By picking a Mossad as Chief-of-Staff, Obama has guaranteed NWO neocon operatives (like Dr. Zack) will never be prosecuted

"By way of deception, thou shalt take over and start running things."
--decoded Mossad motto

Post-partisan harmony vs. the rule of law
http://www.salon.com/opinion/greenwald/2008/11/13/partisanship/index.html
Glenn Greenwald
Thursday Nov. 13, 2008 07:41 EST

(Updated below - Update II - Update III - Update IV - Update V)

A Washington Post article today on the need to restore confidence in
the Justice Department quotes former high-level Clinton DOJ official
Robert Litt urging the new Obama administration to avoid any
investigations or prosecutions of Bush lawbreaking:

Obama will have to do a careful balancing act. At a conference in
Washington this week, former department criminal division chief Robert
S. Litt asked that the new administration avoid fighting old battles
that could be perceived as vindictive, such as seeking to prosecute
government officials involved in decisions about interrogation and the
gathering of domestic intelligence. Human rights groups have called
for such investigations, as has House Judiciary Committee Chairman
John Conyers Jr. (D-Mich.).

"It would not be beneficial to spend a lot of time calling people up
to Congress or in front of grand juries," Litt said. "It would really
spend a lot of the bipartisan capital Obama managed to build up."

There is a coherent way to argue against investigations and
prosecutions of actions by Bush officials:  one could argue that they
weren't illegal.  Obviously, if one believes that, then that is
conclusive on the question.

But that's not what Litt is arguing here.  Instead, his belief is that
Bush officials should be protected from DOJ proceedings even if they
committed crimes.  And his reason for that is as petty and vapid as it
is corrupt:  namely, it is more important to have post-partisan
harmony in our political class than it is to hold Presidents and other
high officials accountable when they break the law.

How is this anything other than a full-scale exemption issued to
political leaders to break our laws?  There's nothing unique about
circumstances now.  New Presidents are always going to have Very
Important Things to do.  And investigations and prosecutions of past
administration officials are always going to be politically divisive.
By definition, investigations of past criminality are going to be
"distractions" from the Important Work that political leaders must
attend to.  They're always going to be what Litt perversely refers to
as "old battles."  To argue that new administrations should refrain
from investigating crimes that were committed by past administrations
due to the need to avoid partisan division is to announce that the
rule of law does not apply to our highest political leaders.  It's
just as simple as that.

This brazen defense of lawlessness articulated by Litt is now as close
to a unanimous, bipartisan consensus across the political
establishment as it gets.  This is what has been advocated by everyone
from David Broder to top Obama adviser Cass Sunstein.  There are few
things more difficult than finding someone of prominence in the
establishment that disagrees with this view.  Our political class has
decided that high political officials -- particularly the President
and those closest to him -- are literally exempt from the rule of law.

In today's New York Times, Charlie Savage identifies the self-serving
motive leading new Presidents to continuously uphold this lawbreaking
license for their predecessors:

Because every president eventually leaves office, incoming chief
executives have an incentive to quash investigations into their
predecessor’s tenure. Mr. Bush used executive privilege for the first
time in 2001, to block a subpoena by Congressional Republicans
investigating the Clinton administration.

In other words, by letting criminal bygones be bygones within the
Executive branch (Ford's pardon of Nixon, the Iran-contra crimes, and
now Bush lawbreaking), Presidents maintain their gentleman's agreement
that they are free to commit crimes in office -- break our laws --
with total impunity.

Nobody believes that "policy differences" should be criminalized.
That's a strawman -- an obfuscating term -- erected by those who are
defending presidential lawbreaking license without having the
intellectual honesty to admit they're doing that.  This is about
having laws in place that clearly and explicitly say that "X shall be
a felony," only to then watch as the President does X, and thereafter
have our political establishment announce that it's more important to
avoid partisan anger than it is to hold high political officials
accountable under the rule of law.

Here, X = "eavesdropping on Americans with no warrants," and
"torturing detainees," and "destroying evidence relating to
investigations," and "interfering in criminal prosecutions for
political purposes."  Those are crimes -- felonies -- in every sense
of the word, not policy differences.  And they are all actions in
which Bush officials have clearly engaged.

But our political establishment venerates "centrism" and
"bi-partisanship" as the highest religious concepts.  Those terms are,
in reality, nothing more than vehicles to insulate government
officials and the political establishment generally from any
accountability.  Their only real meaning is that cooperation within
the political establishment is paramount, regardless of political
principles and the rule of law.  Hence, investigations and especially
prosecutions are scorned as terribly divisive and partisan, even when
they involve crimes; good "non-partisans" and "centrists" eschew such
unpleasantries, by definition.

In his 1776 revolutionary pamphlet, Common Sense, Thomas Paine
famously declared that "so far as we approve of monarchy, the law is
King."  But the Robert Litts and Cass Sunsteins and David Broders have
radically re-written that principle so that, now, "trans-partisan
harmony is King," which means, in turn, that the President -- whose
crimes should no longer be prosecuted due to fear of sowing
"divisiveness" -- resides above the rule of law, and thus possesses
one of the defining traits of a King.

