Obama Can Restore Constitutional Democracy in Two Easy Steps

Ask any computer guy. Five million emails don't disappear by accident, especially in the White House. It takes a lot of hard work, involving deliberate action from a team of seasoned professionals, to make the evidence unretrievable.

The missing emails, many of which were sent by Karl Rove, are a small part of the boundless evidence indicating a conspiracy to obstruct justice within the White House. Eric Holder, our next attorney general, could easily demonstrate sufficient probable cause to get a signed warrant to search documents held by the current president and vice president. Bush and Cheney would not be able to stop the government from moving forward. A search warrant is not the same thing as a subpoena. So, while Bush and Cheney have tied up subpoenas in the courts with bogus claims of executive privilege, they face a far more daunting task if they attempt to stall the government from moving on a warrant. As the Supreme Court unanimously ruled 34 years ago in United States v. Nixon, executive privilege is overcome by the need for evidence in a criminal inquiry.

It's a safe bet that Bush intends to upend such an inquiry by repeating the stunt his father pulled 16 years earlier. George H.W. Bush pardoned Casper Weinberger and effectively shut down an investigation into criminal activities that implicated Bush Sr. in Iran-Contra. But things are different this time. There are so many more people who could be targets for Holder to investigate and prosecute. Given all that went on during this administration, there had to have been a lot of people who looked the other way. Those people are subject to prosecution. Under the century-old doctrine of willful blindness, you can be prosecuted as an accessory if you had reason to believe that criminal acts were being committed under your nose.

Still, in spite of widespread evidence that Bush, Cheney, Rove et al. ran a criminal operation, Obama may be reluctant to use his political capital in pursuit of prior administration officials. (As usual, Barney Frank said it best. After the President-elect referred to himself as post-partisan, Rep Frank said he felt "post-partisan depression.")

But Obama can go a long way toward clearing the air by taking two quick and easy steps. He can simply disclose certain documents concerning the CIA leak and Katrina. Since those disclosures are responsive to bipartisan requests from Congress, they would not polarize Washington, nor would they would not tie up resources in a protracted investigation.

Step One: Disclose the transcript of Patrick Fitzgerald's joint interview with George Bush and Dick Cheney.

What did Bush and Cheney know, and when did they know it? That's what the House Committee On Oversight and Government Reform wants to know with regard to the CIA leak scandal. Did Cheney declassify Plame's status? If so, when did the declassification take place? Did Bush know about it? Did they have any awareness of how national security might be compromised? Did they answer the questions directly and openly, or were they evasive?

The committee sought the transcript of Patrick Fitzgerald's interview with Bush and Cheney pertaining to the criminal investigation over the CIA leak. Attorney General Michael Mukasey, in yet another demonstration of contempt for his oath of office, refused to comply with the request, because Bush asserted executive privilege. Last Friday, the committee issued its draft report, which stated:

"On a bipartisan basis, the Committee finds that the President's assertion of executive privilege over the report of the Vice President's interview was legally unprecedented and an inappropriate use of executive privilege. The assertion of executive privilege prevents the Committee from having access to a complete set of records and thus results in the Committee's inability to assess fully the actions of the Vice President."

Eric Holder can correct Mukasey's noncompliance in short order.

Step Two: Disclose the documents requested by Congress pursuant to investigations into Katrina.

What did Bush and Cheney - and for that matter, Chertoff, Rumsfeld, and many others - know and when did they know it? More than three years after Katrina killed a thousand Americans, we still have no idea. Back in March 2006, when Joe Lieberman made a pretense of believing in government oversight, he issued a strongly worded demand, as ranking member of the Senate Homeland Security Committee, that the White House comply with Congressional requests for documents and information pertaining to the disaster.

"[V]irtually everyone in the White House who had anything of operational significance to do with the preparation for and response to Katrina falls into the category put off limits to us. And, of course, we have been denied our requested interviews with even those lower level employees about whom the White House says it is willing to give us information. This has left us unable to obtain any real sense of what the White House did or didn't do to run or aid the federal response to Katrina. And it has kept us from obtaining key information from executive branch agencies about the government's response to Katrina. Members of both of our staffs have repeatedly and for months asked White House staff for precedent for the White House's sweeping assertion of near immunity from inquiry. To date, we have been given none."

