Can the President of the United States override any domestic law as well as any international law as a consequence of his war powers under the Constitution? Can he wiretap without a warrant despite the Fourth Amendment and federal statutes that prohibit such a practice? Can he snatch people off the street, including American citizens, spirit them off to hidden prisons halfway around the world, and torture them, no matter what the law says? Yes, answers John Yoo, who is now a law professor at Berkeley but who as a Department of Justice lawyer in the Bush Administration, was the primary author of a legal opinion that purportedly gave President Bush the authority to do all of that, and to ignore any law that said otherwise.
According to a February 20 report by Newsweek's Michael Isikoff, Mr. Yoo recently told Justice Department lawyers that the president's war-making authority was so broad that he had the constitutional power to order an entire village to be exterminated. And this is not some Nazified German jurist empowering Hitler in the 1940s, causing the rest of us decades later to wonder how something like this could have happened, and where all the good, decent people were who might have stood up and said "No!" This is now, this is us.
I am not making this up.
According to the Newsweek report, Yoo was interviewed by Justice Department lawyers about his legal opinions and here is what he told them:
"What about ordering a village of resistants to be massacred? ... Is that a power that the president could legally...
"Yeah," Yoo replied, according to a partial transcript included in the report."Although, let me say this: So, certainly, that would fall within the commander-in-chief's power over tactical decisions."
"To order a village of civilians to be [exterminated]?" the OPR investigator asked again.
"Sure," said Yoo.
Yoo's legal opinions at the Justice Department, and those of his then-boss, Jay Bybee (now a federal judge!), which allowed our government to say it was acting legally when it engaged in waterboarding and other torturous brutalities, were so extraordinary that they led to an investigation by the Justice Department's Office of Professional Responsibility (OPR), initiated over four years ago, well before the Obama Administration came into power. This investigation concluded last year that Yoo was guilty of "intentional professional misconduct" when he provided that legal advice, and recommended that both he and Judge Bybee be referred to their respective state bar associations for possible disciplinary proceedings, which could result in disbarment. But, according to Newsweek, a supervising senior Justice Department lawyer, David Margolis, overruled his colleagues' conclusions, and said that Yoo and Bybee were guilty only of "poor judgment."
Margolis' tolerance for what Yoo and Bybee did strikes me as outrageous as their misconduct. Tolerating what they did -- calling it merely "poor judgment" -- is in my view a form of complicity.
In the post-WW II film, Judgment at Nuremburg, Burt Lancaster plays a respected German judge who is a defendant in a war crimes trial, and charged with providing legal cover for what war criminals did. After his conviction, he has a conversation with the American prosecutor, played by Spencer Tracy. Lancaster's character, repentant now, says (I am paraphrasing here) "I never imagined it would go that far." Tracy's character responds (I'm paraphrasing again) "It went that far the first time you bent the law to permit something you knew was illegal."
Yoo and Bybee claimed, and still claim, that the President has the constitutional power to override all laws, all legal limits on his authority. If that were so, the entire Bill of Rights could be nullified at the will of the President. Everyone, left and right, conservative and liberal, Tea Party types and ACLUers, should be chilled by and afraid of that prospect.
It is instructive to compare the current situation with the Nixon impeachment process to see how far our standards have fallen.
The key issue in the impeachment of Richard Nixon was his claim that the President, as President, had the "inherent power" to exceed the limits imposed by the Bill of Rights. This expansive and radical view of executive power was similar to Yoo's claims, except it was widely seen then as unacceptable and outrageous, and the report of the House Judiciary Committee recommending Nixon's impeachment at least implicitly rejected his claim of presidential power to act above the law.
Advocates of impeachment seized upon Nixon's claim of inherent executive power as requiring impeachment because by definition that claim, if allowed, nullified the Bill of Rights, which assures rights by establishing a specific set of legal limits on government power, including presidential power. Those advocates argued that the claim of inherent power to ignore those limits, as well as acts in furtherance of that claim, constituted a "high crime and misdemeanor" within the historical meaning of that term as set forth in the Constitution's impeachment power.
