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Justice Barrett Doesn’t Want You To Think She’s A ‘Partisan Hack’

Reprinted with permission from Alternet

Justice Amy Coney Barrett, the newest member of the U.S. Supreme Court whose nomination was rammed through the Senate by then-Republican Majority Leader Mitch McConnell, on Sunday told guests invited to celebrate the 30th anniversary of the McConnell Center at the University of Louisville, "My goal today is to convince you that this court is not comprised of a bunch of partisan hacks."

She was roundly criticized and mocked for that claim, which was reported by the Louisville Courier Journal.

Barrett was nominated immediately after liberal Justice Ruth Bader Ginsburg's death, before she had even been buried. She was confirmed one week before the November 2020 election in a 52-48 vote, entirely on party lines, and sworn in the very next day, all thanks to the efforts of Senator Mitch McConnell. McConnell in 2016 infamously blocked President Barack Obama's Supreme Court nominee, Merrick Garland, from even getting a committee hearing, then pushed through Neil Gorsuch and Brett Kavanaugh before Barrett's nomination.

Here's Senator McConnell celebrating Barrett's confirmation, which indeed was on former U.S. Secretary of State and Democratic presidential nominee Hillary Clinton's birthday:

The court now sits with a 6-3 highly-conservative majority, and some across the country feel several of the conservatives have flouted judicial ethics by weighing in on issues, directly or in directly. Justice Clarence Thomas's wife, Ginni Thomas, is a far right wing lobbyist who used to run a Tea Party organization. She is believed to have had a hand in President Donald Trump's expulsion of transgender service members from the U.S. Armed Forces. And Justice Kavanaugh, infamously during his Senate confirmation hearing, infamously threatened revenge against Democrats.

In fact, as Amy Coney Barrett was being sworn in, The New Republic published an opinion piece stating she and Justice Kavanaugh "have demonstrated this week that they should be thought of as political operatives, not justices."

Barrett of course brought this perception on herself, allowing her nomination to be pushed through in the weeks before a highly controversial presidential election, appearing at a super-spreader event at the White House celebrating her nomination, then later standing on the White House balcony with President Trump, days before the election, all of which effectively worked as an endorsement of his re-election.

Los Angeles Times columnist Jackie Calmes noted at the time just how unprecedented this single act was:

Many are mocking Barrett's claim.










Will The Forever Wars Become Forever Policy?

Reprinted with permission from TomDispatch

It ended in chaos and disaster. Kabul has fallen and Joe Biden is being blamed (by congressional Republicans in particular) for America's now almost-20-year disaster in Afghanistan. But is the war on terror itself over? Apparently not.

It seems like centuries ago, but do you remember when, in May 2003, President George W. Bush declared "Mission accomplished" as he spoke proudly of his invasion of Iraq? Three months later, Attorney General John Ashcroft proclaimed, "We are winning the war on terror." Despite such declarations and the "corners" endlessly turned as America's military commanders announced impending successes year after year in places like Afghanistan and Iraq, the war on terror, abroad and on the home front, has been never-ending, as the now-codified term "forever wars" suggests.

By 2011, following the death of Osama bin Laden, President Barack Obama admitted that the killing of the head of al-Qaeda would not bring that war to a close. In May 2011, he informed the nation that bin Laden's "death does not mark the end of our effort" as "the cause of securing our country is not complete." As President Biden signals his intention to bring the war on terror as we know it to an end, the question is: What will remain of it both abroad and at home, no matter what he tries to do?

The Pivot Abroad

As the 20th anniversary of the 9/11 attacks looms, the Biden administration is making it crystal clear that it intends to finally bring the most obvious aspects of that war to a close, no matter the consequences. "It is time," Biden, the fourth war-on-terror president, said in April, "to end the Forever War." Although mired in controversy, turmoil, and bloodshed, the withdrawal of American troops from Afghanistan did indeed take place, even if several thousand were then sent back to Kabul Airport to guard the panicky removal of the vast American embassy staff and others from that city. That was, as the administration announced, only a temporary measure as Taliban troops entered the Afghan capital and took over the government there.

