Dan Abrams interviews Bush Attorneys General John Ashcroft and Alberto Gonzales.
You should read the whole thing. I should read the whole thing. But there's one thing I want to talk about in isolation, because it's important no matter what else got said in that interview.
Abrams asks about the release of the torture memos, and Gonzales has this to say:
They may be necessary in the future. And by disclosing it, means you take them off the table and they can never be used again.
They may be necessary in the future.
Let's unpack that. Republicans are unapologetic about the use of torture. We knew that. Republicans think it might be necessary again in the future. We probably knew that, too. But it's the implications of that statement I think Congress and Democrats in particular are unprepared for.
First, it is a reminder of the fact that while the U.S. is supposedly not currently engaged in such practices, they've been suspended under executive order. It is, in short, a reminder that the United States only honors its legal and constitutional prohibitions against torture when the chief executive wills it to be so. And politically, that appears to mean we only honor those obligations when Democrats are elected to the White House.
In other words, the election of Barack Obama alone has not changed torture's legal or constitutional status in this country, and it is at best a temporary respite only from what has admittedly become a staple of the Republican theory of governance. It's not just that torture has become an acceptable tool to Republicans. It's that it is now a tenet of Republican political philosophy that illegal and unconstitutional practices can be sterilized by order of the President.
And as many have found out to their great disappointment, it is apparently also a tenet of Beltway Conventional Wisdom and among some not-insignificant portion of Democrats that future administrations are (or at least ought to be) dissuaded from doing anything beyond opting not to adopt the same techniques and/or the rationales behind them. Torture, it seems, is a "policy difference." But worse, the question of whether or not a President may order illegal and unconstitutional actions at his discretion is also a "policy difference." Republicans say yes, Democrats say no. But so far, that's all Democrats do. They say no. The question of whether or not the President shall have unlimited power to order extralegal actions and excuse them by fiat, we are urged to believe, is now one we settle at the ballot box. Every four years, America shall decide anew whether or not there are any limitations on the power of the federal government.
As tiresome as it can sometimes be to see people frame matters so that it all comes down to one issue and one issue only, I find myself returning to this one again and again. Whether or not torture is your issue. Or wiretapping. Or indefinite detention. Or signing statements. Or anything, really -- environment, global warming, abortion, health care, taxes, terrorism, the war. No matter what your issue is, at heart, you're dependent on a continuing and consistent respect for the law. Because without it, none of your work on politics and policy is worth anything the moment the White House falls to someone who's not you. You can pass all the environmental laws you like, but if it's accepted as a legitimate tenet of Republican governing philosophy that all of those laws can be safely ignored or otherwise set aside, you'll have gained nothing from your work with a friendly Congress and administration.
And if you can set aside all statutory and constitutional law on something like torture, I'm unsure what barriers you think remain in the way of doing the same on any other issue.
And just to bring this back to Congress -- this was originally posted at Congress Matters, after all -- the responsibility for checking what Republicans claim ought to be considered part of the "gloss on executive power" belongs with the Legislative and Judicial branches.
An investigation into and accounting for the abuses of the Bush "administration" falls to one of these two, and the Legislative is the only branch empowered to bring the issue before itself on of its own volition. And while it's politically understandable that Members wait for signs of approval or disapproval from the newly-elected President, it's a structural error in logic to permit the executive branch to give its yea or nay to another branch's decision to check the Article II power. The Congress must be the prime mover of any such inquiry. There are no two ways about it.
It can, of course, opt not to concern itself with the integrity of the laws it passes. And all indications are that it lacks the political will to do anything different, lest Members jeopardize their hold on their offices. But you'd be right to wonder what value is left in a Congress that opts to grant the President the supreme power to negate anything it does.
Worse still, inaction emboldens Republican executive supremacists. As inquiries into the abuses of the Bush regime are dismissed as "backward looking," Alberto Gonzales asserts even from the depths of his public disgrace that torture "may be necessary in the future." And it appears that people who share his view have little to be concerned about in terms of accountability for it. Torture -- and more importantly, the insane "unitary executive" theory that underpinned it and a thousand other abuses -- remains a viable and so-far undisputed weapon in the Republican toolkit. It will return, as surely as the Republican theory of total executive supremacy survived Watergate and Iran-Contra.
Consider the odds. Beginning with the 1968 election of Richard Nixon, Republicans occupied the White House for 28 of 40 years, reelecting three Presidents to second terms, each of whom -- Nixon, Regan and George W. Bush -- presided over scandalous escalations in the executive supremacy theory. Democrats have reelected just one during this time. And he was impeached.
Are the odds that good for Democrats perpetually winning the White House, such that stringing together a series of temporary reprieves from Republican theories of executive supremacy are a reasonable approach to dealing with their abuses? I don't think so.
Consider, also, the history of the Legislative branch during that time. It's almost the reverse image. Twenty-eight years of Democratic dominance versus 12 years of Republican control. Yet in all that time, Democrats as a party have permitted power to flow nearly unabated from the Legislative to the Executive, even in the face of their relative advantage in holding Congress and relative inability to hold the White House. Strictly as a political consideration, you'd think the Democratic interest in reversing this trend would move more Democrats to action. And even those who do consider action prefer entrusting it to non-partisan, outside commissions -- perhaps even headed by someone of the Republicans' choosing (as if to buying political forbearance from the party that believes no rules apply to it when they hold the White House was worth anything).
They are telling you they will torture again in the future. They have already told you that it is their belief -- their interpretation of the four corners of the Constitution -- that they have the right to order it if they can win just one national election (versus Democrats' constant scrambling to win 300+ localized contests).
There is nothing "backward looking" about giving serious consideration to a live threat that has just been renewed.
