G
Gandalf Grey
Guest
All Power to the President
By Robert Parry
Created Apr 2 2008 - 7:27pm
Though little discussed on the campaign trail, a crucial issue to be decided
in November is whether the United States will return to its traditions as a
constitutional Republic respecting "unalienable" human rights or whether it
will finish a transformation into a frightened nation governed by an
all-powerful President who can do whatever he wants during the open-ended
"war on terror."
That reality was underscored on April 1 with the release of a five-year-old
legal opinion from former Justice Department official John Yoo asserting
that President George W. Bush possessed nearly unlimited authority as
Commander in Chief, including the power to have military interrogators abuse
terror suspects.
While most news coverage of Yoo's March 14, 2003, memo [1] has focused on
the legal gymnastics justifying harsh treatment of detainees - including
possible use of mind-altering drugs - the centerpiece of Yoo's argument is
that at a time of war the President's powers are essentially unfettered.
Yoo's memo fits with views expressed by Bush ("The Decider") and many of his
top legal advisers. Yoo's opinion also appears to be shared by four
conservative Republicans on the U.S. Supreme Court - John Roberts, Antonin
Scalia, Clarence Thomas and Samuel Alito - just one vote shy of a majority.
Yoo's military interrogation memo - and a similar one he penned for the CIA
on torture - were withdrawn by Assistant Attorney General Jack Goldsmith
after he succeeded Yoo as the top official at the Justice Department's
powerful Office of Legal Counsel later in 2003. Goldsmith considered Yoo's
legal reasoning flawed.
But Goldsmith subsequently was pushed out of the job, and Bush is seeking to
fill the vacancy with Steven Bradbury, who signed off on Yoo's "torture
memos" while holding a lower position in the Office of Legal Counsel.
In other words, Bush has not given up on his vision of grandiose
presidential powers that let him act more like an English monarch before the
Magna Carta, who could pick out anyone under his domain and throw the person
into prison with no due process and no protection against torture or other
abuse.
Under the Bush-Yoo theories, all Bush has to do is pronounce a detainee "an
unlawful enemy combatant" - whether a U.S. citizen or not, whether there is
any credible evidence or not - and the person loses all human rights.
As radical - and as shocking - as these theories may seem to many Americans,
Bush is within one vote on the U.S. Supreme Court of having his vision
enshrined as "constitutional."
One More Vote
If one more vacancy occurs among the five "non-imperial" justices - and the
replacement is in line with Roberts-Scalia-Thomas-and-Alito - the U.S.
Constitution could be effectively altered to eliminate key individual
liberties - from habeas corpus and other fair-trial rights to bans on "cruel
and unusual" punishment to protections against self-incrimination and
"unreasonable searches and seizures."
Though civics books tell us that the Constitution can only be amended by
two-thirds votes of the House and Senate and approval by three-quarters of
the states, the reality is that five ideologues on the U.S. Supreme Court
can alter the nation's founding document by simply voting as a bloc.
And since the "war on terror" is unlike other wars - in that the enemy is
vaguely defined, the duration could be forever and the war's location can be
anywhere - the Bush-Yoo logic suggests that the de facto suspension of the
American constitutional Republic is not just a short-term emergency measure.
Instead, the shift from a Republic, with legal protections of individual
rights, to an Empire, led by an Executive who can operate without any
constraints, would be permanent. As long as the President says some danger
lurks out there, he or she could assert "plenary" - or total - powers as
commander in chief.
In his memo, Yoo argued that the 9/11 attacks "triggered" America's "right
to self-defense." Therefore, he wrote: "If a government defendant were to
harm an enemy combatant during an interrogation in a manner that might
arguably violate a criminal prohibition, he would be doing so in order to
prevent further attacks on the United States by the al-Qaeda terrorist
network.
"In that case, we believe that he could argue that the Executive Branch's
constitutional authority to protect the nation from attack justified his
actions."
Yoo further argued that even abuses that would "shock the conscience" - one
of Bush's standards for what might be considered torture - could be
mitigated by a subjective evaluation of the circumstances.
In other words, if the President or a subordinate judged the detainee to
represent some imminent threat or to be particularly odious, they would have
an even freer hand to act as they saw fit. Those judgments about shocking
the conscience would be left, again, to the Executive to decide
unilaterally.
Yoo's two memos were the underpinnings of the Bush administration's
treatment of detainees at Guantanamo Bay, Abu Ghraib and the CIA's secret
detention facilities.
The memos gave legal protection to U.S. interrogators and guards who
stripped detainees naked, hooded them, put ladies underpants on their heads,
paraded them in the nude, beat them, subjected them to extremes of hot and
cold, put them into painful stress positions, deprived them of sleep,
threatened them with death and - in three acknowledged cases - flooded their
covered faces with water in a simulated drowning known as waterboarding.
