Saturday, April 29, 2006

THE WORST PRESIDENT IN U.S. HISTORY. That is the assessment of 336 out of 415 professional historians -- 81% -- who were surveyed by the History News Network in early 2004.

In the current Rolling Stone, Sean Wilentz writes:

No previous president appears to have squandered the public's trust more than Bush has. ...
... On September 10th, 2001, [Bush] held among the lowest ratings of any modern president for that point in a first term. (Only Gerald Ford, his popularity reeling after his pardon of Nixon, had comparable numbers.) The attacks the following day transformed Bush's presidency, giving him an extraordinary opportunity to achieve greatness. Some of the early signs were encouraging. Bush's simple, unflinching eloquence and his quick toppling of the Taliban government in Afghanistan rallied the nation. Yet even then, Bush wasted his chance by quickly choosing partisanship over leadership.

No other president -- Lincoln in the Civil War, FDR in World War II, John F. Kennedy at critical moments of the Cold War -- faced with such a monumental set of military and political circumstances failed to embrace the opposing political party to help wage a truly national struggle. But Bush shut out and even demonized the Democrats. Top military advisers and even members of the president's own Cabinet who expressed any reservations or criticisms of his policies -- including retired Marine Corps Gen. Anthony Zinni and former Treasury Secretary Paul O'Neill -- suffered either dismissal, smear attacks from the president's supporters or investigations into their alleged breaches of national security. The wise men who counseled Bush's father, including James Baker and Brent Scowcroft, found their entreaties brusquely ignored by his son. When asked if he ever sought advice from the elder Bush, the president responded, "There is a higher Father that I appeal to."

All the while, Bush and the most powerful figures in the administration, Vice President Dick Cheney and Defense Secretary Donald Rumsfeld, were planting the seeds for the crises to come by diverting the struggle against Al Qaeda toward an all-out effort to topple their pre-existing target, Saddam Hussein. In a deliberate political decision, the administration stampeded the Congress and a traumatized citizenry into the Iraq invasion on the basis of what has now been demonstrated to be tendentious and perhaps fabricated evidence of an imminent Iraqi threat to American security, one that the White House suggested included nuclear weapons. Instead of emphasizing any political, diplomatic or humanitarian aspects of a war on Iraq -- an appeal that would have sounded too "sensitive," as Cheney once sneered -- the administration built a "Bush Doctrine" of unprovoked, preventive warfare, based on speculative threats and embracing principles previously abjured by every previous generation of U.S. foreign policy-makers, even at the height of the Cold War. The president did so with premises founded, in the case of Iraq, on wishful thinking. He did so while proclaiming an expansive Wilsonian rhetoric of making the world safe for democracy -- yet discarding the multilateralism and systems of international law (including the Geneva Conventions) that emanated from Wilson's idealism. He did so while dismissing intelligence that an American invasion could spark a long and bloody civil war among Iraq's fierce religious and ethnic rivals, reports that have since proved true. And he did so after repeated warnings by military officials such as Gen. Eric Shinseki that pacifying postwar Iraq would require hundreds of thousands of American troops -- accurate estimates that Paul Wolfowitz and other Bush policy gurus ridiculed as "wildly off the mark."

When William F. Buckley, the man whom many credit as the founder of the modern conservative movement, writes categorically, as he did in February, that "one can't doubt that the American objective in Iraq has failed," then something terrible has happened. Even as a brash young iconoclast, Buckley always took the long view. The Bush White House seems incapable of doing so, except insofar as a tiny trusted circle around the president constantly reassures him that he is a messianic liberator and profound freedom fighter, on a par with FDR and Lincoln, and that history will vindicate his every act and utterance.

And so a president who believes that he is carrying out God's instructions also believes that he does not have to abide by human law if it conflicts with what he thinks God is telling him to do.

That is why Pres. Bush feels he is perfectly justified in wiretapping Americans without first obtaining a search warrant, which by law he is required to do.

That is why Arlen Specter -- the "usually meek" Arlen Specter, as Glenn Greenwald calls him -- warned the White House that he will seek legislation to cut off funding for the NSA spy program if the Bush administration does not start to cooperate with the Judiciary Committee's investigation. And in fact, things are so bad that Specter actually agrees with Democrats who tell him that it won't do any good to pass laws requiring congressional oversight or imposing stricter surveillance guidelines, because Pres. Bush will just ignore those new laws as he has the old ones.

"It is true that we have no assurance that the president would follow any statute that we enact," Specter said. He said he's considering adding an amendment to stop funding of the program to an Iraq war- hurricane relief bill being debated by the Senate this week and next.

And, as several bloggers report, Bush has more tricks up his sleeve. The Department of Justice announced yesterday (the old Friday drive-by) that it plans to invoke a rarely used statute called the "State Secrets Privilege" to shut down a lawsuit against AT&T in which AT&T is charged with turning over its customers' electronic communications to the NSA so that the NSA could spy on them without a warrant:

The federal government intends to invoke the rarely used "State Secrets Privilege" -- the legal equivalent of a nuclear bomb -- in the Electronic Frontier Foundation's class action lawsuit against AT&T that alleges the telecom collaborated with the government's secret spying on American citizens.

