Monthly Archives: December 2008

Law is Violence—Use it Sparingly!

In my own opinion and experience, the American Judiciary has become the most totalitarian of all American institutions: it backs up the mindless abuse of police power on the one hand, but inflicts a totally separate kind of violence on the conscience by its twisted and perverted, the only adequate phrase is “arbitrary and capricious” application of the law—especially the fundamental law of American rights and freedom as embodied in the Bill of Rights and in particular the “due process” clauses of the Fifth and Fourteenth Amendments.  I came across this article (below) on the web, which I have merely extracted the most congenial quotes here, but I fundamentally agree with this author that (1) the courts are the worst aspect of the American Government today, (2) the courts foster a lack of respect for law, and (3) this disrespect is enabling the rapid evolution of a totalitarian society.  I would add that the arbitrary and capricious nature of the application of due process in the courts today means that subjecting ANYONE to the court system, “INVOKING THE LAW” is itself a form of violence and oppression—in which the victor is  ALWAYS the stronger party, the better-financed party, the party that can “out last all the rest”—the last one standing wins—there is no hint of “justice” or “fairness” or protection for the poor and weak in our modern American judicial system—just a reality that you can wipe your opponents out physically (i.e. financially) without any “physical” violence at all—and that “it’s an unjust world and virtue is triumphant only in theatrical performances.”

I also agree with this author (at http://www.anesi.com) that the term “Fascism” is wildly overused and overapplied (see especially Aaron Russo’s movie “From Freedom to Fascism” which essentially says that America is becoming more “Fascistic” because of the implementation of a monetary policy [based on the Federal Reserve Bank, the Income Tax, and Social Security/Welfare] which is 100% socialist in its origin and whose kinship to 20th century authoritarianism is more like Soviet Communism than Central European Fascism).  But the point that bad government is tending towards authoritarianism is well-taken.  We need to know our history and make our references precise in order to make meaningful use of historical analogy in our arguments.

http://www.anesi.com/Fascism-TheUltimateDefinition.htm#C._Remember_that_Law_is_Violence.

The major impediment to maintaining public order in the United States at this time (2008) is the judiciary, …. A re-assessment of the [the way the American courts apply or do not apply due process of law] needs to be undertaken before a crisis exposes their weakness.

Law is Violence, and Use it Sparingly

Amateur commentators on fascism (Wolf, Britt, Eco et al.) fail to see that fascists did most of their work using the state’s monopoly on “legitimate” violence with nearly universal popular approbation.  This included passing laws that controlled the most trivial aspects of human behavior, backed up by the traditional apparatus of police, courts, and prisons.  In many cases considerable procedural due process existed, most notably in Italy, where the judicial machinery was largely untouched.   But of course procedural due process used to enforce an unjust law does not yield justice.

The point here is this: if you think you are better than a fascist because you are passing laws to control people’s behavior in trivial and oppressive ways, instead of beating people up, well, you are wrong.  The fascists did  exactly the same thing.   In fact, you are worse than a fascist, because you are too cowardly to do the dirty work yourself, and want to leave it to the police and the courts. 

So unless you would be willing personally to use physical violence to enforce a law, knowing that you might be severely injured or killed while doing so, you have no business making such a law, and will only bring contempt upon yourself and the legislature if you do so.   This of course is one reason the U.S. House and Senate are held in such low esteem – they are seen, with some accuracy, as a collection of ignorant, cowardly windbags hiding behind the state’s monopoly on violence.   

Christmas Eve-why I go to Church-Episcopal….

I originally started writing this at 1:00 a.m. on December 25, 2008, Christmas day, just minutes after I came back from the 10:00 Christmas Eve Service at St. Lukes-on-the-Lake in Austin, which is my “main Church” for about 7 years now—at least when I’m in Texas. It’s an Episcopal Church and I wonder sometime why I still go.  Obviously, I love to see Father Mike Wyckoff & Father James P. Jameson who supported and helped me through many bad times over the past six or seven years.

