John Cusack & Jonathan Turley on Obama’s Constitution

Originally posted by Shannyn Moore of Just A Girl from Homer.

John Cusack was thinking all this when he talked to Jon Turley, one of the smartest and intellectually honest authorities on the Constitution. — Shannyn Moore

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Jonathan TURLEY: Hi John.

CUSACK: Hello. Okay, hey I was just thinking about all this stuff and thought maybe we’d see what we can do to bring civil liberties and these issues back into the debate for the next couple of months …

TURLEY: I think that’s great.

CUSACK: So, I don’t know how you can believe in the Constitution and violate it that much.

TURLEY: Yeah.

CUSACK: I would just love to know your take as an expert on these things. And then maybe we can speak to whatever you think his motivations would be, and not speak to them in the way that we want to armchair-quarterback like the pundits do about “the game inside the game,” but only do it because it would speak to the arguments that are being used by the left to excuse it. For example, maybe their argument that there are things you can’t know, and it’s a dangerous world out there, or why do you think a constitutional law professor would throw out due process?

TURLEY: Well, there’s a misconception about Barack Obama as a former constitutional law professor. First of all, there are plenty of professors who are “legal relativists.” They tend to view legal principles as relative to whatever they’re trying to achieve. I would certainly put President Obama in the relativist category. Ironically, he shares that distinction with George W. Bush. They both tended to view the law as a means to a particular end — as opposed to the end itself. That’s the fundamental distinction among law professors. Law professors like Obama tend to view the law as one means to an end, and others, like myself, tend to view it as the end itself.

Truth be known President Obama has never been particularly driven by principle. Right after his election, I wrote a column in a few days warning people that even though I voted for Obama, he was not what people were describing him to be. I saw him in the Senate. I saw him in Chicago.

CUSACK: Yeah, so did I.

TURLEY: He was never motivated that much by principle. What he’s motivated by are programs. And to that extent, I like his programs more than Bush’s programs, but Bush and Obama are very much alike when it comes to principles. They simply do not fight for the abstract principles and view them as something quite relative to what they’re trying to accomplish. Thus privacy yields to immunity for telecommunications companies and due process yields to tribunals for terrorism suspects.

CUSACK: Churchill said, “The power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious and is the foundation of all totalitarian government whether Nazi or Communist.” That wasn’t Eugene Debs speaking — that was Winston Churchill.

And if he takes an oath before God to uphold the Constitution, and yet he decides it’s not politically expedient for him to deal with due process or spying on citizens and has his Attorney General justify murdering U.S. citizens — and then adds a signing statement saying, “Well, I’m not going to do anything with this stuff because I’m a good guy.”– one would think we would have to define this as a much graver threat than good or bad policy choices- correct?

TURLEY: Well, first of all, there’s a great desire of many people to relieve themselves of the obligation to vote on principle. It’s a classic rationalization that liberals have been known to use recently, but not just liberals. The Republican and Democratic parties have accomplished an amazing feat with the red state/blue state paradigm. They’ve convinced everyone that regardless of how bad they are, the other guy is worse. So even with 11 percent of the public supporting Congress most incumbents will be returned to Congress. They have so structured and defined the question that people no longer look at the actual principles and instead vote on this false dichotomy.

Now, belief in human rights law and civil liberties leads one to the uncomfortable conclusion that President Obama has violated his oath to uphold the Constitution. But that’s not the primary question for voters. It is less about him than it is them. They have an obligation to cast their vote in a principled fashion. It is, in my opinion, no excuse to vote for someone who has violated core constitutional rights and civil liberties simply because you believe the other side is no better. You cannot pretend that your vote does not constitute at least a tacit approval of the policies of the candidate.

This is nothing new, of course for civil libertarians who have always been left behind at the altar in elections. We’ve always been the bridesmaid, never the bride. We’re used to politicians lying to us. And President Obama lied to us. There’s no way around that. He promised various things and promptly abandoned those principles.

So the argument that Romney is no better or worse does not excuse the obligation of a voter. With President Obama they have a president who went to the CIA soon after he was elected and promised CIA employees that they would not be investigated or prosecuted for torture, even though he admitted that waterboarding was torture.

CUSACK: I remember when we were working with Arianna at The Huffington Post and we thought, well, has anyone asked whether waterboarding is torture? Has anyone asked Eric Holder that? And so Arianna had Sam Seder ask him that at a press conference, and then he had to admit that it was. And then the next question, of course, was, well, if it is a crime, are you going to prosecute the law? But, of course, it wasn’t politically expedient to do so, right? That’s inherent in their non-answer and inaction?

TURLEY: That’s right.

CUSACK: Have you ever heard a more specious argument than “It’s time for us all to move on?” When did the Attorney General or the President have the option to enforce the law?

TURLEY: Well, that’s the key question that nobody wants to ask. We have a treaty, actually a number of treaties, that obligate us to investigate and prosecute torture. We pushed through those treaties because we wanted to make clear that no matter what the expediency of the moment, no matter whether it was convenient or inconvenient, all nations had to agree to investigate and prosecute torture and other war crimes.

And the whole reason for putting this in the treaties was to do precisely the opposite of what the Obama administration has done. That is, in these treaties they say that it is not a defense that prosecution would be inconvenient or unpopular. But that’s exactly what President Obama said when he announced, “I won’t allow the prosecution of torture because I want us to look to the future and not the past.” That is simply a rhetorical flourish to hide the obvious point: “I don’t want the inconvenience and the unpopularity that would come with enforcing this treaty.”

