AMY GOODMAN: The dominant role of
corporations is one of a number of issues fueling skepticism around the
2008 campaign. Criticism has also mounted recently over presumptive
Democratic nominee Barack Obama’s perceived shift to the right.
In an apparent reversal, Obama backed a new bill authorizing the Bush
administration’s domestic spy program and granting immunity for the
telecom companies that took part. He also supported a Supreme Court
decision to overturn a D.C. handgun ban. On foreign policy, Obama said
he’d be open to revise his pledge to withdraw US troops from Iraq and
also called for a major increase to the size of the US occupation of
Afghanistan.
And like all top Democratic leaders, Obama has refused to
support calls for the prosecution of President Bush and top White House
officials for war crimes and other abuses of power.
The criticism of Obama’s stances has come as part of a larger debate
over whether efforts to hold the Bush administration accountable would
jeopardize an ostensibly higher goal of ensuring a Democratic win this
November.
I’m joined right now, in addition to Glenn Greenwald, who blogs at
Salon.com, the legal scholar—he’s speaking to us from Brazil on the
phone—by Cass Sunstein, who’s an informal adviser to Barack Obama,
professor at Harvard University and the University of Chicago Law
School. He is co-author of the book Nudge: Improving Decisions About
Health, Wealth, and Happiness and is cited as one of the most-cited
legal scholars in the country.
Cass Sunstein, your response to those who talk about—particularly
concerned about Barack Obama, for example, shifting on the FISA bill,
saying he would filibuster and now actually voting for the bill that
granting retroactive immunity to the telecoms. You spoke about this at
the Netroots conference this weekend—Netroots Nation.
CASS SUNSTEIN: Yes, I think it’s—this is widely misunderstood. What the
bill isn’t is basically a bill that—whose fundamental purpose is to give
immunity. It’s a bill that creates a range of new safeguards to protect
privacy, to ensure judicial supervision, to give a role for the
inspector general. So it actually gives privacy and civil liberties a
big boost over the previous arrangement.
It also does contain an immunity provision, which Senator Obama opposed.
He voted for the substitute bill that didn’t have that. But he thought
that this was a compromise which had safeguards for going forward, which
made it worth supporting on balance, compared to the alternative, which
was the status quo. So there’s been no fundamental switch for him.
He’s
basically concerned with protecting privacy. And this is not his
favorite bill, but it’s a lot better than what the Bush administration
had before, which was close to free reign.
AMY GOODMAN: Glenn Greenwald, you’ve written a lot about this, as well.
GLENN GREENWALD: Well, you know, it’s one thing to defend Senator Obama
and to support his candidacy, as I do. It’s another thing to just make
factually false claims in order to justify or rationalize anything that
he does.
The idea that this wasn’t a reversal is just insultingly false.
Back in
December, Senator Obama was asked,
“What is your position on Senator
Dodd’s pledge to filibuster a bill that contains retroactive immunity?”
And at first, Senator Obama issued an equivocal statement, and there
were demands that he issue a clearer statement.
His campaign spokesman
said—and I quote,
“Senator Obama will support a filibuster of any bill
that contains retroactive immunity”—“any bill that contains retroactive
immunity.”
The bill before the Senate two weeks ago contained
retroactive immunity, by everybody’s account, and yet not only did
Senator Obama not adhere to his pledge to support a filibuster of that
bill, he voted for closure on the bill, which is the opposite of a
filibuster. It’s what enables a vote to occur.
And then he voted for the
underlying bill itself. So it’s a complete betrayal of the very
unequivocal commitment that he made not more than six months ago in
response to people who wanted to know his position on this issue in
order to decide whether or not to vote for him. That’s number one.
Number two, the idea that this bill is an improvement on civil liberties
is equally insulting in terms of how false it is. This is a bill
demanded by George Bush and Dick Cheney and opposed by civil
libertarians across the board. ACLU is suing. The EFF is vigorously
opposed.
Russ Feingold and Chris Dodd, the civil libertarians in the
Senate, are vehemently opposed to it; they say it’s an evisceration of
the Fourth Amendment.
