already all over these guys.
It doesn't really matter. The only thing that's been hurt here has been us
and the Constitution and any moral high ground we used to have. Because
Obama and Holder are good guys, it's okay. But what happens when the
not-so-good guys come in, does MSNBC really want to cede and grandfather
these powers to Gingrich or Romney or Ryan or Santorum or whomever - and
then we're sitting around looking at each other, like how did this happen? -
the same way we look around now and say, "How the hell did the middle of
America lose the American dream? How is all of this stuff happening at the
same time?" And it gets back to lack of principle.
TURLEY: I think that's right. Remember the articles during the torture
debate? I kept on getting calls from reporters saying, "Well, you know, the
administration has come out with an interesting statement. They said that it
appears that they might've gotten something positive from torturing these
people." Yet you've had other officials say that they got garbage, which is
what you often get from torture...
CUSACK: So the argument being that if we can get good information, we should
torture?
TURLEY: Exactly. Yeah, that's what I ask them. I say, "So, first of all,
let's remember, torture is a war crime. So what you're saying is - "
CUSACK: Well, war crimes... war crimes are effective.
TURLEY: The thing that amazes me is that you have smart people like
reporters who buy so readily into this. I truly believe that they're earnest
when they say this.
Of course you ask them "Well, does that mean that the Nuremberg principles
don't apply as long as you can show some productive use?" We have treaty
provisions that expressly rule out justifying torture on the basis that it
was used to gain useful information.
CUSACK: Look, I mean, enforced slave labor has some productive use. You get
great productivity, you get great output from that shit. You're not
measuring the principle against the potential outcome; that's a bad business
model. "Just win, baby" - we're supposed to be above that.
TURLEY: But, you know, I'll give you an example. I had one of the leading
investigative journalists email me after one of my columns blasting the
administration on the assassin list, and this is someone I deeply respect.
He's one of the true great investigative reporters. He objected to the fact
that my column said that under the Obama policy he could kill US citizens
not just abroad, but could kill them in the United States. And he said, "You
know, I agree with everything in your column except that." He said, "You
know, they've never said that they could kill someone in the United States.
I think that you are exaggerating."
Yet, if you look at how they define the power, it is based on the mere
perceived practicality and necessity of legal process by the president. They
say the President has unilateral power to assassinate a citizen that he
believes is a terrorist. Now, is the limiting principle? They argue that
they do this "constitutional analysis," and they only kill a citizen when
it's not practical to arrest the person.
CUSACK: Is that with the death panel?
TURLEY: Well, yeah, he's talking about the death panel. Yet, he can ignore
the death panel. But, more importantly, what does practicality mean? It all
comes down to an unchecked presidential power.
CUSACK: By the way, the death panel - that room can't be a fun room to go
into, just make the decision on your own. You know, it's probably a gloomy
place, the death panel room, so the argument from the reporter was, "Look,
they can... if they kill people in England or Paris that's okay, but they -
"
TURLEY: I also don't understand, why would it make sense that you could kill
a US citizen on the streets of London but you might not be able to kill them
on the streets of Las Vegas? The question is where the limiting principle
comes from or is that just simply one more of these self-imposed rules? And
that's what they really are saying: we have these self-imposed rules that
we're only going to do this when we think we have to.
CUSACK: So, if somebody can use the contra-Nuremberg argument - that
principle's now been flipped, that they were only following orders - does
that mean that the person that issued the order through Obama, or the
President himself, is responsible and can be brought up on a war crime
charge?
TURLEY: Well, under international law, Obama is subject to international law
in terms of ordering any defined war crime.
CUSACK: Would he have to give his Nobel Peace Prize back?
TURLEY: I don't think that thing's going back. I've got to tell you... and
given the amount of authority he's claimed, I don't know if anyone would
have the guts to ask for it back.
CUSACK: And the argument people are going to use is,"Look, Obama and Holder
are good guys. They're not going to use this power." But the point is, what
about after them? What about the apparatchiks? You've unleashed the beast.
And precedent is everything constitutionally, isn't it?
TURLEY: I think that's right. Basically what they're arguing is, "We're
angels," and that's exactly what Madison warned against. As we discussed, he
said if all men were angels you wouldn't need government. And what the
administration is saying is, "We're angels, so trust us."
I think that what is really telling is the disconnect between what people
say about our country and what our country has become. What we've lost under
Bush and Obama is clarity. In the "war on terror" what we've lost is what we
need the most in fighting terrorism: clarity. We need the clarity of being
better than the people that we are fighting against. Instead, we've given
propagandists in Al Qaeda or the Taliban an endless supply of material -
allowing them to denounce us as hypocrites.
Soon after 9/11 we started government officials talk about how the US
Constitution is making us weaker, how we can't function by giving people due
process. And it was perfectly ridiculous.
CUSACK: Feels more grotesque than ridiculous.
TURLEY: Yeah, all the reports that came out after 9/11 showed that 9/11
could've been avoided. For years people argued that we should have locked
reinforced cockpit doors. For years people talked about the gaps in security
at airports. We had the intelligence services that had the intelligence that
they needed to move against this ring, and they didn't share the
information. So we have this long list of failures by US agencies, and the
result was that we increased their budget and gave them more unchecked
authority.
In the end, we have to be as good as we claim. We can't just talk a good
game. If you look at this country in terms of what we've done, we have
violated the Nuremberg principles, we have violated international treaties,
we have refused to accept-
CUSACK: And you're not just talking about in the Bush administration. You're
talking about -
TURLEY: The Obama administration.
CUSACK: You're talking about right now.
TURLEY: We have refused to accept the jurisdictional authority of sovereign
countries. We now routinely kill in other countries. It is American
exceptionalism - the rules apply to other countries.
CUSACK: Well, these drone attacks in Pakistan, are they legal? Does anyone
care? Who are we killing? Do they deserve due process?
TURLEY: When we cross the border, Americans disregard the fact that Pakistan
is a sovereign nation, let alone an ally, and they insist that they have not
agreed to these operations. They have accused us of repeatedly killing
people in their country by violating their sovereign airspace. And we just
disregard it. Again, its American exceptionalism, that we -
CUSACK: Get out of our way or we'll pulverize you.
TURLEY: The rules apply to everyone else. So the treaties against torture
and war crimes, sovereign integrity -
CUSACK: And this also speaks to the question that nobody even bothers to
ask: what exactly are we doing in Afghanistan now? Why are we there?
TURLEY: Oh, yeah, that's the real tragedy.
CUSACK: It has the highest recorded suicide rate among veterans in history
and no one even bothers to state a pretense of a definable mission or goal.
It appears we're there because it's not convenient for him to really get out
before the election. So in that sense he's another guy who's letting people
die in some shithole for purely political reasons. I mean, it is what it is.
TURLEY: I'm afraid, it is a political calculation. What I find amazing is
that we're supporting an unbelievably corrupt government in the Karzai
administration.
Karzai himself, just two days ago, called Americans "demons." He previously
said that he wished he had gone with the Taliban rather than the Americans.
And, more importantly, his government recently announced that women are
worth less than men, and he has started to implement these religious edicts
that are subjugating women. So he has American women who are protecting his
life while he's on television telling people that women are worth less than
men, and we're funding -
CUSACK: What are they, about three-fifths?
TURLEY: Yeah, he wasn't very specific on that point. So we're spending
hundreds of billions of dollars. More importantly, we're losing all these
lives because it was simply politically inconvenient to be able to pull out
of Afghanistan and Iraq.
CUSACK: Yeah. And, I mean, we haven't even touched on the whole
privatization of the military and what that means. What does it mean for the
state to be funding at-cost-plus private mercenary armies and private
mercenary security forces like Blackwater, or now their names are Xe, or
whatever they've been rebranded as?
