[Sosfbay-discuss] Harper's: "(under Bush)...this country was a dictatorship."

[Drew Johnson]

http://harpers.org/archive/2009/03/hbc-90004488
George W. Bush’s Disposable Constitution

By Scott Horton

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.

Here’s Neil Lewis’s summary in the New York Times:

    “The law has recognized that force (including deadly force) may be
legitimately used in self-defense,” Mr. Yoo and Mr. Delahunty wrote to
Mr. Gonzales. Therefore any objections based on the Fourth Amendment’s
ban on unreasonable searches are swept away, they said, since any
possible privacy offense resulting from such a search is a lesser
matter than any injury from deadly force. 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.”

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.

We need to know how the memo was used. Bradbury suggests it was not much
relied upon; I don’t believe that for a second. Moreover Bradbury’s
decision to wait to the very end before repealing it suggests that someone
in the Bush hierarchy was keen on having it.

It’s pretty clear that it served several purposes. Clearly it was designed
to authorize sweeping warrantless surveillance by military agencies such
as the Defense Intelligence Agency and the National Security Agency. Using
special new surveillance programs that required the collaboration of
telecommunications and Internet service providers, these agencies were
sweeping through the emails, IMs, faxes, and phone calls of tens of
millions of Americans. Clearly such unlawful surveillance occurred. But
the language of the memos suggest that much more was afoot, including the
deployment of military units and military police powers on American soil.
These memos suggest that John Yoo found a way to treat the Posse Comitatus
Act as suspended.

These memos gave the President the ability to authorize the torture of
persons held at secret overseas sites. And they dealt in great detail with
the plight of Jose Padilla, an American citizen seized at O’Hare Airport.
Padilla was accused of being involved in a plot to make and detonate a
“dirty bomb,” but at trial it turned out that the Bush Administration had
no evidence to stand behind its sensational accusations. Evidently it was
just fine to hold Padilla incommunicado, deny him access to counsel and
torture him–in the view of the Bush OLC lawyers, that is.

Among these memos was one for the files from Steven Bradbury, whom the
Senate refused to confirm to run OLC, but who continued as a squatter in
the position through the end of the Bush Administration. In his memo, the
self-styled OLC head rejected a series of John Yoo-authored memos, noting
the painfully obvious reasons why they were incorrect (for instance, Yoo’s
penchant for misquoting the Constitution). He did this on January 15,
2009—as he was clearing his desk and preparing to hunt for a new job. So
why did he leave the ridiculous Yoo memos in place until the last possible
second? Michael Isikoff furnishes a very plausible analysis on MSNBC:

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.

http://www.harpers.org/subjects/NoComment
No Comment
By Scott Horton
March 5, 8:19 AM
Accountability Debate: Less Amnesty, More Prosecution

Yesterday, the Senate Judiciary Committee looked into the idea of a
commission to investigate possible criminal conduct by the Bush
Administration. It was a curious affair, with Republicans joining together
to criticize the commission concept on the grounds that it might get in
the way of efforts to prosecute the Bush team. Daphne Eviatar of the
Washington Independent summarized it this way:

    “If there’s reason to believe that these Justice Department officials
have given approval for things that they know not to be lawful and
sound, go after them,” [Ranking Member Arlen Specter] said, referring
to recent memos released from the Office of Legal Counsel that
authorized extreme and arguably illegal executive powers. “Some of the
opinions that are now disclosed are more than startling — they’re
shocking.” The revelations, said Specter, who’s a former federal
prosecutor, are “starting to tread on what may disclose criminal
conduct,” he said. The witnesses called to support the Republican
position seemed to agree.

    David Rivkin, a former Justice Department official in the Reagan and
first Bush Administrations, called a truth commission “a profoundly
bad idea, a dangerous idea, both for policy and for me as a lawyer for
legal and constitutional reasons.” Such a commission “is to establish
a body to engage in what, in essence, is a criminal investigation of
former Bush Administration officials,” he said. Matters such as the
interrogation and treatment of terror suspects and domestic
warrantless wiretapping, however, are “are heavily regulated by
comprehensive criminal statutes.” Any such investigation, then,
“ensures that the commission’s activities would inevitably invade
areas traditionally the responsibility of the Department of Justice.”
Rivkin went on to strengthen the case for a criminal prosecutions by
arguing that if a commission were to unearth evidence of criminal
activity and not prosecute it, it would leave former Bush
Administration officials open to prosecution abroad.

Of course, the Federalist Society and its network have adopted it as an
article of faith that inquiries into abuses of presidential power by
Republicans are a bad idea–which makes sense given how often these
inquiries tend to come to a focus on Federalist Society members. But
Rivkin is plainly correct that a commission and a team of federal
prosecutors are likely to cross paths and get in the way of one another in
sorting through the Bush mess.

The comments seemed to have clear impact on Senator Patrick Leahy, though
perhaps not the way the Republicans imagined. After the hearing was over,
he drew back on his vision of the role of amnesty in the process,
suggesting in an interview with MSNBC’s Rachel Maddow that immunity would
only rarely be granted and then in consultation with prosecutors at the
Justice Department.