CUSACK: Right. So, in that sense, the Bush administration had set the precedent that the state can do anything it likes in the name of terror, and not only has Obama let that cement harden, but he’s actually expanded the power of the executive branch to do whatever it wants, or he’s lowered the bar — he’s lowered the law — to meet his convenience. He’s lowered the law to meet his personal political convenience rather than leaving it as something that, as Mario Cuomo said, the law is supposed to be better than us.

TURLEY: That’s exactly right. In fact, President Obama has not only maintained the position of George W. Bush in the area of national securities and in civil liberties, he’s actually expanded on those positions. He is actually worse than George Bush in some areas.

CUSACK: Can you speak to which ones?

TURLEY: Well, a good example of it is that President Bush ordered the killing of an American citizen when he approved a drone strike on a car in Yemen that he knew contained an American citizen as a passenger. Many of us at the time said, “You just effectively ordered the death of an American citizen in order to kill someone else, and where exactly do you have that authority?” But they made an argument that because the citizen wasn’t the primary target, he was just collateral damage. And there are many that believe that that is a plausible argument.

CUSACK: By the way, we’re forgetting to kill even a foreign citizen is against the law. I hate to be so quaint…

TURLEY: Well, President Obama outdid President Bush. He ordered the killing of two U.S. citizens as the primary targets and has then gone forward and put out a policy that allows him to kill any American citizen when he unilaterally determines them to be a terrorist threat. Where President Bush had a citizen killed as collateral damage, President Obama has actually a formal policy allowing him to kill any U.S. citizen.

CUSACK: But yet the speech that Eric Holder gave was greeted generally, by those others than civil libertarians and a few people on the left with some intellectual honesty, with polite applause and a stunning silence and then more cocktail parties and state dinners and dignitaries, back the Republican Hypocrisy Hour on the evening feed — and he basically gave a speech saying that the executive can assassinate U.S. citizens.

TURLEY: That was the truly other-worldly moment of the speech. He went to, Northwestern Law School (my alma mater), and stood there and articulated the most authoritarian policy that a government can have: the right to unilaterally kill its citizens without any court order or review. The response from the audience was applause. Citizens applauding an Attorney General who just described how the President was claiming the right to kill any of them on his sole inherent authority.

CUSACK: Does that order have to come directly from Obama, or can his underlings carry that out on his behalf as part of a generalized understanding? Or does he have to personally say, “You can get that guy and that guy?”

TURLEY: Well, he has delegated the authority to the so-called death panel, which is, of course, hilarious, since the Republicans keep talking about a nonexistent death panel in national healthcare. We actually do have a death panel, and it’s killing people who are healthy.

CUSACK: I think you just gave me the idea for my next film. And the tone will be, of course, Kafkaesque.

TURLEY: It really is.

CUSACK: You’re at the bottom of the barrel when the Attorney General is saying that not only can you hold people in prison for no charge without due process, but we can kill the citizens that “we” deem terrorists. But “we” won’t do it cause we’re the good guys remember?

TURLEY: Well, the way that this works is you have this unseen panel. Of course, their proceedings are completely secret. The people who are put on the hit list are not informed, obviously.

CUSACK: That’s just not polite, is it?

TURLEY: No, it’s not. The first time you’re informed that you’re on this list is when your car explodes, and that doesn’t allow much time for due process. But the thing about the Obama administration is that it is far more premeditated and sophisticated in claiming authoritarian powers. Bush tended to shoot from the hip — he tended to do these things largely on the edges. In contrast, Obama has openly embraced these powers and created formal measures, an actual process for killing U.S. citizens. He has used the terminology of the law to seek to legitimate an extrajudicial killing.

CUSACK: Yeah, bringing the law down to meet his political realism, his constitutional realism, which is that the Constitution is just a means to an end politically for him, so if it’s inconvenient for him to deal with due process or if it’s inconvenient for him to deal with torture, well, then why should he do that? He’s a busy man. The Constitution is just another document to be used in a political fashion, right?

TURLEY: Indeed. I heard from people in the administration after I wrote a column a couple weeks ago about the assassination policy. And they basically said, “Look, you’re not giving us our due. Holder said in the speech that we are following a constitutional analysis. And we have standards that we apply.” It is an incredibly seductive argument, but there is an incredible intellectual disconnect. Whatever they are doing, it can’t be called a constitutional process.

Obama has asserted the right to kill any citizen that he believes is a terrorist. He is not bound by this panel that only exists as an extension of his claimed inherent absolute authority. He can ignore them. He can circumvent them. In the end, with or without a panel, a president is unilaterally killing a U.S. citizen. This is exactly what the framers of the Constitution told us not to do.

CUSACK: The framers didn’t say, “In special cases, do what you like. When there are things the public cannot know for their own good, when it’s extra-specially a dangerous world… do whatever you want.” The framers of the Constitution always knew there would be extraordinary circumstances, and they were accounted for in the Constitution. The Constitution does not allow for the executive to redefine the Constitution when it will be politically easier for him to get things done.

TURLEY: No. And it’s preposterous to argue that.

CUSACK: When does it become — criminal?

TURLEY: Well, the framers knew what it was like to have sovereigns kill citizens without due process. They did it all the time back in the 18th century. They wrote a constitution specifically to bar unilateral authority.