I particularly enjoy wearing my new Harvard jacket and showing Father Jameson (himself a Harvard graduate), who saw me at some of the all time low points of my life, that I really did make it back to “the old school” over the summer, and I really did take my son Charlie to summer school there, accompanied him to Widener & Lamont Libraries—and even sat in on some classes in Irish Mythology & Literature with him.  Those things all make me feel good, but sometimes I feel it’s hypocritical for me to go because I’m so completely disappointed with the Episcopal Church and feel it’s let me (and the world) down in every possible way.  Every value that made me loyal to the Church of my birth (practically) has gone by the wayside, and the Church itself is disintegrating so fast it makes your head spin—and what does it mean to be a member of the “Anglican” Communion (based on the “Anglos” = the English, this is the quintessetial Church of England), if the Archbiship of Lagos, Nigeria is in some ways more important than the Archbiship of Canterbury—simply because the Lagos Archdiocese is alive and growing while Church attendance shrinks a little each year in England.

Even the Queen, one of whose many titles is “Fidei Defensor” (“Defender of the Faith”) cannot make any comments about the largest Mosque in the World, the London Markaz currently being built in Newham on the Eastside of London, nor can she dismiss the Archbishop of Canterbury for endorsing the application of Sharia Law at least as a viable alternative in English Courts.  So what’s the point in being an Episcopalian?

