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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, October 23, 2006

The cleansing effects of investigations

When I litigated cases, the part of the lawsuit which I liked best was the discovery phase, where parties and witnesses could be compelled by subpoenas and similar instruments to disclose information and documents and to testify under oath. When a lawsuit begins, each party has their own version of events, but nobody really knows who is telling the truth or what really happened, since only incomplete information is available and, as a result, nobody can really be held accountable for the untruthful claims they advance.

But the discovery process almost always uncovers critical, hidden facts that reveal what really happened, and it is virtually always the case that there are documents or testimony even more incriminating than can be predicted. People resist, and lie under oath, and try to conceal things even in the face of disclosure obligations, but compelled disclosure has a way -- sometimes slowly and incrementally, but inexorably -- of uncovering the truth and exposing wrongdoing.

In my view, more than anything else, this will be the value of a Democratic takeover of at least one of the houses of Congress. As much wrongdoing as we have learned about on the part of Bush administration already, it is almost certainly the case that there is much, much more that we don't know about, but ought to.

Beginning even before the 9/11 attacks and worsening substantially since, the administration has operated behind an almost impenetrable wall of unprecedented secrecy. More than preemptive wars, tax cuts, or presidential lawlessness, secrecy is its guiding principle, its core belief (hence the incomparable hatred that spews forth at those, such as reporters, whistleblowers, and former allies who reveal their secrets). Their allies who have controlled Congress for the last five years have not only failed to fulfill their oversight and investigative duties, but have actively helped shield the administration from any real scrutiny.

What Bush followers fear most is a Congress that has the power to investigate and uncover their conduct. President Bush's father said this recently:

Earlier this month, the elder Bush was reported to have told the audience at a Republican fundraiser in a Philadelphia suburb that "if we have some of these wild Democrats in charge of these [congressional] committees, it will be a ghastly thing for our country."

He was also quoted as saying, "I would hate to think . . . what my son's life would be like" if their Republican Party lost its majorities.

And a Reuters article this morning, entitled "Bush faces political nightmare if Democrats win," said this:

If Democrats win control of the U.S. Congress in the November 7 election, it would turn the Capitol upside down and create a political nightmare for the already embattled President George W. Bush.

If his Republicans lose the majority, Bush would hear newly empowered calls to withdraw U.S. troops from Iraq and would suddenly face promised Democratic-led congressional investigations with subpoena power into the unpopular war. . . .

They say their oversight hearings would focus on what critics see as "waste, fraud and abuse of taxpayers' dollars" in Iraq, homeland security and relief after Hurricane Katrina.

Rep. Henry Waxman of California, who would be Government Reform Committee chairman if Democrats took control, said: "It's an important part of Congress's duty under the Constitution to do vigilant oversight. Republicans failed in that regard in the past six years."

A Democratic takeover of one or even both houses of Congress is unlikely to result in any new affirmative legislation or policies, since their control will be by only a small margin, dependent on conservative lawmakers in their majority, and subject to a presidential veto. With some exceptions (such as the power to control appropriations and cut off funding), the real power they will have will be to investigate and expose the conduct of the Bush administration and to reveal to Americans what has really been going on.

It is difficult to overstate how crucial that is for exposing what the Republican Party has become and undermining those who control it. The administration has been able to ward off even the most incriminating accusations and disclosures because they control the primary sources of information. They can deny anything, selectively release misleading exculpatory information, and operate in the darkest shadows and behind the highest walls of secrecy. As a result, disclosures about what they have done are always piecemeal and easily obscured. But full-fledged hearings will shine a bright light on what the administration has really been doing, and that will enable the public to get a full picture of the true state of affairs.

The Bush administration's reliance on deceit and obfuscation in its propaganda efforts is virtually limitless. Karl Rove spoke at a fundraiser this week for Tom Reynolds (which was televised by C-SPAN) and expressly said that the Democrats oppose having the Government listen in when Osama bin Laden calls the United States, and Dick Morris thinks that the only way for Republicans to win this election is to start doing things like this:

The GOP needs to focus on the concrete ways in which a Democratic victory would threaten our safety. Here's one possible ad: We see and hear a wiretapped conversation, with a terrorist revealing his worst plans to his associate - and, inadvertently, to government eavesdroppers, too.

Then, when he's about to spill the beans on when and where the next attack is going to come, the line should go dead, with a dial tone, with a machine voice saying "This wiretap terminated in the name of privacy rights by the Democratic U.S. Congress." The announcer can then say, "If the Democrats win, the National Security Agency will never be able to listen in as the terrorists are plotting to attack us."

The notion that those opposed to illegal warrantless eavesdropping are opposed to eavesdropping on terrorists is not just political spin, but is an outright lie. That is just not the position that anyone has. It genuinely never ceases to amaze that our political system is so broken, and our national journalists so profoundly fail in fulfilling their central function, that the most widely regarded political consultants think (correctly) that they can get away with such blatantly dishonest claims like this. But they can get away with them, and do, in large part because the secrecy behind which the administration operates ensures that nothing about what they do is clearly understood. A healthily functioning democracy depends upon transparency and a well-informed citizenry, and that is exactly what we have lacked for virtually the entire Bush presidency.

Investigations, hearings and subpoenas will change all of that. For those who work in the White House, the whiff of the rule of law is becoming stronger. There is a virtual tidal wave of Republican officials and their allies in Washington being investigated, arrested, and even imprisoned. Court decisions, such as in Hamdan and in ACLU v. NSA, have begun finding that the actions of the administration are illegal. They cannot ward off accountability forever. Our system of government was designed to maximize protection against abuses of power, even by political parties who have managed to seize control of most of the government.

They know that their conduct cannot withstand the scrutiny of truth-finding processes and that is why the stakes in this election are so high for them. Nobody thinks that a Democratic takeover of Congress is going to result in fundamental legislative changes or policy over the next two years, but what it will do is enable Americans to learn the truth about what the administration and its allies have really been doing for five years, and that will have a far greater and more constructive impact than any single policy change or bill.

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Posting may be light for the next couple of days because I am travelling. As a reminder, I will be participating in this event today, hosted by The Center for American Progress, beginning at 12:30 p.m. EST, in Washington. Tomorrow, I will be doing an in-studio segment with Alan Colmes beginning at 11:00 p.m. EST and will post more information about that and other events once it is available.

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