James Madison is often quoted for his observation that if all men were angels, no government would be necessary. And what he was saying is that you have to create a system of law that has checks and balances so that even imperfect human beings are restrained from doing much harm. Madison and other framers did not want to rely on the promises of good motivations or good intents from the government. They created a system where no branch had enough authority to govern alone — a system of shared and balanced powers.

So what Obama’s doing is to rewrite the most fundamental principle of the U.S. Constitution. The whole point of the Holder speech was that we’re really good guys who take this seriously, and you can trust us. That’s exactly the argument the framers rejected, the “trust me” principle of government. You’ll notice when Romney was asked about this, he said, “I would’ve signed the same law, because I trust Obama to do the right thing.” They’re both using the very argument that the framers warned citizens never to accept from their government.

CUSACK: So basically, it comes down to, again, just political expediency and aesthetics. So as long as we have friendly aesthetics and likable people, we can do whatever we want. Who cares what the policy is or the implications for the future.

TURLEY: The greatest problem is what it has done to us and what our relative silence signifies. Liberals and civil libertarians have lost their own credibility, their own moral standing, with the support of President Obama. For many civil libertarians it is impossible to vote for someone who has blocked the prosecution of war crimes. That’s where you cross the Rubicon for most civil libertarians. That was a turning point for many who simply cannot to vote for someone who is accused of that type of violation.

Under international law, shielding people from war-crime prosecutions is itself a form of war crime. They’re both violations of international law. Notably, when the Spanish moved to investigate our torture program, we now know that the Obama administration threatened the Spanish courts and the Spanish government that they better not enforce the treaty against the U.S. This was a real threat to the Administration because these treaties allow other nations to step forward when another nation refuses to uphold the treaty. If a government does not investigate and prosecute its own accused war criminals, then other countries have the right to do so. That rule was, again, of our own creation. With other leading national we have long asserted the right to prosecute people in other countries who are shielded or protected by their own countries.

CUSACK: Didn’t Spain pull somebody out of Chile under that?

TURLEY: Yeah, Pinochet.

CUSACK: Yeah, also our guy…

TURLEY: The great irony of all this is that we’re the architect of that international process. We’re the one that always pushed for the position that no government could block war crimes prosecution.

But that’s not all. The Obama administration has also outdone the Bush administration in other areas. For example, one of the most important international principles to come out of World War II was the rejection of the “just following orders” defense. We were the country that led the world in saying that defendants brought before Nuremberg could not base their defense on the fact that they were just following orders. After Nuremberg, there were decades of development of this principle. It’s a very important point, because that defense, if it is allowed, would shield most people accused of torture and war crime. So when the Obama administration –

CUSACK: That also parallels into the idea that the National Defense Authorization Act is using its powers to actually not only put a chilling effect on whistleblowers, but actually make it illegal for whistleblowers to bring the truth out. Am I right on that, or is that an overstatement?

TURLEY: Well, the biggest problem is that when the administration was fishing around for some way to justify not doing the right thing and not prosecuting torture, they finally released a document that said that CIA personnel and even some DOJ lawyers were “just following orders,” but particularly CIA personnel.

The reason Obama promised them that none of them would be prosecuted is he said that they were just following the orders of higher authority in the government. That position gutted Nuremberg. Many lawyers around the world are upset because the U.S. under the Obama administration has torn the heart out of Nuremberg. Just think of the implications: other countries that are accused of torture can shield their people and say, “Yeah, this guy was a torturer. This guy ordered a war crime. But they were all just following orders. And the guy that gave them the order, he’s dead.” It is the classic defense of war criminals. Now it is a viable defense again because of the Obama administration.

CUSACK: Yeah.

TURLEY: Certainly part of the problem is how the news media –

CUSACK: Oscar Wilde said most journalists would fall under the category of those who couldn’t tell the difference between a bicycle accident and the end of civilization. But why is it that all the journalists that you see mostly on MSNBC or most of the progressives, or so-called progressives, who believe that under Bush and Cheney and Ashcroft and Alberto Gonzalez these were great and grave constitutional crises, the wars were an going moral fiasco’s — but now, since we have a friendly face in the White House, someone with kind of pleasing aesthetics and some new poloicies we like, now all of a sudden these aren’t crimes, there’s no crisis. Because he’s our guy? Go, team, go?

TURLEY: Some in the media have certainly fallen into this cult of personality.

CUSACK: What would you say to those people? I always thought the duty of a citizen, and even more so as a journalist, had greatly to do with the idea that intellectual honesty was much more important than political loyalty. How would you compare Alberto Gonzalez to Eric Holder?

TURLEY: Oh, Eric Holder is smarter than Gonzalez, but I see no other difference in terms of how they’ve conducted themselves. Both of these men are highly political. Holder was accused of being improperly political during his time in the Clinton administration. When he was up for Attorney General, he had to promise the Senate that he would not repeat some of the mistakes he made in the Clinton administration over things like the pardon scandal, where he was accused of being more politically than legally motivated.

In this town, Holder is viewed as much more of a political than a legal figure, and the same thing with Gonzalez. Bush and Obama both selected Attorney Generals who would do what they wanted them to do, who would enable them by saying that no principles stood in the way of what they wanted to do. More importantly, that there were no principles requiring them to do something they didn’t want to do, like investigate torture.

CUSACK: So would you say this assassination issue, or the speech and the clause in the NDAA and this signing statement that was attached, was equivalent to John Yoo’s torture document?

