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Federal Government Wed May 01 2013

What Were Once Vices

The summer of 1974 is memorable not only for the release of a Doobie Brothers' LP that with its hit "Black Water" would form a soundtrack for much of the coming year, but also for the resignation of Richard Nixon. As Mechanics' attorney-in-residence, and possibly the only writer here who remembers dancing to either of the aforesaid, and as a nod to Law Day, I agreed to cover the forum last night at the University of Chicago Institute of Politics in Hyde Park featuring current and past U.S. Attorneys General Eric Holder and John Ashcroft. Moderated by former Chicago law school dean Geoffrey Stone, the event highlighted the publication of Restoring Justice: The Speeches of Attorney General Edward Levi, by Jack Fuller. Fuller, former Chicago Tribune editor and publisher, interrupted his long journalism career to serve as an assistant to Edward H. Levi during Levi's stint as the country's top lawyer during the Ford Administration.

That 1975 appointment, of course, plucking Levi from the presidency of the University of Chicago, was a direct response to a national crisis in confidence in the Justice Department specifically, and in government generally. Watergate and related scandals saw lawyer-President Nixon impeached and resign, two of Levi's predecessors as Attorney General convicted of perjury, and the White House counsel plead guilty to obstruction of justice. Fuller's book debuts amidst the 40th anniversary of the scandals, cover-ups, shocking revelations, and legal-political drama that overshadowed much else in the nation in 1972-74. Since some of the same themes that then gripped the U.S. reverberate today -- electronic surveillance of Americans, bombings abroad ordered by the executive branch, and the power of the Presidency itself -- the forum held promise of potential fireworks and relevancy. The Institute did a pro job at logistics and presentation, and, let's be clear, is not required to offer all points of view. Unfortunately, what could have been more provocative ended up, by virtue of lack of balance, as a soft promo for continued perpetual war and expanded executive branch power, with only nods of concern to clampdown on civil liberties and ever-eroding privacy. I have to wonder if that's what Edward Levi would have wanted.

Chicago law school dean Michael Schill welcomed the nearly-full auditorium at the Logan Center and introduced Institute Director David Axelrod. Axelrod introduced Holder, saying that the country's first African-American Attorney General confronted, in "an age of terrorism and cyberwar and monstrously complex financial schemes," challenges not seen since Levi's days, and that Holder has been an advocate for securing the rights of every American.

Holder, after thanking Axelrod, added that his department has also had to manage budget crises stemming from the financial meltdown and, currently, the sequester, as well as, during the first Obama term, "the nation's deepest environmental crisis," the BP/Deepwater Horizon disaster in the Gulf of Mexico. Holder extolled the administration's record on prosecuting "record numbers of police misconduct cases" as well as voting rights, drug trafficking, and cybercrime cases, and having secured convictions against "scores of dangerous terrorists." Holder insisted that that had been accomplished "while upholding our principles and using our most important tool, our federal court system," an implicit endorsement of the Administration's stance against trying civilians as "enemy combatants."

Holder used his brief remarks as a pitch to the largely-young audience for greater involvement. With no Q&A, and his remarks a speech, not part of the panel discussion, Holder was spared the potential embarrassment of, say, a student asking why the Department found it necessary to prosecute 26-year-old Reddit founder Aaron Swartz so much more aggressively than it's pursued the top-level perpetrators of the 2007-08 Wall Street crisis. Holder touched instead on departmental stances presumably more popular on campuses, such as residency for the "11 million people who are here in an undocumented status" or opposing DOMA. He urged the audience to carry on the legacy of Levi, saying, "A single person can make a difference and all of us have the opportunity and a responsibility to try."

Prof. Stone, who has written on the topic of governmental abrogation of rights during wartime, then introduced the two-person panel, inviting them to tie the themes of the Nixon-era dramas Fuller had helped supervise to those of the post-9/11 era Ashcroft had seen ushered in. Fuller compared his tenure to the toxicity of Washington today, saying that the "anger and rage" that had developed over the Nixon years of scandal was still very much present when Levi took office, and that the media was "full of themselves." He lamented that, post-Watergate, the political system was "reconsidering 40 years of cold war history all at once" and forgetting why they were afraid [of the USSR] to begin with.

