The Obfuscation Report

Much outrage has been provoked by the generally excellent New York Times article this morning revealing the Bush administration's recent violations of legal restrictions on the use of torture and other "severe interrogation techniques." And, in one sense, the outrage is both understandable and appropriate. Today's revelations involve the now-familiar, defining attributes of this administration -- claims of limitless presidential power, operating in total secrecy and with no oversight, breaking of laws at will, serial misleading of the Congress and the country and, most of all, the shattering of every previous moral and legal constraint on our national behavior.

But in another, more important, sense, this story reveals nothing new. As a country, we've known undeniably for almost two years now that we have a lawless government and a President who routinely orders our laws to be violated. His top officials have been repeatedly caught lying outright to Congress on the most critical questions we face. They have argued out in the open that the "constitutional duty" to defend the country means that nothing -- including our "laws" -- can limit what the President does.

It has long been known that we are torturing, holding detainees in secret prisons beyond the reach of law and civilization, sending detainees to the worst human rights abusers to be tortured, and subjecting them ourselves to all sorts of treatment which both our own laws and the treaties to which we are a party plainly prohibit. None of this is new.

And we have decided, collectively as a country, to do nothing about that. Quite the contrary, with regard to most of the revelations of lawbreaking and abuse, our political elite almost in unison has declared that such behavior is understandable, if not justifiable. And our elected representatives have chosen to remain largely in the dark about what was done and, when forced by court rulings or media revelations to act at all, they have endorsed and legalized this behavior -- not investigated, outlawed or punished it.

A ruling by the Supreme Court in Hamdan that the President's interrogation and detention policies violated the law led Congress to enact the Military Commissions Act to legalize those policies. Revelations that the President and telecom companies were breaking our surveillance laws led to the legalization of much of that program and will soon lead to amnesty for the lawbreakers. With regard to all of the most severe acts of illegality, no criminal prosecutions have been commenced and no truly meaningful Congressional investigations have been pursued.

And the more that is revealed about the deep corruption of this administration, the more protective our political elite becomes of the administration, the more insistent their demands become that nothing be done (see Fred Hiatt's attack today on Pat Leahy for his "irresponsible" refusal to confirm Bush's Attorney General until the administration discloses information regarding their past lawbreaking and firings of prosecutors). And the more our political elite defends the administration and demands that nothing be done, the more our "opposition party" heeds those demands:

Backing away from a fight with the White House, Senate Democrats are suggesting that they will not hold up confirmation of President Bush's nominee for attorney general, Michael B. Mukasey, despite differences over Senate access to documents involving Justice Department actions.

In a letter to Mr. Mukasey made public Wednesday, the chairman of the Senate Judiciary Committee, Patrick J. Leahy of Vermont, said he would go forward with the confirmation hearings without the promise of the documents.

The committee had for months been pressing the White House for access to files and e-mail messages about last year's firing of several federal prosecutors for what Democrats maintain were political reasons, and about legal justifications for the domestic eavesdropping program run by the National Security Agency.

All of these subversive and grotesque policies -- the Yoo/Addington theories of the imperial presidency, torture, rendition, illegal surveillance, black sites -- began as secret, illegal Bush administration policies. But the more they are revealed, and the more we do nothing about them, the more they become our own.

It is vital to emphasize here that these revelations are not obsolete matters of the distant past -- something we can all agree to leave behind in the spirit of harmoniously moving forward. The torture, detention and surveillance policies in question are still the formal and official position of our government -- and thus can be applied with far greater vigor not merely in the event of a new terrorist attack, but at any time.

The current policies of the U.S. Government still include, in undiluted form, the Bush administration's theories of unlimited presidential power; the lawless powers of indefinite, due-process-free imprisonment even of U.S. citizens (as applied to Jose Padilla); the use of black sites; the asserted right to spy on Americans with no warrants or legal constraints. None of that has gone away. We just decided to accept it. As the NYT article said about the administration's torture memos:

But the 2005 Justice Department opinions remain in effect, and their legal conclusions have been confirmed by several more recent memorandums, officials said. They show how the White House has succeeded in preserving the broadest possible legal latitude for harsh tactics.