TURLEY: Oh, I think it’s amazing. It is astonishing the dishonesty that preceded and followed its passage. Before passage, the administration told the public that the president was upset about the lack of an exception for citizens and that he was ready to veto the bill if there was a lack of such an exception. Then, in an unguarded moment, Senator Levin was speaking to another Democratic senator who was objecting to the fact that citizens could be assassinated under this provision, and Levin said, “I don’t know if my colleague is aware that the exception language was removed at the request of the White House.” Many of us just fell out of our chairs. It was a relatively rare moment on the Senate floor, unguarded and unscripted.

CUSACK: And finally simple.

TURLEY: Yes. So we were basically lied to. I think that the administration was really caught unprepared by that rare moment of honesty, and that led ultimately to his pledge not to use the power to assassinate against citizens. But that pledge is meaningless. Having a president say, “I won’t use a power given to me” is the most dangerous of assurances, because a promise is not worth anything.

CUSACK: Yeah, I would say it’s the coldest comfort there is.

TURLEY: Yes. This brings us back to the media and the failure to strip away the rhetoric around these policies. It was certainly easier in the Bush administration, because you had more clown-like figures like Alberto Gonzalez. The problem is that the media has tended to get thinner and thinner in terms of analysis. The best example is that about the use of the term “coerced or enhanced interrogation.” I often stop reporters when they use these terms in questions. I say, “I’m not too sure what you mean, because waterboarding is not enhanced interrogation.” That was a myth put out by the Bush administration. Virtually no one in the field used that term, because courts in the United States and around the world consistently said that waterboarding’s torture. Holder admitted that waterboarding’s torture. Obama admitted that waterboarding is torture. Even members of the Bush administration ultimately admitted that waterboarding’s torture. The Bush Administration pushed this term to get reporters to drop the word torture and it worked. They are still using the term.

Look at the articles and the coverage. They uniformly say “enhanced interrogation.” Why? Because it’s easier. They want to avoid the controversy. Because if they say “torture,” it makes the story much more difficult. If you say, “Today the Senate was looking into a program to torture detainees,” there’s a requirement that you get a little more into the fact that we’re not supposed to be torturing people.

CUSACK: So, from a civil liberties perspective, ravens are circling the White House, even though there’s a friendly man in it.

TURLEY: Yeah.

CUSACK: I hate to speak too much to motivation, but why do you think MSNBC and other so-called centrist or left outlets won’t bring up any of these things? These issues were broadcast and reported on nightly when John Ashcroft and Alberto Gonzalez and Bush were in office.

TURLEY: Well, there is no question that some at MSNBC have backed away from these issues, although occasionally you’ll see people talk about –

CUSACK: I think that’s being kind, don’t you? More like “abandoned.”

TURLEY: Yeah. The civil liberties perspective is rarely given more than a passing reference while national security concerns are explored in depth. Fox is viewed as protective of Bush while MSNBC is viewed as protective of Obama. But both presidents are guilty of the same violations. There are relatively few journalists willing to pursue these questions aggressively and objectively, particularly on television. And so the result is that the public is hearing a script written by the government that downplays these principles. They don’t hear the word “torture.”

They hear “enhanced interrogation.” They don’t hear much about the treaties. They don’t hear about the international condemnation of the United States. Most Americans are unaware of how far we have moved away from Nuremberg and core principles of international law.

CUSACK: So the surreal Holder speech — how could it be that no one would be reporting on that? How could it be that has gone by with not a bang but a whimper?

TURLEY: Well, you know, part of it, John, I think, is that this administration is very clever. First of all, they clearly made the decision right after the election to tack heavily to the right on national security issues. We know that by the people they put on the National Security Council. They went and got very hardcore folks — people who are quite unpopular with civil libertarians. Not surprisingly we almost immediately started to hear things like the pledge not to prosecute CIA officials and other Bush policies being continued.

Many reporters buy into these escape clauses that the administration gives them, this is where I think the administration is quite clever. From a legal perspective, the Holder speech should have been exposed as perfect nonsense. If you’re a constitutional scholar, what he was talking about is facially ridiculous, because he was saying that we do have a constitutional process–it’s just self-imposed, and we’re the only ones who can review it. They created a process of their own and then pledged to remain faithful to it.

While that should be a transparent and absurd position, it gave an out for journalists to say, “Well, you know, the administration’s promising that there is a process, it’s just not the court process.” That’s what is so clever, and why the Obama administration has been far more successful than the Bush administration in rolling back core rights. The Bush administration would basically say, “We just vaporized a citizen in a car with a terrorist, and we’re not sorry for it.”

CUSACK: Well, yeah, the Bush administration basically said, “We may have committed a crime, but we’re the government, so what the fuck are you going to do about it?” Right? —and the Obama administration is saying, “We’re going to set this all in cement, expand the power of the executive, and pass the buck to the next guy.” Is that it?

TURLEY: It’s the same type of argument when people used to say when they caught a criminal and hung him from a tree after a perfunctory five-minute trial. In those days, there was an attempt to pretend that they are really not a lynch mob, they were following a legal process of their making and their satisfaction. It’s just… it’s expedited. Well, in some ways, the administration is arguing the same thing. They’re saying, “Yes, we do believe that we can kill any U.S. citizen, but we’re going to talk amongst ourselves about this, and we’re not going to do it until we’re satisfied that this guy is guilty.”

CUSACK: Me and the nameless death panel.