Stone asked Ashcroft how, following 9/11, his office drew on the legacy of Levi, if at all. Ashcroft largely demurred, saying that the challenges following 9/11 were different, that Levi had confronted a "distortion of the Department [of Justice] based on optics" whereas in his time, "we faced a foreign foe that killed more people in a single day than at Pearl Harbor." Ashcroft, who had been briefed by the FBI multiple times in 2001 about an increasing Al-Qaeda threat and reportedly brushed them off, conceded that it was "clear that we had to reform and improve our performance." He characterized his approach as "We have to think outside the box but not outside the Constitution." He cited the Patriot Act, which he asserted was "made in three days" from "authorities that had been done in other areas" and was all "in the context of the rule of law." He argued that such laws, though widely attacked as unprecedented expansion of government power and assault on freedom, actually advanced liberty by setting boundaries, since "when the law is uncertain, people have to retreat from activities for fear of whether they're allowed to do them."

Fuller did not disagree with Ashcroft and said that Levi's charge was to "change the environment" and, for the public, to "restore confidence that justice was on the square." Fuller opined that despite the abuses of the Nixon administration, it was important, when Levi was Attorney General, that the FBI be involved in counterintelligence and that the CIA not become stagnant.

Stone attempted to draw further parallels by asking Fuller about the infamous COINTELPRO domestic spying program, which the FBI now says "was later rightfully criticized by Congress and the American people for abridging first amendment rights and for other reasons." Fuller retraced that domestic spying program with a broad brush, and focused on the Justice Department's internal debate over procedures "under which the FBI can take affirmative steps to disrupt an organization" that is "about to do something." He recalled that ultimately, Levi's FBI guidelines did not include anything on that, and suggested that maybe such guidelines are not something we ought to "institutionalize." He also stated that COINTELPRO and "a huge proportion of the domestic political spying" came to an end.

Stone prompted Ashcroft to compare his administration's use of informers and similar tactics. Ashcroft didn't take the bait, arguing that the Levi-era guidelines arguably inhibited the ability to prevent the 9/11 attacks because they prevented, for example, sharing intelligence information with law enforcement. He noted with irony the In re Sealed case, saying that since the Court found there was actually no inherent limit on spying/sharing, the Patriot Act "created the wall" rather than lowering it. He also suggested that "our enthusiasm for the Constitution" has "tied the hands of those who would protect us."

That observation set the tone for the rest of the discussion. Ashcroft asserted that "the responsibility of the government at our core is to protect the liberty of the American people so you don't want to inhibit that." Those in the room who remembered the Vietnam rationalization about destroying the village in order to save it were unconvinced.

Fuller recalled that "Watergate had discredited the idea that national security could provide a justification for much of anything," and so he personally reviewed surveillance cases with Levi, with Levi joking that they'd have a long time in adjoining cells to discuss whether they made the right call or not.

Fuller discussed how the scandal about the FBI's eavesdropping post next to the Soviet Embassy became an "outrage" because people assumed that the FBI was doing so as a "subterfuge to listen to Americans." Ashcroft chimed in that presidents in times of war were historically "involved in surveillance that was substantial," citing Woodrow Wilson and FDR. That led to a larger discussion of presidential power generally.

Ashcroft suggested that the Sealed case suggests that the powers of the President could not be limited by FISA, or any statute, but are inherent. Thus, he characterized FISA as not so much a limit as a "safe haven" that protects the President if questioned.

The "people's" remedy in case of abuse was discussed, and Ashcroft conceded that the "remedy" of getting to elect a new president every four years wasn't very swift or powerful. Stone dug in, asking what the "people" can do about a secret program if they don't know about it. Ashcroft seemed to acknowledge the Catch-22 but simply retreated to the idea that "presidents properly exercise authority under the constitution." His explanation sounded in realpolitik: "if the President decides to exercise war powers and Congress does nothing, then the President has constitutional power." I.e., the President's power is whatever the President can get away with. Cue Frost/Nixon!

The sharpest question of the night came in one of the two student-posed questions, the first being about Guantanamo and hunger strikers. Ashcroft re-framed the question as one of "what do you do with people detained on the battlefield," saying that the easy answer was that "you remove them from the stream of the conflict until the conflict is over." As to when that might be, Ashcroft went on, "It may be difficult to know when the War on Terror is over, but that doesn't mean that you don't know that it's still going on. Who should bear the risk? I don't have a problem detaining people in the war."

Stone pointed out that many of the prisoners at Guantanamo maintain that they were not combatants, and that people want procedure after 11 years of detention. Ashcroft insisted that detainees were being given "a quasi judicial procedure" and that he was "offended" by the suggestion that the military could not give people a fair trial, because they "put their lives on the line" and have "methods devised and implemented by our armed forces for assessing who was a combatant."