The State Secrets Privilege is a vestige from English common law that lets the executive branch step into a civil lawsuit and have it dismissed if the case might reveal information that puts national security at risk.

Today's assertion severely darkens the prospects of the EFF's lawsuit, which the organization had hoped would shine light on the extent of the Bush Administration's admitted warrantless spying on Americans.

Glenn gives us the history of the State Secrets Privilege:

The judicially created "State Secrets Privilege" was first recognized by the Supreme Court in United States v. Reynolds, 345 U.S. 1 (1953), a suit brought under the Tort Claims Act by the widows of 3 civilians who died when an Air Force plane crashed. The widows sought to obtain military reports regarding the crash in order to prove that the Air Force was negligent, but the Supreme Court upheld the Government's refusal to produce the documents on the ground that doing so would divulge military secrets and harm national security. ...

As it turns out, those Air Force reports were finally released 47 years later -- in 2000 -- and they contained no military secrets at all, but were suffuse with information showing that there had been gross negligence with regard to the maintenance of the plane's engines, facts which would have likely been fatal to the Air Force's defense had it not been able to successfully conceal those documents by falsely claiming that national security would be harmed by disclosure:

But in early 2000, one of the daughters of the deceased crew members acquired newly declassified copies of the documents that the Air Force had withheld and was astonished to find nothing corresponding to what the Air Force affidavits had portrayed.

"Contrary to the statements in the Affidavits, on which the Supreme Court expressly relied, not one of the documents... contain any secret or privileged information," according to a new complaint, filed last October. "The documents consist, instead, of admissions of negligence on the part of the Air Force."

If you're wondering how the Supreme Court could have concluded, in that earlier case, that the documents in question contained military secrets that, if revealed, would endanger national security, it's because the Court never looked at the documents.

One of the odd -- and dangerous -- features of this privilege doctrine is that, in many cases, courts allow the Government to assert the privilege without even submitting the documents in question to a judge for the judge to review in secrecy, a process known as in camera review. That process is typically used to enable a judge to review documents over which there is a disputed privilege claim (such as attorney-client privilege) without the other side being able to see the documents before there is a ruling on whether the documents are really privileged. But unlike other privileges, once the Executive asserts the "State Secrets Privilege," courts frequently accept the government's claim without even reviewing the documents. ...

That's a prescription for disaster; and it's simply not acceptable anymore, if it ever was. There's no reason and no excuse to take our government on faith when they tell us it's all for our own good. It's for their good. Secrecy without accountability equals corruption and tyranny. And that goes double, triple, quadruple for George W. Bush. Because, as we only now find out, at the very time when Americans were must vulnerable, most hurting, and most in need of honest, responsible leadership we could trust, we were betrayed. (Emphasis in quote is mine.)

For some, the dispute over the history of the Reynolds case raises very current questions about the extent of judicial deference to the executive branch in matters of national security.

The disclosures of the documents originally denied in 1953 "afford a rare opportunity to compare a government privilege claim with the underlying, allegedly 'secret' information," wrote two attorneys in a recent critique of the matter.

"This comparison highlights the risk of permitting the executive branch to determine, without close judicial scrutiny, whether relevant government information may be withheld from discovery," according to D. Churchill and E. Goldenberg in a paper entitled "Who Will Guard the Guardians? Revisiting the State Secrets Privilege of United States v. Reynolds," published in Federal Contracts Report, vol. 80, no. 11, September 30, 2003.

"Use of the state secrets privilege in courts has grown significantly over the last twenty-five years," note William G. Weaver and Robert M. Pallitto of the University of Texas at El Paso.

And "recent cases indicate that Bush administration lawyers are using the privilege with offhanded abandon," they write in a comprehensive study to be published this year in Political Science Quarterly.

In November 2001 President Bush issued executive order 13233 that would permit former presidents to independently assert the state secrets privilege to bar disclosure of records generated during their tenure.

More than that, the Bush order would make the state secrets privilege hereditary, like some divine right of kings, enabling the heirs of deceased presidents to assert the privilege after their death.

"This is a power heretofore unrecognized either in courts or politics," Weaver and Pallitto observe.

Why would the president of the United States, a scant two months after the most horrifying, deadly, traumatic attack in our history, want to make sure that he could stop any documents from his administration from being released even after he was no longer president? What was he planning? From where did he summon the cold, calculating forethought to make sure he could assert a privilege to keep secret any records he chose from his time in office -- and then even have enough "presence of mind," as Glenn calls it, to extend that state secrets privilege to his heirs ad infinitum? What sort of person does something like that two months after 3,000 people have been killed and the nation is in anguish?

Perhaps, as Kevin Hayden suggests, the sort who is, in truth, "America's Worst -- and deadliest -- Enemy."

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