TURLEY: Well, the United States has barred various international rules
because they would allow for the prosecution of war crimes by both military
and private forces. The US barred those new rules because we didn't want the
ability of other countries to prosecute our people for war crimes. One of
the things I teach in my constitutional class is that there is a need for
what's called a bright-line rule. That is, the value for bright-line rules
is that they structure relations between the branches, between the
government and citizens. Bright-line rules protect freedom and liberty.
Those people that try to eliminate bright-line rules quickly find themselves
on a slippery slope. The Obama administration, with the Bush administration,
began by denying rights to people at Guantanamo Bay.
And then they started to deny rights of foreigners who they accused of being
terrorists. And eventually, just recently, they started denying rights to
citizens and saying that they could kill citizens without any court order or
review. It is the fulfillment of what is the nightmare of civil liberties.
They crossed that bright line. Now they're bringing these same abuses to US
citizens and changing how we relate to our government. In the end, we have
this huge apparatus of the legal system, this huge court system, and all of
it has become discretionary because the president can go ahead and kill US
citizens if he feels that it's simply inconvenient or impractical to bring
them to justice.
CUSACK: Or if the great O, decides that he wants to be lenient and just
throw them in jail for the rest of their life without trial, he can do that,
right?
TURLEY: Well, you've got Guantanamo Bay if you're accused of being an enemy
combatant. There is the concept in law that the lesser is included in the
greater.
So if the president can kill me when I'm in London, then the lesser of that
greater is that he could also hold me, presumably, without having any court
involvement. It'd be a little bizarre that he could kill me but if he held
me he'd have to turn me over to the court system.
CUSACK: Yeah. We're getting into kind of Kafka territory. You know, with
Bush I always felt like you were at one of those rides in an amusement park
where the floor kept dropping and you kept kind of falling. But I think what
Obama's done is we've really hit the bottom as far as civil liberties go.
TURLEY: Yet people have greeted this erosion of civil liberties with this
collective yawn.
CUSACK: Yeah, yeah. And so then it gets down to the question, "Well, are you
going to vote for Obama?" And I say, "Well, I don't really know. I couldn't
really vote for Hillary Clinton because of her Iraq War vote." Because I
felt like that was a line, a Rubicon line -
TURLEY: Right.
CUSACK: - a Rubicon line that I couldn't cross, right? I don't know how to
bring myself to vote for a constitutional law professor, or even a
constitutional realist, who throws away due process and claims the authority
that the executive branch can assassinate American citizens. I just don't
know if I can bring myself to do it.
If you want to make a protest vote against Romney, go ahead, but I would
think we'd be better putting our energies into local and state politics -
occupy Wall Street and organizations and movements outside the system, not
national politics, not personalities. Not stadium rock politics. Not brands.
That's the only thing I can think of. What would you say?
TURLEY: Well, the question, I think, that people have got to ask themselves
when they get into that booth is not what Obama has become, but what have we
become? That is, what's left of our values if we vote for a person that we
believe has shielded war crimes or violated due process or implemented
authoritarian powers. It's not enough to say, "Yeah, he did all those
things, but I really like what he did with the National Park System."
CUSACK: Yeah, or that he did a good job with the auto bailout.
TURLEY: Right. I think that people have to accept that they own this
decision, that they can walk away. I realize that this is a tough decision
for people but maybe, if enough people walked away, we could finally
galvanize people into action to make serious changes. We have to recognize
that our political system is fundamentally broken, it's unresponsive. Only
11 percent of the public supports Congress, and yet nothing is changing -
and so the question becomes, how do you jumpstart that system? How do you
create an alternative? What we have learned from past elections is that you
don't create an alternative by yielding to this false dichotomy that only
reinforces their monopoly on power.
CUSACK: I think that even Howard Zinn/Chomsky progressives, would admit that
there will be a difference in domestic policy between Obama and a Romney
presidency.
But DUE PROCESS....I think about how we own it. We own it. Everybody's sort
of let it slip. There's no immediacy in the day-to-day on and it's just one
of those things that unless they... when they start pulling kids off the
street, like they did in Argentina a few years ago and other places, all of
a sudden, it's like, "How the hell did that happen?" I say, "Look, you're
not helping Obama by enabling him. If you want to help him, hold his feet to
the fire."
TURLEY: Exactly.
CUSACK: The problem is, as I see it, is that regardless of goodwill and
intent and people being tired of the status quo and everything else, the
information outlets and the powers that be reconstruct or construct the
government narrative only as an election game of 'us versus them,' Obama
versus Romney, and if you do anything that will compromise that equation,
you are picking one side versus the other. Because don't you realize that's
going to hurt Obama? Don't you know that's going to help Obama? Don't you
know... and they're not thinking through their own sort of self-interest or
the community's interest in just changing the way that this whole thing
works to the benefit of the majority. We used to have some lines we wouldn't
cross-some people who said this is not what this country does ...we don't do
this shit, you had to do the right thing. So it's going to be a tough
process getting our rights back, but you know Frankie's Law? Whoever stops
fighting first - loses.
TURLEY: Right.
This interview first appeared on Alaska journalist Shannyn Moore's blog.
This piece was reprinted by Truthout with permission or license.
JOHN CUSACK
John Cusack makes films.
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John Cusack Interviews Law Professor Jonathan Turley About Obama
Administration's War On the Constitution
Saturday, 01 September 2012 08:28 By John Cusack, Truthout | Interview
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(Photo: Jonathan Thorne, Edited: Lance Page)
I wrote this a while back after Romney got the nom. In light of the blizzard
of bullshit coming at us in the next few months I thought I would put it out
now.
______________
Now that the Republican primary circus is over, I started to think about
what it would mean to vote for Obama...
Since mostly we hear from the daily hypocrisies of Mitt and friends, I
thought we should examine "our guy" on a few issues with a bit more scrutiny
than we hear from the "progressive left", which seems to be little or none
at all.
Instead of scrutiny, the usual arguments in favor of another Obama
presidency are made: We must stop fanatics; it would be better than the
fanatics-he's the last line of defense from the corporate barbarians-and of
course the Supreme Court. It all makes a terrible kind of sense and I agree
completely with Garry Wills who described the Republican primaries as " a
revolting combination of con men & fanatics- "the current primary race has
become a demonstration that the Republican party does not deserve serious
consideration for public office."
True enough.
But yet...
... there are certain Rubicon lines, as constitutional law professor
Jonathan Turley calls them, that Obama has crossed.
All political questions are not equal no matter how much you pivot. When
people die or lose their physical freedom to feed certain economic sectors
or ideologies, it becomes a zero sum game for me.
This is not an exercise in bemoaning regrettable policy choices or cheering
favorable ones but to ask fundamentally: Who are we? What are we voting for?
And what does it mean?
Three markers - the Nobel Prize acceptance speech, the escalation speech at
West Point, and the recent speech by Eric Holder - crossed that Rubicon line
for me...
Mr. Obama, the Christian president with the Muslim-sounding name, would heed
the admonitions of neither religion's prophets about making war and do what
no empire or leader, including Alexander the Great, could do: he would, he
assured us "get the job done in Afghanistan." And so we have our democratic
president receiving the Nobel Peace Prize as he sends 30,000 more troops to
a ten-year-old conflict in a country that's been war-torn for 5,000 years.
Why? We'll never fully know. Instead, we got a speech that was stone
bullshit and an insult to the very idea of peace.
We can't have it both ways. Hope means endless war? Obama has metaphorically
pushed all in with the usual international and institutional killers; and in
the case of war and peace, literally.