Eighteen years after the invasion of Iraq, a shifting definition of the role of the 2,500 or so U.S. troops still stationed there is also underway and should be complete by the end of the year. Instead of more combat missions, the American role will now be logistics and advisory support.

Putting a fine point on both the Afghan withdrawal and the Iraqi change of direction, many in Congress have acknowledged the need to remove the authorizations passed so long ago for those forever wars. In June, the House of Representatives voted to repeal the 2002 Authorization for the Use of Force (AUMF) in Iraq that paved the way for the invasion of that country. And this month, the Senate Foreign Relations Committee followed suit — 18 years after George W. Bush deposed Iraqi autocrat Saddam Hussein and disaster followed.

The removal of that 2002 AUMF remains, of course, painfully overdue. After all, it has been used through these many years to cover this country's disastrous occupation of and attempts at "nation-building" in Iraq. Eventually, during Donald Trump's last year in office, it was even cited to authorize the drone assassination of a top Iranian general at Baghdad International Airport. Like so many war-on-terror policies, once put in place, successive administrations showed no urge to let that AUMF go. In that way, what had once been a regime-change directive (based on a set of lies about weapons of mass destruction in Saddam Hussein's Iraq) morphed into a long-term nation-building scheme, without any new congressional authorizations at all.

Plans are also now on the table for the repeal of the even more impactful 2001AUMF, passed by Congress one week after 9/11. Like the Iraq War authorization, its use has been expanded in ways well beyond its original intent — namely, the rooting out of Osama bin Laden and al-Qaeda in Afghanistan. Under the 2001 AUMF's auspices, in the last nearly two decades, the United States has conducted military operations in ever more countries across the Greater Middle East and Africa. But in Congress, what's now being discussed is not just repealing that act, but replacing it altogether.

Traditionally, when a war ends, there's a resolution, perhaps codified in a treaty or an agreement of some sort acknowledging victory or defeat, and a nod to the peace that will follow. Not so with this war.

However unsuccessful, the war on terror, experts tell us, will instead continue. The only difference: it won't be called a war anymore. Instead, there will be a variety of militarized counterterrorism efforts around the globe. With or without the moniker of "war," the U.S. remains at war in numerous places, only recently, for instance, launching airstrikes on Somalia to counter the terrorist group al-Shabaab.

In Africa, Syria, and Indonesia, experts warn, the continued spread of ISIS, the reinvigoration of al-Qaeda, and the persistence of groups like Jemaah Islamiyah demand a continued American military counterterrorism effort. All of this was, in a strange way, foreseeable in the drafting of the 2001 AUMF in which no enemy was actually named, nor were temporal or geographical limits or conditions laid down for the resolution of the conflict to come. As the war on terror's spread to country after country has demonstrated, once unleashed, such a war paradigm takes on a life of its own.

After 20 years of various kinds of failure in which the goals of the war on terror were never truly attained, the U.S. military, the intelligence community, and the Biden administration are now focused elsewhere. According to the latest government threat assessment issued in April by the Director of National Intelligence (DNI), terrorism is far from the most serious threat the nation faces today. As Emily Harding of the Center for Strategic and International Studies sums it up, reflecting on the DNI's report, the intelligence community's priorities "are shifting… from a focus on counterterrorism to addressing near-peer competitors."

"The United States is transitioning," Harding explains, "from mostly low-tech, low-resourced adversaries (e.g., the Islamic State, al-Qaeda, and their subsidiaries) to a focus on great power competition, in particular with China and Russia, both of whom have invested in sophisticated technical tools and are armed with robust conventional and nuclear forces."

Still, however much the Biden administration may be pivoting to a new cold war with China in particular, just how long such a pivot lasts remains an open question, especially given the recent Afghan disaster. And despite the coming 20th anniversary of 9/11, no matter what Congress does or doesn't rescind when it comes to those AUMFs, the U.S. forever war with terrorism will persist, even if, for a while, the threat of Islamic terrorism takes a back seat to other potential dangers in official Washington.

The Pivot At Home

On the home front, there's a similarly disturbing persistence when it comes to the war on terror. Like that set of conflicts abroad, counterterrorism efforts against Islamist terrorists at home have given way to other issues. Mirroring the reduced importance of international terrorism in the report of the director of national intelligence, for instance, Attorney General Merrick Garland recently highlighted a domestic shift away from Islamic terrorism in a memorandum to Department of Justice (DOJ) personnel.

