April 3, 2008
What has the administration been up to?
“The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president’s ultimate authority as commander in chief overrrode such statutes.” Washington Post, April 2, 2008, by Dan Eggen and Josh White, “Memo: Laws Didn’t Apply to Interrogators.”
Suddenly, long-secret Department of Justice legal opinions are dropping out of the sky. The latest two had been written by John Yoo, head of the DOJ Office of Legal Counsel. They are breathtaking in their view of how the September 11 attacks made the constitutional protections of Americans moot, and elevated the president to royal status. The 2003 memo justified torture of al-Qaeda captives because no laws, foreign or domestic, apply to the president when he or she is using his commander in chief role to defend the nation. Yoo even argued that mistreatment of captives is a form of self-defense. Therefore, noboby can be prosecuted for such actions.
In an earlier memo, Yoo argued in 2001 that the Fourth Amendment prohibition of search and seizure without a warrant does not apply to domestic actions of the American military. Huh? What exactly are those actions?
As we debate among McCain, Clinton, and Obama, and look to the future, we are going to need to spend some time on the past. What exactly have we missed here? A group of political zealots, whose leader is not President Bush, but Vice President Cheney, have hijacked the American government and turned it into their instrument. This group is exactly what James Madison meant when he wrote of “factions” that could put their own interest above the public interest, and that is why he and the other Founders favored the separation of governmental powers and checks and balances among them. Others among the Founders, especially George Mason of Virginia, said that wasn’t enough, and demanded a Bill of Rights. Mason’s battle was won, and the Constitution had the three branches of government and was quickly amended to add the Bill of Rights.
The underlying philosophy of American government, though, is the rule of law. The Constitution and its protections are meaningless if laws can be disregarded by those in power. The law applies to all, from the working person to the president. The Founders loathed the monarchical notion that laws are for peasants while the king swims above it all. Now we see that a band of political believers, bolstered by the September 11 attacks, have swept aside all these laws and the belief in law itself to try to create a presidential system in which the only check is one election, when the president runs for a second term. In fact, White House press secretary Dana Perino revealed that view recently when she said that there was plenty of accountability: the 2004 election. The Bush group likes to refer to that election as an “acountability moment.”
The full scope of what was attempted in these years will have to await the end of the Bush administration when more documents are revealed. There haven’t been many heroes in this story. Congress, even under Democratic leadership, has been timid in challenging Bush and Cheney on constitutional matters. Voters have been indifferent to the loss of their liberties, or have bought the argument that they are safer without them. Moderate Republicans have complained privately but have been easily shoved aside by their party leadership. The media have broken some stories in the face of White House pressure, but few have taken on the full scope of the challenge; there’s a Pulitzer to be had for anyone who can show the whole portrait. The ACLU deserves credit for forcing the release of closely held documents.
If there are any heroes in this story, they are to be found in the military. I hope somebody writes their story. At every stage, the biggest obstacle to the Bush crew has been the military lawyers. Think of their courage. Their careers are on the line everyday. They must challenge their military superiors, or even worse, annoy the political civilians driving the train. The Yoo memos had the effect of cutting the military lawyers out of the debate over torture because the Legal Counsel’s views are binding on the Pentagon. The military lawyers were left out of meetings at the Pentagon where key decisions were made. Think about that. These lawyers were so dangerous that they had to be taken out of the picture.
Some lawyers have been defending detainees at great professional risk. Since the trials are so blatantly political, they have had to challenge political and military superiors to make the defense’s case. Yet they have done so, perhaps dooming their own careers in the process. Americans should be grateful that somebody is taking risks to protect their liberties.