[For more details, see Neck Deep: The Disastrous Presidency of George W.
Bush [2].]
Shielding Abuses
Yoo's memos shielded interrogators from U.S. military intelligence and the
CIA, but did not spare the night guards at Abu Ghraib, who got stiff prison
terms after they made the cardinal mistake of photographing the humiliation
they inflicted on Iraqi detainees and letting the pictures reach the public.
In a comment to the Washington Post, Thomas J. Romig, who was the Army's
judge advocate general in 2003, said Yoo's military interrogation memo
appears to argue that there are no rules in a time of war, a concept that
Romig said he found "downright offensive." [Washington Post, April 2, 2008
[3]]
But the greater legacy from Yoo - who is now a professor of law at the
University of California in Berkeley - and his imperial legal theories is
that they have been embraced by many Bush supporters and four right-wing
Supreme Court justices.
Though Bush may not get another chance to further shape the Supreme Court
with the appointment of another Roberts or Alito, his successor likely will.
For some Americans angered by Bush's assault on the Constitution, John
McCain's past support for Bush's judicial appointments may represent one of
the strongest reasons to vote against him.
The future of the American Republic may be at stake.
Besides undergirding the abuses at Guatanamo and Abu Ghraib, the Bush-Yoo
theories have laid the groundwork for ending a noble experiment in human
liberty that the Founders began more than 230 years ago - with their defiant
declaration that no leader is above the law and that everyone possesses
"unalienable rights" under the law.
_______
--
NOTICE: This post contains copyrighted material the use of which has not
always been authorized by the copyright owner. I am making such material
available to advance understanding of
political, human rights, democracy, scientific, and social justice issues. I
believe this constitutes a 'fair use' of such copyrighted material as
provided for in section 107 of the US Copyright
Law. In accordance with Title 17 U.S.C. Section 107
"A little patience and we shall see the reign of witches pass over, their
spells dissolve, and the people recovering their true sight, restore their
government to its true principles. It is true that in the meantime we are
suffering deeply in spirit,
and incurring the horrors of a war and long oppressions of enormous public
debt. But if the game runs sometimes against us at home we must have
patience till luck turns, and then we shall have an opportunity of winning
back the principles we have lost, for this is a game where principles are at
stake."
-Thomas Jefferson
By Robert Parry
Created Apr 2 2008 - 7:27pm
Though little discussed on the campaign trail, a crucial issue to be decided
in November is whether the United States will return to its traditions as a
constitutional Republic respecting "unalienable" human rights or whether it
will finish a transformation into a frightened nation governed by an
all-powerful President who can do whatever he wants during the open-ended
"war on terror."
That reality was underscored on April 1 with the release of a five-year-old
legal opinion from former Justice Department official John Yoo asserting
that President George W. Bush possessed nearly unlimited authority as
Commander in Chief, including the power to have military interrogators abuse
terror suspects.
While most news coverage of Yoo's March 14, 2003, memo [1] has focused on
the legal gymnastics justifying harsh treatment of detainees - including
possible use of mind-altering drugs - the centerpiece of Yoo's argument is
that at a time of war the President's powers are essentially unfettered.
Yoo's memo fits with views expressed by Bush ("The Decider") and many of his
top legal advisers. Yoo's opinion also appears to be shared by four
conservative Republicans on the U.S. Supreme Court - John Roberts, Antonin
Scalia, Clarence Thomas and Samuel Alito - just one vote shy of a majority.
Yoo's military interrogation memo - and a similar one he penned for the CIA
on torture - were withdrawn by Assistant Attorney General Jack Goldsmith
after he succeeded Yoo as the top official at the Justice Department's
powerful Office of Legal Counsel later in 2003. Goldsmith considered Yoo's
legal reasoning flawed.
But Goldsmith subsequently was pushed out of the job, and Bush is seeking to
fill the vacancy with Steven Bradbury, who signed off on Yoo's "torture
memos" while holding a lower position in the Office of Legal Counsel.
In other words, Bush has not given up on his vision of grandiose
presidential powers that let him act more like an English monarch before the
Magna Carta, who could pick out anyone under his domain and throw the person
into prison with no due process and no protection against torture or other
abuse.
Under the Bush-Yoo theories, all Bush has to do is pronounce a detainee "an
unlawful enemy combatant" - whether a U.S. citizen or not, whether there is
any credible evidence or not - and the person loses all human rights.
As radical - and as shocking - as these theories may seem to many Americans,
Bush is within one vote on the U.S. Supreme Court of having his vision
enshrined as "constitutional."