To sum it up: more war. So thousands die or are maimed; generations of
families and veterans are damaged beyond imagination; sons and daughters
come home in rubber bags. But he and his satellites get their four more
years.
The AfPak War is more H. G. Wells than Orwell, with people blindly letting
each other get fed to the barons of Wall Street and the Pentagon, themselves
playing the part of the Pashtuns. The paradox is simple: he got elected on
his anti-war stance during a perfect storm of the economic meltdown and
McCain saying the worst thing at the worst time as we stared into the abyss.
Obama beat Clinton on "I'm against the war and she is for it." It was simple
then, when he needed it to be.
Under Obama do we continue to call the thousands of mercenaries in
Afghanistan "general contractors" now that Bush is gone? No, we don't talk
about them... not a story anymore.
Do we prosecute felonies like torture or spying on Americans? No, time to
"move on"...
Now chaos is the norm and though the chaos is complicated, the answer is
still simple. We can't afford this morally, financially, or physically. Or
in a language the financial community can digest: the wars are ideologically
and spiritually bankrupt. No need to get a score from the CBO.
Drones bomb Pakistani villages across the border at an unprecedented rate.
Is it legal? Does anyone care? "It begs the question," as Daniel Berrigan
asks us, "is this one a "good war" or a "dumb war"? But the question betrays
the bias: it is all the same. It's all madness."
One is forced to asked the question: Is the President just another Ivy
League Asshole shredding civil liberties and due process and sending people
to die in some shithole for purely political reasons?
There will be a historical record. "Change we can believe in" is not using
the other guys' mob to clean up your own tracks while continuing to feed at
the trough. Human nature is human nature, and when people find out they're
being hustled, they will seek revenge, sooner or later, and it will be ugly
and savage.
In a country with desperation growing everywhere, everyday - despite the
"Oh, things are getting better" press releases - how could one think
otherwise?
Just think about the economic crisis we are in as a country. It could never
happen, they said. The American middle class was rock solid. The American
dream, home ownership, education, the opportunity to get a good job if you
applied yourself... and on and on. Yeah, what happened to that? It's gone.
The next question must be: "What happened to our civil liberties, to our due
process, which are the foundation of any notion of real democracy?" The
chickens haven't come home to roost for the majority but the foundation has
been set and the Constitution gutted.
Brian McFadden's cartoon says it all.
Here's the transcript of the telephone interview I conducted with Turley.
JONATHAN TURLEY: Hi John.
CUSACK: Hello. Okay, hey I was just thinking about all this stuff and
thought maybe we'd see what we can do to bring civil liberties and these
issues back into the debate for the next couple of months ...
TURLEY: I think that's great.
CUSACK: So, I don't know how you can believe in the Constitution and violate
it that much.
TURLEY: Yeah.
CUSACK: I would just love to know your take as an expert on these things.
And then maybe we can speak to whatever you think his motivations would be,
and not speak to them in the way that we want to armchair-quarterback like
the pundits do about "the game inside the game," but only do it because it
would speak to the arguments that are being used by the left to excuse it.
For example, maybe their argument that there are things you can't know, and
it's a dangerous world out there, or why do you think a constitutional law
professor would throw out due process?
TURLEY: Well, there's a misconception about Barack Obama as a former
constitutional law professor. First of all, there are plenty of professors
who are "legal relativists." They tend to view legal principles as relative
to whatever they're trying to achieve. I would certainly put President Obama
in the relativist category. Ironically, he shares that distinction with
George W. Bush. They both tended to view the law as a means to a particular
end - as opposed to the end itself. That's the fundamental distinction among
law professors. Law professors like Obama tend to view the law as one means
to an end, and others, like myself, tend to view it as the end itself.
Truth be known President Obama has never been particularly driven by
principle. Right after his election, I wrote a column in a few days warning
people that even though I voted for Obama, he was not what people were
describing him to be. I saw him in the Senate. I saw him in Chicago.
CUSACK: Yeah, so did I.
TURLEY: He was never motivated that much by principle. What he's motivated
by are programs. And to that extent, I like his programs more than Bush's
programs, but Bush and Obama are very much alike when it comes to
principles. They simply do not fight for the abstract principles and view
them as something quite relative to what they're trying to accomplish. Thus
privacy yields to immunity for telecommunications companies and due process
yields to tribunals for terrorism suspects.
CUSACK: Churchill said, "The power of the Executive to cast a man into
prison without formulating any charge known to the law, and particularly to
deny him the judgment of his peers, is in the highest degree odious and is
the foundation of all totalitarian government whether Nazi or Communist."
That wasn't Eugene Debs speaking - that was Winston Churchill.
And if he takes an oath before God to uphold the Constitution, and yet he
decides it's not politically expedient for him to deal with due process or
spying on citizens and has his Attorney General justify murdering US
citizens - and then adds a signing statement saying, "Well, I'm not going to
do anything with this stuff because I'm a good guy."- one would think we
would have to define this as a much graver threat than good or bad policy
choices- correct?
TURLEY: Well, first of all, there's a great desire of many people to relieve
themselves of the obligation to vote on principle. It's a classic
rationalization that liberals have been known to use recently, but not just
liberals. The Republican and Democratic parties have accomplished an amazing
feat with the red state/blue state paradigm. They've convinced everyone that
regardless of how bad they are, the other guy is worse. So even with 11
percent of the public supporting Congress most incumbents will be returned
to Congress. They have so structured and defined the question that people no
longer look at the actual principles and instead vote on this false
dichotomy.
Now, belief in human rights law and civil liberties leads one to the
uncomfortable conclusion that President Obama has violated his oath to
uphold the Constitution. But that's not the primary question for voters. It
is less about him than it is them. They have an obligation to cast their
vote in a principled fashion. It is, in my opinion, no excuse to vote for
someone who has violated core constitutional rights and civil liberties
simply because you believe the other side is no better. You cannot pretend
that your vote does not constitute at least a tacit approval of the policies
of the candidate.
This is nothing new, of course for civil libertarians who have always been
left behind at the altar in elections. We've always been the bridesmaid,
never the bride. We're used to politicians lying to us. And President Obama
lied to us. There's no way around that. He promised various things and
promptly abandoned those principles.
So the argument that Romney is no better or worse does not excuse the
obligation of a voter. With President Obama they have a president who went
to the CIA soon after he was elected and promised CIA employees that they
would not be investigated or prosecuted for torture, even though he admitted
that waterboarding was torture.
CUSACK: I remember when we were working with Arianna at The Huffington Post
and we thought, well, has anyone asked whether waterboarding is torture? Has
anyone asked Eric Holder that? And so Arianna had Sam Seder ask him that at
a press conference, and then he had to admit that it was. And then the next
question, of course, was, well, if it is a crime, are you going to prosecute
the law? But, of course, it wasn't politically expedient to do so, right?
That's inherent in their non-answer and inaction?
TURLEY: That's right.
CUSACK: Have you ever heard a more specious argument than "It's time for us
all to move on?" When did the Attorney General or the President have the
option to enforce the law?
TURLEY: Well, that's the key question that nobody wants to ask. We have a
treaty, actually a number of treaties, that obligate us to investigate and
prosecute torture. We pushed through those treaties because we wanted to
make clear that no matter what the expediency of the moment, no matter
whether it was convenient or inconvenient, all nations had to agree to
investigate and prosecute torture and other war crimes.
And the whole reason for putting this in the treaties was to do precisely
the opposite of what the Obama administration has done. That is, in these
treaties they say that it is not a defense that prosecution would be
inconvenient or unpopular. But that's exactly what President Obama said when
he announced, "I won't allow the prosecution of torture because I want us to
look to the future and not the past." That is simply a rhetorical flourish
to hide the obvious point: "I don't want the inconvenience and the
unpopularity that would come with enforcing this treaty."