Outlining the "broad scope" of the department's responsibilities, his priorities couldn't have been clearer. His first commitment, he insisted, was to restoring the integrity of the department, a clear reference to the DOJ's rejection of independence from the White House during the Trump years. Meanwhile, he explained, the Justice Department will focus on its primary mission — protecting Americans "from environmental degradation and the abuse of market power, from fraud and corruption, from violent crime and cyber-crime, and from drug trafficking and child exploitation." Only as a seeming afterthought did he add, "And it must do all of this without ever taking its eye off of the risk of another devastating attack by foreign terrorists."

But his words hid a more subtle reality. Much of the domestic architecture created in the name of the war on terror persists at home as well as abroad. At its height, the counterterrorism movement at home involved an expansive and aggressive use of law enforcement and intelligence tools that readily — often with the assent of Congress and the courts — tossed aside constitutional protections and reinterpreted laws in ways that privileged American security over rights.

Passed in October 2001, the Patriot Act, for example, downgraded Fourth Amendment protections, enabling law enforcement to conduct mass warrantless surveillance on Americans. Muslims as a group — rather than based on individual suspicion — were detained without charge, targeted in stings and terror investigations, and threatened with imprisonment at Guantanamo Bay.

During President Obama's term in office, some of these measures were revised for the better in the Freedom Act. Meant to replace the Patriot Act, while leaving many broad authorities in place, it banned the bulk intelligence collection of American telephone records and Internet metadata. For the most part, however, law enforcement's counterterrorism powers, created to defeat al-Qaeda, have remained robust and are there for use against others.

The Department of Homeland Security (DHS), created in the wake of 9/11, has also turned its attention elsewhere. Almost from its inception, the agency used the powers granted to it in the name of counterterrorism in other ways entirely. It soon turned its attention to dealing with drug crimes, the control of the border, and immigration matters, all outside the realm of post-9/11 terrorist threats.

Under President Trump, in particular, DHS (by then, remarkably enough, the country's largest law enforcement agency) refocused its resources on matters that had little or nothing to do with counterterrorism. During the Black Lives Matter protests in the summer of 2020, for instance, its officials deployed helicopters, drones, and other forms of group surveillance to monitor protests and, in Portland, Oregon, even to quell them with force. In other words, the agency built for counterterrorism had, by then, become whatever a president wanted it to be.

A Call For Review

The future of such powers and policies at home and abroad is now in a strange kind of limbo. Addressing the Trump administration's misuse of the Department of Justice, for instance, Attorney General Garland did indeed signal his intent to limit any use of it for political purposes. In the process, he issued a clear directive against any possible White House politicization of the department. But not a mention has yet been made of authorizing a much-needed thorough review of the powers the DOJ gained in the forever-war years in the name of counterterrorism.

When it comes to the Department of Homeland Security, the path to reform is even less clear as, in its repurposed mission, counterterrorism aimed at foreign groups may be among the least of its tasks. As a recent report from the Center for American Progress points out, "What America needs from DHS today… is different from when it was founded… [W]e need a DHS that prioritizes the rule of law, and one that protects all Americans as well as everyone who comes to live, study, work, travel, and seek safety here."

In fact, in these years, both at home and abroad, counterterrorism agencies and the military were granted vast new powers. While they may now all be pivoting elsewhere in the name of new threats, they are certainly not focused on limiting those powers in any significant way.

And yet such limits couldn't be more important. It would, in fact, be wise for this country to pause, review the uses of the post-9/11 powers granted to such domestic institutions, and revise the policies that allowed for their seemingly endless expansion at home and abroad in the name of the war on terror. It would be no less wise to place more confidence in the country's ability to keep itself safe by embracing its foundational principles. At home, that would mean honoring fairness and restraint in the application of the law, while insisting on limits to the use of force abroad.

If only.

At present, it looks as if those forever wars have created a new form of forever law, forever policy, forever power, and a forever-changed America. And count on one thing: if changes aren't made, we in this country will find ourselves living forever in the shadow of those forever wars.

Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law and author of the newly published Subtle Tools: The Dismantling of Democracy from the War on Terror to Donald Trump (Princeton University Press). Julia Tedesco helped with research for this piece.

Ruling: IRS Must Deliver Trump Tax Returns To Congressional Committee

Reprinted with permission from Alternet

In a new opinion from the Justice Department's Office of Legal Counsel, officials conclude that the administration is legally obligated to hand over former President Donald Trump's taxes to Congress, as requested.

The announcement is the latest development in Democrats' years-long struggle to see Trump's tax records. He conspicuously refused to make his tax returns public during the 2016 (and 2020) presidential campaign, despite having said he would do so. Many critics believed they would provide evidence of wrongdoing, impropriety, financial failure, or even criminality. So when Democrats took control of Congress in 2019, the House Ways and Means Committee requested his records from the IRS using a statute that allows lawmakers to obtain such information.

But the Trump administration stonewalled, using highly dubious legal reasoning. Now, the Biden administration, and Attorney Merrick Garland's Justice Department in particular, has reversed that decision:

When one of the congressional tax committees requests tax information pursuant to section 6103(f)(1), and has invoked facially valid reasons for its request, the Executive Branch should conclude that the request lacks a legitimate legislative purpose only in exceptional circumstances. The Chairman of the House Ways and Means Committee has invoked sufficient reasons for requesting the former President's tax information. Under section 6103(f)(1), Treasury must furnish the information to the Committee.

The Trump administration had argued that Congress did not have a legitimate legislative purpose to request. But the new OLC document rejects those claims, saying that lawmakers clearly have presented facially valid reasons for requesting the returns, and that is essentially the end of the story:

The statute at issue here is unambiguous: "Upon written request" of the chairman of one of the three congressional tax committees, the Secretary "shall furnish" the requested tax information to the Committee. 26 U.S.C. § 6103(f)(1). As the 2019 Opinion recognized, this statutory directive does not exempt the June 2021 Request from the constitutional requirement that congressional demands for information must serve a legitimate legislative purpose. 2019 Opinion at *17–19. The 2019 Opinion went astray, however, in suggesting that the Executive Branch should closely scrutinize the Committee's stated justifications for its requests in a manner that failed to accord the respect and deference due a coordinate branch of government. Id. at *24–26. The 2019 Opinion also failed to give due weight to the fact that the Committee was acting pursuant to a carefully crafted statute that reflects a judgment by the political branches, going back nearly a century, that the congressional tax committees should have special access to tax information given their roles in overseeing the national tax system. Particularly in light of this special statutory authority, Treasury should conclude that a facially valid tax committee request lacks a legitimate legislative purpose only in exceptional circumstances.

It added:

Even if some individual members of Congress hope to see information from the former President's tax returns disclosed on the public record merely "for the sake of exposure," Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2032 (2020) (internal quotation marks omitted), that would not invalidate the legitimate objectives that the Committee's receipt of the information in question could serve.

However, Trump may still have the opportunity to delay disclosure further. BuzzFeed reporter Zoe Tillman noted that Trump has a short period of time to try to intervene:

Even if the House committee obtains the tax returns, they won't immediately become public. Documents identifying particular people are supposed to be kept by the committee in closed session.

Justice Department Won't Defend Mo Brooks In Capitol Riot Lawsuit

WASHINGTON (Reuters) -The Justice Department in a court filing on Tuesday declined to defend Republican congressman Mo Brooks (R-AL) in a lawsuit that alleges he conspired to instigate the January 6 riot at the U.S. Capitol. Brooks had asked the Justice Department to consider him covered by the Westfall Act, which protects federal employees from being sued for actions taken as part of their jobs, concerning the lawsuit brought by Rep. Eric Swalwell (D-CA). The Justice Department's filing could indicate it may not defend former President Donald Trump, who has also been sued by Swalwell for a...

GOP Extremists Plot Stunt For Jan. 6 ‘Political Prisoners’

Reprinted with permission from Alternet

The Department of Justice arrested and charged over 500 people who attacked the U.S. Capitol on January 6, many in a coordinated effort to overturn a free and fair election. DOJ expects to charge about 100 others as well.

