by Glenn Greenwald
(updated below)
Former Reagan DOJ official, constitutional lawyer, and hard-core conservative Bruce Fein was one of the first prominent Americans to call for George Bush's impeachment in the wake of the illegal NSA spying scandal. Back in late 2005 and 2006, when even safe-seat Democrats like Chuck Schumer were petrified even of uttering the words "broke the law" when speaking of the Bush administration -- let alone taking meaningful action to investigate and putting a stop to the lawbreaking -- Fein wrote a column in The Washington Times forcefully and eloquently arguing:
Volumes of war powers nonsense have been assembled to defend Mr. Bush's defiance of the legislative branch and claim of wartime omnipotence so long as terrorism persists, i.e., in perpetuity. Congress should undertake a national inquest into his conduct and claims to determine whether impeachable usurpations are at hand.In 2006, Russ Feingold called Fein as one of his witnesses in support of Feingold's resolution to censure President Bush for his lawbreaking. Today, Fein is one of the witnesses who will testify before the House Judiciary Committee in favor of Dennis Kucinich's impeachment resolutions (joined by Elizabeth Holtzman, Bob Barr and several others). As KagroX details here, that the House is holding hearings on Kucinich's resolution is not, in any way, an indication that the Congress is prepared to take those resolutions seriously. Manifestly, they are not.
Yesterday, Jane Hamsher spoke with Bruce Fein on BloggingheadsTV about why the Democrats have, in general, failed to hold the Bush administration accountable for their multiple crimes (Slate yesterday detailed some of the many Bush crimes). Here is what Fein -- echoing an argument I made a couple of weeks ago -- said on that topic:
Jane also asked Fein about Obama adviser Cass Sunstein's recent statements that Bush officials should not be prosecuted for their illegal detention, interrogation and spying programs. To get a sense for why this matters, National Journal this morning listed Sunstein as one of a small handful of likely Supreme Court appointees in an Obama administration. But -- similar to Fein's point regarding Jay Rockefeller, Jane Harman and comrades -- Sunstein has long been one of the most vocal enablers of Bush radicalism and lawlessness, having continuously offered himself up over the last seven years to play the legal version of the TNR role of "even-liberal-Cass-Sunstein-agrees-with-Bush."
During my Democracy Now debate with him, Sunstein said: "I'd be honored but surprised if the military commissions cite some of my academic articles." But as Talk Left's Armando documented, Sunstein would be an ideal and highly likely "legal scholar" for the Bush administration to cite as part of its military tribunals, as Sunstein was an early and outspoken supporter of the theory that Bush had the authority to order military commissions (a theory which the Supreme Court rejected in Hamdan). Identically, while Sunstein now pretends to disagree with Bush's theory as to why he had the power to spy on Americans in violation of the law (Sunstein said on Democracy Now: "while I agree with Senator Feingold that the President's position is wrong"), Sunstein defended those theories as "very reasonable" when he was on right-wing talk radio with Hugh Hewitt in late 2005 during the height of the NSA controversy.
It's really hard to imagine a worse person on whom Obama could be relying as a legal adviser, let alone a potential Supreme Court nominee, and here is what Fein had to say about Sunstein's view of things:
The destruction of the CIA interrogation videos in 2005 that Fein referenced there seems particularly malicious -- plainly criminal -- in light of the new documents obtained yesterday from the CIA by the ACLU. One of those documents -- an August 4, 2004 CIA memo (.pdf) -- explicitly warns "of possible future judicial review of the Program and of these issues," meaning the CIA's interrogation methods and the legality of the Bush administration's behavior. Destroying evidence relevant to a future criminal proceeding is the very definition of obstruction of justice -- a crime for which ordinary people are regularly prosecuted and imprisoned -- yet we have the Cass Sunsteins of the world, speaking on behalf of our political and media class, insisting that it would be terribly unfair and disruptive to treat any of this as a criminal matter (and -- as is true for many of the episodes of Bush lawbreaking -- key Congressional Democrats were briefed on the possible destruction of the interrogation videos as well).
Most revealingly of all, the Kucinich impeachment hearing today is like a parade of those whom the Beltway class mocks as Shrill, Unserious losers and Leftist radicals -- people who actually use overly excitable words like "crimes" and "prosecutions" when talking about our leaders or who, like the ACLU, actually object that most of what our Government does occurs in total secrecy. Serious, responsible Beltway establishment leaders know that courtrooms and prosecutions are only for the common people and -- for our own good -- our leaders cannot, must not and should not be exposed to any of that, and must continue to be able to shield what they do from public scrutiny.
* * * * *
NPR this morning has a story, both radio and print, regarding the left/right Strange Bedfellows citizen coalition and Money Bomb campaign targeting those responsible for the erosion of civil liberties, constitutional protections and the rule of law. The NPR story includes this:
Earlier this month, Congress passed a rewrite of the Foreign Intelligence Surveillance Act, known as FISA. Opponents say it gives the president too much power to tap private communications without court oversight. That argument was made none too subtly by a TV ad that ran in the home district of Chris Carney, a Pennsylvania Democrat who supported the new FISA law.Apparently, NPR isn't Comcast -- at least not in this instance -- and it thus ran the story despite Carney's pleas."Chris Carney is surrendering to Bush and Cheney the same un-American spying powers they have in Russia and communist China," the ad says.
Apparently, the ad hit a nerve. A Carney spokeswoman called the ad a "smear campaign" and said NPR should not do a story about it. But the ad was paid for by Carney's fellow Democrats.
Blue America is a political action committee promoted by Democratic bloggers like Jane Hamsher. She is disappointed with Congress since it went Democratic.
"I'm very upset with my party right now," Hamsher says. "They were given the majority, and they have a 9 percent approval rating right now for a reason."
UPDATE: To be clear, it's far from certain, obviously, that Obama would appoint Cass Sunstein to anything, let alone to the Supreme Court. And as I've said before, the precarious 5-4 Supreme Court balance is reason enough, just standing alone, to strongly prefer an Obama administration to a McCain administration. But Sunstein -- both due to his relationship to Obama and, independently, to his new marriage -- is one of the most inside of Obama insiders. That he has simultaneously been such an unusually vocal defender of some of the worst Bush radicalism is obviously worth noting, and is self-evidently disturbing. Today, Matt Stoller reviews Sunstein's latest book and several of the odd ideas in it.
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