The second and last student question was whether the war on terror served and/or was conducted for political ends. Unsurprisingly, or perhaps surprisingly, the question wasn't answered directly. Ashcroft, who by this time had taken the lead in the answers, referred to the Boston Marathon bombing and retreated into koan-like paradoxes, saying that a country only goes to war, or ends one, "too early or too late." He asked the audience, "Do you want your government to protect you too little or a little too much?" Alluding to Churchill's urging that America join World War II before Pearl Harbor, he left this final nugget for the audience: "Maybe it's better to go [to war] too early than to go too late."

Sitting in that audience, I was a little surprised at the turn of the discussion. The entire raison-d'etre of Levi's appointment to Attorney General, without which there would be no Fuller book release, and no forum, was to restore confidence in an executive branch whose abuses and assertions of power had brought the nation to constitutional crisis. The Nixonian excesses shook the faith of an entire generation. So hearing an argument for extension of imperial presidency was unexpected.

Granted, I'm a litigator, and have some training, from high school on, in spotting illogic. I also might have more recall of the Watergate era than some. Still, if last night's panel was your only introduction to Watergate, you'd think the debacle was, as Ron Ziegler put it, nothing more than a third-rate burglary, that needlessly sent the US into a spiral of self-destructive guilt and introspection on everything from law enforcement to foreign policy. Many of the assertions made could have and should have been challenged.

Ashcroft's indignant response to the suggestion that the military is ill-suited to try civilians, for example, saying they have "methods" for determining who are combatants, overlooks that one of the horrors of Vietnam was indiscriminate force against civilians, and that, more recently in Iraq and Afghanistan, US forces have had some trouble in their "methods," having blasted away at various times, not only Iraqi station wagons and Afghani wedding parties, but our own troops, and even those of Canada. The fog of war doesn't even make for accurate war, let alone a proper venue for a trial.

It was also shocking to hear someone who was once the land's top legal officer say, blithely, that "the only way to ensure that you never detain the wrong person is never to detain anyone." I waited, after this argument ad absurdum, for the inevitable and necessary response about, you know, this thing called due process. Even a first-year law student knows that process is what gives the determination that lets the state keep (or free) someone validity. I waited in vain.

The even more troubling issue, that the right to detain "on a battlefield" and "until the war's over" has no limits when the entire planet (including the US) is defined as the "battlefield," and war as perpetual, went unaddressed. That Nixon's paranoia and resort to spying against all potential "enemies" seems the tone for much of our current domestic and foreign security policy, from TIA to fusion centers, likewise.

The problem was that the panel had insufficient backstory and balance. No doubt Stone could have played devil's advocate to nearly every point made, but that's not a moderator's job.

Had I been a professor assigning a class to attend this forum, I'd have required some advance reading. Many of the young attendees, like many Americans today, would do well to read Leonard Lurie's 1973 book, The Impeachment of Richard Nixon, not a chronicle but a prediction/exhortation that laid out, a year before, how guilty Nixon was, and of what. Another readily-obtainable account, albeit like Lurie's not yet fleshed out with what would come to light in hearings and later accounts, is the Sunday London Times team's Watergate: The Full Inside Story.

Of more current writings, I'd assign chapter five of Conason's It Can Happen Here. That chapter, entitled "The Revenge of Nixon's Heirs," shows how the Nixon-administration paranoia and over-reaching is the direct ancestor of the Patriot Act and other authoritarian measures implemented during the second Bush presidency.

It would also have been interesting to see the panel balanced out by an advocate for liberties. The answer to many of Ashcroft's rhetorical questions was that freedom has risks; indeed, risk may be not just a corollary of freedom, but a definer. Just as Ashcroft said only absence of detention can guarantee no wrongful detentions, only eradicating freedom can guarantee abolition of risk. But no one challenged Ashcroft's Orwellian tenet that a Bigger Brother makes us freer. It'd have been nice to have heard someone like Phillip Heymann, author of Terrorism, Freedom, and Security: Winning Without War, and who as a former Watergate prosecutor and consultant, former Assistant U.S. Attorney General, and Deputy Attorney General, certainly had the cred for such a discussion. Another fine panelist would have been Professor (and former congressional staffer) Jonathan Turley, an eloquent advocate of the rule of law.

As it was, the evening dwelt less on how Levi turned things around at Justice, and why a turnaround was necessary, than on themes suggesting that maybe Nixon had it right after all. Most of the Bush measures that Democrats called Nixonian are still in place, and some say that the current administration in some respects is even harsher. The title of the '74 Doobies album that, no doubt, some were listening to as Nixon left the White House, was What Were Once Vices Are Now Habits. I'm just a student of history, not one at the University of Chicago, but had I been given the opportunity, I might have asked, like Prof. Turley, if that isn't Nixon's actual legacy.

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