"The investigation and prosecution of the Capitol Attack will likely be one of the largest in American history, both in terms of the number of defendants prosecuted and the nature and volume of the evidence," the U.S. attorney's office in D.C. wrote in March, when the list of people to be charged was estimated at about 400, The Washington Post reported at the time.

On Tuesday, as the newly-minted U.S. House Select Committee on the January 6 Attack launches, holding its first day of events, four far right wing House Republicans – some of whom has been linked to white nationalists – will be holding a different type of event.

Instead of working to uncover and piece together all the information about what happened on Jan. 6, including what led up to the attempted coup, four GOP representatives – Matt Gaetz, Louie Gohmert, Paul Gosar, Marjorie Taylor Greene – will hold a press conference on the "treatment" of the January 6 "prisoners," suggesting they are "political prisoners," which is false.

The four extremists will hold that press conference Tuesday at 1 PM, "demanding answers on the treatment of January 6 prisoners" from Attorney General Merrick Garland, per a press release.

"This is taking place on the same day as the January 6 select committee's first hearing," Forbes' Andrew Solender reports. House Republican Minority Leader Kevin McCarthy "is also holding a presser ahead of that to counter-program."

"The lawmakers have all pushed a baseless conspiracy theory that federal agents were behind the attack, with Gosar also casting slain rioter Ashli Babbitt – who was shot by law enforcement while trying to breach the House chamber – as a martyr," Solender says in a Forbes article.

Why The Justice Department Must Not Defend Mo Brooks’ Seditious Speech

Reprinted with permission from Alternet

Rep. Mo Brooks of Alabama, who spoke at former President Donald Trump's "Stop the Steal" rally in Washington, D.C. on January 6, is named in a civil lawsuit alleging that he incited the violent mob that attacked the U.S. Capitol Building that day. Brooks is asking the U.S. Department of Justice to intervene in the case, insisting that he did nothing wrong on January 6. And opinion writer Jennifer Rubin, this week in her column, argues that Attorney General Merrick Garland should not side with Brooks.

The civil lawsuit that Brooks is facing was filed by Democratic Rep. Eric Swalwell and also names former President Trump, Donald Trump, Jr. and former New York City Mayor Rudy Giuliani.

At the "Stop the Steal" rally, Brooks urged supporters of then-President Donald Trump to start "kicking ass" in response to Trump's election fraud claims — which had been repeatedly debunked. Swalwell's civil lawsuit alleges that Brooks was inciting the January 6 riot with such rhetoric. But Brooks contends his actions were legally protected.

"On Tuesday," Rubin explains, "the Justice Department and the House of Representatives will file briefs explaining to a federal court whether each believes that Rep. Mo Brooks (R-Ala.) was acting within the scope of his employment when he allegedly incited the violent attack on the Capitol and sought to subvert the peaceful transfer of power on January 6. This sounds absurd, but in effect, Brooks is asking the Justice Department to certify that he was acting in the scope of his duties when he tried to overthrow the government."

Rubin continues, "If he succeeds, he would be immune from suit, and the Justice Department would step in on behalf of the government in civil suits arising from the violent insurrection. It would be a gross error and invitation for future insurrections if either the House or Justice Department agreed that Brooks is protected. How can encouraging a mob to disrupt the Electoral College tabulation possibly be within Brooks' duties? That would be akin to saying Gen. Robert E. Lee was acting within the scope of his duties in the U.S. Army when he attacked Union troops. Sedition is not within the scope of any official's duties."

Rubin goes on to make her point by quoting an op-ed by attorney Laurence H. Tribe, an expert on constitutional law, that was published in the Boston Globe on July 19.

Tribe wrote, "If the attorney general decides to treat such action as merely one way of discharging official duties, then self-government will become a mirage — and those who are guilty of trashing it will have been placed beyond the reach of legal accountability to those they injure…. That would mean that popular sovereignty is dead, and the twin principles that no one is above the law and that every legal wrong deserves a remedy might as well be tossed into history's dust heap."

Ethics expert Walter Shaub, who isn't quoted in Rubin's column, has also been weighing in on Swalwell's lawsuit and the arguments Brooks is making to the DOJ.