Well, for one thing, I grew up an Church of England/Episcopalian and was confirmed at All Saints in Beverly Hills, California, when I was 14, by the Bishop Robert C. Rusack.  The Church was a huge part of my life, whether I was in Dallas or Los Angeles or New Orleans or Cambridge, MA.  I was a choirboy and briefly an acolyte.  I studied the Book of Acts as my special confirmation project with Canon Noble L. Owings at St. Thomas in Hollywood.
Of course, that was way back in ancient history—some guy named Richard Nixon was President, there was a war in Vietnam, and and another fellow named Ronald Reagan was Governor.
Back then the Church was still using a little black prayerbook “approved” in 1928 or thereabouts, although the language was basically the same as the King James Bible.  My very earliest Church attendance and “baby Sunday School” was in England where they were until recently using the same prayerbook adopted in 1668, during the reign of a dissolute king whose namesake I am….and my father and his father were also….And like those old Stuart Kings, my father believed strongly in the “Papist” and “Royalist” side of the English Church tradition….(I grew up with a picture of “Bonnie Prince Charlie”, last effective Stuart pretender, in my bedroom).  Despite all their interest in the Church, my parents ended up divorced at the early stage of the upsurge in divorces nationwide.
By contrast my grandmother, who had been an Episcopal Church organist in Shreveport, Louisiana before she married, was from a tradition of Morning and Evening prayer services where Eucharist was rare and Charles Wesley was more often mentioned than “Charles the Martyr” (aka Charles II).
But any way you cut it, I loved the tradition of the Church—the tradition of those old prayerbooks is almost 100% gone. I loved the elegance of the Church, but what fragments of elegance can remain in a Church which spends 99% of its time debating whether gay people should be allowed (1) into the Church, (2) into the Clergy, (3) ordained as Bishops, (4) married, (5) married to Bishops and Clergy?
I know as well as anyone that there have been gay Christians around since Jesus’ own time, and this is doubly or triply true when you realize that the earliest Christians were mostly Greek-speakers, and God knows that the Greeks practically invented gay love (at least as known in the Western World).
Plato’s discussion of sexual manners and mores which has become known as “Platonic Love” was originally written mostly in reference to male friends and how they should behave towards each other. Without her having created some of the most sublime poetry ever written in any language, the Poetess Sappho would never have created the association between female-to-female “gay” love which gave rise to the name “Lesbian” as an inhabitant of the island of Lesbos on which Sappho lived.
When the Apostle Paul talked about it being “better to marry than to burn”—he made no distinction between gay and straight love. And I think what he meant was honor and commitment are what make a good person.
People say that homosexual marriage will destroy the institution of marriage? I ask: if the VERY heterosexual celebrity artist (and I use this term “artist” or even “singer” advisedly) Britney Spears hasn’t destroyed the institution of marriage almost singlehandedly—what can gay people possibly do that would be worse? Most of the crimes against the institution of marriage are committed by heterosexuals, in fact.
My wife of 17 years took off for the last time in July 2002.  She had been involved since 1995 with a former close friend of mine who stole all my banking records while staying as a houseguest and allegedly comforting me after my wife had left me one of the first times.
What will gay people do to the institution of marriage that’s worse than that? I’d like to know???   Why do we fear ANYONE whose sole purpose is to pursue happiness with others of like mind and taste in a quiet, unobtrusive, non-violent way?   It’s incomprehensible to me.
It’s almost as though the Episcopal Church has driven off the “straight and narrow” path of tradition and straight into a ditch of stupid arguments from which it may never be towed out…..
But anyhow—I do still go to Church—at least on “High Holy Days” out of the memory of my parents—of my grandfather’s amazingly well-preserved booming tenor voice singing the Doxology every week and Christmas Carols out of his own company’s specially printed collection of Christmas Carols every Christmas. The first prayer-song I ever learned was when my mother taught me “The Magnificat” and told me about Mary and the wonders of motherhood in the creation of the world. I look back on those talks now and realise that my mother was probably a little bit “new agey” in her Maryolatry combined with feminism….but still it all fits. My grandmother used to criticise my mother for being “Churchy”—an outwardly religious person with no real convictions—and as much as I love Jesus’ teachings in the Gospels I suppose I could be accused of much the same thing.
I have a Ph.D. in Anthropology, having minored in Biology & Classics in College, and I certainly “believe” in Evolution and Darwinism (both biological and socio-cultural) more than anything else (although I acknowledge them as theories—they ARE theoretical models—how could they be anything else?).
I “believe” the world is billions of years old, not six thousand—and I “believe” that the Five Books of Moses were written by at least six or seven different authors, real people none on Mount Sinai by dictation, and  none of whom were ever named Moses or lived within 300 years of the time when Moses supposedly lived, and I strongly believe that Moses probably WAS a genuine Egyptian…so why do I go to Church? Why do I enjoy it?
I think it’s because of what my grandmother and grandfather used to say, “it’s what makes us civilized”—it takes us out of ourselves, away from our work, and into a world of ideals which, whether we believe in them or not, are interesting, very historically significant, and some of them, like Jesus’ teachings, are beautiful and really hard to argue with as a good plan for a decent life.
I would have loved to have known Jesus or anyone like him, I’m sure.
If there is a single historical person on whom the Gospels are based, and I tend to think that there was, he was a truly extraordinary person, and a wonderful teacher—and it hardly matters to me whether he was the Son of God or not.
I love Him for teaching us to Love, and I hate all of his so-called “Christian” followers who teach one form of hate or another. I happen to know that I don’t have the tiniest “gay” instincts in my makeup—I’ve had way too much contact with gay men my whole life not to know for certain that their interests and ways in the “pursuit of happiness” are not mine. I love the female body and the nearest things to truly divine and mystical experiences I have ever had were in the company and close proximity of such bodies.
But I know for a fact that, even though the concept is never discussed in the Bible, Jesus must have loved gays at least as much as he loved harlots (prostitutes) and adulterers, and probably a lot more than he loved pharisees, sadducees (seduqim), and (unfortunately for me) lawyers, other legal experts, and their ilk……
But anyhow, I was feeling kind of poorly around 8:00-9:00 and thinking that I wouldn’t bother to go to Church because I hadn’t been for a while and after all, “the Episcopal Church has become a national embarrassment in the United States over the Gay Rights issues and an nightmare in England for endorsing the adoption of Sharia Law in England”—so why should anyone be associated with such a Church? But then I think of St. Michael’s and all Angels and the Church of the Incarnation in Dallas, of All Saints in Beverly Hills and St. Thomas in Hollywood, of St. George’s on St. Charles in New Orleans, Christ Church Cathedral in Vancouver, Bethesda-by-the-Sea in Palm Beach, and my all time favorite, St. Thomas-on-Fifth Avenue in New York, and these really are the seats of some of the greatest expressions of North American civilization.
Quite aside from the phenomenon represented by Christ Church in Cambridge, MA (where George & Martha Washington prayed after Washington took command of the Continental Army on Cambridge Common by Harvard College) and the National Cathedral in Washington (where Ronald Reagan and so many more are buried), or St. John’s Church in Richmond, Virginia (where Patrick Henry delivered a lay sermon ending “Give me Liberty or Give me Death” from the pulpit), which are all just major historical sites. So there’s some point in going to the Episcopal Church—I remember my family, long ago and oh so far away. I think of nice ideals, whether they are practical or not. And I am connected to history, to some of the best of Anglo-American culture and civilization, and I can be smug and think that I am sophisticated enough to uphold the rights of all people to the “pursuit of happiness”, in the words of a fellow Episcopalian, Thomas Jefferson….whether all Episcopalians “get it” or not….Next lecture will be: why the STATE should get out of marriage, and then “Gay Marriage” won’t be an issue—because it will be private, religious or personal expression protected by the First Amendment, and that’s how it OUGHT to be….