The idea that George Bush and Dick Cheney would
demand a bill that’s an improvement on civil liberties and judicial
oversight is just absurd. This bill vests vast new categories of illegal
and/or unconstitutional and warrantless surveillance powers in the
President to spy on Americans’ communications without warrants. If you
want to say that that’s necessary for the terrorist threat, one should
say that.
But to say that it’s an improvement on civil liberties is just
propaganda.
AMY GOODMAN: Cass Sunstein?
CASS SUNSTEIN: Well, I appreciate the passion behind that statement. I
don’t see it that way. And Morton Halperin, who’s been one of the most
aggressive advocates of privacy protections in the last decades, is an
enthusiastic supporter of this bill on exactly the ground that I gave.
My reading of it, just as a legal matter, is that it ensures exclusivity
of the FISA procedure, which the Bush administration strongly resisted,
it creates supervision both on the part of the inspector general and the
legal system, which the Bush administration had said did not exist
previously. So the view that this is an improvement over the Bush
administration status quo, I believe, is widely accepted by those who
have studied the bill with care.
I do appreciate the concern about
retroactive immunity. Senator Obama
did oppose that, voted for the opposing bill.
But I don’t share the
extreme negativity about this compromise that the speaker endorses.
AMY GOODMAN: Glenn Greenwald?
GLENN GREENWALD: Well, again, Senator Obama made a promise
and then betrayed it. The idea that the bill is an improvement on civil
liberties, like I said, is demonstrated by the fact that all civil
libertarians, virtually across the board, vigorously oppose it and are
suing over it. And I think...
AMY GOODMAN: Glenn Greenwald, let me move on to another issue, and that
is the issue of holding Bush administration officials accountable. This
is also an issue, Professor Sunstein, that you addressed this weekend in
Austin at the Netroots Nation conference.
And on Friday, the House
Judiciary Chair John Conyers is going to be holding a hearing around the
issue of impeachment, with those for and against impeachment speaking
through the day.
Your assessment of the whole movement and your thoughts
on this, Cass Sunstein?
CASS SUNSTEIN: Well, I speak just for myself and not for Senator Obama
on this, but my view is that impeachment is a remedy of last resort,
that the consequences of an impeachment process, a serious one now,
would be to divide the country in a way that is probably not very
helpful.
It would result in the presidency of Vice President Cheney,
which many people enthusiastic about impeachment probably aren’t that
excited about. I think it has an understandable motivation, but I don’t
think it’s appropriate at this stage to attempt to impeach two
presidents consecutively.
In terms of holding Bush administration officials accountable for
illegality, any crime has to be taken quite seriously. We want to make
sure there’s a process for investigating and opening up past wrongdoing
in a way that doesn’t even have the appearance of partisan retribution.
So I’m sure an Obama administration will be very careful both not to
turn a blind eye to illegality in the past and to institute a process
that has guarantees of independence, so that there isn’t a sense of the
kind of retribution we’ve seen at some points in the last decade or two
that’s not healthy.
AMY GOODMAN: I recently spoke to Democratic Senator
Russ Feingold of
Wisconsin, who’s been a leading congressional voice against the Bush spy
program. This is some of what he had to say.
SEN. RUSS FEINGOLD: The President takes the position that under Article
II of the Constitution he can ignore the Foreign Intelligence
Surveillance Act. We believe that that’s absolutely wrong.
I have
pointed out that I think it is not only against the law, but I think
it’s a pretty plain impeachable offense that the President created this
program, and yet this immunity provision may have the effect not only of
giving immunity to the telephone companies, but it may also allow the
administration to block legal accountability for this crime, which I
believe it is.
AMY GOODMAN: Cass Sunstein?
CASS SUNSTEIN: Well, there has been a big debate among law professors
and within the Supreme Court about the President’s adherent authority to
wiretap people.
