Like the hapless passenger in a car once piloted by a driver with a taste for danger and living on the edge, the people of the United States are now discovering just how close we came to dictatorship in America, at the hands of an administration enamored of playing chicken with the United States Constitution.
Nine memoranda written by Bush administration attorneys then serving in the Justice Department's Office of Legal Counsel, have been made public by the Justice Department of Eric Holder, the new Attorney General of the Obama administration.
The nine memos lay the argument and groundwork for what would have been — could have been — nothing less than a police state in America, a nation in which citizens could be taken and held on flimsy (if not fictional) pretexts, where rights to free speech and a free press would have been suppressed, where the U.S. military could have launched a surgical strike on your American home — all in the name of national security after 9/11.
The memos, written by Bush administration deputy assistant attorney general John Yoo and others in the aftermath of the Sept. 11 terrorist attacks and later, advised the Bushies in frighteningly unemotional language, that because of what happened on that day in the United States, all bets were off on freedom and civil liberties — that, in effect, America would have to be destroyed in order to save it. As such they form the fabric of a rationale for subverting the Constitution of the United States, and by extension undermining that which makes this nation what it is.
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There's enough here for everyone; you can pick your favorite.
It begins, of course, with the first gauntlet thrown, John Yoo’s memo on “The President's Constitutional Authority To Conduct Military Operations Against Terrorists And Nations Supporting Them,” written on Sept. 25, 2001, exactly two weeks after 9/11.:
“The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations.
“The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.”
This overbroad assumption of authority would of course come to create as many enemies, internationally, as it would help to uncover. It set the ground rules for a new and global intimidation perpetrated by the United States, one done in the name of that flexible catchall rubric, “national security.”
On Oct. 23, 2001, invoking historical comparisons going back to the Whiskey Rebellion, Yoo wrote a memo on the authority to use U.S. military against suspected terrorists in the United States: "We conclude that the President has ample constitutional and statutory authority to deploy the military against international or foreign terrorists operating within the United States. We further believe that the use of such military force generally is consistent with constitutional standards, and that it need not follow the exact procedures that govern law enforcement operations."
Yoo counseled that, among other abridgements of constitutional rights, "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully." Yoo also determined that the President had authority to allow the National Security Agency to monitor the communications of U.S. citizens on American soil without a warrant because the Fourth Amendment (barring unreasonable search and seizure) “had no application to domestic military operations.”
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The March 13, 2002, memo, written by Assistant Attorney General Jay Bybee: “We conclude that as Commander in Chief and Chief Executive, the President has the plenary constitutional power to detain and transfer prisoners captured in war.”
"That is [the Office of Legal Counsel] telling people how to get away with sending someone to a nation to be tortured," said Jennifer Daskal, senior counterterrorism counsel for Human Rights Watch, to The Washington Post on March 3. "The idea that the legal counsel’s office would be essentially telling the president how to violate the law is completely contrary to the purpose and the role of what a legal adviser is supposed to do."
And then there’s the big one, Yoo’s so-called torture memo, “Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States.” Yoo prepared this memo with an anticipatory aspect to it, as though he was covering his flanks, hedging his bets, readying a defense rationalization to be used by hypothetical defendants, should they ever be charged with torture and other crimes in violation of the Eighth Amendment, barring cruel and unusual punishment.
“A second constitutional provision that might be thought relevant to interrogations is the Eighth Amendment. The Eighth Amendment, however, applies solely to those persons upon whom criminal sanctions have been imposed. …
“The Eighth Amendment thus has no application to those individuals who have not been punished as part of a criminal proceeding, irrespective of the fact that they have been detained by the government.”
There's no way to minimize the monstrous irresponsibility of these memos; had their content been fully absorbed into the national war footing as White House policy, the individual freedom and civil liberties that characterize this nation would have been lost. For all practical purposes, the United States as we know it would have ceased to exist.
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No doubt every bit as alarmed as you have a right to be, the Senate Judiciary Committee held a hearing on Wednesday, airing the views of diplomats and officials on what must necessarily happen next: the investigation.
Sen. Patrick Leahy of Vermont is among those leading efforts for a so-called Truth Commission, to get to the bottom of allegations and suspicions of the Bush White House's involvement in politicizing the Justice Department and trampling of habeus corpus, in the furtherance of the war in Iraq.
Truth Commission. The phrase itself rings in the ears like something out of Kafka or Orwell, not quite real somehow, but again somehow appropriate given what’s at stake. OK, perhaps what might have happened wasn't to be a coup d’etat; we may in fact not have ever been in “Seven Days in May” territory. But these memos show how the intrinsically open and solicitous personality of a democracy is always vulnerable to those who'd take advantage, those who would submerge democratic principles for the purposes of gaining power and influence, and, ultimately for ends that have nothing to do with democratic principles at all.
Yoo, Bybee and their associates in the Bush DOJ may or may not be liable, culpable, for war crimes and other high crimes and misdemeanors, because of these memos. Some people think so. Retired Army Col. Lawrence B. Wilkerson, the former chief of staff for was Secretary of State Colin Powell in the Bush Administration, told The Guardian (UK) in April 2008 that "[former Defense Department general counsel William] Haynes, [former Undersecretary of Defense Douglas] Feith, Yoo, Bybee, [former Attorney General Alberto] Gonzalez and — at the apex – [former Cheney chief of staff and legal counsel David] Addington, should never travel outside the U.S., except perhaps to Saudi Arabia and Israel. They broke the law; they violated their professional ethical code. In the future, some government may build the case necessary to prosecute them in a foreign court, or in an international court.”
Scott Horton thinks so, too. In a November 2005 essay, the well-regarded international human rights activist, scholar and writer pointed out “the possibility that the authors of these memoranda counseled the use of lethal and unlawful techniques, and therefore face criminal culpability themselves. That, after all, is the teaching of United States v. Altstötter, the Nuremberg case brought against German Justice Department lawyers whose memoranda crafted the basis for implementation of the infamous "Night and Fog Decree.”
That decree, of course, was the Nazi-era policy of absenting suspected agents of the anti-Nazi underground suddenly and surreptitiously — vanishing them into the night and fog, without trace.
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But whether or not they're legally actionable, the substance of the DOJ memos are morally concerning because of how they established the sense of permission, laid the groundwork of legal justification on which was built the towering edifice of military and economic hubris identified, ludicrously, as the War on Terror. These memos whispered into the ears of neocons, hawks and ideologues desperate for a legal basis for actions they’d already decided to take, these flimsy tissues of legal contrivance were the basis for our war of convenience. A kind of Shock & Awe Decree.
Daskal told The Post that, considered collectively, the memos read like nothing less than “a how-to document on how to evade the rule of law.”
And these memos should send, had better send, a signal. We could have lost America. Hannah Arendt warned us about “the banality of evil,” and there's little language that’s more banal than the footnotes of a legal brief. The release of these memos is good; the identities of their ethically challenged authors is fine as well. What’s left is to bring those authors to account, as well as the ones they served in the Bush White House.
In this respect, the new attorney general is out in front of his boss on what's needed now. Holder didn’t say that, of course, but Thomas Pickering, former ambassador to the United Nations, did when he spoke at the Senate Judiciary Committee hearing Wednesday.
“It's not enough to say America is discontinuing the policies and practices of the recent past,” Pickering said. “We must as a country take stock of where we have been, and determine what was and is not acceptable, what should not have been done, and what we will never do again.”