Obama's White House should respond to both Waxman's and Lieberman's respective committees by complying with their three-year-old requests for the following:

"[A]ll documents:

• produced, sent or received by the EOP or any of its employees or officials between August 26, 2005 and August 31, 2005 that refer or relate to (a) actual or potential breaching or overtopping of the levees in or around New Orleans or (b) flooding in or around New Orleans; and

• related to the 11:13 AM White House Homeland Security Council spot report stating that there was a report of a levee breach, including any and all documents stating or relating to the source of the report of a levee breach. If no such documents exist, please identify the source of that report."

Today, anyone who writes about the CIA leak case, or about Katrina, is extrapolating from the very small tip of a very large iceberg. If we want to move on as country, we need a cursory glimpse of what remains hidden below the surface. In terms of restoring accountability and transparency to the executive branch, these two steps provide some of the biggest bang for the buck.

Comments

[microcosm]

Save Journalism and you save America
http://ceasespin.org/ceasespin_blog/ceasespin_blogger_files/d0887a41f76b34285649fb31711be7df-0.html

[cdj1122]

Let's suppose Bushie does hand out several Federal pardons as we all suspect he will.
.
If I understand the way that works it covers past crimes, not future ones. If the pardoned person is subpoened once again to appear before a Congressional Investigation would he not have to tell the truth since having been pardoned for past possible crimes, he could not even claim self incrimination ?
.
I would love to see them put Cheney under oath and be forced to answer questions about the Plame case.

[DeafGuy]

> Ask any computer guy. Five million emails don't disappear by accident, especially in the White House. It takes a lot of hard work, involving deliberate action from a team of seasoned professionals, to make the evidence irretrievable.

I'm a computer guy. In fact, I worked for a well-known email software company that built email systems for Fortune 500 companies. It's actually frighteningly easy to accidentally delete any amount of email. If you have the standard simple flatfile mailboxes in /var/mail, then a flubbed "rm *" can do it. If you have a more complex hierarchal directory structure, then it would take a "rm -rf *" or equivalent. If you have mail stored in a SQL DB, then it's as simple as a "DELETE FROM mailboxes;" or "DROP TABLE mailboxes".

Sure, everyone is supposed to have backups, but any experienced sysadmin knows how often that doesn't quite work out as planned, and besides, traditional backup strategies don't play nicely with the transitory nature of email.

I'm not trying to defend Rove et al. We would certainly expect the White House to have competent IT staff who have a properly functioning backup plan in place and don't go around running ill-advised "rm -rf *" commands. It is indeed suspicious that all those email would conveniently disappear.

But it's far easier to accidentally delete data than you seem to think. As they say, "To err is human, it takes a computer to really foul things up!"

[cam]

Your scenario is highly improbable. It presumes the entire mailsystem is housed on one box, that there are no daily, weekly or monthly backups, that the database was not backed up, that the system adminstrator was the dba, etc. In a system that is designed to keep data secure and to maintain some degree of redundancy in case a server fails it is almost impossible to lose more than a few hours of data..

In fact, one of the nice things about mixing security, computers, and bureaucracy is that if the data was truly lost then it will be easy to determine who lost it.

Who lost it?

[DeafGuy]

> daily, weekly or monthly backups

You assume the traditional backup, which doesn't take into account the transitional nature. The daily backup--in the morning, I get email, read, delete. Next night, daily backup. Whoops, it didn't catch that email that arrived and was deleted since the last backup. Your normal daily, weekly, monthly backup fails.

It's not all that improbable. One box can handle an impressive amount of email. But nothing I said depends on that in anyway. Share a SAN or NFS. A distributed system, yet a single box might still hold several million email messages itself, especially for prolific users, and can be a single point of failure.

RAID protects against disk failure not accidental deletion. You restore the last backup, but you've lost all the email in the interim.

I didn't see any claim that ALL email was lost, but rather 5 million. Lots of potential scenarios can account for partial loss.

My prior employment, a Fortune 100 company, had an IT department dedicated to backups. But they so consistently failed to deliver that we gave up and went with our own backups. This large company certainly mixed security, computers, and bureaucracy, but that only caused more CYA behavior.

Again, I'd expect better of the White House, and also, I don't believe this missing email is an accident, but my point stands -- it's trivially easy to accidentally lose data.

[David Fiderer - Huffpost Blogger]

DeafGuy
You make a fair point, and I may have sacrificed clarity in the interest of brevity. If you look at the sequence of affirmative decisions taken by the White House, beginning with the dismantling of the the Automated Records Management System put in place to archive all the emails, you see a reckless disregard for protecting the inegrity of the data in a setting where there is a strong affirmative responsibility to protect information that touches on national security, it's hard not to infer that people were acting with a clear intent to make the data unretrievable at a later date.

