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Will the Constitution Be Altered to Eliminate Key Liberties?
By Robert Parry, Consortium News
Posted on April 14, 2008, Printed on April 14, 2008
http://www.alternet.org/story/81638/
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 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the CIA on torture -- were withdrawn by Assistant Attorney General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.]
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]
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.
Robert Parry's new book is Secrecy & Privilege: Rise of the Bush
Dynasty from Watergate to Iraq."
By Robert Parry, Consortium News
Posted on April 14, 2008, Printed on April 14, 2008
http://www.alternet.org/story/81638/
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 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.]
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]
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.
Robert Parry's new book is Secrecy & Privilege: Rise of the Bush
Dynasty from Watergate to Iraq."