The Shortest Day and the Longest Night of the Year

The winter solstice is one of my favorite days of the year.  This time last year was pretty rough at MDC Los Angeles.  This year is much better because I’ve had the chance to take my son to a couple of movies and buy him a few useful Christmas gifts.   Two years ago I was still trying to change the world in Texas through civil rights litigation.  It is now fairly apparent that the litigation route is not the way to stamp out Michael Jergins, Laurie J. Nowlin, Michael P. Davis, and their ilk in Central Texas.  As for the dawn of the Obama Nation in America?  Well, the man from…..wherever he’s from…who attended and or hung around so many of the same schools as I did (Harvard, University of Chicago) gave a wonderful acceptance speech election night and since then has basically been trying to make sure that there is no possible accusation that the first partly African ethnic President was a radical—or a fan of civil rights, or a fan of real change.  Hillary Clinton as Secretary of State?  Holdovers from the Bush Administration?  Continuity of all important domestic and foreign policies?  I can’t quite believe it—maybe the powers that be fixed this election because Barack Obama was the ONLY leader with the credibility to continue Bush’s policies.  It all makes me quite ill, in any event.  There is no prospect for real change in the United States, only a skin deep, cosmetic change in the complexion of the President.

Immunity—the Darkest Night Cloud on the Law

If criminal penalties are removed, what will deter lawbreaking by political officials?

(updated below – Update II – Update III)

The Washington Post‘s Ruth Marcus today perfectly expresses the consensus view of establishment Washington regarding the exemption which political elites should and do enjoy from the rule of law, and, in doing so, she unintentionally highlights — as vividly as possible — the glaring flaw in this mentality.  Marcus reviews the life of Mark Felt, the number 2 FBI official under J. Edgar Hoover who died this week.  Felt is most famous for having been Bob Woodward’s “Deep Throat” source in the Watergate investigation but, as Marcus details, he was also convicted in a 1980 criminal trial for having ordered illegal, warrantless physical searches of the homes of various friends and relatives of 1960s radicals.

Less than 24 hours after Felt was convicted, he (along with an FBI co-defendant) was pardoned by Ronald Reagan, who justified the pardon by citing Jimmy Carter’s pardon of Vietnam War draft evaders and then saying, in words obviously relevant now to growing demands for prosecution of Bush officials: 

We can be no less generous to two men who acted on high principle to bring an end to the terrorism that was threatening our nation. . . .

[The men’s convictions] grew out of their good-faith belief that their actions were necessary to preserve the security interests of our country.  The record demonstrates that they acted not with criminal intent, but in the belief that they had grants of authority reaching to the highest levels of government.

Marcus quotes Felt’s Special Prosecutor, John Nields, as angrily protesting Reagan’s pardon, pointing out that central to our form of Government is the proposition that our highest political leaders are constrained by the Constitution and the rule of law — a principle Reagan subverted by protecting these criminals.

Like the good, representative establishment Washingtonian that she is, Marcus announces that — when it comes to the growing controversy over whether Bush officials should be investigated and prosecuted for their crimes — she “find[s herself] more in the camp of Reagan than Nields.”  Her reasoning is a perfect distillation of conventional Washington wisdom on this topic:

I understand — I even share — Nields’s anger over the insult to the rule of law. Yet I’m coming to the conclusion that what’s most crucial here is ensuring that these mistakes are not repeated. In the end, that may be more important than punishing those who acted wrongly in pursuit of what they thought was right.

Leave aside Marcus’ revealing description of government crimes as “mistakes.”  Even on its own terms, even if one accepts her premise that Bush officials broke the law “in pursuit of what they thought was right,” this argument makes absolutely no sense.  In fact, it is as internally contradictory as an idea can be. 

Along with the desire for just retribution, one of the two principal reasons we impose penalties for violations of the criminal law is deterrence — to provide an incentive for potential lawbreakers torefrain from breaking our laws, rather than deciding that it is beneficial to do so.  Though there is debate about how best to accomplish it and how effective it ultimately is, deterrence of future crimes has been, and remains, a core purpose of the criminal law.  That is about as basic as it gets.  From Paul Robinson, University of Pennsylvania Law Professor, and John Darley, Psychology Professor at Princeton, in “The Role of Deterrence in the Criminal Law“:

For the past several decades, the deterrence of crime has been a centerpiece of criminal law reform. Law-givers have sought to optimize the control of crime by devising a penalty-setting system that assigns criminal punishments of a magnitude sufficient to deter a thinking individual from committing a crime.