CUSACK: Right. So, in that sense, the Bush administration had set the
precedent that the state can do anything it likes in the name of terror, and
not only has Obama let that cement harden, but he's actually expanded the
power of the executive branch to do whatever it wants, or he's lowered the
bar - he's lowered the law - to meet his convenience. He's lowered the law
to meet his personal political convenience rather than leaving it as
something that, as Mario Cuomo said, the law is supposed to be better than
us.
TURLEY: That's exactly right. In fact, President Obama has not only
maintained the position of George W. Bush in the area of national securities
and in civil liberties, he's actually expanded on those positions. He is
actually worse than George Bush in some areas.
CUSACK: Can you speak to which ones?
TURLEY: Well, a good example of it is that President Bush ordered the
killing of an American citizen when he approved a drone strike on a car in
Yemen that he knew contained an American citizen as a passenger. Many of us
at the time said, "You just effectively ordered the death of an American
citizen in order to kill someone else, and where exactly do you have that
authority?" But they made an argument that because the citizen wasn't the
primary target, he was just collateral damage. And there are many that
believe that that is a plausible argument.
CUSACK: By the way, we're forgetting to kill even a foreign citizen is
against the law. I hate to be so quaint...
TURLEY: Well, President Obama outdid President Bush. He ordered the killing
of two US citizens as the primary targets and has then gone forward and put
out a policy that allows him to kill any American citizen when he
unilaterally determines them to be a terrorist threat. Where President Bush
had a citizen killed as collateral damage, President Obama has actually a
formal policy allowing him to kill any US citizen.
CUSACK: But yet the speech that Eric Holder gave was greeted generally, by
those others than civil libertarians and a few people on the left with some
intellectual honesty, with polite applause and a stunning silence and then
more cocktail parties and state dinners and dignitaries, back the Republican
Hypocrisy Hour on the evening feed - and he basically gave a speech saying
that the executive can assassinate US citizens.
TURLEY: That was the truly other-worldly moment of the speech. He went to,
Northwestern Law School (my alma mater), and stood there and articulated the
most authoritarian policy that a government can have: the right to
unilaterally kill its citizens without any court order or review. The
response from the audience was applause. Citizens applauding an Attorney
General who just described how the President was claiming the right to kill
any of them on his sole inherent authority.
CUSACK: Does that order have to come directly from Obama, or can his
underlings carry that out on his behalf as part of a generalized
understanding? Or does he have to personally say, "You can get that guy and
that guy?"
TURLEY: Well, he has delegated the authority to the so-called death panel,
which is, of course, hilarious, since the Republicans keep talking about a
nonexistent death panel in national healthcare. We actually do have a death
panel, and it's killing people who are healthy.
CUSACK: I think you just gave me the idea for my next film. And the tone
will be, of course, Kafkaesque.
TURLEY: It really is.
CUSACK: You're at the bottom of the barrel when the Attorney General is
saying that not only can you hold people in prison for no charge without due
process, but we can kill the citizens that "we" deem terrorists. But "we"
won't do it cause we're the good guys remember?
TURLEY: Well, the way that this works is you have this unseen panel. Of
course, their proceedings are completely secret. The people who are put on
the hit list are not informed, obviously.
CUSACK: That's just not polite, is it?
TURLEY: No, it's not. The first time you're informed that you're on this
list is when your car explodes, and that doesn't allow much time for due
process. But the thing about the Obama administration is that it is far more
premeditated and sophisticated in claiming authoritarian powers. Bush tended
to shoot from the hip - he tended to do these things largely on the edges.
In contrast, Obama has openly embraced these powers and created formal
measures, an actual process for killing US citizens. He has used the
terminology of the law to seek to legitimate an extrajudicial killing.
CUSACK: Yeah, bringing the law down to meet his political realism, his
constitutional realism, which is that the Constitution is just a means to an
end politically for him, so if it's inconvenient for him to deal with due
process or if it's inconvenient for him to deal with torture, well, then why
should he do that? He's a busy man. The Constitution is just another
document to be used in a political fashion, right?
TURLEY: Indeed. I heard from people in the administration after I wrote a
column a couple weeks ago about the assassination policy. And they basically
said, "Look, you're not giving us our due. Holder said in the speech that we
are following a constitutional analysis. And we have standards that we
apply." It is an incredibly seductive argument, but there is an incredible
intellectual disconnect. Whatever they are doing, it can't be called a
constitutional process.
Obama has asserted the right to kill any citizen that he believes is a
terrorist. He is not bound by this panel that only exists as an extension of
his claimed inherent absolute authority. He can ignore them. He can
circumvent them. In the end, with or without a panel, a president is
unilaterally killing a US citizen. This is exactly what the framers of the
Constitution told us not to do.
CUSACK: The framers didn't say, "In special cases, do what you like. When
there are things the public cannot know for their own good, when it's
extra-specially a dangerous world... do whatever you want." The framers of
the Constitution always knew there would be extraordinary circumstances, and
they were accounted for in the Constitution. The Constitution does not allow
for the executive to redefine the Constitution when it will be politically
easier for him to get things done.
TURLEY: No. And it's preposterous to argue that.
CUSACK: When does it become - criminal?
TURLEY: Well, the framers knew what it was like to have sovereigns kill
citizens without due process. They did it all the time back in the 18th
century. They wrote a constitution specifically to bar unilateral authority.
James Madison is often quoted for his observation that if all men were
angels, no government would be necessary. And what he was saying is that you
have to create a system of law that has checks and balances so that even
imperfect human beings are restrained from doing much harm. Madison and
other framers did not want to rely on the promises of good motivations or
good intents from the government. They created a system where no branch had
enough authority to govern alone - a system of shared and balanced powers.
So what Obama's doing is to rewrite the most fundamental principle of the US
Constitution. The whole point of the Holder speech was that we're really
good guys who take this seriously, and you can trust us. That's exactly the
argument the framers rejected, the "trust me" principle of government.
You'll notice when Romney was asked about this, he said, "I would've signed
the same law, because I trust Obama to do the right thing." They're both
using the very argument that the framers warned citizens never to accept
from their government.
CUSACK: So basically, it comes down to, again, just political expediency and
aesthetics. So as long as we have friendly aesthetics and likable people, we
can do whatever we want. Who cares what the policy is or the implications
for the future.
TURLEY: The greatest problem is what it has done to us and what our relative
silence signifies. Liberals and civil libertarians have lost their own
credibility, their own moral standing, with the support of President Obama.
For many civil libertarians it is impossible to vote for someone who has
blocked the prosecution of war crimes. That's where you cross the Rubicon
for most civil libertarians. That was a turning point for many who simply
cannot to vote for someone who is accused of that type of violation.
Under international law, shielding people from war-crime prosecutions is
itself a form of war crime. They're both violations of international law.
Notably, when the Spanish moved to investigate our torture program, we now
know that the Obama administration threatened the Spanish courts and the
Spanish government that they better not enforce the treaty against the US
This was a real threat to the Administration because these treaties allow
other nations to step forward when another nation refuses to uphold the
treaty. If a government does not investigate and prosecute its own accused
war criminals, then other countries have the right to do so. That rule was,
again, of our own creation. With other leading national we have long
asserted the right to prosecute people in other countries who are shielded
or protected by their own countries.
CUSACK: Didn't Spain pull somebody out of Chile under that?
TURLEY: Yeah, Pinochet.
CUSACK: Yeah, also our guy...