And while I agree with Senator Feingold that the
President’s position is wrong and the Supreme Court has recently,
indirectly at least, given a very strong signal that the Supreme Court
itself has rejected the Bush position, the idea that it’s an impeachable
offense to adopt an incorrect interpretation of the President’s power,
that, I think, is too far-reaching.
There are people in the Clinton
administration who share Bush’s view with respect to foreign
surveillance. There are past attorney generals who suggested that the
Bush administration position is right. So, I do think the Bush
administration is wrong—let’s be very clear on that—but the notion that
it’s an impeachable offense seems to me to distort the notion of what an
impeachable offense is.
That’s high crimes and misdemeanors. And an
incorrect, even a badly incorrect, interpretation of the law is not
impeachable.
AMY GOODMAN: Glenn Greenwald?
GLENN GREENWALD: You know, I think this mentality that we’re hearing is
really one of the principal reasons why our government has become so
lawless and so distorted over the past thirty years. You know, if you go
into any courtroom where there is a criminal on trial for any kind of a
crime, they’ll have lawyers there who stand up and offer all sorts of
legal and factual justifications or defenses for what they did.
You
know, going back all the way to the pardon of Nixon, you know, you have
members of the political elite and law professors standing up and
saying,
“Oh, there’s good faith reasons not to impeach or to criminally
prosecute.”
And then you go to the Iran-Contra scandal, where the
members of the Beltway class stood up and said the same things Professor Sunstein is saying: we need to look to the future, it’s important that
we not criminalize policy debates.
You know, you look at Lewis Libby
being spared from prison.
And now you have an administration that—we have a law in this country
that says it is a felony offense, punishable by up to five years in
prison and a $10,000 fine, to spy on Americans without the warrants
required by law. We have a president who got caught doing that, who
admits that he did that.
And yet, you have people saying,
“Well, there
may be legal excuses as to why he did that.”
Or you have a president who
admits ordering, in the White House, planning with his top aides,
interrogation policies that the International Red Cross says are
categorically torture, which are also felony offenses in the United
States.
And you have people saying,
“Well, we can’t criminalize policy
disputes.”
And what this has really done is it’s created a two-tiered system of
government, where government leaders know that they are free to break
our laws, and they’ll have members of the pundit class and the political
class and law professors standing up and saying,
“Well, these are
important intellectual issues that we need to grapple with, and it’s
really not fair to put them inside of a courtroom or talk about prison.”
And so, we’ve incentivized lawlessness in this country. I mean, the laws
are clear that it’s criminal to do these things.
The President has done
them, and he—there’s no reason to treat him differently than any other
citizen who breaks our laws.
AMY GOODMAN: You’ve also, Glenn Greenwald, written about the President
possibly granting preemptive pardons to officials involved in
controversial counterterrorism programs.
GLENN GREENWALD: Yeah, I think that’s right. And you already see members
of the right—the New York Times reported about a week ago that certain
right-wing legal analysts were already demanding that he issue a
full-scale pardon of all members—of all participants in these illegal
detention and surveillance programs.
And that’s one of the interesting
parts about what Senator Obama just did in supporting telecom amnesty,
is that those lawsuits that exist, I mean, that were proceeding along,
were really our only real avenue for finding out what the government
did.
I think one critical thing here is that, you know, last year,
James Comey, who was the number two person at the Justice Department,
testified before Congress that they discovered that certain surveillance
activities that the administration was engaged in, not what we end up
knowing about, but other activities, were so patently illegal that the
entire top level of the Justice Department had threatened to resign en
masse unless it stopped immediately.
And President Bush ordered that it
continue for another forty-five days, even once he was told that, and it
went on for two-and-a-half years.
We don’t know what that is. Those lawsuits are really the only way that
we would have found out and that there would have been a legal
accountability, but because of telecom immunity, those lawsuits are now
going to terminate, those crimes are likely to be covered up, and
President Bush can simply issue pardons that would prevent any future
administrations, Senator Obama’s or anyone else’s, from investigating it
and vindicating the rule of law in this country.
And that’s what made it
such a corrupt measure.
AMY GOODMAN: Professor Sunstein, your response to Glenn Greenwald on the
whole accountability issue?
