Will the Constitution Be Altered to Eliminate Key Liberties?
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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Yoo's military interrogation memo -- and a similar one he penned for the CIA on torture -- were withdrawn by Assistant Attorney General Jack Goldsmith after he succeeded Yoo as the top official at the Justice Department's powerful Office of Legal Counsel later in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.]
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.