The argument at first seemed quixotic to some, but it caught fire with the public, and in turn the Congress, and less than 10 months later, Articles of Impeachment reflecting that view caused Nixon to resign in disgrace. Nixon's lawyers defended him with arguments in behalf of executive power similar to those made by Yoo and Bybee and their supporters, but few accepted such arguments and Nixon did not get away with a "poor judgment" slap on the wrist.
The difference between then and now is a difference of standards and the complicity of people in authority who tolerate it. And all of this is made worse by the fact that what was done under the legal authority provided by Yoo & Bybee was probably much worse than anything Nixon did.
The question now is what happens next? Where are the Good Americans ready to stand up and say "NO!"?
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Yes they *can*; no they *may* not.
That said it's been done by presidents
of both parties and will continue
to be done well into the future.
I've yet to figure out though, why Democratic members of CONgress have for decades now seemingly refused to insist on, or force, prosecution of ANY crimes committed by republican't administrations, all the way back to ray gun selling weapons to enemies (Iran) to fund Central America death squads and Mujahedeen (now Al Qaida). Its little wonder republican'ts, conservatives and neoCONS hypocritically believe themselves above any Rule of Law while they govern; it's because they're never held to account for their crimes.
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"Peace hurts business and that ain't right."
(Tom Paxton)
But any first-year constitutional law student will tell you that the constitution is a limited grant of power or authority to the federal government. It was prepared in a way to give the government a narrow grant of authority, and reserve all other rights to the people. Clearly, if we say that a president can simply declare war on someone and, after that, ignore the constitution, ignore the rights of the people, ignore international law, ignore the relatively narrow area of authority given to the president, that means the constitution can be destroyed by a president at his will.
There is nothing in the constitution or in our history which suggests that the commander in chief title was intended to confer dictator-level authority on the president. If anything, the title is ceremonial. Only Congress has the authority to declare war. The heads of the military branches mostly decide how to achieve the stated war goals (i.e. take Baghdad). The president's actual role in war is more as a figurehead.
When Obama signed off on the Bush war crimes, he ratified them and therefore becomes just as responsible. I have no hope that Obama or the Democrats will do anything. The only hope is that an international tribunal would bring war crimes indictments and prosecute the responsible people.
--Spencer Tracy as Judge Haywood
"Before the world, let it now be noted in our decision here that this is what we stand for:..."
"I made my life excrement, because I walked with them."
--Burt Lancaster as German judge Ernst Janning
In the end, we are not able to move beyond torture, black prisons, the targeting of innocents in wartime, simply because Margolis has diminished war crimes to consequences of "poor judgment". When we do it again, there will stand the precedent of his administrative absolution to these two criminal minds, ... men who see might over right as the preeminent purpose of the executive, ... bad judgment to be sure, ... but sufficiently censured to preclude any president from doing it all over again!
Or the suspension of the Bill of Rights afforded by Patriot Act?
Obama IS negligent in his duty to put these criminals where they belong, and to make examples of them as cautionary tales.
You raise a good question.
We know for certain that they are not in the Senate. A single Senator could hold up proceedings and demand to be heard. A single Senator could demand to be allowed to speak and then shame this current President, the other Senators, and all others who want to be complicit in the Bush/Cheney war crimes.
Not a single Senator will do that. They are too busy meeting with their potential donors, the paid lobbyists. They are too busy being polite to one another.
We know for certain that the "Good Americans ready to stand up and say "NO!" cannot be found in the leadership ranks of the Democratic Party. In Congress, Congressman Dennis Kucinich was blocked by Pelosi and others in leadership positions from pursuing his efforts to impeach Cheney. Some in Congress wanted to do this, but not those who had the power to obstruct his efforts.
We know for certain that the "Good Americans ready to stand up and say "NO!" cannot be found in the ranks of those who control the MSM. The criminality of the Bush/Cheney Administration, and the complicity of the Goldman Sachs Administration, should be covered with the seriousness that it deserves. Instead, those who control the MSM finance clowns and right-wing hate-mongers like Beck and others.
They also cannot be found in the White House.
If it worked for Richard Nixon, then it should work for George Bush.
Especially when the next President and Attorney General have the spine of jellyfish.
-------------------------------------------------------------------------------------------------------------------Yes, but only because he was stupid enough to put his conversations on tape,
then tell the world the tapes existed, and then producing them to the senate-rather than burning them.