Also, one of the things you raised at the Netroots Nation conference is, going after the Bush administration could
start a cycle of criminalizing public service.
CASS SUNSTEIN: Right. We’re talking about some pretty serious issues
here, and I think it’s good to distinguish among various ones. So, are
we in favor of immunizing people who worked in the White House in the
last eight years from accountability for criminal acts? I don’t think
anyone should be in favor of that. We’re in agreement on the need to
hold people accountable for criminal wrongdoing.
Then there’s a second question, which is the impeachment question, which
is analytically very different.
Then there’s a third issue, which involves pardons. For the President to
issue a preemptive pardon of all illegality on the part of those
involved in his administration would be intolerable, and the political
retribution for that should be extreme. I expect the President won’t do
that.
With respect to holding people accountable, the first things that’s
needed is sunlight. Justice Brandeis, the Supreme Court justice, said
sunlight is the best of disinfectants. So I agree very much that we want
clarity with respect to what’s been done. It’s important to think, not
in a fussy way, but in a way that ensures the kind of fairness our
system calls for.
It’s important to distinguish various processes by
which we can produce accountability. I don’t believe the courtroom is
the exclusive route. Congress is our national lawmaker, and there are
processes there that could have a bipartisan quality. There are also
commissions that can be created, commissions that can try to figure out
what’s happened, what’s gone wrong and how can we make this better.
When I talk about a fear of criminalizing political disagreement, I
don’t mean to suggest that we shouldn’t criminalize crimes.
Crimes are
against the law, and if there’s been egregious wrongdoing in violation
of the law, then it’s not right to put a blind eye to that. So I guess
I’m saying that emotions play an important role in thinking about what
the legal system should be doing. But under our constitutional order, we
go back and forth between the emotions and the legal requirements, and
that’s a way of guaranteeing fairness.
And as I say, very important to
have a degree of bipartisanship with respect to subsequent
investigations.
AMY GOODMAN: You’re cited as the most often cited legal scholar in the
country. Yesterday, the military commissions trial began at Guantanamo,
first time since World War II. Your take?
CASS SUNSTEIN: Well, I’d be honored but surprised if the military
commissions cite some of my academic articles. In terms of military
commissions, there’s traditional nervousness in our system about holding
people criminally to be tried in a not-an-ordinary tribunal, so there’s
reason for nervousness about that.
I think any military commission, the
first requirement is to ensure that the fundamental ingredients of
American justice are included—that is, a right to a lawyer, a right to
an impartial tribunal, a right to confront contrary evidence. We don’t
want any convictions that don’t fit with all of our fundamentals.
AMY GOODMAN: We’re going to come back to talk about your book
Nudge,
but I want to give Glenn Greenwald a final comment on this issue.
GLENN GREENWALD: You know, it’s interesting, about the military
commissions, yesterday a military judge presiding over the military
commission of the individual accused of being Osama bin Laden’s driver,
Salim Hamdan, ruled that certain evidence was inadmissible, because it
was obtained by what he called, quote, “highly coercive conditions”
while he was captive in Afghanistan.
And so, you know, we don’t need to
say things like “if there was serious wrongdoing.”
We know that there
was serious wrongdoing and serious illegality on the part of the Bush
administration. But Congress, unfortunately, hasn’t done its duty to
investigate or oversight; what they’ve done instead is immunize the
law-breaking and protect it and retroactively legalize it. And that’s
why courtrooms, unfortunately, are the only place where real judicial
accountability can occur.
That’s where criminals are tried under a
system of rule of law, is in a courtroom. And there’s no reason to
exempt the political class from that critical principle.
AMY GOODMAN: Glenn Greenwald, I want to thank you for being with us,
blogs at Salon.com, his latest book, Great American Hypocrites: Toppling
the Big Myths of Republican Politics.
We’re going to come back with Cass Sunstein. He has co-authored the book with
Richard Thaler, Nudge:
Improving Decisions About Health, Wealth, and Happiness.
He is an
adviser to Senator Barack Obama.