TURLEY: The great irony of all this is that we're the architect of that
international process. We're the one that always pushed for the position
that no government could block war crimes prosecution.
But that's not all. The Obama administration has also outdone the Bush
administration in other areas. For example, one of the most important
international principles to come out of World War II was the rejection of
the "just following orders" defense. We were the country that led the world
in saying that defendants brought before Nuremberg could not base their
defense on the fact that they were just following orders. After Nuremberg,
there were decades of development of this principle. It's a very important
point, because that defense, if it is allowed, would shield most people
accused of torture and war crime. So when the Obama administration -
CUSACK: That also parallels into the idea that the National Defense
Authorization Act is using its powers not only to put a chilling effect on
whistleblowers, but to also make it illegal for whistleblowers to bring the
truth out. Am I right on that, or is that an overstatement?
TURLEY: Well, the biggest problem is that when the administration was
fishing around for some way to justify not doing the right thing and not
prosecuting torture, they finally released a document that said that CIA
personnel and even some DOJ lawyers were "just following orders," but
particularly CIA personnel.
The reason Obama promised them that none of them would be prosecuted is he
said that they were just following the orders of higher authority in the
government. That position gutted Nuremberg. Many lawyers around the world
are upset because the US under the Obama administration has torn the heart
out of Nuremberg. Just think of the implications: other countries that are
accused of torture can shield their people and say, "Yeah, this guy was a
torturer. This guy ordered a war crime. But they were all just following
orders. And the guy that gave them the order, he's dead." It is the classic
defense of war criminals. Now it is a viable defense again because of the
Obama administration.
CUSACK: Yeah.
TURLEY: Certainly part of the problem is how the news media -
CUSACK: Oscar Wilde said most journalists would fall under the category of
those who couldn't tell the difference between a bicycle accident and the
end of civilization. But why is it that all the journalists that you see
mostly on MSNBC or most of the progressives, or so-called progressives, who
believe that under Bush and Cheney and Ashcroft and Alberto Gonzalez these
were great and grave constitutional crises, the wars were an ongoing moral
fiasco - but now, since we have a friendly face in the White House, someone
with kind of pleasing aesthetics and some new policies we like, now all of a
sudden these aren't crimes, there's no crisis. Because he's our guy? Go,
team, go?
TURLEY: Some in the media have certainly fallen into this cult of
personality.
CUSACK: What would you say to those people? I always thought the duty of a
citizen, and even more so as a journalist, had greatly to do with the idea
that intellectual honesty was much more important than political loyalty.
How would you compare Alberto Gonzalez to Eric Holder?
TURLEY: Oh, Eric Holder is smarter than Gonzalez, but I see no other
difference in terms of how they've conducted themselves. Both of these men
are highly political. Holder was accused of being improperly political
during his time in the Clinton administration. When he was up for Attorney
General, he had to promise the Senate that he would not repeat some of the
mistakes he made in the Clinton administration over things like the pardon
scandal, where he was accused of being more politically than legally
motivated.
In this town, Holder is viewed as much more of a political than a legal
figure, and the same thing with Gonzalez. Bush and Obama both selected
Attorney Generals who would do what they wanted them to do, who would enable
them by saying that no principles stood in the way of what they wanted to
do. More importantly, that there were no principles requiring them to do
something they didn't want to do, like investigate torture.
CUSACK: So would you say this assassination issue, or the speech and the
clause in the NDAA and this signing statement that was attached, was
equivalent to John Yoo's torture document?
TURLEY: Oh, I think it's amazing. It is astonishing the dishonesty that
preceded and followed its passage. Before passage, the administration told
the public that the president was upset about the lack of an exception for
citizens and that he was ready to veto the bill if there was a lack of such
an exception. Then, in an unguarded moment, Senator Levin was speaking to
another Democratic senator who was objecting to the fact that citizens could
be assassinated under this provision, and Levin said, "I don't know if my
colleague is aware that the exception language was removed at the request of
the White House." Many of us just fell out of our chairs. It was a
relatively rare moment on the Senate floor, unguarded and unscripted.
CUSACK: And finally simple.
TURLEY: Yes. So we were basically lied to. I think that the administration
was really caught unprepared by that rare moment of honesty, and that led
ultimately to his pledge not to use the power to assassinate against
citizens. But that pledge is meaningless. Having a president say, "I won't
use a power given to me" is the most dangerous of assurances, because a
promise is not worth anything.
CUSACK: Yeah, I would say it's the coldest comfort there is.
TURLEY: Yes. This brings us back to the media and the failure to strip away
the rhetoric around these policies. It was certainly easier in the Bush
administration, because you had more clown-like figures like Alberto
Gonzalez. The problem is that the media has tended to get thinner and
thinner in terms of analysis. The best example is that about the use of the
term "coerced or enhanced interrogation." I often stop reporters when they
use these terms in questions. I say, "I'm not too sure what you mean,
because waterboarding is not enhanced interrogation." That was a myth put
out by the Bush administration. Virtually no one in the field used that
term, because courts in the United States and around the world consistently
said that waterboarding's torture. Holder admitted that waterboarding's
torture. Obama admitted that waterboarding is torture. Even members of the
Bush administration ultimately admitted that waterboarding's torture. The
Bush Administration pushed this term to get reporters to drop the word
torture and it worked. They are still using the term.
Look at the articles and the coverage. They uniformly say "enhanced
interrogation." Why? Because it's easier. They want to avoid the
controversy. Because if they say "torture," it makes the story much more
difficult. If you say, "Today the Senate was looking into a program to
torture detainees," there's a requirement that you get a little more into
the fact that we're not supposed to be torturing people.
CUSACK: So, from a civil liberties perspective, ravens are circling the
White House, even though there's a friendly man in it.
TURLEY: Yeah.
CUSACK: I hate to speak too much to motivation, but why do you think MSNBC
and other so-called centrist or left outlets won't bring up any of these
things? These issues were broadcast and reported on nightly when John
Ashcroft and Alberto Gonzalez and Bush were in office.
TURLEY: Well, there is no question that some at MSNBC have backed away from
these issues, although occasionally you'll see people talk about -
CUSACK: I think that's being kind, don't you? More like "abandoned."
TURLEY: Yeah. The civil liberties perspective is rarely given more than a
passing reference while national security concerns are explored in depth.
Fox is viewed as protective of Bush while MSNBC is viewed as protective of
Obama. But both presidents are guilty of the same violations. There are
relatively few journalists willing to pursue these questions aggressively
and objectively, particularly on television. And so the result is that the
public is hearing a script written by the government that downplays these
principles. They don't hear the word "torture."
They hear "enhanced interrogation." They don't hear much about the treaties.
They don't hear about the international condemnation of the United States.
Most Americans are unaware of how far we have moved away from Nuremberg and
core principles of international law.
CUSACK: So the surreal Holder speech - how could it be that no one would be
reporting on that? How could it be that has gone by with not a bang but a
whimper?
TURLEY: Well, you know, part of it, John, I think, is that this
administration is very clever. First of all, they clearly made the decision
right after the election to tack heavily to the right on national security
issues. We know that by the people they put on the National Security
Council. They went and got very hardcore folks - people who are quite
unpopular with civil libertarians. Not surprisingly we almost immediately
started to hear things like the pledge not to prosecute CIA officials and
other Bush policies being continued.
Many reporters buy into these escape clauses that the administration gives
them, this is where I think the administration is quite clever. From a legal
perspective, the Holder speech should have been exposed as perfect nonsense.
If you're a constitutional scholar, what he was talking about is facially
ridiculous, because he was saying that we do have a constitutional
process-it's just self-imposed, and we're the only ones who can review it.
They created a process of their own and then pledged to remain faithful to
it.