One More Vote
If one more vacancy occurs among the five "non-imperial" justices - and the
replacement is in line with Roberts-Scalia-Thomas-and-Alito - the U.S.
Constitution could be effectively altered to eliminate key individual
liberties - from habeas corpus and other fair-trial rights to bans on "cruel
and unusual" punishment to protections against self-incrimination and
"unreasonable searches and seizures."
Though civics books tell us that the Constitution can only be amended by
two-thirds votes of the House and Senate and approval by three-quarters of
the states, the reality is that five ideologues on the U.S. Supreme Court
can alter the nation's founding document by simply voting as a bloc.
And since the "war on terror" is unlike other wars - in that the enemy is
vaguely defined, the duration could be forever and the war's location can be
anywhere - the Bush-Yoo logic suggests that the de facto suspension of the
American constitutional Republic is not just a short-term emergency measure.
Instead, the shift from a Republic, with legal protections of individual
rights, to an Empire, led by an Executive who can operate without any
constraints, would be permanent. As long as the President says some danger
lurks out there, he or she could assert "plenary" - or total - powers as
commander in chief.
In his memo, Yoo argued that the 9/11 attacks "triggered" America's "right
to self-defense." Therefore, he wrote: "If a government defendant were to
harm an enemy combatant during an interrogation in a manner that might
arguably violate a criminal prohibition, he would be doing so in order to
prevent further attacks on the United States by the al-Qaeda terrorist
network.
"In that case, we believe that he could argue that the Executive Branch's
constitutional authority to protect the nation from attack justified his
actions."
Yoo further argued that even abuses that would "shock the conscience" - one
of Bush's standards for what might be considered torture - could be
mitigated by a subjective evaluation of the circumstances.
In other words, if the President or a subordinate judged the detainee to
represent some imminent threat or to be particularly odious, they would have
an even freer hand to act as they saw fit. Those judgments about shocking
the conscience would be left, again, to the Executive to decide
unilaterally.
Yoo's two memos were the underpinnings of the Bush administration's
treatment of detainees at Guantanamo Bay, Abu Ghraib and the CIA's secret
detention facilities.
The memos gave legal protection to U.S. interrogators and guards who
stripped detainees naked, hooded them, put ladies underpants on their heads,
paraded them in the nude, beat them, subjected them to extremes of hot and
cold, put them into painful stress positions, deprived them of sleep,
threatened them with death and - in three acknowledged cases - flooded their
covered faces with water in a simulated drowning known as waterboarding.
[For more details, see Neck Deep: The Disastrous Presidency of George W.
Bush [2].]
Shielding Abuses
Yoo's memos shielded interrogators from U.S. military intelligence and the
CIA, but did not spare the night guards at Abu Ghraib, who got stiff prison
terms after they made the cardinal mistake of photographing the humiliation
they inflicted on Iraqi detainees and letting the pictures reach the public.
In a comment to the Washington Post, Thomas J. Romig, who was the Army's
judge advocate general in 2003, said Yoo's military interrogation memo
appears to argue that there are no rules in a time of war, a concept that
Romig said he found "downright offensive." [Washington Post, April 2, 2008
[3]]
But the greater legacy from Yoo - who is now a professor of law at the
University of California in Berkeley - and his imperial legal theories is
that they have been embraced by many Bush supporters and four right-wing
Supreme Court justices.
Though Bush may not get another chance to further shape the Supreme Court
with the appointment of another Roberts or Alito, his successor likely will.
For some Americans angered by Bush's assault on the Constitution, John
McCain's past support for Bush's judicial appointments may represent one of
the strongest reasons to vote against him.
The future of the American Republic may be at stake.
Besides undergirding the abuses at Guatanamo and Abu Ghraib, the Bush-Yoo
theories have laid the groundwork for ending a noble experiment in human
liberty that the Founders began more than 230 years ago - with their defiant
declaration that no leader is above the law and that everyone possesses
"unalienable rights" under the law.
_______
--
NOTICE: This post contains copyrighted material the use of which has not
always been authorized by the copyright owner. I am making such material
available to advance understanding of
political, human rights, democracy, scientific, and social justice issues. I
believe this constitutes a 'fair use' of such copyrighted material as
provided for in section 107 of the US Copyright
Law. In accordance with Title 17 U.S.C. Section 107
"A little patience and we shall see the reign of witches pass over, their
spells dissolve, and the people recovering their true sight, restore their
government to its true principles. It is true that in the meantime we are
suffering deeply in spirit,
and incurring the horrors of a war and long oppressions of enormous public
debt. But if the game runs sometimes against us at home we must have
patience till luck turns, and then we shall have an opportunity of winning
back the principles we have lost, for this is a game where principles are at
stake."
-Thomas Jefferson