TURLEY: Again, the death panel is ludicrous. The power that they’ve defined derives from the president’s role as Commander in Chief. So this panel –

CUSACK: They’re falling back on executive privilege, the same as Nixon and Bush.

TURLEY: Right, it’s an extension of the president. He could just ignore it. It’s not like they have any power that exceeds his own.

CUSACK: So the death panel serves at the pleasure of the king, is what you’re saying.

TURLEY: Yes, and it gives him cover so that they can claim that they’re doing something legal when they’re doing something extra-legal.

CUSACK: Well, illegal, right?

TURLEY: Right. Outside the law.

CUSACK: So when does it get to a point where if you abdicate duty, it is in and of itself a crime? Obama is essentially creating a constitutional crisis not by committing crimes but by abdicating his oath that he swore before God — is that not a crime?

TURLEY: Well, he is violating international law over things like his promise to protect CIA officials from any prosecution for torture. That’s a direct violation, which makes our country as a whole doubly guilty for alleged war crimes. I know many of the people in the administration. Some of us were quite close. And they’re very smart people. I think that they also realize how far outside the lines they are. That’s the reason they are trying to draft up these policies to give the appearance of the law. It’s like a Potemkin village constructed as a façade for people to pass through –

CUSACK: They want to have a legal patina.

TURLEY: Right, and so they create this Potemkin village using names. You certainly can put the name “due process” on a drone missile, but it’s not delivering due process.

CUSACK: Yeah. And what about — well, we haven’t even gotten into the expansion of the privatization movement of the military “contractors” under George Bush or the escalation of drone strikes. I mean, who are they killing? Is it legal? Does anyone care — have we just given up as a country, saying that the Congress can declare war?

TURLEY: We appear to be in a sort of a free-fall. We have what used to be called an “imperial presidency.”

CUSACK: Obama is far more of an imperial president than Bush in many ways, wouldn’t you say?

TURLEY: Oh, President Obama has created an imperial presidency that would have made Richard Nixon blush. It is unbelievable.

CUSACK: And to say these things, most of the liberal community or the progressive community would say, “Turley and Cusack have lost their minds. What do they want? They want Mitt Romney to come in?”

TURLEY: The question is, “What has all of your relativistic voting and support done for you?” That is, certainly there are many people who believe –

CUSACK: Well, some of the people will say the bread-and-butter issues, “I got healthcare coverage, I got expanded healthcare coverage.”

TURLEY: See, that’s what I find really interesting. When I talk to people who support the administration, they usually agree with me that torture is a war crime and that the administration has blocked the investigation of alleged war crimes.

Then I ask them, “Then, morally, are you comfortable with saying, ‘I know the administration is concealing war crimes, but they’re really good on healthcare?’” That is what it comes down to.

The question for people to struggle with is how we ever hope to regain our moral standing and our high ground unless citizens are prepared to say, “Enough.” And this is really the election where that might actually carry some weight — if people said, “Enough. We’re not going to blindly support the president and be played anymore according to this blue state/red state paradigm. We’re going to reconstruct instead of replicate. It might not even be a reinvented Democratic Party in the end that is a viable option. Civil libertarians are going to stand apart so that people like Nancy Pelosi and Barack Obama and others know that there are certain Rubicon issues that you cannot cross, and one of them happens to be civil liberty.

CUSACK: Yeah, because most people reading this will sort of say, “Okay, this is all fine and good, but I’ve got to get to work and I’ve got to do this stuff, and I don’t know what these fucking guys are talking about. I don’t really care.”

So let’s paint a scenario. My nephew, Miles, decides that he wants to grow dreadlocks, and he also decides he’s falling in love with the religion of Islam. And he changes his name. Instead of his name being Miles, he changes his name to a Muslim-sounding name.

He goes to Washington, and he goes to the wrong organization or meeting, let’s say, and he goes to an Occupy Washington protest. He’s out there next to someone with a speaker, and a car bomb explodes. He didn’t set it off, and he didn’t do anything. The government can throw him in prison and never try him, right?

TURLEY: Well, first of all, that’s a very good question.

CUSACK: How do we illustrate the danger to normal people of these massive overreaches and radical changes to the Constitution that started under bush and have expanded under Obama?

TURLEY: I mean, first of all, I know Miles, and –

CUSACK: Yes.

TURLEY: –and he is a little dangerous.

CUSACK: Yes.

TURLEY: I played basketball with him and you and I would describe him as a clear and present danger.

CUSACK: I mean, and I know Eric Holder and Obama won’t throw him in prison because they’re nice guys, but let’s say that they’re out of office.

TURLEY: Right, and the problem is that there is no guarantee. It has become almost Fellini-esque. Holder made the announcement a couple of years ago that they would try some defendants in a federal court while reserving military tribunals for others. The speech started out on the high ground, saying, “We have to believe in our federal courts and our Constitution. We’ve tried terrorists before, and therefore we’re transferring these individuals to federal court.”

Then he said, “But we’re going to transfer these other individuals to Guantanamo Bay.” What was missing was any type of principle. You have Obama doing the same thing that George Bush did — sitting there like Caesar and saying, “You get a real trial and you get a fake trial.” He sent Zacarias Moussaoui to a federal court and then he threw Jose Padilla, who happened to be a U.S. citizen, into the Navy brig and held him without trial.

Yet, Obama and Holder publicly assert that they’re somehow making a civil liberties point, and say, “We’re very proud of the fact that we have the courage to hold these people for a real trial, except for those people. Those people are going to get a tribunal.” And what happened after that was remarkable. If you read the press accounts, the press actually credits the administration with doing the right thing. Most of them pushed into the last paragraph the fact that all they did was split the people on the table, and half got a real trial and half got a fake trial.