In a recent newsletter, Shaub noted, "Here's how this lawsuit could spark serious long-term consequences when it comes to holding political leaders accountable for wildly incendiary speech: Brooks has asked Attorney General Garland to certify that he was acting within the scope of his official duties as a member of Congress when he spoke to the crowd…. If Garland grants this request and persuades the court to agree, the certification would effectively immunize Brooks by dismissing him from the lawsuit and substituting the government as a defendant."

Shaub argues that "if Garland certifies that Brooks was acting within the scope of a congressional representative's duties, he will be legitimizing the incitement of a mob" and sending a "message to elected officials" that "they can act with impunity, even when their actions are inconsistent with the oath they took to support and defend the Constitution."

Rubin concludes her op-ed by warning that if Garland agrees with Brooks, he will be sending out a message that Trump and his allies are above the law.

"We need an attorney general to aggressively pursue facts and bring actions against Trump and his supporters where warranted," Rubin writes. "If not, Garland would have inadvertently affirmed Trump's argument that he was above the law."

Are We Ever Going To Hold Anyone Accountable In America?

Reprinted with permission from TomDispatch

America has an accountability problem. In fact, if the Covid-19 disaster, the January 6th Capitol attack, and the Trump years are any indication, the American lexicon has essentially dispensed with the term "accountability."

This should come as no surprise. After all, there's nothing particularly new about this. In the Bush years, those who created a system of indefinite offshore detention at Guantánamo Bay, Cuba, those who implemented a CIA global torture program and the National Security Agency's warrantless surveillance policy,not to mention those who purposely took us to war based on lies about nonexistentIraqi weapons of mass destruction, were neither dismissed, sanctioned, nor punished in any way for obvious violations of the law. Nor has Congress passed significant legislation of any kind to ensure that all-encompassing abuses like these will not happen again.

Now, early in the Biden era, any determination to hold American officials responsible for such past wrongdoing, even the president who helped launch an assault on the Capitol, seems little more than a fantasy. It may be something to discuss, rail against, or even make promises about, but not actually reckon with — not if you're either a deeply divided Congress or a Department of Justice that has compromised itself repeatedly in recent years. Under other circumstances, of course, those would be the two primary institutions with the power to pursue genuine accountability in any meaningful way for extreme and potentially illegal government acts.

Today, if thought about at all, accountability — whether in the form of punishment for misdeeds or meaningful reform — has been reduced to a talking point. With that in mind, let's take a moment to consider the Biden administration's approach to accountability so far.

How We Got Here

Even before Donald Trump entered the Oval Office, the country was already genuinely averse to accountability. When President Obama took office in January 2009, he faced the legacy of the George W. Bush administration's egregious disregard for laws and norms in its extralegal post-9/11 war on terror. From day one of his presidency, Obama made clear that he found his predecessor's policies unacceptable by both acknowledging and denouncing those crimes. But he insisted that they belonged to the past.

Fearing that the pursuit of punishment would involve potentially ugly encounters with former officials and would seem like political retribution in a country increasingly divided and on edge, he clearly decided that it wouldn't be worth the effort. Ultimately, as he said about "interrogations, detentions, and so forth," it was best for the nation to "look forward, as opposed to looking backward."

True to the president's word, the Obama administration refused to hold former officials responsible for violations of fundamental constitutional and legal issues. Among those who escaped retrospective accountability were Vice President Dick Cheney, who orchestrated the invasion of Saddam Hussein's Iraq based on lies; the lawyer in the Justice Department's Office of Legal Counsel, John Yoo, who, in his infamous "Torture Memos," justified the "enhanced interrogation" of war-on-terror prisoners; and Secretary of Defense Donald Rumsfeld, who created a Bermuda triangle of injustice at Guantánamo Bay, Cuba. In terms of reform, Obama did ensure a degree of meaningful change, including decreeing an official end to the CIA torture of prisoners of war. But too much of what had happened remained unaddressed and lay in wait for abuse at the hands of some irresponsible future president.