Punishment for lawbreaking is precisely how we try to ensure that crimes “never happen again.”  If instead — as Marcus and so many other urge — we hold political leaders harmless when they break the law, if we exempt them from punishment under the criminal law, then what possible reason would they have from refraining from breaking the law in the future?  A principal reason for imposing punishment on lawbreakers is exactly what Marcus says she wants to achieve:  “ensuring that these mistakes are not repeated.”  By telling political leaders that they will not be punished when they break the law, the exact opposite outcome is achieved:  ensuring that this conduct will be repeated.

* * * * *

Just contemplate how stupid and irrational everyone would think a person was being if they wrote an article advancing this argument:

Much more important than punishing murderers or getting caught up in protracted disputes about prior murders is the need to prevent murders from occurring in the future.  Therefore, we ought to abandon our quest to impose punishments on people who get caught having murdered someone.  To expend resources trying to punish murderers is to squander vital resources on the past, to waste energies that could instead be more productively devoted to preventing future murders.

There are too many important challenges we face to waste time bogged down litigating past murders.  Let’s allow murderers to go unpunished so that we can move beyond the past and concentrate instead on the more important priority of minimizing the number of murders in the future.

The argument, of course, is self-refuting.  If we adopt a policy of not punishing murderers, we will obviously not be preventing future murders.  We will be doing the opposite:  ensuring and even encouraging a massive increase in murders, since people will know that they are now free to do it with impunity.  The prime barrier to most crimes — the main deterrent — is the threat of criminal punishment, of a lengthy prison term.  That’s not true of all crimes (the criminal law has had a negligible effect, for instance, on drug usage, and may not deter poverty-motivated crimes), but it’s certainly true of most serious crimes, especially by those with power.  If you abolish that punishment, then you inevitably ensure many more crimes in the future, no matter how many noble efforts you devote towards “making sure it never happens again” — whatever that might mean.

The evidence demonstrating that this is an exact analogy to what Marcus is advocating, an exact analogy to what we’ve generally been doing with political leaders and are doing now, is equally self-evident.  A central observation in Marcus’ column is that the controversies that have now arisen over Bush lawbreaking in the areas of interrogation and surveillance are not new.  As she points out, these are the very same controversies that we’ve been confronting for decades.

That’s exactly right.  The same controversies over government lawbreaking arise over and over.  And why is that?  Because our political leaders keep breaking the law — chronically and deliberately.  And why do they keep doing that?   Because there is no deterrent against it.   Every time they get caught breaking the law, the Ronald Reagans and Ruth Marcuses of the world step in to insist that they should not be punished, that the criminal law is not for elite leaders in political office, that those involved in the noble function of ruling America are too intrinsically well-intentioned to warrant punishment even when they commit crimes, that it’s more important to look forward than back.  

Every time we immunize political leaders from the consequences of their crimes, it’s manipulatively justified in the name of “ensuring that it never happens again.”  And every time, we do exactly the opposite:  we make sure it will happen again.  And it does:  Richard Nixon is pardoned.  J. Edgar Hoover’s lawbreakers are protected.  The Iran-contra criminals are set free and put back into government.  Lewis Libby is spared having to serve even a single day in prison despite multiple felony convictions.  And now it’s time to immunize even those who tortured detainees and spied on Americans in violation of numerous treaties, domestic laws, and the most basic precepts of civilized Western justice.

* * * * *

If someone wants to argue that America is too good and our Washington elite too important to allow our powerful political leaders to be subjected to the indignity of a criminal proceeding, let alone prison, they should argue that.  As warped as that idea is, at least it’s candid and coherent.  It’s the actual animating principle driving most of this. 

But this claim that we have to immunize political leaders from the consequences of their lawbreaking in order to — as Marcus wrote — “ensure that these mistakes are not repeated” is manipulative and Orwellian in the extreme.  It’s contradictory on its face.  It’s just a Beltway buzzphrase, a platitude, completely devoid of specific meaning and designed to do nothing but obfuscate what is really going on.