CUSACK: And don’t you think that’s, I mean, in the same way, if you talk to anybody, the demonization, whether rightful demonization, of Osama Bin Laden, was so intense that people were thrilled that he was assassinated instead of brought to trial and tried. And I thought, if the Nuremberg principles were right, the idea would be that you’d want to take this guy and put him on trial in front of the entire world, and, actually, if you were going to put him to death, you’d put him to death by lethal injection.

TURLEY: You’ll recall reports came out that the Seals were told to kill Osama, and then reports came out to say that Osama might not have been armed when the Seals came in. The strong indication was that this was a hit.

CUSACK: Yeah.

TURLEY: The accounts suggest that this was an assassination from the beginning to the end, and that was largely brushed over in the media. There was never really any discussion of whether it was appropriate or even a good idea not to capture this guy and to bring him to justice.

The other thing that was not discussed in most newspapers and programs was the fact that we violated international law. Pakistan insisted that they never approved our going into Pakistan. Think about it — if the government of Mexico sent in Mexican special forces into San Diego and captured a Mexican national, or maybe even an American citizen, and then killed him, could you imagine what the outcry would be?

CUSACK: Or somebody from a Middle Eastern country who had their kids blown up by Mr. Cheney’s and Bush’s wars came in and decided they were going to take out Cheney–not take him back to try him, but actually just come in and assassinate him.

TURLEY: Yet we didn’t even have that debate. And I think that goes to your point, John, about where’s the media?

CUSACK: But, see, that’s a very tough principle to take, because everybody feels so rightfully loathsome about Bin Laden, right? But principles are not meant to be convenient, right? The Constitution is not meant to be convenient. If they can catch Adolf Eichmann and put him on trial, why not bin Laden? The principles are what separate us from the beasts.

I think the best answer I ever heard about this stuff, besides sitting around a kitchen table with you and your father and my father, was I heard somebody, they asked Mario Cuomo, “You don’t support the death penalty…? Would you for someone who raped your wife?” And Cuomo blinked, and he looked at him, and he said, “What would I do? Well, I’d take a baseball bat and I’d bash his skull in… But I don’t matter. The law is better than me. The law is supposed to be better than me. That’s the whole point.”

TURLEY: Right. It is one thing if the president argued that there was no opportunity to capture bin Laden because he was in a moving car, for example. And then some people could say, “Well, they took him out because there was no way they could use anything but a missile.” What’s missing in the debate is that it was quickly brushed over whether we had the ability to capture bin Laden.

CUSACK: Well, it gets to [the late] Raiders owner Al Davis’ justice, which is basically, “Just win, baby.” And that’s where we are. The Constitution was framed by Al Davis. I never knew that.

And the sad part for me is that all the conversations and these interpretations and these conveniences, if they had followed the Constitution, and if they had been strict in terms of their interpretations, it wouldn’t matter one bit in effectively handling the war on terror or protecting Americans, because there wasn’t anything extra accomplished materially in taking these extra leaps, other than to make it easier for them to play cowboy and not cede national security to the Republicans politically. Bin Laden was basically ineffective. And our overseas intel people were already all over these guys.

It doesn’t really matter. The only thing that’s been hurt here has been us and the Constitution and any moral high ground we used to have. Because Obama and Holder are good guys, it’s okay. But what happens when the not-so-good guys come in, does MSNBC really want to cede and grandfather these powers to Gingrich or Romney or Ryan or Santorum or whomever — and then we’re sitting around looking at each other, like how did this happen? — the same way we look around now and say, “How the hell did the middle of America lose the American dream? How is all of this stuff happening at the same time?” And it gets back to lack of principle.

TURLEY: I think that’s right. Remember the articles during the torture debate? I kept on getting calls from reporters saying, “Well, you know, the administration has come out with an interesting statement. They said that it appears that they might’ve gotten something positive from torturing these people.” Yet you’ve had other officials say that they got garbage, which is what you often get from torture…

CUSACK: So the argument being that if we can get good information, we should torture?

TURLEY: Exactly. Yeah, that’s what I ask them. I say, “So, first of all, let’s remember, torture is a war crime. So what you’re saying is — “

CUSACK: Well, war crimes… war crimes are effective.

TURLEY: The thing that amazes me is that you have smart people like reporters who buy so readily into this. I truly believe that they’re earnest when they say this.

Of course you ask them “Well, does that mean that the Nuremberg principles don’t apply as long as you can show some productive use?” We have treaty provisions that expressly rule out justifying torture on the basis that it was used to gain useful information.

CUSACK: Look, I mean, enforced slave labor has some productive use. You get great productivity, you get great output from that shit. You’re not measuring the principle against the potential outcome; that’s a bad business model. “Just win, baby” — we’re supposed to be above that.

TURLEY: But, you know, I’ll give you an example. I had one of the leading investigative journalists email me after one of my columns blasting the administration on the assassin list, and this is someone I deeply respect. He’s one of the true great investigative reporters. He objected to the fact that my column said that under the Obama policy he could kill U.S. citizens not just abroad, but could kill them in the United States. And he said, “You know, I agree with everything in your column except that.” He said, “You know, they’ve never said that they could kill someone in the United States. I think that you are exaggerating.”

