Time to Play Offense

If events of the last week or so have not convinced congressional Democrats that the ball is in their court, I really can’t fathom what will.

Perhaps, to some, at first blush, it doesn’t look so sanguine. The President nullified a jury decision in the Libby case. The Bush-packed Supreme Court and the Sixth Circuit assumed the rubberstamping duties previously exercised by the last Republican congressional majority. The White House continues to discount and dismiss congressional inquiries and, now, subpoenas. The Pentagon continues to force-feed American troops into an Iraqi meat grinder while administration officials saber rattle in the direction of Iran. And it has become ever more clear that a vice president who considers himself above the law and outside the Constitution has unparalleled sway over an ignorant, incurious, and un-analytical president.

But look past the Beltway, and you might see something different. Call me a cockeyed optimist, but I see it. . . or at least feel it.

Overwhelming numbers of Americans disapprove of the commutation of Libby’s sentence. Not just Democrats, but the much-coveted independent voters see the president’s move as wrong, if not downright cynical. Even Republicans are deeply split—some actually offended by the unequal administration of presidential clemency, others feeling betrayed because The Decider didn’t decide to pardon their “fallen comrade.”

In fact, several on the right have labeled the commutation as political and “Machiavellian,” while most on the left and many in the establishment have come to realize what I argued almost immediately after Bush’s move: The Scooter buyout wasn’t merely a profile in cowardice or an exercise in splitting the baby—it was a carefully crafted decision designed to most optimally guarantee Libby’s silence.

Decisions in the courts, be they SCOTUS or the Court of Appeals, stand as a shock to the conscience. From wage equity, to illegal surveillance, to habeas corpus and military commissions, an increasingly uneasy country has been further stirred and a sluggish Congress has been put on notice: Where the courts have been allowed to interpret bad laws badly, it is time for legislators to rewrite those laws for the better.

The House Judiciary Committee has issued subpoenas for information pertaining to the illegal domestic surveillance program; in both the House and Senate, many other subpoenas sit approved but un-issued. Sen. Leahy and Rep. Conyers, et al., need to send up those subpoenas, and when those legally binding demands for evidence or testimony are ignored or defied, then it is time for Congress to hold the President and his cohorts in contempt—at minimum.

On the war in Iraq, the Majority failed to hold its ground in the spring, and it saw its approval ratings plummet. Since then, the administration’s splurge has demonstrated its tactical ineffectiveness with buckets of American and Iraqi blood, while the strategy of providing time for the Iraqi government to stabilize has proved so tragically flawed that it will be a miracle to see Iraqi PM Malawi survive the summer.

And people—in the ivory towers and in the heartland—have noticed. Last week saw the staunchly pro-military paper The Olympian in Olympia, Washington advocate a troop withdrawal, and Sunday’s New York Times finally relented and admitted “it is time for the United States to leave Iraq.” Those papers are only playing catch-up to their readerships, whom for many, many months have been telling pollsters that Bush’s fiasco should never have been started, is not going in the right direction, and is overdue to end.

The Times has even checked itself on its recent parroting of some current White House rhetoric. Public Editor Clark Hoyt questioned recent reliance by Times’ reporters on the administration’s assertions that the lion’s share of violence in Iraq can be blamed on al Qaeda. His inquiries seem to have spurred news editors to exercise more care in explaining the difference between the al Qaeda that engineered the 9/11 attacks, and the vaguely affiliated, al Qaeda-inspired groups that might have a role in the ongoing Iraqi mayhem. This fix is still belated, but is indeed a much faster correction than was seen vis-à-vis the lies that led up to the initial invasion.

And while a recent ARG poll shows that roughly half of America believes President Bush should be impeached (a remarkable number, really, and more than enough of a sign that congressional hearings should at least begin), the same survey records overwhelming majorities in favor of Vice President Cheney’s removal. Bush’s overall approval rating, averaged across all major polls, has now dipped below 30% 28%; while Cheney can’t drag his numbers out of the teens. These men are not liked, trusted, nor respected, and Dick Cheney provokes disgust, as much in so-called independents as in Democrats, and increasingly in his own party.

So, again, I posit, the ball is in the Democrats’ court. In fact, it is a sporting goods mega-store worth of balls, each served up like a friendly toss in a game of slow-pitch softball.

And there are signs that congressional Democrats, if not yet ready to swing for the fences, at least know it's their ups.

Rep. Henry Waxman has been dogged all year, starting many balls rolling on many oversight investigations. House Judiciary Committee Chair John Conyers appeared on ABC’s This Week demanding President Bush waive executive privilege—as President Bill Clinton did when his pardons came under scrutiny—to allow a full and free investigation of the commutation of Libby’s sentence. Conyers also stated that if the White House refuses to comply with congressional subpoenas relating to the firing of US Attorneys, he could move to hold Bush and Cheney in contempt of Congress, and also acknowledged that Americans have now come to see impeachment as a favorable option.

On the Senate side, Judiciary Committee Chair Patrick Leahy is considering calling Libby prosecutor Patrick Fitzgerald to testify, not about what happened before the grand jury, which would not be proper, but about his interviews with Bush and Cheney, which, at the insistence of the White House, occurred outside the protective cover of the grand jury room.

Senate Majority Leader Harry Reid recently acknowledged that his party “hasn’t done enough” to oppose the president’s Iraq policy, and is now sounding like he wants to make up for this error. Seeing a mini-wave of half-hearted “defections” by respected Republicans, Reid wants to give them the chance to put their votes where their rhetoric is. The Nevada Senator is proposing a series of votes on troop drawdowns and spending restrictions in the next couple of weeks.

