Either It's Getting Closer or It's the Illusion of Getting Closer

Accountability for the torture used by the Bush administration in the "war on terror" might have come one step closer to being actualized, or the leaks to the press might be making it look like tortured, hard decisions are about to be made within the Obama administration.

I can't tell the difference yet. Newsweek's Daniel Klaidman reported in a long and very "personal" look into the character and family of Eric Holder, Jr., Attorney General of the United States, that four separate sources claim he is struggling with the decision whether to go after the Bush administration officials responsible for authorizing torture.

Four knowledgeable sources tell NEWSWEEK that he is now leaning toward appointing a prosecutor to investigate the Bush administration's brutal interrogation practices, something the president has been reluctant to do. While no final decision has been made, an announcement could come in a matter of weeks, say these sources, who decline to be identified discussing a sensitive law-enforcement matter. Such a decision would roil the country, would likely plunge Washington into a new round of partisan warfare, and could even imperil Obama's domestic priorities, including health care and energy reform. Holder knows all this, and he has been wrestling with the question for months. "I hope that whatever decision I make would not have a negative impact on the president's agenda," he says. "But that can't be a part of my decision.

Citing the two recent extremes of attorneys general--Janet Reno who was fiercely independent and therefore not an insider of the Clinton administration and Alberto Gonzales, a mere "yes-man," Newsweek claimed that since Holder was the White House liaison during the embattled Reno years, he is extremely sensitive to the balance he needs to bring to his job--enforce the law yet also support the President's agenda. Rahm Emanuel, Obama's Chief of Staff, is the constant reminder of just what that Presidential agenda is. But according to these sources, what Holder has learned about what occurred during the Bush years is moving him closer to opening an investigation.

Then there is the New York Times story this morning by Scott Shane. What began as a disingenuous attempt by Speaker of the House Nancy Pelosi to wiggle out of responsibility for knowing that the CIA was waterboarding has turned into admissions that the CIA, under orders of the evil mentor of Bush, that's vice president Dick Cheney, to prevent Congressional oversight committees from being briefing on a yet unnamed CIA program: extraordinary rendition, more wiretapping, assassinations, torture of detainees?

According to the Times: The disclosure about Mr. Cheney’s role in the unidentified C.I.A. program comes a day after an inspector general’s report underscored the central role of the former vice president’s office in restricting to a small circle of officials knowledge of the National Security Agency’s program of eavesdropping without warrants, a degree of secrecy that the report concluded had hurt the effectiveness of the counterterrorism surveillance effort.

This is major news. Surely the Sunday morning talking heads will be all abuzz. We have to find out what happened, and hold people accountable. That is the essence of the rule of law. Yes, Obama's popularity around the world has restored much of America's lost credibility. But the only way to restore our credibility at home, among the voters and citizens, is to undo the corruption to the rule of law and restore government to its foundations in the constitution.

Who We Really Are

This last election was what the Voting Rights Act of 1965 intended, although I am still not ready to give up this most effective civil rights statute.

According to the Pew Hispanic Center, this last election, November 2008, had the most diverse electorate ever--nearly one in four votes cast came from a person of color. "The nation's three biggest minority groups--blacks, Hispanics and Asians--each accounted for unprecedented shares of the presidential vote in 2008."

In twenty years, the percentage of white voters reduced from 84.9% to 76.3%. "The white share is the lowest ever, yet is still higher than the 65.8% white share of the total U.S. population."

African American voters increased significantly from 9.8% to 12.1%, which is up almost a third. Hispanic voters doubled in twenty years, from 3.6% to 7.4% in 2008. Most importantly, black voter turnout nearly equaled white turnout: 65.2% for blacks and 66.1% for whites. The upsurge was mainly due to a rise in black women and young people voting.

Download the entire report from the Pew Center for Hispanics.

Unfortunately, although President Obama was elected, we are not yet in a post-racial society. We cannot avoid the painful and long history of racism that infects almost every aspect of our culture. White people might want to believe it's over, as we watch this extraordinary man lead our nation through this perilous time. However, from the perspective of people of color, the lines of respect, the opportunities, and the confluence of race and poverty are constant reminders that we ain't there yet.

And take a look at Alexandra Pelosi's documentary film "Right America, Feeling Wronged," her HBO film and you will see just how brazen and strong this racism is.

That's why we have to challenge ourselves to be intentional in reaching out to create opportunities for all of us to get to know each other. Eric Holder was right, although the media was wrong in how they portrayed his speech before the Justice Department on race. Take a look at it and see whether you are ready to be couragous.

