Creating a Lawless Executive Branch
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For let us be clear, there is no evidence that after 9/11 the unconstitutional route was the only possible route to defend the country. Were the legal options and their constitutional variants ever seriously itemized and discussed? The Obama administration, like the Bush team, has never publicly addressed this question.
If Obama’s Justice Department proceeds with its plans to defend Ashcroft’s immunity claim and if, as is likely, the right-wing-dominated Supreme Court upholds that claim, we will be left with a politically based two-tier legal system.
It will set free to break the law every highly placed federal official every time he or she can claim an emergency situation. Then, after the fact, they will cite the immunity precedent. In the meantime, the fact that high federal officials are sworn to uphold the laws of the land will be rendered worthless, just another bit of political hypocrisy.
So what is it that we want for America? Do we want a two-tier legal system where presidents and their appointees can break the law with impunity? Do we want a legal system where it is accepted that citizens and residents can disappear into federal dungeons?
Is it all right with us that our fellow citizens, following the orders of the President, will torture, detain, shackle and otherwise abuse others without any regard for law – and they too will be immune? Because, whether they realize it or not, that is what Obama’s Justice Department is arguing for when it defends John Ashcroft.
President Dwight Eisenhower once asked the question, "how far can you go without destroying from within what you are trying to defend from without?"
It is time for us to ask this question about the heinous "security" tactics of President George W. Bush as well as President Barack Obama’s unfortunate willingness to defend them.
Lawrence Davidson is a history professor at West Chester University in Pennsylvania. He is the author of Foreign Policy Inc.: Privatizing America's National Interest; America's Palestine: Popular and Offical Perceptions from Balfour to Israeli Statehood; and Islamic Fundamentalism.