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OpEdNews Op Eds    H3'ed 4/15/09

The Bushite Policies of Obama's Department of Justice: III-Justified?

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[This is the last installment in a three-part series here.]

I was writing the "Protest" piece, in high dudgeon --click here --when I suddenly had an "Aha!" Moment. Whether or not it was a valid "Aha!" remains undetermined, but I felt excited.

The "Aha!" came as I envisioned a sophisticated and clever strategy that Obama might be following, and that would make some sense of this path he's taken of having his people make pro-Bushite arguments.

I imagine some will regard this "too clever by half" strategy as being far-fetched. "Too convoluted, too intricate," I can envision people saying.

So before I delineate this possible strategy, I want to make two points about why it seems to me appropriate to consider such a possible explanation of Obama's course.

First, when we're dealing with Obama, we should always keep an eye out for complex strategies. Obama has shown himself to be a master strategist, and one whose strategies are complex, subtle, and formulated with an eye spacially toward the whole board and temporally all the way to the end-game.

I can't quickly demonstrate this about Obama as a strategist, but as one who habitually has thought strategically all my life, I could say it takes one to know one. But perhaps more to the point I could say that for a 47-year-old who has been in the U.S. Senate a scant four years, who comes from a totally obscure family, and who happens to be African-American, to get elected president of the United States doesn't just happen. It took the formulation and execution of a masterful strategy to accomplish it.

My second reason for looking for complex and hidden reasons for Obama's DOJ taking this pro-Bushite tack lies in the deep conviction I came to about Barack Obama's moral and spiritual nature: as readers here know, I've felt deeply convinced of both his goodness and his disciplined commitment to advancing the Good.

I've looked hard at this man, and felt sure that I'd seen what he's about. The idea of his wanting to perpetuate Bush's tyrannical, lawless Unitary Executive does not fit with what I saw. Or with what I still see.

Of course, I could be wrong. I've been surprised before-- though I cannot recall being surprised to the extent I'd be if I were compelled to believe that Obama really supports this kind of presidential power-grabbing and upsetting of the Constitutional balance (or compelled to believe that Obama really cares more about enriching the undeserving big shots on Wall Street than about looking out for average Americans and their families).

For Obama to have pulled off his act of the past year and a half without actually being good, I'd venture to say, would require that he'd be an accomplish sociopath. And even if a sociopath could fool us to that extent on the campaign trail, I do not believe that even the most accomplished sociopath could get a family (including those two vibrant daughters) to look like Obama's does.

Hence, I see a stronger reason than with someone like Bush, or Bill Clinton either, for that matter, to look for a benign explanation of choices that appear on the surface malignant.

So, now on to my "Aha!"


That "Aha!" Moment, came as I was making a note indicating that the problem with Obama on these policies is not that he's DOING the bad things that the Bushites did. It's that his lawyers are ARGUING in defense of the Bushite policies.

The Bushites didn't start with arguments to persuade anyone about the extent of their powers; they just went ahead and secretly exercised those powers, and only made arguments when the beans got spilled and they were compelled to justify themselves.

"After all, Obama is just making arguments in court so far..." I was writing, and then the "Aha!" hit.


Aha! What Obama wants is for the courts do the job for him!

Obama APPEARS to cling to the Bushite arguments, according to this interpretation of his strategic gambit, but not out of genuine adherence to them but rather in order to have the judiciary reject them as contrary to the Constitution.


Why would Obama choose that route, rather than just reject those policies outright?

There could be two good reasons for this.

The first reason could be self-protection. Obama surely knows --any reasonably alert observer of our political scene knows-- that the Republicans are simply lying in wait for something bad to happen to the U.S. on the terrorism front. If and when it does, they will pound Obama mercilessly as the guy who was soft on terror who failed to protect the American people.

(Already, this past weekend, the Republican vultures couldn't even wait for the Somali pirate hostage situation to resolve before denouncing Obama as weak and dithering.)

And Obama surely knows that the Republicans figure that this "too weak to protect us" attack is one of the only plausible ways the Republicans have of destroying him and taking back power. (Indeed, it is one of only two ways, the other being the failure to revive the economy. But the soft on terror one is the more deeply prepared one-- it being the one the Bushites used against the Democrats successfully in 2002 and 2004, and it being a variant of the same tough-guy vs. weak-guy national security argument the Republicans have made since Vietnam and Nixon's landslide victory over McGovern in 1972.)

"He's just a pointy-headed liberal," the Republicans would say in the wake of a future attack on the country, "who puts legal technicalities (like habeus corpus) ahead of keeping the American people safe."

Obama knows there's no preventing the Republicans from making these attacks-- indeed they are making them already (cf. Dick Cheney's contemptible claims that Obama's already made us less safe against terrorism). But what Obama CAN do is make those attacks less persuasive to the independents and moderates in the middle who will decide our future elections.

Obama has already shown a proclivity to utilize the tactic of using Bushite materials to armor himself against these anticipated attacks. That clearly was the meaning of keeping Bush's Secretary of Defense, Robert Gates, on as his own. With Gates and Petraeus --the two public faces of Bush's military team-- out front on behalf of Obama, no matter what happens, Obama has protection from the message, "Obama was protecting America just as Bush did. So he didn't dismantle those (supposedly) great protections Bush gave us fearful Americans."

