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Laws Detour

Laws Detour: Justice Displaced in the Bush Administration

Peter Margulies
Copyright Date: 2010
Published by: NYU Press
Pages: 240
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  • Book Info
    Laws Detour
    Book Description:

    From the Justice Department's memos defending coerced interrogation to Alberto Gonzales' firing of U.S. Attorneys who did not fit the Bush Administration's political needs, Law's Detour paints an alarming picture of the many detours that George W. Bush and his allies created to thwart transparency and undermine the rule of law after September 11, 2001. Pursuing those detours, Bush officials set up a law-free zone at Guantanamo, ordered massive immigration raids that separated families, and screened candidates for civil service jobs to ensure the hiring of real Americans.While government needs flexibility to address genuine risks to national security - which certainly exist in the post-9/11 world - the Bush Administration's use of detours distracted the government from urgent priorities, tarnished America's reputation, and threatened voting and civil rights. In this comprehensive analysis of Bush officials' efforts to stretch and strain the justice system, Peter Margulies canvasses the costs of the Administration's many detours, from resisting accountability in the war on terrorism to thwarting economic and environmental regulation. Concise and full of compelling anecdotes, Law's Detour maps these aberrations, surveys the damage done, and reaffirms the virtues of transparency and dialog that the Bush administration dismissed.

    eISBN: 978-0-8147-5960-8
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-x)
  4. Introduction
    (pp. 1-6)

    In June 2007, the Justice Department’s elite Office of Legal Counsel (OLC), whose earlier memos on detention, interrogation, and surveillance of suspected terrorists had ignited controversy, issued a memo on a more mundane subject: faith-based charities and employment discrimination.¹ The Bush administration had long sought to give faith-based organizations a bigger slice of the pie in antipoverty programs.² Among those lining up for federal aid was a group called World Vision, which informed the government that, “to maintain identity and strength,” it hired “only Christian staff.”³ Giving World Vision taxpayer money raised one problem: federal law prohibits religious discrimination in...

  5. 1 The Perfect Storm of Politics, Ideology, and Crisis
    (pp. 7-24)

    On September 2, 2005—almost four years after the horrendous attacks of September 11, 2001—President George W. Bush watched a DVD containing news reports of extraordinary human tragedy and loss. The DVD did not portray a terrorist incident. Instead, it compiled news coverage of the devastation caused by Hurricane Katrina.¹ Deadly flooding had begun in New Orleans on Monday of that week, submerging whole communities and inundating tens of thousands of homes. Since that first day, journalists had been reporting on Katrina’s deadly consequences. Thousands of the city’s residents perched on rooftops awaiting rescue or converged on the Superdome...

  6. 2 Targeting Individuals and Groups
    (pp. 25-52)

    In May 2002, the Justice Department accused the environmental activist group Greenpeace of tempting sailors into vice. This charge was odd on any number of levels. First, most sailors probably need no temptation. Second, Greenpeace does not trade in vice. The Justice Department filed charges after Greenpeace boarded a vessel that may have been importing illegally logged mahogany from Brazil into the United States.¹ To transform this into criminal activity, federal prosecutors cited an obscure, 140-year-old statute aimed at aggressive marketing by seaside taverns, which bars boarding a vessel in an unauthorized fashion before it has been “completely moored” at...

  7. 3 The Architecture of Impunity
    (pp. 53-78)

    In November 2007, members of the Senate Judiciary Committee were intently questioning Michael Mukasey, a former federal judge whom Bush had nominated to be his third attorney general. Senator Sheldon Whitehouse of Rhode Island, himself a former federal prosecutor, asked Mukasey whether waterboarding was torture. Mukasey had difficulty answering the question with a simple, “Yes.” Instead, he said that torture is illegal, and that the United States no longer resorts to waterboarding. While agreeing that waterboarding was “repugnant,” Mukasey gave two reasons for failing to answer the senator’s question straightforwardly: he had not been fully briefed, and he did not...

  8. 4 Centralizing Policy and Patronage
    (pp. 79-98)

    In 2002, William Mercer, who was then the United States Attorney from Montana and in 2006 became an acting Associate Attorney General, received an e-mail query from an official at “Main Justice” in Washington about a candidate for the Justice Department’s Honors Program. The Honors Program, one of the nation’s most prestigious programs for new law school graduates, hires based on merit, not political affiliation. The e-mail inquired whether the candidate was “someone we want at DOJ.”¹ Mercer responded that “the guy is probably quite liberal.” According to Mercer, the candidate was clerking for a judge who was “activist” and...

  9. 5 Conspiracy’s Discontents: Prevention and False Positives After September 11
    (pp. 99-126)

    After September 11, criminal law was in danger of being declared obsolete. Although the Justice Department had successfully prosecuted terrorists in the 1990s, Attorney General John Ashcroft claimed that the September 11 attacks required a new mind-set for law enforcement. The administration’s fixation on measures such as indefinite detention, warrantless surveillance, and coercive interrogation made the criminal justice system seem leaden and labored. To compete on the new playing field, Ashcroft announced a paradigm shift to prevention. Ramped-up conspiracy prosecutions were the cornerstone of this strategy.

    As a response to political violence, conspiracy charges often succeed more as public relations...

  10. 6 Justice and Elections
    (pp. 127-140)

    In late October 2006, David Iglesias, United States Attorney for New Mexico, was at home when he received a disturbing phone call from his mentor, Senator Pete Domenici.¹ Domenici, known as “St. Pete” for his record of honesty and concern for the public good, had been largely responsible for getting Iglesias his position.² Domenici skipped the small talk and directly asked Iglesias about a pending prosecution in Iglesias’s office concerning political corruption among Democrats, demanding to know if indictments in the case would be filed before the November election, the better to embarrass the Democrats and prop up the Republicans’...

  11. 7 Regulation of Business and the Flight from Accountability at Home and Abroad
    (pp. 141-156)

    A shower stall is not supposed to be a dangerous place. That reasonable assumption proved to be tragically incorrect, however, for S. Sgt. Ryan Maseth, an American soldier in Iraq. American service personnel in Iraq often use showers with electric pumps that must be properly grounded. Several years ago, an officer reported that the contractor in charge of shower pumps failed to properly maintain them. The contractor in question was Kellog Brown & Root (KBR), a former subsidiary of the oil services giant Halliburton, which Dick Cheney ran prior to becoming the most powerful vice president in American history. Because...

  12. Afterword
    (pp. 157-164)

    Detours are addictive. Once the institutional momentum grows for their proliferation, introducing constraint becomes even more difficult. Moreover, the Bush administration was not without evidence on its side: no further attacks occurred on American soil after September 11, although analysts will dispute for decades the role of Bush administration policies in that achievement. Overall, the aftermath of the Bush administration has been a study in ambiguity and ambivalence. On the one hand, the financial collapse of 2008 cast the Bush administration’s neglect of regulation in an unforgiving light. On national security, however, the aftereffects of Bush administration measures like the...

  13. Notes
    (pp. 165-212)
  14. Index
    (pp. 213-220)
  15. About the Author
    (pp. 221-221)