"We Tortured" -- and have not yet renounced

As part of an Atlantic retrospective of the biggest ideas of the year, Andrew Sullivan's contribution, "We Tortured," presents an ultimately heartening review of our dawning awareness of what our government has wrought, concluding:

But something else happened as well. The chief defenders of these methods among the presidential candidates—Mitt Romney and Rudy Giuliani—failed to gain traction in the primaries, and the one Republican who has consistently opposed these techniques (and who had had some of them used against him in Vietnam) won the nomination. The two leading Democratic candidates have vowed to end abusive interrogation upon coming to office. And the pseudo-legal arguments of former Bush officials such as John Yoo were both repudiated by the administration itself and subjected to withering critiques in the legal community.

We learned, in other words, that America had crossed the Geneva boundaries in the years after 9/11. We also learned that America has the resources to correct itself in the end.

Yes, "we have the resources," and our system has shown some encouraging antibodies -- disclosure, judicial repudiation, at least a partial change in policy. But the outcome remains in doubt. A few caveats:

1) McCain has effectively repudiated his repudiation of torture, voting against a law that would have subjected the CIA to military regulations banning torture.

2) McCain will likely pick a running mate who supports torture. And he's 71 years old.

3) The Supreme Court has thrice struck down a practice enabling torture and the government's absolute power over individuals: denial of habeas. But it's done so on a 5-4 vote. We're one Supreme Court appointment away from a Court that accedes to the Bush Administration's insanely expansive view of the powers of a "unitary executive" -- that is, an executive ultimately subject to no law as long as it deems the nation to be in a state of war.

4) McCain has held up as models for future Supreme Court appointments two justices, Roberts and Alito, who have so far shown no sign that they would ever impose any check on powers asserted by a sitting President.

5) Many of those high officials who systematically and deliberately designed and implemented a regime of torture remain in office, and there's no sign that any of them will ever be prosecuted for abrogating U.S. and international law.

It looks like U.S. voters will repudiate the party of torture. But not because of torture. And election outcomes are always uncertain. We're frighteningly close to voting our Bill of Rights out of existence.

Magna Carta survives by one vote

Like anyone with a modicum of regard for the civil liberties guaranteed by the U.S. Constitution, I'm elated and relieved by the Supreme Court's affirmation in Boumediene v. Bush of the right of habeas for Guantanamo detainees. Our system is working insofar as the Court has three times repudiated the Bush Administration's abrogation of this most basic and ancient of Anglo American civil liberties.

But I am terrified by the 5-4 vote. This country is truly on a knife's edge. One more Supreme Court justice in the mold of Roberts and Alito, and the Court will hand essentially unlimited power to the executive branch, endorsing Dick Cheney's insanely expansive view of the power of a so-called "unitary executive" to do whatever it wants to whomever it pleases.

McCain, of course, has promised that Roberts and Alito will be his models in selecting Supreme Court justices. He has also reversed his past opposition to warrantless wiretapping, suspension of habeas, and exemption for the CIA from military regulations banning torture. Once I thought McCain a bulwark against a Republican field vying to outdo one another in asserting unchecked executive power. No more.

The current election has been a heartening affirmation of democracy. In both parties, the field was wide open and the choices were real. That's doubly true now, because we have one candidate who has promised to roll back the Bush Administration's assaults on civil liberties and one candidate who now promises to continue them. To the present moment, our political system retains democracy's core power -- the power to self correct.

The irony is, we could vote that power away. We could democratically choose to give up the restraints on executive power that guarantee our right to chose. We can choose a president who will appoint judges who in turn allow the President to gut our Constitutional protections. We are one Supreme Court seat away from enabling autocracy.

Clinton to restore civil liberties?

Addled by fury at Hillary Clinton's pandering (gas tax holiday), saber rattling (obliterate Iran), and Rovian attacks on Obama (too numerous for parentheses), I took a cruise through recent speeches look for some ammo to prove a point (never mind).

On that quick skim I was at least reminded that Clinton is a Democrat. And in her April 15 speech to the Newspaper Association of America, I came across the most sustained and detailed promise I've seen from either Democratic candidate that Bush's assault on the Constitution would be rolled back.

Clinton started out by summarizing Bush Administration abuses. No surprise there.

The presidency is not royalty. Our Constitution is crafted carefully to prevent by election what our founders overthrew by revolution. The president is the one elected representative of the whole American people. Our president is balanced by the Congress, which speaks for regions and states, and by the courts, which defend the individual and other important rights against assaults on our liberties.

The president is the only constitutional office holder with the power to speak for all of us and with the potential to unify us in the service of our national interest.

Unfortunately, our current president does not seem to understand the basic character of the office he holds. Rather than faithfully execute the laws, he has rewritten them through signing statements, ignored them through secret legal opinions, undermined them by elevating ideology over facts. Rather than defending the Constitution, he has defied its principles and traditions. He has abused his power while failing to understand its purpose.

This administration's unbridled ambition to transform the executive into an imperial presidency in an attempt to strengthen the office has weakened our nation. It has corrupted and corroded our moral authority and brought our prestige and reputation to its lowest ebb. The president has failed to use the power of the presidency, the power he sought to inflate, to expand opportunity and make a real difference in people's lives.

She went on to express support for enhanced protection for journalists' sources and to promise "a presumption of openness and Freedom of Information Act requests and urge agencies to release information quickly if disclosure will do no harm." A tad ironic, given the Clinton Administration's long struggle to avoid disclosure and release of key documents. But secrecy is relative, and the Bush Administration has made Bill Clinton's look like an open book.

Most important, though, was a set of explicit promises to accept core Constitutional limits on Presidential power:

...because government abuse is checked by the separation of powers, I will restore respect for our co-equal branches of government. I’ll start by limiting the excessive executive powers this president has accumulated, like the unilateral power to wiretap, or detain try people, even American citizens. I will work with Congress again as a partner to solve problems. I’ll end the use of signing statements to rewrite the laws that Congress has passed. I’ll shut down Guantanamo, disavow torture and restore the right of Habeas Corpus.

I will end the practice of using executive privilege as a shield against the public’s right to know and congress’ duty to oversee the president.

Finally I will make crystal clear that the president and the executive branch will comply with the laws of our nation. My Department of Justice will interpret those laws fairly accurately honestly and publically. We’ll release Justice Department interpretations so that you know exactly what our understanding is and how laws are being executed. The President is not above the law in our system of government and we need to make that absolutely clear starting next year. These changes both represent and drive the transformation I believe is needed in our government starting on day one of my administration. I do not believe that power is an end in itself but a means. A means limited in scope of serving the interest and protecting the safety of our nation, while creating opportunity for our people.

Do I believe that Clinton would de-imperialize the Presidency? Not entirely. After this campaign, I don't take anything she says at face value. Nevertheless, here is a series of explicit promises to which she can be held accountable. I’ll end the use of signing statements to rewrite the laws that Congress has passed. I’ll shut down Guantanamo, disavow torture and restore the right of Habeas Corpus.

There's always wiggle room for the shameless, as we've learned from George "We Do Not Torture" Bush. But credit where credit is due - Clinton said what needed to be said here.