Yet, if you look at how they define the power, it is based on the mere perceived practicality and necessity of legal process by the president. They say the President has unilateral power to assassinate a citizen that he believes is a terrorist. Now, is the limiting principle? They argue that they do this “constitutional analysis,” and they only kill a citizen when it’s not practical to arrest the person.

CUSACK: Is that with the death panel?

TURLEY: Well, yeah, he’s talking about the death panel. Yet, he can ignore the death panel. But, more importantly, what does practicality mean? It all comes down to an unchecked presidential power.

CUSACK: By the way, the death panel — that room can’t be a fun room to go into, just make the decision on your own. You know, it’s probably a gloomy place, the death panel room, so the argument from the reporter was, “Look, they can… if they kill people in England or Paris that’s okay, but they — “

TURLEY: I also don’t understand, why would it make sense that you could kill a U.S. citizen on the streets of London but you might not be able to kill them on the streets of Las Vegas? The question is where the limiting principle comes from or is that just simply one more of these self-imposed rules? And that’s what they really are saying: we have these self-imposed rules that we’re only going to do this when we think we have to.

CUSACK: So, if somebody can use the contra-Nuremberg argument — that principle’s now been flipped, that they were only following orders — does that mean that the person that issued the order through Obama, or the President himself, is responsible and can be brought up on a war crime charge?

TURLEY: Well, under international law, Obama is subject to international law in terms of ordering any defined war crime.

CUSACK: Would he have to give his Nobel Peace Prize back?

TURLEY: I don’t think that thing’s going back. I’ve got to tell you… and given the amount of authority he’s claimed, I don’t know if anyone would have the guts to ask for it back.

CUSACK: And the argument people are going to use is,”Look, Obama and Holder are good guys. They’re not going to use this power.” But the point is, what about after them? What about the apparatus? You’ve unleashed the beast. And precedent is everything constitutionally, isn’t it?

TURLEY: I think that’s right. Basically what they’re arguing is, “We’re angels,” and that’s exactly what Madison warned against. As we discussed, he said if all men were angels you wouldn’t need government. And what the administration is saying is, “We’re angels, so trust us.”

I think that what is really telling is the disconnect between what people say about our country and what our country has become. What we’ve lost under Bush and Obama is clarity. In the “war on terror” what we’ve lost is what we need the most in fighting terrorism: clarity. We need the clarity of being better than the people that we are fighting against. Instead, we’ve given propagandists in Al Qaeda or the Taliban an endless supply of material — allowing them to denounce us as hypocrites.

Soon after 9/11 we started government officials talk about how the U.S. Constitution is making us weaker, how we can’t function by giving people due process. And it was perfectly ridiculous.

CUSACK: Feels more grotesque than ridiculous.

TURLEY: Yeah, all the reports that came out after 9/11 showed that 9/11 could’ve been avoided. For years people argued that we should have locked reinforced cockpit doors. For years people talked about the gaps in security at airports. We had the intelligence services that had the intelligence that they needed to move against this ring, and they didn’t share the information. So we have this long list of failures by U.S. agencies, and the result was that we increased their budget and gave them more unchecked authority.

In the end, we have to be as good as we claim. We can’t just talk a good game. If you look at this country in terms of what we’ve done, we have violated the Nuremberg principles, we have violated international treaties, we have refused to accept–

CUSACK: And you’re not just talking about in the Bush administration. You’re talking about –

TURLEY: The Obama administration.

CUSACK: You’re talking about right now.

TURLEY: We have refused to accept the jurisdictional authority of sovereign countries. We now routinely kill in other countries. It is American exceptionalism – the rules apply to other countries.

CUSACK: Well, these drone attacks in Pakistan, are they legal? Does anyone care? Who are we killing? Do they deserve due process?

TURLEY: When we cross the border, Americans disregard the fact that Pakistan is a sovereign nation, let alone an ally, and they insist that they have not agreed to these operations. They have accused us of repeatedly killing people in their country by violating their sovereign airspace. And we just disregard it. Again, its American exceptionalism, that we –

CUSACK: Get out of our way or we’ll pulverize you.

TURLEY: The rules apply to everyone else. So the treaties against torture and war crimes, sovereign integrity –

CUSACK: And this also speaks to the question that nobody even bothers to ask: what exactly are we doing in Afghanistan now? Why are we there?

TURLEY: Oh, yeah, that’s the real tragedy.

CUSACK: It has the highest recorded suicide rate among veterans in history and no one even bothers to state a pretense of a definable mission or goal. It appears we’re there because it’s not convenient for him to really get out before the election. So in that sense he’s another guy who’s letting people die in some shithole for purely political reasons. I mean, it is what it is.

TURLEY: I’m afraid, it is a political calculation. What I find amazing is that we’re supporting an unbelievably corrupt government in the Karzai administration.

Karzai himself, just two days ago, called Americans “demons.” He previously said that he wished he had gone with the Taliban rather than the Americans. And, more importantly, his government recently announced that women are worth less than men, and he has started to implement these religious edicts that are subjugating women. So he has American women who are protecting his life while he’s on television telling people that women are worth less than men, and we’re funding –

CUSACK: What are they, about three-fifths?

TURLEY: Yeah, he wasn’t very specific on that point. So we’re spending hundreds of billions of dollars. More importantly, we’re losing all these lives because it was simply politically inconvenient to be able to pull out of Afghanistan and Iraq.