All of the solemn "debates" and hand-wringing and anti-torture laws that were passed have changed very little, because the administration knows that there is no political will ever to enforce any of that. They know that the political and media institutions intended to impose checks on their behavior will never take any meaningful stand against what they do, no matter how blatantly extreme or illegal.

In response to a post I wrote last month ago regarding the press's reverence for Karl Rove, NYU Journalism Professor (and excellent media critic) Jay Rosen argued that much of the Beltway's acquiescence to the administration's lawbreaking and radicalism is due to their sheer inability to comprehend and internalize just how extreme it all has been:

But I would recommend to Glenn some other factors that deserve consideration if we're trying to explain the collapse of the press under Bush, Cheney and Rove.

The most important of these is that journalists and their methods were overwhelmed by what the Bush White House did -- by its radicalism. There is simply nothing in the Beltway journalist's rule book about what to do, how to act, when a group of people comes to power willing to go as far as this group has in expanding executive power, eluding oversight, steamrolling critics (even when they are allies) politicizing the government, re-working the Constitution, rolling back the press, making secrecy and opacity standard operating procedure, and repealing the very principle of empiricism in matters of state.

The press tends to behave because it does not know how to act, in the sense of striking out in a new direction when confronted with a new fact pattern.

Previously, that's what I believed, and I think that is what accounted for the meekness among our political and media class when these abuses first began to emerge: an inability to comprehend, really to believe, that our government had become this extreme, so blatantly indifferent to even the most minimal legal and moral constraints. One does not expect an administration to imprison U.S. citizens with no process, or to proclaim explicitly the right to break the law, or to systematically adopt policies of torture. For that reason, it is not surprising that it would take some time for the reaction to catch up to the full extent of the wrongdoing.

But we are now way past the point where that excuse is plausible. Anyone paying even minimal attention is well aware of exactly how radical and corrupt and lawless this administration is. We all know what has happened to our standing in the world, to our national character and our core political values, as a result of the previously unthinkable policies the Bush administration has relentlessly pursued. Ignorance or incredulity can no longer explain our acquiescence. Accommodating and protecting the lawbreaking of high Bush officials is widely seen by our Beltway elite as a duty of bipartisanship, a hallmark of Seriousness.

It isn't surprising or particularly revealing that there were not immediate consequences for these revelations. Our political system, by design, works slowly and methodically. The Founders purposely imposed significant hurdles to undertaking the most significant steps (such as criminal investigations of high Executive officials or impeachment) precisely to ensure that such actions were taken deliberatively, not impetuously. It took two-and-a-half years for the much simpler Watergate scandal to lead to what would have been the impeachment of Richard Nixon. The failure to impose immediate or even rapid consequences, while frustrating to many, would not really be a cause for legitimate complaint.

But when it comes to Bush's extremism and lawbreaking, we're not imposing consequences slowly. We're not imposing consequences at all. Quite the contrary, we're moving in the opposite direction -- when we're not affirmatively endorsing and providing protection for that conduct, we're choosing not to know about it, or simply allowing it to fester. And the more that happens, the less that behavior becomes the exclusive province of the Bush administration and the more it becomes our country's defining behavior.

This could still all be reversed. The NYT article today reveals new facts about the administration's lawbreaking, lying, and pursuit of torture policies which we had decided, with futility, to outlaw. The Congress could aggressively investigate. Criminal prosecutions could be commenced. Our opinion-making elite could sound the alarm. New laws could be passed, reversing the prior endorsements and imposing new restrictions, along with the will to enforce those laws. We still have the ability to vindicate the rule of law and enforce our basic constitutional framework.

But does anyone actually believe any of that will be the result of these new revelations? We always possess the choice -- still -- to take a stand for the rule of law and our basic national values, but with every new day that we choose not to, those Bush policies become increasingly normalized, increasingly the symbol not only of "Bushism" but of America.