Fixing America, Erasing Bush

by: William Rivers Pitt

President Obama gave a speech on Thursday praising the excellence of the American experiment, and claimed his own life was made possible by the promise of the documents and the ideals that founded this nation. As usual, his delivery and diction was perfect. Unfortunately, his behavior of late has fallen far short of the ideals he has given such eloquent lip service to.

Two thousand pictures of Americans performing acts of savage torture on prisoners will not be released to the general public if Mr. Obama gets his way. Military commissions will continue to try prisoners outside the scope of American law, and will be free to use brazen hearsay as "hard" evidence against defendants. Mr. Obama continues to cleave to the most abhorrent aspects of Bush-era secrecy policies, and has moved to block a lawsuit filed by Citizens for Responsibility and Ethics in Washington (CREW) on behalf of former CIA agent Valerie Plame, who was outed by Bush administration officials in order to silence her Iraq whistleblower husband, Ambassador Joseph Wilson.

Melanie Sloan, Executive Director of CREW, responded to the Obama administration's stance regarding the Plame suit with a statement that succinctly sums up the distance between Obama's words and his administration's deeds. "We are deeply disappointed that the Obama administration has failed to recognize the grievous harm top Bush White House officials inflicted on Joe and Valerie Wilson," said Sloan. "The government's position cannot be reconciled with President Obama's oft-stated commitment to once again make government officials accountable for their actions."

Indeed.

These issues of torture and secrecy lead directly to the office of the President of the United States, and the manner in which Mr. Obama has proceeded thus far offends the very nature of the nation he presumes to lead. Mr. Obama sang the praises of our founding documents on Thursday, while failing utterly to live up to the oath he swore to them. In particular:

No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
That is the Fifth Amendment to the word, which as much as anything else is what makes America a special place. The notion of American Exceptionalism raises hackles all across the world, but within the lines of that Fifth Amendment are the ideals that do make America truly exceptional.

There is a reason we give Miranda rights to suspected criminals, no matter how threatening they may be. There is a reason prisoners can't be beaten into giving a confession. The infliction of pain destroys the search for truth, and begs the recipient of that abuse to lie so the abuse will stop. In any American courtroom, from the meanest municipal court to the highest bench in the land, any case where the accused has been beaten, coerced, or otherwise denied their rights will be thrown into the street and dismissed with prejudice, and justly so.

Without the presence of the Fifth Amendment, and other protections like it, no justice exists in America. In this, we find our greatness as a nation.

America is not a great nation because we have so many guns, so many bombs, or so much wealth. America is a great nation because thirty thousand brutal years of human history - slaughter, star chambers, slavery and so on - led to the enshrinement of ideals like the Fifth Amendment, and of the idea that the rule of law is the last, best hope for us all.

What George W. Bush, Dick Cheney and the rest of the previous administration did to those ideals is beyond contempt, and all of it emanated from the office of the Executive. What they did is not, however, beyond repair. Mr. Obama has thus far failed to rectify the damage, but he has a golden chance to do so in the coming weeks.

With the retirement of David Souter, a new nominee to the Supreme Court will soon be named. Many names have been bandied about, some leaning Left and some Right. The GOP has already begun game-planning their opposition to any and all Obama nominees, using all the old litmus tests: abortion, privacy, free speech, etc. If Mr. Obama truly wants to live up to all the lofty rhetoric he has been throwing around since the beginning of his presidential campaign, he will nominate someone based on a whole new and vitally critical litmus test: Executive Privilege and Executive power.

It was the Bush administration's abuse of Executive Privilege and Executive power that led to America's use of torture, and to the veil of untouchable secrecy that now enshrouds the Executive Branch. Mr. Obama has the chance to undo this damage by nominating someone to the Supreme Court who believes the Bush administration overreached, and who will rule in those future cases that those Bush-era definitions of Executive Privilege and power should not be allowed to stand. Mr. Obama should use this litmus test for the next Supreme Court nominee he offers, and the next, and the next.

Someday, cases directly addressing one or all of these monumental issues - secrecy, torture, Executive Privilege, lawfully-issued congressional subpoenas, public disclosure - will be adjudicated by the Supreme Court. Several cases directly dealing with these issues are already working their way towards the high court, and the decisions to come on these matters will determine the fate and future of this nation.

Mr. Obama has not yet done what he has promised to restore the rule of law in America. One way or another, these questions will be delivered to the Supreme Court, which will have the final word. With his nominations to the bench, Mr. Obama can make up for his failures to date in grand fashion. By making sure his nominees will stand against the Bush-era damage done to the separation of powers, Mr. Obama can go a long way towards fixing America by erasing the sorry legacy of George W. Bush.

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