Check out the sequence of events described by the National Archive. http://www.gwu.edu/~nsarchiv/news/20080417/chron.htm

That's why I think the legal doctrine of willful blindness is appropriate.

[DeafGuy]

Right, I agree with you there. I'm probably just being too pedantic on the technical point on how easy it is to lose email. :-) I've worked in email long enough to know there's a large variety of creative ways to accidentally lose email.

But no doubt, the Bush Administration has been working hard to cover their tracks, which is the main point.

[omahkohkiaayo]

It is really simple. A Tort is an offense by a person or group against another person and the victim can waive legal remediation. A crime is an offense against all of society and no victim can waive prosecution for a settlement because all of society has been harmed and no person has standing to waive prosecution for crimes against others or society as a whole. The law only works when it is respected by the majority even without being monitored thus leaving the scarce resources of law enforcement to be focused on the few that break the law; but the law is only respected when it applies equally to all without fear or favor (one of the reasons for the 14th Amendment).

When the telecoms were given immunity for their crimes (voted for by Obama) because of the potential economic effects, not only were the rights of the victims and society summarily waived and denied, but the rule of law itself was undermined and critical lessons left unlearned.

No one swims in or comes out of a swamp without getting some slime and lower-order life forms on him and her. We will find out how tainted or untainted Obama is after coming out of the swamp of Chicago and Illinois politics by the positions he takes and how he defends or fails to defend them.

[firstcrasscitizen]

I don't think our country can move forward until we deal with our past. We need to punish all crooked politicians to the fullest extinct of the law.

[Rexer]

There is an upside to the intensifying revelations of political greed in our so-called representative democratic form of governing. Most adults stay away from loaning money to relatives knowing it is a quick way to expose our beliefs of taking advantage of a relationship.
Yet we have been sold on the idea that some representative, voted in under the auspices of trustworthiness, will be more responsible with our tax dollar also a loan under certain stipulation on how it is to be spent.
We are awakening to the fallacy that others will, and actually can, represent us with such expenditure of loaned tax moneys.
This may be a crude and rude awakening but in this age of shifting consciousness a necessary element of finding our way to creating our own destiny.
The financial system as it is will crumble, yet we will replace the idea that others may and actually can make reliable decisions for us in important economic areas with knowing we have to be directly involved in all such decision and this will start from the bottom up, from the local level up.
Our greatest hope as I measure it, is watching the conversion of those who were behind the taking realize their greed finallly came home to roost.

[Sundialsvc4]

"High crime" sounds "high," doesn't it?

But it's actually the scum of the sewer, the lowest of the low.

When any person uses his authority as a civil officer to commit, to protect, or to otherwise aid-and-abet crime, there are millions of victims ... and maybe, hundreds of thousands of dead (or worse).

But the Beltway attracts such crime, and we call the criminals by honorifics.

So, "it's our own damn fault."

And I suggest that maybe we should, nationally, start "taking a bite out of" high crime instead of wringing our hands at the Constitution and admiring the lovely calligraphy of Article 2, Section 4 instead of reading it. Crime is simple: if you put up with it, it gets worse. When you stand up to it and make it known that "any civil officer" can and will find his butt in Leavenworth (or his head in a noose), I assure you that after the third time you WILL see a swift change.

Let's use the "Hawaii Five-O" rule: "book 'em, Jack."

[cactusgal]

You are absolutely correct. My husband has been a computer systems developer for 40 years, and he insists that the emails are still in existence despite what anyone from the Bush administration says.

Not pursuing these criminals for what they've done to America (and the world) would be tantamount to deliberately leaving a malignant tumor in a patient just because the operation interfered with the surgeon's afternoon golf game.

[aspen]

It is up to those of us who are appalled that this bunch will not be punished for their misdeeds, to insist to our leaders, Obama and Congress, that in the US noone is above the law. Allowing the Bush administration to get away with abuse of power and trashing the Constituion sets a very bad precedent for subsequent administraions, R or D.

Obama may be hesitant, but certainly Congress should be performing the executive oversight it failed to do during the Bush administration.

And as prosecutor Vincent Bugliosi says in "The Prosecution of George W. Bush for Murder" there is no statute of limitation for murder.

[twinkerbell]

I believe that the Democrats would be very happy to let the Bushies
"get away with it", as then they will never be held accountable for doing the same thing.
And we must remember that most of the Democrats are owned by the big corporations, who hedge their bets by contributing to both parties.

