January 30, 2009

The System. Baby.

Not going to beat it. No, baby.

The Obama administration fell in line with the Bush administration Thursday when it urged a federal judge to set aside a ruling in a closely watched spy case weighing whether a U.S. president may bypass Congress and establish a program of eavesdropping on Americans without warrants.

In a filing in San Francisco federal court, President Barack Obama adopted the same position as his predecessor. With just hours left in office, President George W. Bush late Monday asked U.S. District Judge Vaughn Walker to stay enforcement of an important Jan. 5 ruling admitting key evidence into the case.

Thursday's filing by the Obama administration marked the first time it officially lodged a court document in the lawsuit asking the courts to rule on the constitutionality of the Bush administration's warrantless-eavesdropping program. The former president approved the wiretaps in the aftermath of the Sept. 11, 2001, terror attacks.

"The Government's position remains that this case should be stayed," the Obama administration wrote (.pdf) in a filing that for the first time made clear the new president was on board with the Bush administration's reasoning in this case.
In Democratic legal circles, no attorney has been more pilloried than former Bush Justice Department official John Yoo, chief author of the so-called torture memos that Barack Obama last week sought to nullify.

But now President Obama’s incoming crew of lawyers has a new and somewhat awkward job: defending Yoo in federal court.

Next week, Justice Department lawyers are set to ask a San Francisco federal judge to throw out a lawsuit brought against Yoo by Jose Padilla, a New York man held without charges on suspicion of being an Al Qaeda operative plotting to set off a "dirty bomb."

The suit contends that Yoo’s legal opinions authorized Bush to order Padilla’s detention in a Navy brig in South Carolina and encouraged military officials to subject Padilla to aggressive interrogation techniques, including death threats and long-term sensory deprivation.

That’s not all. On Thursday, Justice Department lawyers are slated to be in Charleston, S.C., to ask a federal magistrate there to dismiss another lawsuit charging about a dozen current and former government officials with violating Padilla’s rights in connection with his unusual detention on U.S. soil, without charges or a trial.


Obama’s lawyers aren’t the first at Justice to have to stand by a prior administration’s legal work — whether they agree with it or not — merely in the interest of protecting U.S. government prerogatives.
"Merely in the interest of protecting U.S. government prerogatives..." I do like that "merely." "Prerogatives" is nice, too. Prerogatives such as, just to pick a wildly extravagant hypothetical out of thin air, one that would unquestionably never happen in the actual world in the uniquely Glorious and Good United States, torture. Or illegal, unconstitutional detention. Merely hypothetically speaking, you understand.

The system, baby. But to think of Obama administration lawyers defending John Yoo... You just gotta love the system.

This is not to say that the system cannot ever be altered, but it is crucial to appreciate just how changes occur and their severe limitations. In general, and in every case I can think of, the elective branches of government were the last to respond to the demand for change, and they responded then only after demands for change were made known on a scale that proved overwhelming, and only after many people had paid what was often a terrifying price. The civil rights movement is a notable example of this dynamic. It should be remembered how and why certain changes finally occurred, and what the nature of those changes was:
Just recently, I discussed still another of the numerous distorted and distorting perspectives that result from this insistence on Americans' "unique" goodness. Part of the official story of the civil rights movement of the 1950s and 1960s -- that is, the official story from the white point of view -- is that America recognized in meaningful terms how reprehensible and detestable parts of its own history had been on this question and, in a further demonstration of our "goodness," we set about to rectify these grave wrongs with diligence and dedication.

Except that's not what happened. As I wrote in the second part of "Enchanted Evenings -- and Days, and Lives, in Hell":
With rare exceptions, White and Black America occupied entirely different spaces, geographically, culturally, economically and psychologically. One of the results of these different spaces is the profoundly opposed views of America and of American history discussed by Tim Wise, excerpted in "Obama's Whitewash." The violence unleashed in the civil rights upheaval of the 1950s and 1960s was inevitable; in retrospect (and for perceptive observers at the time), it was remarkable only for its restraint. One of the primary reasons for the violence, and a large part of the explanation as to why a sustained, massive movement encompassing millions of people was required to achieve those changes that resulted, lies in the nature of that white "kindness to Negroes." Whites in America, including those whites who exclusively made up the ruling class, were prepared to be "kind" -- but only to the extent they absolutely had to. Equality was not granted, to the extent it was, primarily in recognition of an unspeakable, deadly injustice that whites had committed, although a few whites were aware of that. For the most part, equality was granted, to the extent it was, because the cost for failing to do so had become prohibitive.
That's what happened.
And we must always remember the nature of the action required to effect change of even this scope:
The civil rights protesters of the 1950s and 1960s did not remain in their homes and write polite letters to their representatives in Washington. They took to the streets and protested in many other ways. They did so repeatedly. Many of them paid a very terrible price, and some of them paid the ultimate price. They continued to protest until the government had no choice but to accede to certain of their fundamental demands. If they had only written letters, their children and grandchildren might still be writing them today. If most Americans continue in their current immovable passivity, you will be writing letters -- and blog posts, of course -- as nuclear clouds drift across much of the world, perhaps even over America.

Under these circumstances, you may not delegate your moral agency and your power any longer. You must take them back and make them yours again. Our national politicians are not on the side of liberty and peace: they want power. That is all they want, and if war, even the ultimate war, is required to obtain, expand and consolidate it, war it will be.
The system, and what is required to fight it.

Your move, brave bloggers.

P.S. The story concerning Yoo has this at the very end:
A former lawyer in Bush’s White House, Brad Berenson, said he expects the new Obama officials not only to defend against the suits but to win them. "There are just all kinds of doctrines that protect government officials, even when they’re wrong," he said. "The dirty little secret here is that the United States government has enduring institutional interests that carry over from administration to administration and almost always dictate the position the government takes."
"Enduring institutional interests..." Oh, yeah.

Brad Berenson. There's a name that calls up distinctly unfond memories. Check out one of the first posts I wrote about the Padilla case, at a time when almost no one was paying attention to it, from January 2004. It's titled, "From the Horse's Mouth: The Path to Dictatorship" (and is republished at the end of this post), and it analyzes an article defending the Bush administration's policies.

The article was written by...why, yes: Brad Berenson.