As a result, many of the sins that were at the heart of the never-ending response to the 9/11 attacks have become largely forgotten history, leaving many potential crimes unaddressed. And even more sadly, the legacy of accountability's demise only continues. Biden and his team entered office facing a brand-new list of irregularities and abuses by high-ranking officials, including President Trump.

In this case, the main events demanding accountability had occurred on the domestic front. The January 6th insurrection, the egregious mishandling of the pandemic, the interference in the 2020 presidential election, and the use of the Department of Justice for political ends all awaited investigation after inauguration day. At the outset, the new government dutifully promised that some form of accountability would indeed be forthcoming. On January 15th, House Speaker Nancy Pelosi announced that she planned to convene an independent commission to thoroughly investigate the Capitol riots, later pledging to look into the "facts and causes" of that assault on Congress.

As a nominee for Attorney General, Merrick Garland similarly promised, "If confirmed, I will supervise the prosecution of white supremacists and others who stormed the Capitol on January 6th." Meanwhile, signaling some appetite for holding his predecessor accountable, during the presidential campaign, Joe Biden had already ruled out the possibility of extending a pardon to Donald Trump. In that way, he ensured that, were he elected, numerous court cases against the president and his Trump Organization would be open to prosecution — even, as Noah Bookbinder, the executive director of Citizens for Responsibility and Ethics in Washington, recently suggested, reviving the obstruction of justice charges that had been central to the Mueller investigation of the 2016 presidential election.

Reluctance In The Halls Of Accountability

Six months after Joe Biden took office, there has been no firm movement toward accountability by his administration. On the question of making Donald Trump and his allies answer for their misdeeds, the appetite of this administration so far seems wanting, notably, for example, when it comes to the role the president may have played in instigating the Capitol attack. Sadly, Pelosi's call for an independent commission to investigate that insurrectionary moment passed the House, but fell victim last month to the threat of a filibuster and was blocked in the Senate. (Last week, largely along party lines, the House passed a select committee to investigate the insurrection.)

Trump's disastrous mishandling of the pandemic, potentially responsible for staggering numbers of American deaths, similarly seems to have fallen into the territory of unaccountability. The partisan divisions of Congress continue to stall a Covid-19 investigation. National security expert and journalist Peter Bergen, for instance, called for a commission to address the irresponsible way the highest levels of government dealt with the pandemic, but the idea failed to gain traction. Instead, the focus has turned to the question of whether or not there was malfeasance at a Chinese government lab in Wuhan.

It matters not at all that numerous journalists, including Lawrence Wright, Michael Lewis, and Nicholson Baker, have impressively documented the mishandling of the pandemic here. Such disastrous acts included early denials of the lethality of the disease, the disavowal of pandemic preparedness plans, the dismantling of the very government office meant to respond to pandemics, the presidential promotion of quack cures, a disregard for wearing masks early on, and so much else, all of which contributed to a generally chaotic governmental response, which ultimately cost tens of thousands of lives.

In truth, a congressional investigation into either the Capitol riots or the Trump administration's mishandling of the pandemic might never have led to actual punitive accountability. After all, the 9/11 Commission, touted as the gold standard for such investigations, did nothing of the sort. While offering a reputable history of the terrorist threat that resulted in the attacks of September 11, 2001, and a full-scale summary of government missteps and lapses that led up to that moment, the 9/11 report did not take on the mission of pointing fingers and demanding accountability.

In a recent interview with former New York Times reporter Philip Shenon, whose 2008 book The Commission punctured that group's otherwise stellar reputation, Just Security editor Ryan Goodman offered this observation: "[An] important lesson from your book is the conscious tradeoff that the 9/11 Commission members made in prioritizing having a unanimous final report which sacrificed their ability to promote the interests of accountability (such as identifying and naming senior government officials whose acts or omissions were responsible for lapses in U.S. national security before the attack)."

Shenon added that the tradeoff between accountability and unanimity was acknowledged by commission staff members frustrated by the absence of what they thought should have been the report's "most important and controversial" conclusions. In other words, when it came to accountability, the 9/11 Report proved an inadequate model at best. Still, even its version of truth-telling proved too much for congressional Republicans facing a similar commission on the events of January 6th.