Whenever you hear that claim being made — that what matters is not punishment, but ensuring that it never happens again — notice that none of the Serious guardians who advocate it ever, ever answer or even acknowledge this question:  other than punishing people for breaking the law, how is it even theoretically possible to ensure it doesn’t happen again in the future?  We already have unambiguous laws in place with substantial penalties for violations.  We already impose disclosure obligations, and substantial oversight duties on the Congress and courts. 

All of these laws and safeguards were blithely disregarded and violated.  Other than making sure that leaders know they will be punished — like all Americans are — when they break the law, how and why does anyone imagine that we can ensure this “never happens again,” especially as we simultaneously affirm — yet again — that political leaders will be exempted from the rule of law if they do it?  What’s the answer to that?

 

UPDATE:  The opening address of Robert Jackson at the Nuremberg Trials is undoubtedly one of the most important speeches of the last century.  It established the basic precepts of Western Justice.  War crimes, Jackson observed, are such that “civilization cannot tolerate their being ignored, because it cannot survive their being repeated.”  And, contrary to the blatantly self-contradictory claims from today’s Washington elite, he pointed out that the only way to ensure they don’t happen again is through real accountability and punishment:

The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power . . . .

It’s irrelevant whether crimes rise to that same level or are of the same magnitude.  These were principles of justice that were supposed to endure and govern how we conducted ourselves generally, beyond that specific case.  In fact, Justice Louis Brandeis, 20 years earlier, observed that it’s probably more important — not less — to enforce the rule of law when government leaders commit crimes than when ordinary Americans commit them:

In a government of law, the existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy.

We haven’t just forgotten these principles.  We’re deliberately — consciously — choosing to renounce them.

 

UPDATE II:  At Talk Left, Armando points out one other towering, destructive flaw in Marcus’ “logic” — logic which, I want to re-iterate, is worth examining only because it’s the predominant mentality in the Washington establishment.  As Armando writes:

[Marcus] claims her ambivalence stems from “How much can and should government infringe on personal privacy and individual liberties in the name of guarding against risks to public safety? What should be the role of criminal law when government officials overstep permissible bounds in the name of national security?”

The answers to these questions are so obvious that it strikes me again that Ms. Marcus is providing us the question ‘is she an idiot or a malevolent dissembler?’Those questions are answered by the laws we make. This is called democracy Ms. Marcus. The permitted level of government infringement on liberty is that which our laws and Constitution allow. No more. If we wish to give away our freedoms, we do it by lawful means. To grant the Executive Branch the power to determine which laws to follow is precisely what the Founders fought against.

Why does that even need to be pointed out?  We already weighed the competing considerations between freedom and security and then enacted laws which authorized certain behaviors and criminalized others.  If that balance should be altered, the solution — in a society that lives under the rule of law — is for the laws to be changed democratically, not for political leaders to decide at will and in secret that they will break those laws and then argue after the fact that the laws they broke were bad ones.  Political leaders aren’t vested with lawbreaking power.  To the contrary, the Constitution explicitly requires that they “faithfully execute” those laws, not violate them at will.

Isn’t this all so painfully basic?  When the predominant Beltway argument is stripped of euphemisms, it amounts to nothing less than the claim that our political leaders should be — and are — free to break our laws.   And that’s the system we’ve adopted.  It’s why Dick Cheney feels free to smugly admit in public that he authorized these war crimes.   He knows that the Ruth Marcuses of the world will intervene to defend him.  Still, it’s one thing to argue that American political leaders should have the power to commit crimes. It’s another thing entirely to advance the insultingly deceitful and Orwellian claim that doing so is necessary so we can focus on preventing similar lawbreaking in the future.

 

UPDATE III:  This Kos diarist makes a good case that the most effective way Obama could ensure meaningful investigations and prosecutions is to appoint someone like Patrick Fitzgerald — or, even better, Fitzgerald himself — to the role of Special Prosecutor, and vest him with all the power he needs to undertake a real investigation, wherever it might lead.  That’s the same recommendation I made several times with Bill Moyers last week, in this clip.

That option has the advantage of insulating Obama from responsibility for overseeing any investigations and ensuring that it is treated purely as a criminal, not a political, matter.  As a practical reality, the largest barrier to any route to prosecution — including this one — is that the Congressional Democratic leadership was complicit, to varying degrees, in the illegal programs.  But of all the various ways investigations could be pursued, the appointment of a fearless prosecutor with a proven record of independence (and who is a Republican to boot) would be the most effective.

— Glenn Greenwald