What's Wrong With the Media? Plenty!

OK, so I haven't been sleeping well: too much on my mind although at least I have stopped checking for anyone I ever knew on the interactive Madoff client list. (My husband just handed me the March 2009 issue of Conde Nast Portfolio which has a cover story about Bernie, which I will read later tonight.) This morning I gave up pretending to sleep at 5:00 and while working out to try to energize myself, I channel surfed.

Everything on cable news was about Eric Holder's speech yesterday on race. What disturbed me was that there wasn't much difference in the way it was reported on Fox News, Morning Joe, and CNN.

The sound bite was: Though this nation has proudly thought of itself as an ethnic melting pot, in things racial we have always been and continue to be, in too many ways, essentially a nation of cowards.

And most of the commentators, foaming at the mouth, were furious that Holder, the first African American Attorney General serving the first African American President, seemed so pessimistic about the state of race relations in this country. How can that be? Didn't white people vote for Barack Obama? Doesn't that mean that we are post-racial?

First, let's look at the numbers of white people who did vote for Obama. It wasn't a majority. According to Pollster.com: There is considerable variation in the percentage of whites who voted for Obama. Where African Americans made up less than 20% of the vote (according to exit polls), whites varied from 30% to 60% in their support for Obama but with no relationship to the size of the African American vote. As the African American electorate rose above 20%, white support for Obama fell sharply to barely 10%.

So let's not delude ourselves into believing we are living in some kind of suddenly racially clean world.

Second, how about reading what Eric Holder actually said? I suspect that none of the commentators did, because every one of them wildly distorted a very nuanced and interesting speech. It was too long for them, probably. But if we aren't in a post-racial world, perhaps we can insist on being in a post-sound bite world.

Here is the text of the speech.

Not only did Holder say we didn't know how to speak with each other comfortably about race, he noted that although we are working together, we live voluntarily segregated lives:

As a nation we have done a pretty good job in melding the races in the workplace. We work with one another, lunch together and, when the event is at the workplace during work hours or shortly thereafter, we socialize with one another fairly well, irrespective of race. And yet even this interaction operates within certain limitations. We know, by "American instinct" and by learned behavior, that certain subjects are off limits and that to explore them risks, at best embarrassment, and, at worst, the questioning of one’s character. And outside the workplace the situation is even more bleak in that there is almost no significant interaction between us. On Saturdays and Sundays America in the year 2009 does not, in some ways, differ significantly from the country that existed some fifty years ago. This is truly sad. Given all that we as a nation went through during the civil rights struggle it is hard for me to accept that the result of those efforts was to create an America that is more prosperous, more positively race conscious and yet is voluntarily socially segregated.

And just when we thought we might be willing to take a baby step towards racial harmony, that paragon of journalism, the New York Post, published a cartoon, which is at best ambiguous, and at its worst, downright incendiary and racist. You can find the cartoon yourself. It disgusted me.

State Secrets

There might be reasons, legitimate reasons, why the Obama administration used the same defense originally raised by the Bush administration in the Ninth Circuit case brought by five victims of post-911 extraordinary rendition. Let's remember what extraordinary rendition is: kidnapping a person, stripping them of their identity and clothing, sometimes beating or drugging them, flying them to a secret prison either under the control of the United States or one of our more brutal allies, and then keeping them in a secret site for "enhanced interrogation," i.e. torture at the hands of CIA, military, or some of the thugs hired by our government or a brutal ally.

The defense raised by Bush and by Obama was the same: state secrets.

Read about the Ninth Circuit case at the ACLU website.

President Obama did on day three of his administration issue executive orders suspending military commissions, holding interrogations to the US Army Field Manual, and ordering Guantanamo Bay prison closed within the year.

That was good. But why did the Obama Department of Justice continue the state secrets defense? Watch Ben Wizner from the ACLU for his explanation on Rachel Maddow last night.

OK, Eric Holder's confirmation as attorney general was held up. That might have delayed a thorough review of all pending cases.

But I don't understand why the Department of Justice didn't ask for an adjournment rather than use state secrets as a defense to allegations of kidnapping, torture, and maiming of foreign nationals caught up in the Bush "war on terror."

I am hoping that as each of the Bush policies gets reviewed, things will change. I'm hoping. I'm still hoping.