Note, however, that the 9/11 Commission did lead to movement along another path of accountability: reform. In its wake came certain structural changes, including a bolstering of the interagency process for sharing information and the creation of the Office of the Director of National Intelligence.

No such luck today. And signs of the difficulty of facing any kind of accountability are now evident inside the Department of Justice (DOJ), too. Despite initial rhetoric to the contrary from Attorney General Merrick Garland, the department has shown little appetite for redress when it comes to those formerly in the highest posts. And that reality should bring to mind the similar reluctance of Barack Obama, the president who originally nominated Garland unsuccessfully to the Supreme Court.

For anyone keeping a scorecard of DOJ actions regarding Trump-era excesses, the record is slim indeed. While the department did, at least, abandon any possible prosecution of former National Security Advisor John Bolton for supposedly disclosing classified information in his memoir on his time in the Trump administration, Garland also announced that he would not pursue several matters that could have brought to light information about President Trump's abuse of power.

In May, for instance, the department appealed a court-ordered call for the release of the full version of a previously heavily redacted DOJ memo advising then-Attorney General Bill Barr that the evidence in the Mueller Report was "not sufficient to support a conclusion beyond a reasonable doubt that the President violated the obstruction-of-justice statutes." In fact, the Mueller Report did not exonerate Trump, as Mueller himself would later testify in Congress and as hundreds of federal prosecutors would argue in a letter written in the wake of the report's publication, saying, "Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller's report would… result in multiple felony charges for obstruction of justice."

Adding fuel to the fire of disappointment, Garland pulled back from directly assessing fault lines inside the Department of Justice when it came to its independence from partisan politics. Instead, he turned over to the DOJ inspector general any further investigation into Trump's politicization of the department.

The Path Forward — Or Not?

These are all discouraging signs, yet there's still time to strengthen our faltering democracy by reinstating the idea that abuses of power and violations of the law — from inside the White House, no less — are not to be tolerated. Even without an independent commission looking into January 6th or the DOJ prosecuting anyone, some accountability should still be possible. (After all, it was a New York State court that recently suspended Rudy Giuliani's license to practice law.)

On June 24, Nancy Pelosi announced at a news conference that a select Congressional committee, even if not an independent 9/11-style commission, would look into the Capitol attack. That committee, she added, will "establish the truth of that day and ensure that an attack of that kind cannot happen and that we root out the causes of it all." True, she didn't specify whether accountability and reform would be part of that committee's responsibilities, but neither goal is off the table.

And Pelosi's fallback plan to convene a House select committee could still have an impact. After all, remember the Watergate committee in the Nixon era. It, too, was a select committee and it launched an investigation into abuses of power in the Watergate affair that helped bring about President Nixon's resignation from office and helped spark or support court cases against many of his partners in crime. Similarly, the 1975 Church Commission investigation into the abuses of the intelligence community, among them the FBI's notorious counter-intelligence program, COINTELPRO, was also a select committee project. It led to significant barriers against future abuses — including a ban on assassinations and a host of "good government" bills.

Pelosi rightly insists that she's intent on pursuing an investigation into the Capitol attack. Adam Schiff and Jerry Nadler are similarly determined to investigate the government seizure of Internet communications. Local court cases against Trump, Giuliani, and others will, it appears, continue apace.

Through such efforts, perhaps the potentially shocking facts could see the light of day. Continuing such quests may lead to anything but perfect accountability, particularly in a country growing ever more partisan. Above and beyond the immediate importance of giving the public — and history — a reliable narrative of recent events, it's important to let Americans know that accountability is still a crucial part of our democracy as are the laws and norms accountability aims to protect. Otherwise, this country will have to face a new reality: that we are now living in the age of impunity.

Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law and author of the forthcoming Subtle Tools: The Dismantling of Democracy from the War on Terror to Donald Trump (Princeton University Press, August). Julia Tedesco helped with research for this piece.

Danziger Draws

Jeff Danziger lives in New York City. He is represented by CWS Syndicate and the Washington Post Writers Group. He is the recipient of the Herblock Prize and the Thomas Nast (Landau) Prize. He served in the US Army in Vietnam and was awarded the Bronze Star and the Air Medal. He has published eleven books of cartoons and one novel. Visit him at DanzigerCartoons.