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In the end, the means truly matter

In print: Sunday, May 18, 2008

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There are two kinds of people in this world: those for whom the ends justifies the means and those for whom the means matter. Count me as someone who cares supremely about the means. Count the present administration as one who doesn't give a hoot.

This "means be damned" attitude was on full display recently when an official in the Justice Department told a Senate subcommittee, with almost studied blitheness, that it was fine for the president to secretly modify or ignore executive orders.

John Elwood, deputy assistant attorney general for the Office of Legal Counsel, informed Senate subcommittee members that the administration believed it could change executive orders — even its own — without notifying the public or alerting Congress.

Quite stunning news, I'd say. Of course presidents are free to change executive orders at their own discretion. But there is a process for that which includes letting the rest of us in on it. Otherwise we're subject to a set of rules known only to the president and his operatives — a secret body of law that cannot be challenged or objected to.

The bombshell didn't cause much of a stir. I guess any president who spies on Americans without getting a warrant, and detains Americans and noncitizens without bringing charges, is also expected to change the rules of government without bothering to tell us. But you would think there would be some ripple.

Then, soon after this disclosure, there was another a example of the administration's abiding disregard for "the means." A military judge found that a Pentagon general's behavior was so compromised and biased, that he was barred from participating in the trial of Salim Hamdan, a driver for Osama bin Laden.

Brig. Gen. Thomas Hartmann was supposed to be an objective and neutral legal advisor to the military commissions proceedings. He worked for the person who allocated resources between the defense and prosecution. Yet as documented in the findings of the judge, Capt. Keith Allred, Hartmann used his rank and position to try to orchestrate the prosecution of Guantanamo detainees and gain splashy convictions.

According to the judge's ruling, Hartmann told the then-chief prosecutor, Col. Morris Davis, that political factors would drive the decision over which Guantanamo detainees to take to trial. Hartmann said he wanted "sexy" cases involving "blood on the hands of the accused" that would "capture the imagination of the American people."

Hartmann pushed Davis to use evidence obtained through torture or coercion — evidence that Davis considered tainted and unreliable.

The judge's ruling also described how William Haynes, the Pentagon's general counsel at the time, made it clear to Davis that acquittals would not be tolerated. "We can't have acquittals," Haynes allegedly said, "We've got to have convictions. We can't hold these men for five years and then have acquittals."

Haynes, who resigned in February and is now working for Chevron, was also a key figure in recommending abusive interrogation techniques, causing his nomination to the 4th Circuit Court of Appeals to be derailed by Democrats in Congress.

When Davis was told he would have to work under the supervision of Haynes, he resigned as chief prosecutor. Davis later wrote in explanation that "full, fair and open trials were not possible under the current system."

A trial is a process. Objectivity and fact-driven judgments, where the accused is given a full opportunity to mount a defense, are an integral part of a legitimate trial. But the Bush administration has congenital disdain for such things. It has put people in charge of the coming military tribunals who support the use of torture-elicited "evidence" and who see it all as a show to rack up political points by tapping a bloodlust in voters.

To Bush and his people, the "means" are meaningless, the truth is irrelevant and fairness is inconvenient. A rigged game that spits out the right "ends" is all that matters.