CUSACK: Yeah. And, I mean, we haven’t even touched on the whole privatization of the military and what that means. What does it mean for the state to be funding at-cost-plus private mercenary armies and private mercenary security forces like Blackwater, or now their names are Xe, or whatever they’ve been rebranded as?

TURLEY: Well, the United States has barred various international rules because they would allow for the prosecution of war crimes by both military and private forces. The U.S. barred those new rules because we didn’t want the ability of other countries to prosecute our people for war crimes. One of the things I teach in my constitutional class is that there is a need for what’s called a bright-line rule. That is, the value for bright-line rules is that they structure relations between the branches, between the government and citizens. Bright-line rules protect freedom and liberty. Those people that try to eliminate bright-line rules quickly find themselves on a slippery slope. The Obama administration, with the Bush administration, began by denying rights to people at Guantanamo Bay.

And then they started to deny rights of foreigners who they accused of being terrorists. And eventually, just recently, they started denying rights to citizens and saying that they could kill citizens without any court order or review. It is the fulfillment of what is the nightmare of civil liberties. They crossed that bright line. Now they’re bringing these same abuses to U.S. citizens and changing how we relate to our government. In the end, we have this huge apparatus of the legal system, this huge court system, and all of it has become discretionary because the president can go ahead and kill U.S. citizens if he feels that it’s simply inconvenient or impractical to bring them to justice.

CUSACK: Or if the great O, decides that he wants to be lenient and just throw them in jail for the rest of their life without trial, he can do that, right?

TURLEY: Well, you’ve got Guantanamo Bay if you’re accused of being an enemy combatant. There is the concept in law that the lesser is included in the greater.

So if the president can kill me when I’m in London, then the lesser of that greater is that he could also hold me, presumably, without having any court involvement. It’d be a little bizarre that he could kill me but if he held me he’d have to turn me over to the court system.

CUSACK: Yeah. We’re getting into kind of Kafka territory. You know, with Bush I always felt like you were at one of those rides in an amusement park where the floor kept dropping and you kept kind of falling. But I think what Obama’s done is we’ve really hit the bottom as far as civil liberties go.

TURLEY: Yet people have greeted this erosion of civil liberties with this collective yawn.

CUSACK: Yeah, yeah. And so then it gets down to the question, “Well, are you going to vote for Obama?” And I say, “Well, I don’t really know. I couldn’t really vote for Hillary Clinton because of her Iraq War vote.” Because I felt like that was a line, a Rubicon line –

TURLEY: Right.

CUSACK: — a Rubicon line that I couldn’t cross, right? I don’t know how to bring myself to vote for a constitutional law professor, or even a constitutional realist, who throws away due process and claims the authority that the executive branch can assassinate American citizens. I just don’t know if I can bring myself to do it.

If you want to make a protest vote against Romney, go ahead, but I would think we’d be better putting our energies into local and state politics — occupy Wall Street and organizations and movements outside the system, not national politics, not personalities. Not stadium rock politics. Not brands. That’s the only thing I can think of. What would you say?

TURLEY: Well, the question, I think, that people have got to ask themselves when they get into that booth is not what Obama has become, but what have we become? That is, what’s left of our values if we vote for a person that we believe has shielded war crimes or violated due process or implemented authoritarian powers. It’s not enough to say, “Yeah, he did all those things, but I really like what he did with the National Park System.”

CUSACK: Yeah, or that he did a good job with the auto bailout.

TURLEY: Right. I think that people have to accept that they own this decision, that they can walk away. I realize that this is a tough decision for people but maybe, if enough people walked away, we could finally galvanize people into action to make serious changes. We have to recognize that our political system is fundamentally broken, it’s unresponsive. Only 11 percent of the public supports Congress, and yet nothing is changing — and so the question becomes, how do you jumpstart that system? How do you create an alternative? What we have learned from past elections is that you don’t create an alternative by yielding to this false dichotomy that only reinforces their monopoly on power.

CUSACK: I think that even Howard Zinn/Chomsky progressives, would admit that there will be a difference in domestic policy between Obama and a Romney presidency.

But DUE PROCESS….I think about how we own it. We own it. Everybody’s sort of let it slip. There’s no immediacy in the day-to-day on and it’s just one of those things that unless they… when they start pulling kids off the street, like they did in Argentina a few years ago and other places, all of a sudden, it’s like, “How the hell did that happen?” I say, “Look, you’re not helping Obama by enabling him. If you want to help him, hold his feet to the fire.”

TURLEY: Exactly.

CUSACK: The problem is, as I see it, is that regardless of goodwill and intent and people being tired of the status quo and everything else, the information outlets and the powers that be reconstruct or construct the government narrative only as an election game of ‘us versus them,’ Obama versus Romney, and if you do anything that will compromise that equation, you are picking one side versus the other. Because don’t you realize that’s going to hurt Obama? Don’t you know that’s going to help Obama? Don’t you know… and they’re not thinking through their own sort of self-interest or the community’s interest in just changing the way that this whole thing works to the benefit of the majority. We used to have some lines we wouldn’t cross–some people who said this is not what this country does …we don’t do this shit, you had to do the right thing. So it’s going to be a tough process getting our rights back, but you know Frankie’s Law? Whoever stops fighting first – loses.

TURLEY: Right.

* * *

NOTE Ya know, Tuesday’s when Obama signs off on the kill list, and so every Wednesday I try to remember to ask the question: “Has Obama whacked any US citizens today?” But I can’t get an Obama supporter to give me an answer. Maybe if more people asked…. –lambert