While that should be a transparent and absurd position, it gave an out for
journalists to say, "Well, you know, the administration's promising that
there is a process, it's just not the court process." That's what is so
clever, and why the Obama administration has been far more successful than
the Bush administration in rolling back core rights. The Bush administration
would basically say, "We just vaporized a citizen in a car with a terrorist,
and we're not sorry for it."
CUSACK: Well, yeah, the Bush administration basically said, "We may have
committed a crime, but we're the government, so what the fuck are you going
to do about it?" Right? -and the Obama administration is saying, "We're
going to set this all in cement, expand the power of the executive, and pass
the buck to the next guy." Is that it?
TURLEY: It's the same type of argument when people used to say when they
caught a criminal and hung him from a tree after a perfunctory five-minute
trial. In those days, there was an attempt to pretend that they are really
not a lynch mob, they were following a legal process of their making and
their satisfaction. It's just... it's expedited. Well, in some ways, the
administration is arguing the same thing. They're saying, "Yes, we do
believe that we can kill any US citizen, but we're going to talk amongst
ourselves about this, and we're not going to do it until we're satisfied
that this guy is guilty."
CUSACK: Me and the nameless death panel.
TURLEY: Again, the death panel is ludicrous. The power that they've defined
derives from the president's role as Commander in Chief. So this panel -
CUSACK: They're falling back on executive privilege, the same as Nixon and
Bush.
TURLEY: Right, it's an extension of the president. He could just ignore it.
It's not like they have any power that exceeds his own.
CUSACK: So the death panel serves at the pleasure of the king, is what
you're saying.
TURLEY: Yes, and it gives him cover so that they can claim that they're
doing something legal when they're doing something extra-legal.
CUSACK: Well, illegal, right?
TURLEY: Right. Outside the law.
CUSACK: So when does it get to a point where if you abdicate duty, it is in
and of itself a crime? Obama is essentially creating a constitutional crisis
not by committing crimes but by abdicating his oath that he swore before God
- is that not a crime?
TURLEY: Well, he is violating international law over things like his promise
to protect CIA officials from any prosecution for torture. That's a direct
violation, which makes our country as a whole doubly guilty for alleged war
crimes. I know many of the people in the administration. Some of us were
quite close. And they're very smart people. I think that they also realize
how far outside the lines they are. That's the reason they are trying to
draft up these policies to give the appearance of the law. It's like a
Potemkin village constructed as a façade for people to pass through -
CUSACK: They want to have a legal patina.
TURLEY: Right, and so they create this Potemkin village using names. You
certainly can put the name "due process" on a drone missile, but it's not
delivering due process.
CUSACK: Yeah. And what about - well, we haven't even gotten into the
expansion of the privatization movement of the military "contractors" under
George Bush or the escalation of drone strikes. I mean, who are they
killing? Is it legal? Does anyone care - have we just given up as a country,
saying that the Congress can declare war?
TURLEY: We appear to be in a sort of a free-fall. We have what used to be
called an "imperial presidency."
CUSACK: Obama is far more of an imperial president than Bush in many ways,
wouldn't you say?
TURLEY: Oh, President Obama has created an imperial presidency that would
have made Richard Nixon blush. It is unbelievable.
CUSACK: And to say these things, most of the liberal community or the
progressive community would say, "Turley and Cusack have lost their minds.
What do they want? They want Mitt Romney to come in?"
TURLEY: The question is, "What has all of your relativistic voting and
support done for you?" That is, certainly there are many people who believe
-
CUSACK: Well, some of the people will say the bread-and-butter issues, "I
got healthcare coverage, I got expanded healthcare coverage."
TURLEY: See, that's what I find really interesting. When I talk to people
who support the administration, they usually agree with me that torture is a
war crime and that the administration has blocked the investigation of
alleged war crimes.
Then I ask them, "Then, morally, are you comfortable with saying, 'I know
the administration is concealing war crimes, but they're really good on
healthcare?'" That is what it comes down to.
The question for people to struggle with is how we ever hope to regain our
moral standing and our high ground unless citizens are prepared to say,
"Enough." And this is really the election where that might actually carry
some weight - if people said, "Enough. We're not going to blindly support
the president and be played anymore according to this blue state/red state
paradigm. We're going to reconstruct instead of replicate. It might not even
be a reinvented Democratic Party in the end that is a viable option. Civil
libertarians are going to stand apart so that people like Nancy Pelosi and
Barack Obama and others know that there are certain Rubicon issues that you
cannot cross, and one of them happens to be civil liberty.
CUSACK: Yeah, because most people reading this will sort of say, "Okay, this
is all fine and good, but I've got to get to work and I've got to do this
stuff, and I don't know what these fucking guys are talking about. I don't
really care."
So let's paint a scenario. My nephew, Miles, decides that he wants to grow
dreadlocks, and he also decides he's falling in love with the religion of
Islam. And he changes his name. Instead of his name being Miles, he changes
his name to a Muslim-sounding name.
He goes to Washington, and he goes to the wrong organization or meeting,
let's say, and he goes to an Occupy Washington protest. He's out there next
to someone with a speaker, and a car bomb explodes. He didn't set it off,
and he didn't do anything. The government can throw him in prison and never
try him, right?
TURLEY: Well, first of all, that's a very good question.
CUSACK: How do we illustrate the danger to normal people of these massive
overreaches and radical changes to the Constitution that started under bush
and have expanded under Obama?
TURLEY: I mean, first of all, I know Miles, and -
CUSACK: Yes.
TURLEY: -and he is a little dangerous.
CUSACK: Yes.
TURLEY: I played basketball with him and you and I would describe him as a
clear and present danger.
CUSACK: I mean, and I know Eric Holder and Obama won't throw him in prison
because they're nice guys, but let's say that they're out of office.
TURLEY: Right, and the problem is that there is no guarantee. It has become
almost Fellini-esque. Holder made the announcement a couple of years ago
that they would try some defendants in a federal court while reserving
military tribunals for others. The speech started out on the high ground,
saying, "We have to believe in our federal courts and our Constitution.
We've tried terrorists before, and therefore we're transferring these
individuals to federal court."
Then he said, "But we're going to transfer these other individuals to
Guantanamo Bay." What was missing was any type of principle. You have Obama
doing the same thing that George Bush did - sitting there like Caesar and
saying, "You get a real trial and you get a fake trial." He sent Zacarias
Moussaoui to a federal court and then he threw Jose Padilla, who happened to
be a US citizen, into the Navy brig and held him without trial.
Yet, Obama and Holder publicly assert that they're somehow making a civil
liberties point, and say, "We're very proud of the fact that we have the
courage to hold these people for a real trial, except for those people.
Those people are going to get a tribunal." And what happened after that was
remarkable. If you read the press accounts, the press actually credits the
administration with doing the right thing. Most of them pushed into the last
paragraph the fact that all they did was split the people on the table, and
half got a real trial and half got a fake trial.
CUSACK: In the same way, the demonization, whether rightful demonization, of
Osama Bin Laden was so intense that people were thrilled that he was
assassinated instead of brought to trial and tried. And I thought, if the
Nuremberg principles were right, the idea would be that you'd want to take
this guy and put him on trial in front of the entire world, and, actually,
if you were going to put him to death, you'd put him to death by lethal
injection.
TURLEY: You'll recall reports came out that the Seals were told to kill
Osama, and then reports came out to say that Osama might not have been armed
when the Seals came in. The strong indication was that this was a hit.
CUSACK: Yeah.
TURLEY: The accounts suggest that this was an assassination from the
beginning to the end, and that was largely brushed over in the media. There
was never really any discussion of whether it was appropriate or even a good
idea not to capture this guy and to bring him to justice.