Reid even has the feckless former Secretary of State on his side. The opinion-shy Colin Powell has now decided it is safe to announce that he argued with the president for a whole “two-an-a-half hours” in an attempt to head off the US invasion.

The balls are indeed drifting, the tide is most certainly shifting, but, like the ghost of Christmas yet to come, I show you shadows not of what will be, but only of what could be. The balls will not play themselves; the future is what Democrats will make of it. The opportunities are now there and manifold, but it is necessary to take advantage of them.

Now is the time. Time to fix the laws and require the executive branch to honor them. Time to demand accountability and transparency. Time to withdraw from Iraq. Time to enforce subpoenas and begin hearings on impeachment (for the vice president, at the very least). It is time for Democrats in Congress to realize that for their own fortunes, as well as for America’s as a whole, when it comes to upholding our laws and defending our Constitution, when it comes to defending our personal liberties and our national interests, when it comes to these times and this White House, the best defense is a good offense.


Update: House Speaker Nancy Pelosi, noting a new congressional analysis on the costs of the Bush/Cheney war machine, has added her voice to the reawakening chorus on Iraq:

Think about what $10 billion a month would mean to protecting Americans from terrorism, improving security at our ports and airports, and increasing border security. Think about what $10 billion a month would mean for the 47 million Americans who don’t have health insurance, for the survivors of Hurricane Katrina, and for the education of our children. Think about what $10 billion a month would mean to lowering the deficit so that future generations are not burdened with debt.

The American people are outraged at the Bush Administration’s misplaced priorities -- that is why Congress will hold the Administration accountable with votes this month to end the war and redeploy the troops. This will include a vote on legislation to begin redeployment of our troops within 120 days and to conclude by April 1, 2008, with the exception of those remaining in Iraq to fight terrorists and protect our diplomats.

The date-certain legislation gives our Republican colleagues another opportunity to join Democrats in heeding the wishes of the American people, who want to wind down this war and bring our troops home.

(cross-posted to Daily Kos)

[What, you don’t take my word for it? I have links to back up all of the above, and I will try to insert them later if my time allows. Done.]

The Obstructionist’s Obstructionist

There are many fine and forceful reactions to Monday’s announcement by President GW Bush, explaining how this decision violates sentencing law, flies in the face of precedent, and even ignores the recent opinion of the United States Supreme Court. While it has been clear for some time that the Bush cabal has little respect for the law, it also appears clear that few of their choices to flout the law are made randomly or impulsively. So, while men and women of conscience across the board express outrage at the presidential order to commute the 30-month sentence of I. Lewis “Scooter” Libby, I am left with a nagging question: Why commutation—why not a pardon?

While the establishment media is content to settle on the notion that this commutation is some sort of grand compromise crafted by a White House seeking to mollify Bush’s hard-right base while blunting the bigger backlash that would be expected from a full pardon, this strikes me as a nuance that might be lost on both sides. Sure, there is now an additional talking point for the Libby lobby—this idea that he will still live with the shame (Scooter? Shame?) and pay a fine (though, in reality, his defense fund will likely pick up the tab)—but as Scooter’s lawyers continue to pursue their appeals, and Patrick Fitzgerald continues to defend the conviction, the “base” will continue to push for a pardon. And, though admittedly without the reaction to such a pardon by which to measure it, Monday’s blistering rebukes—including Representative John Conyers’ suggestion that hearings on the leak and commutation are imminent—hardly seem blunted.

So, what’s in a commute? I am not an expert on the law here, but from clicking around, this is how I understand it:

The heart of the matter lies in the crime. Scooter Libby was convicted on obstruction charges for interfering with a federal investigation into the leak of the name of a covert CIA operative as retaliation against her husband for exposing some of the lies that comprised the administration’s case for the invasion of Iraq. The annals of the Libby investigation make it pretty clear that Vice President Dick Cheney, likely with the knowledge of President Bush and his top aids, engineered the vengeful leak. Were Libby to stop obstructing and speak truthfully as to what he knows, he could likely complete the federal case against the Vice President (at the very least).

With the dreaded time in hoosegow looming, federal prosecutors could hold out the possibility of a reduced sentence in exchange for Libby’s cooperation. Such truthful testimony would clearly be unacceptable and, indeed, threatening to Cheney, Rove, and Bush.

So, why not a pardon, then? Well, to the best of my understanding, a full pardon would eliminate Scooter’s claim to Fifth Amendment protections against self-incrimination.

. . . but would leave intact possible jeopardy for contempt of court and/or new charges of perjury. The result is that Libby could be required to testify under oath -- and under penalty of perjury and contempt -- about what others in the administration knew and when they knew it.

I also think, by extension, Libby could not take the Fifth if called to testify under oath before a congressional committee investigating the original leak. (I am making an inference here, though. If someone has a clearer understanding of this part of the law, please chime in.)

Without Libby’s Fifth Amendment rights, a large chink in the armor of VP Fourthbranch could be left exposed. And a potential witness for the prosecution stewing with his incriminating thoughts in a federal prison would be more risk and stress than this administration likely deems acceptable. Thus, commutation of Scooter’s sentence looks less like the fence-sitting compromise of a weak president, and more like the conniving plan of his powerful veep.

Motives aside, the circumstances remain the same: I. Lewis Libby’s obstruction is deemed by this lawless administration as less worthy of punishment because he obstructed on behalf of his friend and boss, Dick Cheney. Where I might differ from establishment outlets, as well as from TPM’s Josh Marshall, is that Monday’s commutation was not “the minimum necessary to keep the man silent”—it was the exact amount needed to keep the nation in the dark.

(cross-posted from guy2k)