(Already, was it not Petraeus who came forward and refuted Cheney's claim that Obama had made us less safe?)

So also, then, with these presidential usurpations, which the Bushites (in their usual bogus fashion) claimed were necessary to protect us.

By defending these arguments in court, he gets to continue his practice of wearing protective Bushite clothing, and thus minimize his vulnerability to one of the principle threats to his presidency. He avoids playing into that "pointy-headed liberal" stereotype of the guy who "cares more about the rights of terrorists" than he does about keeping the American people safe.

An Obama constitutionalist wearing the usurpatious clothing of the Bushite wolf.

How then is Obama still a constitutionalist, in this scenario? That leads to the second part of the motive: this might be a better way of protecting the Constitution than simply declaring his rejection and abandonment of those Bushite policies.

For one thing, if Bush declares and practices one thing and his successor declares and practices another, that does not do anything lasting to defeat the tyrannical claims of the Bushite regime. It might seem to the future that it is simply a matter of one president made one set of choices while another chose differently.

It is different if the courts make a legal declaration against the claims of the Unitary Executive. Such a declaration becomes an enduring part of the legal framework that governs the uses and limits of power under the American Constitution. It stands as the explicit law of the land until some future court decides the same issue differently.

Much more powerful as a defeat for those usurpatious claims.

And for another thing, if Obama "loses" his argument, and then visibly and clearly accepts and abides by the Court's decision, he will have modeled something that we certainly didn't see with the Bushites (who continually sidestepped the courts, avoiding decisions that would go against them, when they didn't outright defy the Court's authority).

Obama modeling presidential deference to the authority of the judicial branch to determine what the law and Constitution say would be in itself an important restorative act on behalf of the rule of law that the Bushite regime damaged so badly.

So this strategy could serve both to protect Obama politically and to set up a more powerful restoration of the Constitution than could be achieved by Obama's simply coming forward and making changes of policy on these usurpatious presidential claims on his own.


One question that arises is this: How reasonable is it for Obama to assume that the courts will decide rightly? Especially if these cases get to the Supreme Court, where there sit at least four justices who seemed ready to back at least some of Bush's usurpations, would Obama have good reason to believe that a majority of the Court would hand down a decision that restores and protects the constitutional balance?

And if the Court decided in support of the Bushite arguments, how damaging would that be? Would Obama --assuming for the moment that this IS his strategy-- then have some plausible and effective Plan B that would salvage the situation satisfactorily?

Obama seems generally like a cautious player: is this strategy riskier than Obama characteristically would take?

Another important question is this: if we look at all the apparently disappointing moves that the Obama DOJ has made on these matters, are there some that simply do not fit within that posited motivational scheme?

In other words, has he done some things that neither a) help provide protection against a possible Republican, "he was weak and didn't protect us" attack, nor b) could lead to a judicial restoration of the proper legal boundaries?

A couple of other questions are ways of probing for what might be evidence that this is Obama's strategy.

For example, if Obama is making these cases in court in the hopes of losing, perhaps that would be discernible in the ways the arguments are formulated. So I would like to know: do the arguments made by Obama's DOJ lawyers manifest any tendencies toward excess of the kind that would be useful in provoking a judicial rejection? Or are the arguments made in careful and restrained ways that seem calculated to seem as reasonable and minimally provocative as possible, such as one would make if genuine persuasion of judges was one's true purpose?

Reasonable arguments would not disprove, but might slightly weaken, the notion that Obama is hoping to lose, while provocatively framed arguments would certainly substantiate it.

A second question is related. If the purpose of presenting these Bushite arguments is to get them rejected by the courts, then it would be quite possible that the lawyers presenting these arguments in court would be in on the plan. One MIGHT send lawyers into court with the instruction to argue such and such, and given the impression that the administration wants that argument to prevail, but it might be better to have the whole team in on the plan.

So the question arises: who are these lawyers, and how was it determined which DOJ personnel made these arguments? Were they just the obvious bureaucratic choices for the assignments, or is there evidence that they were handpicked in some fashion? And if handpicked, is it possible to infer what the critieria for selection were?

Again, the strategy would not necessarily involve telltale maneuvers at that level, but if such evidence is there, it could strengthen the plausibility of this strategic interpretation.


I realize we don't know, and probably cannot know, if Obama has gone over to the Bushite side on these issues or if he's pursuing the strategy I've outlined here.

If he's gone over to the dark side, it seems clear what we should do: we should protest (as I argued in yesterday's piece).

But what if he is pursuing the "Let the Courts Decide" strategy, and what if we did know that to be the case? In that case, would a strong protest against what Obama's DOJ be helpful or hurtful to the achievement of that strategy?

I'm not clear on that. It certainly would be fortunate if the same actions from us were called for regardless.


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Andy Schmookler, an award-winning author, political commentator, radio talk-show host, and teacher, was the Democratic nominee for Congress from Virginia's 6th District. His new book -- written to have an impact on the central political battle of our time -- is (more...)
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