The other thing that was not discussed in most newspapers and programs was
the fact that we violated international law. Pakistan insisted that they
never approved our going into Pakistan. Think about it - if the government
of Mexico sent in Mexican special forces into San Diego and captured a
Mexican national, or maybe even an American citizen, and then killed him,
could you imagine what the outcry would be?
CUSACK: Or somebody from a Middle Eastern country who had their kids blown
up by Mr. Cheney's and Bush's wars came in and decided they were going to
take out Cheney-not take him back to try him, but actually just come in and
assassinate him.
TURLEY: Yet we didn't even have that debate. And I think that goes to your
point, John, about where's the media?
CUSACK: But, see, that's a very tough principle to take, because everybody
feels so rightfully loathsome about Bin Laden, right? But principles are not
meant to be convenient, right? The Constitution is not meant to be
convenient. If they can catch Adolf Eichmann and put him on trial, why not
bin Laden? The principles are what separate us from the beasts.
I think the best answer I ever heard about this stuff, besides sitting
around a kitchen table with you and your father and my father, was I heard
somebody, they asked Mario Cuomo, "You don't support the death penalty...?
Would you for someone who raped your wife?" And Cuomo blinked, and he looked
at him, and he said, "What would I do? Well, I'd take a baseball bat and I'd
bash his skull in... But I don't matter. The law is better than me. The law
is supposed to be better than me. That's the whole point."
TURLEY: Right. It is one thing if the president argued that there was no
opportunity to capture bin Laden because he was in a moving car, for
example. And then some people could say, "Well, they took him out because
there was no way they could use anything but a missile." What's missing in
the debate is that it was quickly brushed over whether we had the ability to
capture bin Laden.
CUSACK: Well, it gets to [the late] Raiders owner Al Davis' justice, which
is basically, "Just win, baby." And that's where we are. The Constitution
was framed by Al Davis. I never knew that.
And the sad part for me is that all the conversations and these
interpretations and these conveniences, if they had followed the
Constitution, and if they had been strict in terms of their interpretations,
it wouldn't matter one bit in effectively handling the war on terror or
protecting Americans, because there wasn't anything extra accomplished
materially in taking these extra leaps, other than to make it easier for
them to play cowboy and not cede national security to the Republicans
politically. Bin Laden was basically ineffective. And our overseas intel
people were already all over these guys.
It doesn't really matter. The only thing that's been hurt here has been us
and the Constitution and any moral high ground we used to have. Because
Obama and Holder are good guys, it's okay. But what happens when the
not-so-good guys come in, does MSNBC really want to cede and grandfather
these powers to Gingrich or Romney or Ryan or Santorum or whomever - and
then we're sitting around looking at each other, like how did this happen? -
the same way we look around now and say, "How the hell did the middle of
America lose the American dream? How is all of this stuff happening at the
same time?" And it gets back to lack of principle.
TURLEY: I think that's right. Remember the articles during the torture
debate? I kept on getting calls from reporters saying, "Well, you know, the
administration has come out with an interesting statement. They said that it
appears that they might've gotten something positive from torturing these
people." Yet you've had other officials say that they got garbage, which is
what you often get from torture...
CUSACK: So the argument being that if we can get good information, we should
torture?
TURLEY: Exactly. Yeah, that's what I ask them. I say, "So, first of all,
let's remember, torture is a war crime. So what you're saying is - "
CUSACK: Well, war crimes... war crimes are effective.
TURLEY: The thing that amazes me is that you have smart people like
reporters who buy so readily into this. I truly believe that they're earnest
when they say this.
Of course you ask them "Well, does that mean that the Nuremberg principles
don't apply as long as you can show some productive use?" We have treaty
provisions that expressly rule out justifying torture on the basis that it
was used to gain useful information.
CUSACK: Look, I mean, enforced slave labor has some productive use. You get
great productivity, you get great output from that shit. You're not
measuring the principle against the potential outcome; that's a bad business
model. "Just win, baby" - we're supposed to be above that.
TURLEY: But, you know, I'll give you an example. I had one of the leading
investigative journalists email me after one of my columns blasting the
administration on the assassin list, and this is someone I deeply respect.
He's one of the true great investigative reporters. He objected to the fact
that my column said that under the Obama policy he could kill US citizens
not just abroad, but could kill them in the United States. And he said, "You
know, I agree with everything in your column except that." He said, "You
know, they've never said that they could kill someone in the United States.
I think that you are exaggerating."
Yet, if you look at how they define the power, it is based on the mere
perceived practicality and necessity of legal process by the president. They
say the President has unilateral power to assassinate a citizen that he
believes is a terrorist. Now, is the limiting principle? They argue that
they do this "constitutional analysis," and they only kill a citizen when
it's not practical to arrest the person.
CUSACK: Is that with the death panel?
TURLEY: Well, yeah, he's talking about the death panel. Yet, he can ignore
the death panel. But, more importantly, what does practicality mean? It all
comes down to an unchecked presidential power.
CUSACK: By the way, the death panel - that room can't be a fun room to go
into, just make the decision on your own. You know, it's probably a gloomy
place, the death panel room, so the argument from the reporter was, "Look,
they can... if they kill people in England or Paris that's okay, but they -
"
TURLEY: I also don't understand, why would it make sense that you could kill
a US citizen on the streets of London but you might not be able to kill them
on the streets of Las Vegas? The question is where the limiting principle
comes from or is that just simply one more of these self-imposed rules? And
that's what they really are saying: we have these self-imposed rules that
we're only going to do this when we think we have to.
CUSACK: So, if somebody can use the contra-Nuremberg argument - that
principle's now been flipped, that they were only following orders - does
that mean that the person that issued the order through Obama, or the
President himself, is responsible and can be brought up on a war crime
charge?
TURLEY: Well, under international law, Obama is subject to international law
in terms of ordering any defined war crime.
CUSACK: Would he have to give his Nobel Peace Prize back?
TURLEY: I don't think that thing's going back. I've got to tell you... and
given the amount of authority he's claimed, I don't know if anyone would
have the guts to ask for it back.
CUSACK: And the argument people are going to use is,"Look, Obama and Holder
are good guys. They're not going to use this power." But the point is, what
about after them? What about the apparatchiks? You've unleashed the beast.
And precedent is everything constitutionally, isn't it?
TURLEY: I think that's right. Basically what they're arguing is, "We're
angels," and that's exactly what Madison warned against. As we discussed, he
said if all men were angels you wouldn't need government. And what the
administration is saying is, "We're angels, so trust us."
I think that what is really telling is the disconnect between what people
say about our country and what our country has become. What we've lost under
Bush and Obama is clarity. In the "war on terror" what we've lost is what we
need the most in fighting terrorism: clarity. We need the clarity of being
better than the people that we are fighting against. Instead, we've given
propagandists in Al Qaeda or the Taliban an endless supply of material -
allowing them to denounce us as hypocrites.
Soon after 9/11 we started government officials talk about how the US
Constitution is making us weaker, how we can't function by giving people due
process. And it was perfectly ridiculous.
CUSACK: Feels more grotesque than ridiculous.
TURLEY: Yeah, all the reports that came out after 9/11 showed that 9/11
could've been avoided. For years people argued that we should have locked
reinforced cockpit doors. For years people talked about the gaps in security
at airports. We had the intelligence services that had the intelligence that
they needed to move against this ring, and they didn't share the
information. So we have this long list of failures by US agencies, and the
result was that we increased their budget and gave them more unchecked
authority.
