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What Constitution?

John Yoo

John Yoo

I haven’t posted in a while about Bush, the rule of law, torture, and the eight-year reign of unconstitutionality. Partly this is because I’m not an expert on any of this, so I am more likely to insert long quotes from others than to say anything original. And it’s partly because when Joel was home in December for the holidays he regularly made the criticism that my typical posts are cut-and-paste jobs, consisting of a couple of lines of my own followed by a long quote from Glenn Greenwald’s blog. Joel had a point. I am a huge admirer of Greenwald’s blog, and invariably anything I might want to write when it comes to Bush and the law Greenwald has already written about with greater insight than I can bring to the matter. So why not just quote him? But because of Joel’s comment, rather than quoting Greenwald, I have simply shied away from the subject. Well, today I’m jumping back in. I’ll have lots of quotes, but not from Greenwald.

I’m a few days late on this. As reported by Neil Lewis in the NYT on Tuesday, “The secret legal opinions issued by Bush administration lawyers after the Sept. 11 attacks included assertions that the president could use the nation’s military within the United States to combat terrorism suspects and to conduct raids without obtaining search warrants. That opinion was among nine that were disclosed publicly for the first time Monday by the Justice Department, in what the Obama administration portrayed as a step toward greater transparency. The opinions reflected a broad interpretation of presidential authority, asserting as well that the president could unilaterally abrogate foreign treaties, ignore any guidance from Congress in dealing with detainees suspected of terrorism, and conduct a program of domestic eavesdropping without warrants.”

The article is worth reading in full. Here’s a little more:

The opinion authorizing the military to operate domestically was dated Oct. 23, 2001, and written by John C. Yoo, at the time a deputy assistant attorney general in the Office of Legal Counsel, and Robert J. Delahunty, a special counsel in the office. It was directed to Alberto R. Gonzales, then the White House counsel, who had asked whether Mr. Bush could use the military to combat terrorist activities inside the United States.

The Oct. 23 memorandum also said that “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” It added that “the current campaign against terrorism may require even broader exercises of federal power domestically.”
Mr. Yoo and Mr. Delahunty said that in addition, the Posse Comitatus Act, which generally bars the military from domestic law enforcement operations, would pose no obstacle to the use of troops in a domestic fight against terrorism suspects. They reasoned that the troops would be acting in a national security function, not as law enforcers.

By way of commentary, I can’t do better than quote attorney Scott Horton from Harper’s Magazine:

Yesterday the Obama Administration released a series of nine previously secret legal opinions crafted by the Office of Legal Counsel to enhance the presidential powers of George W. Bush. Perhaps the most astonishing of these memos was one crafted by University of California at Berkeley law professor John Yoo. He concluded that in wartime, the President was freed from the constraints of the Bill of Rights with respect to anything he chose to label as a counterterrorism operations inside the United States. …

John Yoo’s Constitution is unlike any other I have ever seen. It seems to consist of one clause: appointing the President as commander-in-chief. The rest of the Constitution was apparently printed in disappearing ink.

Horton concludes: “We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship. The constitutional rights we learned about in high school civics were suspended. That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution. What we know now is likely the least of it.”

Two months ago, Joel’s comments about my blog restrained me from writing several posts on the issue of prosecuting Bush officials for various abuses (Greenwald said it all, why bother?), but now let me say that we cannot restore the rule of law unless we investigate and prosecute up to the highest levels. (No immunity!) Along these lines, here is one more quote, from Daniel Larison’s blog of Daniel Larison’s at The American Conservative.

… I argued for investigations and criminal prosecutions of those involved if there was evidence showing that they broke the law. … the main objections to the truth commission Sen. Leahy has been trying to organize are that it will be highly politicized and will be nothing more than a witch hunt. Of course, the use of the phrase “witch hunt” today implies a hunt in pursuit of something that does not exist, while we are fairly certain that there were criminals in the outgoing administration who have thus far escaped the appropriate sanctions of the law. The best argument that witnesses testifying against the idea of forming a commission seem to have had is that the abuses of power and crimes in question are not as numerous as they were under Pinochet and apartheid. Now that’s a claim to moral authority.

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