As political scientists have documented, one hallmark of tin-pot
tyrannies is the belief that political leaders should be liberated
from the constraints of law as long as that helps to achieve good
results.  That's the defining mentality of those who crave benevolent
tyrants  -- our Leaders have so many Good and Important Things to do
for us that they can't be distracted and weighed down by abstract
luxuries like upholding the rule of law.  That's now clearly the
prevailing consensus of our political establishment.


UPDATE: One other point worth making:  the very same Robert Litt
urging that Bush officials not be investigated or prosecuted spent
much of his career as a federal prosecutor, aggressively prosecuting
and imprisoning all sorts of ordinary Americans.  He was one of the
most vocal advocates for prohibiting government-proof encryption
technology in order to preserve the Government's ability to access
people's computer communications as part of criminal investigations,
and was part of a Clinton DOJ that very aggressively pursued even
garden-variety drug cases and used mandatory sentencing guidelines to
ensure harsher sentences for common criminals.

In other words, Litt isn't someone who is an advocate in general for
exempting people from the rule of law.  Instead, the lawbreaking
license he defends is for high government officials only (and,
presumably, for the large corporate-defendants and extremely rich
individuals who can afford to retain Litt's current firm, Arnold &
Porter, to defend them).  What he's doing is expressing the core
premise of America's two-tiered system of justice:  we imprison more
of our population than any other country on the planet and move
increasingly towards ever harsher and more merciless criminal justice
rules for them, while exempting our highest political leaders entirely
from consequences for lawbreaking.

* * * * *

I'll be on Warren Olney's To the Point today at 2:10 pm EST to discuss
various matters relating to investigations of Bush crimes.  Local
listings and live audio stream can be found here.


UPDATE II: Among the client matters included on Litt's Arnold & Porter
page is this:

Represented several employees of intelligence agencies in connection
with criminal investigations. None has been charged.

If the investigations and prosecutions which Litt is arguing against
on policy grounds would include his own paying clients, then that's
something The Washington Post should have mentioned (and it's
something Litt should have disclosed to the reporter), as it would
mean that he's not advocating as the objective analyst which The Post
depicts him as being, but instead, is just shilling for his own
clients.  If he represents CIA or NSA or White House officials
involved in the surveillance and intelligence programs in question,
that obviously motivates his insistence that investigations not be
pursued.

I've emailed Litt to ask him if that's the case, though more
generally, it's amazing how often that works in Washington:  those who
pose as "advocates" of a political view seem so frequently to have
undisclosed financial and/or personal stakes in the position they're
defending.


UPDATE III: Litt replies via email:

I do not comment on client matters for the record. If you are willing
to take an off the record answer as guidance I am willing to give you
some.

And although I suspect that you are not going to agree with me on
this, let me say that I enjoy your stuff.

Though I wasn't asking about specific clients, but rather generally
whether Litt has clients who would benefit from what he is advocating,
the response is not unreasonable.  Lawyers typically refuse
instinctively to answer questions about their clients.  I'll follow-up
with him and if there is anything to add after I do so that he's
willing to put on the record, I will.


UPDATE IV: I debated exactly this issue earlier today on To the Point,
along with two other guests -- former Reagan and Bush 41 OLC head and
Pepperdine Law Professor Douglas Kmiec and former Reagan DOJ official
Lee Casey -- both of whom argued against criminal prosecutions, and
New York Times Magazine reporter Jonathan Mahler (who wrote this
excellent article this weekend entitled "After the Imperial
Presidency" and who took no position on whether Bush officials should
be prosecuted).

It was a fairly lively and constructive debate, highlighting most of
the key issues, and can be heard here (the debate begins at roughly
7:15 and my participation begins at roughly 13:00).  Independently, I
had several lengthy exchanges on these issues today via email with the
aforementioned-Robert Litt, and will publish those if he consents.


UPDATE V: An amazing number of people -- including Bush opponents --
are now arguing (in comments and elsewhere) that all the Good and
Important things that Barack Obama is about to do for all of us -- all
the Big Problems he's about to fix -- outweigh the need to subject
high political officials to the rule of law.  Apparently, by this
reasoning, unless we agree that our highest political leaders are free
to break the law with impunity, then we'll lose out.  I address this
"reasoning" here.

I would also recommend that anyone who has this attitude -- "oh, we
have too many Big Problems now to bother with this whole "rule of law'
nonsense" -- read this post from conservative Daniel Larison as well
as this one from conservative Conor Friedersdorf.  Both of them
understand -- much better than many Democrats, apparently -- the
intolerable consequences from allowing high political leaders to break
the law because we decide there is some material benefit to be had by
giving them that license.

-- Glenn Greenwald
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andy (15.11.2008 09:57)
andy (15.11.2008 16:51)