In the end, we have to be as good as we claim. We can't just talk a good
game. If you look at this country in terms of what we've done, we have
violated the Nuremberg principles, we have violated international treaties,
we have refused to accept-
CUSACK: And you're not just talking about in the Bush administration. You're
talking about -
TURLEY: The Obama administration.
CUSACK: You're talking about right now.
TURLEY: We have refused to accept the jurisdictional authority of sovereign
countries. We now routinely kill in other countries. It is American
exceptionalism - the rules apply to other countries.
CUSACK: Well, these drone attacks in Pakistan, are they legal? Does anyone
care? Who are we killing? Do they deserve due process?
TURLEY: When we cross the border, Americans disregard the fact that Pakistan
is a sovereign nation, let alone an ally, and they insist that they have not
agreed to these operations. They have accused us of repeatedly killing
people in their country by violating their sovereign airspace. And we just
disregard it. Again, its American exceptionalism, that we -
CUSACK: Get out of our way or we'll pulverize you.
TURLEY: The rules apply to everyone else. So the treaties against torture
and war crimes, sovereign integrity -
CUSACK: And this also speaks to the question that nobody even bothers to
ask: what exactly are we doing in Afghanistan now? Why are we there?
TURLEY: Oh, yeah, that's the real tragedy.
CUSACK: It has the highest recorded suicide rate among veterans in history
and no one even bothers to state a pretense of a definable mission or goal.
It appears we're there because it's not convenient for him to really get out
before the election. So in that sense he's another guy who's letting people
die in some shithole for purely political reasons. I mean, it is what it is.
TURLEY: I'm afraid, it is a political calculation. What I find amazing is
that we're supporting an unbelievably corrupt government in the Karzai
administration.
Karzai himself, just two days ago, called Americans "demons." He previously
said that he wished he had gone with the Taliban rather than the Americans.
And, more importantly, his government recently announced that women are
worth less than men, and he has started to implement these religious edicts
that are subjugating women. So he has American women who are protecting his
life while he's on television telling people that women are worth less than
men, and we're funding -
CUSACK: What are they, about three-fifths?
TURLEY: Yeah, he wasn't very specific on that point. So we're spending
hundreds of billions of dollars. More importantly, we're losing all these
lives because it was simply politically inconvenient to be able to pull out
of Afghanistan and Iraq.
CUSACK: Yeah. And, I mean, we haven't even touched on the whole
privatization of the military and what that means. What does it mean for the
state to be funding at-cost-plus private mercenary armies and private
mercenary security forces like Blackwater, or now their names are Xe, or
whatever they've been rebranded as?
TURLEY: Well, the United States has barred various international rules
because they would allow for the prosecution of war crimes by both military
and private forces. The US barred those new rules because we didn't want the
ability of other countries to prosecute our people for war crimes. One of
the things I teach in my constitutional class is that there is a need for
what's called a bright-line rule. That is, the value for bright-line rules
is that they structure relations between the branches, between the
government and citizens. Bright-line rules protect freedom and liberty.
Those people that try to eliminate bright-line rules quickly find themselves
on a slippery slope. The Obama administration, with the Bush administration,
began by denying rights to people at Guantanamo Bay.
And then they started to deny rights of foreigners who they accused of being
terrorists. And eventually, just recently, they started denying rights to
citizens and saying that they could kill citizens without any court order or
review. It is the fulfillment of what is the nightmare of civil liberties.
They crossed that bright line. Now they're bringing these same abuses to US
citizens and changing how we relate to our government. In the end, we have
this huge apparatus of the legal system, this huge court system, and all of
it has become discretionary because the president can go ahead and kill US
citizens if he feels that it's simply inconvenient or impractical to bring
them to justice.
CUSACK: Or if the great O, decides that he wants to be lenient and just
throw them in jail for the rest of their life without trial, he can do that,
right?
TURLEY: Well, you've got Guantanamo Bay if you're accused of being an enemy
combatant. There is the concept in law that the lesser is included in the
greater.
So if the president can kill me when I'm in London, then the lesser of that
greater is that he could also hold me, presumably, without having any court
involvement. It'd be a little bizarre that he could kill me but if he held
me he'd have to turn me over to the court system.
CUSACK: Yeah. We're getting into kind of Kafka territory. You know, with
Bush I always felt like you were at one of those rides in an amusement park
where the floor kept dropping and you kept kind of falling. But I think what
Obama's done is we've really hit the bottom as far as civil liberties go.
TURLEY: Yet people have greeted this erosion of civil liberties with this
collective yawn.
CUSACK: Yeah, yeah. And so then it gets down to the question, "Well, are you
going to vote for Obama?" And I say, "Well, I don't really know. I couldn't
really vote for Hillary Clinton because of her Iraq War vote." Because I
felt like that was a line, a Rubicon line -
TURLEY: Right.
CUSACK: - a Rubicon line that I couldn't cross, right? I don't know how to
bring myself to vote for a constitutional law professor, or even a
constitutional realist, who throws away due process and claims the authority
that the executive branch can assassinate American citizens. I just don't
know if I can bring myself to do it.
If you want to make a protest vote against Romney, go ahead, but I would
think we'd be better putting our energies into local and state politics -
occupy Wall Street and organizations and movements outside the system, not
national politics, not personalities. Not stadium rock politics. Not brands.
That's the only thing I can think of. What would you say?
TURLEY: Well, the question, I think, that people have got to ask themselves
when they get into that booth is not what Obama has become, but what have we
become? That is, what's left of our values if we vote for a person that we
believe has shielded war crimes or violated due process or implemented
authoritarian powers. It's not enough to say, "Yeah, he did all those
things, but I really like what he did with the National Park System."
CUSACK: Yeah, or that he did a good job with the auto bailout.
TURLEY: Right. I think that people have to accept that they own this
decision, that they can walk away. I realize that this is a tough decision
for people but maybe, if enough people walked away, we could finally
galvanize people into action to make serious changes. We have to recognize
that our political system is fundamentally broken, it's unresponsive. Only
11 percent of the public supports Congress, and yet nothing is changing -
and so the question becomes, how do you jumpstart that system? How do you
create an alternative? What we have learned from past elections is that you
don't create an alternative by yielding to this false dichotomy that only
reinforces their monopoly on power.
CUSACK: I think that even Howard Zinn/Chomsky progressives, would admit that
there will be a difference in domestic policy between Obama and a Romney
presidency.
But DUE PROCESS....I think about how we own it. We own it. Everybody's sort
of let it slip. There's no immediacy in the day-to-day on and it's just one
of those things that unless they... when they start pulling kids off the
street, like they did in Argentina a few years ago and other places, all of
a sudden, it's like, "How the hell did that happen?" I say, "Look, you're
not helping Obama by enabling him. If you want to help him, hold his feet to
the fire."
TURLEY: Exactly.
CUSACK: The problem is, as I see it, is that regardless of goodwill and
intent and people being tired of the status quo and everything else, the
information outlets and the powers that be reconstruct or construct the
government narrative only as an election game of 'us versus them,' Obama
versus Romney, and if you do anything that will compromise that equation,
you are picking one side versus the other. Because don't you realize that's
going to hurt Obama? Don't you know that's going to help Obama? Don't you
know... and they're not thinking through their own sort of self-interest or
the community's interest in just changing the way that this whole thing
works to the benefit of the majority. We used to have some lines we wouldn't
cross-some people who said this is not what this country does ...we don't do
this shit, you had to do the right thing. So it's going to be a tough
process getting our rights back, but you know Frankie's Law? Whoever stops
fighting first - loses.
TURLEY: Right.
This interview first appeared on Alaska journalist Shannyn Moore's blog.
This piece was reprinted by Truthout with permission or license.
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John Cusack
John Cusack makes films.
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