[Nonamnesiac]

If ever there was an explanation of why these lawless thugs got away with their treasonous assault on the Constitution, it occurred in the US Senate after Stevens conviction. Stevens received a bi-partisan standing ovation by the Senate. This two-bit thieving convicted felon -- someone who somehow got himself convicted of horrific corruption despite being as close to immune from such prosecution as possible -- was actually being cheered by his colleagues -- the members of a body supposedly committed to making legislation, including the laws violated by Stevens.

Once one saw that and watches how politicians are forced to function as servants to corporations in order to secure enough money to run for office, one realizes there will be no prosections of the lawless thugs who are the Bush Administration. Indeed, the $750,000,000 man (who got each dollar from people who only donated $1 to his campaign) is busy appointing at least one of the Bush Lawless Thugs to a continue as Sec. Def.

R.I.P. Rule of Law.

[peterg76]

Politicians have more loyalty to each other than to their constituents.

[Apov]

R.I.P. the Unites States of America

[Chip W]

I've been hoping for seven years that Bush & Team would someday be held accountable.
At this point, the only thing I see worth accomplishing is the restoration of some degree of lost integrity to the U.S. government. Bush should be punished? No, let him live out his delusions; he personally doesn't matter anymore.
To the extent that this would be keeping the past alive for no forward-looking purpose, I don't think it should be pursued.

[aspen]

I disagree. These people mugged our government and our Constitution. We would never say let a common street mugger go unpunished. Why should we not hold accountable those who have done far more damage including getting thousands killed and terribly wounded in an unnecessary war that they conned the nation into?

It is not about retribution. It is about maintaining our ideals for which many have died.

The Bushies would be delighted to hear that you want to go forward and bury the past.

The military has a great exercise Lessons Learned performed after a battle. This country needs to know the "lessons" of the Bush years or we will be doomed to repeat the same with future administrations.

[Hallucinocynic]

WRONG. WRONG. WRONG.

This isn't about getting even. This is about addressing a sick, self-defeating system whose laws were willfully - with knowledge and foresight - broken by our chief administrators. Setting aside the potential punishment for the principals, we need to correct and amend those laws which are meant to protect the greater community from exclusionary governance.

Impeachment proceedings are as important as any financial correction. Obama, if he truly wants to clean up the mess, will have to recognize that we must address the sickness, not just the symptoms.

[berrycooda]

Now there is another mess to think about with the
Governor of Illinois...

There is corruption on both sides of the fence....so at least be fair about it.

Every administration leaves baggage. Only some get caught and some don't until years later.

So...wait and see and hope that the people P.E.Obama has brought with him to Washington
from Illinois politics, don't leave a bad footprint.

Nobody knows and everybody speculates but only time will tell what did and what will happen.

[aspen]

The clown from Illinois did not get thousands killed and thousands more horribly wounded in an unnecessary war.

[JustMyWords]

Of course corrupt people have - and do - exist on both sides of the political fence. No one's claiming otherwise.

But the governor indulged in petty, garden-variety, self-serving graft.

The current administration, on the other hand, mired us in a war based on lies. They've decimated Constitutional protections. They've decided that torture is the way to go.

The two aren't exactly created equal.

[stephanemot]

America must put Amerika's leaders behind bars.

[ConnieInCleveland]

President Obama will have control of the Justice Department, he could use his political capital to right the wrongs of the past eight years. He could take America to school and restore our Constitution at the same time. Far too many Americans do not understand the Constitution and the damage done for the past eight years. Hearings would inform the uninformed. Make the Bush administration state their case "out loud" in front of every American. Testimony under oath can"t be spun. It"s the truth and nothing but the truth, so help them God.

Bill Clinton did not use his political capital. He let George H. W. Bush walk away and look how that turned out for him. The Republicans didn't give him a pass, they used hearings to expose him for sex. Offense is the best defense. Barack Obama can not let them make him into a victim. First and foremost he must hold mainstream media accountable and shame them "out loud" for spinning (distorting) the truth. Eventually they would be afraid of being shamed by the President and his administration. They would start covering facts, instead of trying to spin (distort) facts. Barack Obama should keep his war room going until mainstream media realizes he is not going to let them spin any longer.

[catik]

We all know Bush et al subverted the Constitution. I've seen this issue discussed by both liberal and conservative legal scholars. Why aren't Bush/Cheney and their minions being held accountable for their crimes? I hope they will be!