Marc Ambinder reports on the dictatorial powers held by many in government and upheld yesterday by a judiciary that gives unaccountable power - even the power to torture and kill - a drop-shadow, not a check. Marc has been following this state secrets issue for a long time, sensing, before some others did, that it was the key to Obama's protection of Bush's torturers and his objective disdain for the tortured.
Greenwald - another early skeptic - notes that this is not news, however shocking it appears. In 2008, many of us supported Obama in part because he seemed to be a rare candidate who understood the awful potential of government-sanctioned torture to harm us in the war against Jihadism, to eviscerate core American values, and to empower the executive to new and unassailable heights in ways the Founders would have been horrified by. I always knew that Clinton would have little trouble with executive power's reach, and her speech yesterday about the importance and value of American power to direct the planet reveals her comfort with the vast, unwieldy, unaccountable, incredibly expensive apparatus that now pledges to protect us from all evil and solve every global problem - but gives us no way to know how or where or when if it invokes secrecy with this kind of glib facility. Fareed is right about this. Imaginationland lives.
And Obama? I see no daylight between him and Clinton any more on this. As Glenn notes, Obama as executive quickly co-opted the kind of blanket secrecy and protection of the national security apparatus from the rule of law that plagued us in the Bush-Cheney administration. Yes, torture ended. That matters a huge amount. He will always deserve credit for that. Of course, I have to trust him on this, since there is precious little way for someone outside the government to test this or know this for sure.
But Obama's insistence on protecting every Bush era war criminal and every Bush era war crime from any redress or even scrutiny is a sign both of how cold-blooded he can be, but more, I think, of how powerful the security state now is, how it can protect itself, how it exists independently of any real accountability to anyone, how even the metrics of judging it are beyond the citizen's reach or understanding.
I tried valiantly not to believe this of Holder and Obama for months; I tried to see their legitimate concerns about exposing a war machine when it is still at war; I understand the need for some extraordinary renditions; and the necessity for executive power in emergencies to act swiftly, as the Founders intended. Yes war requires some secrecy. But Obama has gone much further than this now. The cloak of secrecy he is invoking is not protecting national security but protecting war crimes. And this is now inescapably his cloak. He is therefore a clear and knowing accessory to war crimes, and should at some point face prosecution as well, if the Geneva Conventions mean anything any more. This won't happen in my lifetime, barring a miracle. Because Obama was a test case. If an outsider like him, if a constitutional scholar like him, at a pivotal moment for accountability like the last two years, cannot hold American torturers to account, there is simply no accountability for American torture. When the CIA actually rehires as a contractor someone who held a power-drill against the skull of a prisoner, you know that change from within this system is impossible. The system is too powerful. It protects itself. It makes a mockery of the rule of law. It doesn't only allow torture; it rewards it.
The case yesterday is particularly egregious because it forbade a day in court for torture victims even if only non-classified evidence was used. Think of that for a minute. It shreds any argument that national security is in any way at stake here. It's definitionally not protection of any state secret if all that is relied upon is evidence that is not secret. And so this doctrine has been invoked by Obama not to protect national security but to protect war criminals from the law. There is no other possible interpretation.
The Bush executive is therefore now a part of the American system of government, a system that increasingly bears no resemblance to the constitutional limits allegedly placed upon it, and with a judiciary so co-opted by the executive it came up with this ruling yesterday. Obama, more than anyone, now bears responsibility for that. We had a chance to draw a line. We had a chance to do the right thing. But Obama has vigorously denied us the chance even for minimal accountability for war crimes that smell to heaven.
And this leviathan moves on, its budget never declining, its reach never lessening, its power now emboldened by the knowledge that this republic will never check it, never inspect it, never hold its miscreants responsible for anything, unless they are wretched scapegoats merely following orders from the unassailable above them.
And this means almost certainly that torture will return. The GOP base loves it, as long as it is done against people with dark skin and funny names in places they can look away from. And they know now something they didn't know in 2008. They will always get away with it. Even a liberal Democrat will protect you for ever with a golden shield that creates two classes of people in this country: one above the law - even a law as profound as that against torture - and those outside the government obliged to obey it.
This knowledge tells me one thing. If we are to recover as a nation under law rather under a prince, it will not be through the channels of the two major parties or through any president acceptable to the mainstream of either party. It will require a citizenry so enraged and protective of its core liberties against this security Leviathan that it compels dismantling this machinery and exposing it to the light of day - not recklessly, not abruptly, but by close examination, judicial review, press inquiry, protest. There are legitimate trade-offs between national security and liberty. But the protection of war criminals where no secrets are at stake except the scandal of torture itself is not one of them. Alas, there are few such citizens around. And, most tragic of all, those who say they care about liberty above all - the tea-partiers who invoke the founders - seem only too willing to surrender every liberty for the prize of a security against a threat we cannot even measure, and to bow down before a new king (and probably warrior-queen) rather than elect a new president.
Have I been radicalized by this? You betcha. Because this is so plainly not a nation under the rule of law anymore. And there are very few political issues more important than that.