Promises, Promises

Pennsylvania Senator Arlen Specter now backs Obama nominee for Attorney General Eric Holder, after questioning his independence, citing, among other things, his role in the Clinton administration midnight pardon of Marc Rich. Marc Rich was a fugitive, and his former wife, Denise Rich, was pouring money into the Clinton Library and Democratic National Committee.

Specter, in his criticism of Holder, wondered out loud if he would be merely another Alberto Gonzales, Bush's White House counsel who moved over to Justice and seemed to be the puppet of Karl Rove and Dick Cheney no matter where he was located.

Here's what Specter promised: "After our recent experience with Attorney General Gonzales, it is imperative that the Attorney General undertake and effectuate that responsibility of independence. Mr. Gonzales left office accused of politicizing the Justice Department, failing to restrain Executive overreaching, and being less than forthcoming with Congress …

"I am convinced that many of Attorney General Gonzales’ missteps were caused by his eagerness to please the White House. Similarly, when Mr. Holder was serving as DAG to President Clinton, some of his actions raised concerns about his ability to maintain his independence from the president."

On the same day Specter published a letter in the Philadelphia Inquirer, again promising tough questions, Specter agreed not to filibuster Holder's nomination, and announced that he would vote for him as the next Attorney General.

According to a post on talkingpointsmemo.com, there were enough assurances from Holder that there would be no prosecutions of intelligence officers for use of torture in interrogating suspects in the "war on terror."

"The gist of" Holder's stance on the issue, "is that if you have an authoritative legal opinion, that's a defense in terms of mens rea, of intent. That's a broad generalization. I don't think you can go any further than that until you examine the specific facts of a case."

"[There may be] an opinion that allows an interrogator to go so far, and the conduct [in question] vastly exceeds that," Specter added, referring to the 2002 "Bybee memo" on torture that was later repudiated by the Bush DoJ. "It's really going to be fact-specific."

Prosecutions of the Bush administration officials who authorized and rationalized the use of torture on terrorism suspects should go forward. The White House influenced the supposed authoritative legal opinions coming out of the Office of Legal Counsel on the legality of excluding from domestic and international law the harsh and brutal treatment, amounting to torture, of terrorism suspects. Both Cheney and now Gonzales are using the same talking points: they have no liability because they acted on the basis of these legal memoranda, authored by Jay Bybee, now a federal judge and John Yoo, back as a Constitutional Law professor at US Berkeley. There is evidence, however, of David Addington's hand in these memos, which means that they were not independently authored.

America's stature in the world and the safety of our military personnel when captured by enemy forces depends on our repudiating the Bush era methods. Will we have the courage to do so?

Propublica.org published a listing of the memoranda that came out of the Office of Legal Counsel, and the ACLU is calling for the Obama administration to release to the public all of the memos so that they will become part of the public record.

Getting it Right

Chief Justice John G. Roberts, Jr. flubbed the presidential oath of office yesterday when he misplaced "faithfully" within the 35 word Constitutional requirement and used the wrong preposition, substituting "to" for "of" when referring to the President of the United States.

Being a strict constitutionalist, and molded by The Federal Society, Roberts gave President Obama, gosh I love writing that, the oath of office again tonight in the Oval Office.

The question I ask is why Roberts didn't have a copy of the oath in front of him at the inauguration: Arrogance, arrogance, arrogance.

Of course, President Obama did the right thing in stopping all military tribunals at Guantanamo Bay for at least 120 days to permit review of the processes. Hopefully this will be the end of these kangaroo trials that make a sham of American law and ideals.

Just announced: President Obama will sign an executive order tomorrow closing Guantanamo Bay within a year!!!!

Texas Senator John Cornyn is holding up the confirmation of Eric Holder as Attorney General, allegedly wanting assurances that Holder will not prosecute intelligence officers for engaging in torture.

I suggest that this delay in confirmation is murkier than that. First, Cornyn is the chair of the National Republican Senatorial Committee, which means he is responsible for raising lots of money. So he has to raise a lot of smoke so it doesn't look like Obama is getting his way on everything without resistance.

But more cynically, Holder stated at his confirmation hearing that waterboarding is torture, simple and clear. Cornyn, acting as a proxy, is afraid of prosecutions of Bush administration officials, like Bush, Cheney, Rumsfeld, for authorizing torture. It isn't the intelligence community he's protecting. It's his fellow Texan!

It would be absolutely inappropriate to ask for assurances from Holder as a condition of confirmation that he won't prosecute anyone, whether a CIA officer or the former President of the United States of America, for violating domestic and international prohibitions against the use of cruel, inhuman or degrading tactics against any suspects.