John Yoo’s infamous theory of the “Unitary Executive” which became “the cornerstone of the Bush legal doctrine” was used to justify everything from “extraordinary rendition” of detainees of the so-called War on Terror, warrentless domestic surveillance and of course, torture.
In a nutshell, courtesy of Sidney Blumenthal, Yoo argues:
- that the president, as commander-in-chief, is sole judge of the law, unbound by hindrances such as the Geneva conventions, and has inherent authority to subordinate independent government agencies to his fiat.
Notably, Supreme Court Justice Samuel Alito believed the theory “best captures the meaning of the constitution’s text and structure“. The key caveat of this miserable doctrine is that the President is executing his near dictatorial prerogatives under the “commander in chief” clause of Article II of the Constitution. He’s exercising his war powers.
So war … war is the excuse they offer for usurpation of every curb on executive authority, ignoring the checks and balances that provide the foundation of the free and representative structure the Constitution envisions. I appreciate the argument that the Constitution is not a suicide pact, but even in war there must be limits.
Does war give the commander in chief the authority to abolish the courts, dissolve Congress? It seems to me that if John Yoo and his followers are true to their beliefs, if the president deems it necessary to protect the nation from an existential threat inconvenient investigative hearings could be shut down — and in extreme cases the legislators themselves be detained if they insisted on holding public hearings despite the President’s order to halt. Likewise, judges and civil rights litigants could be sequestered if their continued pursuit of legal claims might result in information being disclosed that might hamper the president’s duty to protect the country.
Sigh
… And if Jack Bauer called the president up on his “24″ hot line/shoe-phone, telling him that if the hearings went forward some nutball with grudge against the ACLU was going to set off a dirty bomb at the next NASCAR race, a prudent course would be to let the president interfere with the legislative and/or judicial branches — shutting them down, temporarily, by executive fiat — in the interest of saving lives. On some level, we all get that. Emergency situation are not unlike war to some degree.
Emergencies necessitating extraordinary measures do occur. However the response contemplated is by its very nature temporary and ad hoc, not deliberated policy like the high level consideration that eventually led not only two al-Quaeda operatives being waterboarded 183 and 83 times in one month, but also several dozen detainees in U.S. custody being tortured to death. The response should be restrained as well. You don’t send in the marines to snatch up John Conyers when a simple phone call might do the trick: “Uhm, Mr. Chairman, could we ask to to postpone your hearing until we get this situation under control?“
Of course, due in no small part to the insidious framing of the so-called “War on Terror,” things are not yet under control. In fact, Ex-President Bush himself admitted that it wasn’t something you could “win.”
“I don’t think you can win” the war on terror. “But I think you can create conditions so that those who use terror as a tool are less acceptable in parts of the world.”
That sets up a situation where the crisis justifying Yoo’s unquestionable commander in chief powers ends on a whim, if ever. The authority, once invoked, lasts as long as the President, and the President alone deems it necessary. If anything is at odds with the limited form of government the founders contemplated, this is it.
This is a reductio ad absurdum argument to be sure, but by no means a logical fallacy. Indeed, when taken to their logical conclusion, the advocates of the unitary executive theory have made an absurdity of our entire system of governing ourselves — a system set up to prevent the excesses of one man having the power of a king.
No legal scholar, Ex-President Bush never pretended to have much patience for the nuances of the law. But even in his sophomoric understanding of who and what we are, he knew there would be a full vetting of his decisions to use what is now widely acknowledged to be torture of prisoners. In fact, Bush welcomed it.
It’s important for people to understand that in a democracy, there will be a full investigation. In other words, we want to know the truth. In our country, when there’s an allegation of abuse … there will be a full investigation, and justice will be delivered. … It’s very important for people and your listeners to understand that in our country, when an issue is brought to our attention on this magnitude, we act. And we act in a way in which leaders are willing to discuss it with the media. … In other words, people want to know the truth. That stands in contrast to dictatorships. A dictator wouldn’t be answering questions about this. A dictator wouldn’t be saying that the system will be investigated and the world will see the results of the investigation.
So, to the David Broders and John McCains of the world who wish the crimes of the Bush regime be flushed down the memory hole, understand that this is not who we are. Forgetting is not what we do, not in the name of retribution, but of justice. This will be put to rest when all the questions are asked … and fully answered. To restore our faith in our system we have to honor it, not ignore its basic principles.
One thing I truly find remarkable is the champions of limiting government, such “states rights” aficionados who ally themselves with Rick Perry and Sarah Palin would even consider ceding such unfettered authority to the president. Perhaps that is one of the prime reasons conservatives are such hypocritical douchebags. The inherent inconsistencies of the various incompatible factions cobbled together to form a legitimate opposition party are laid bare to their spineless core.
You see, America always has been a more or less center-left nation despite the he-said/she-said obsessed media’s notions to the contrary. The Democratic Party, now and in it’s original incarnation as the Democratic-Republican Party of Madison and Jefferson, is the longest lived political party in the world. It is inconceivable that such an organization could endure this long, boasting as much sucess as it has enjoyed if it were not fairly reflective of the populous at large. Reframing reality is the right’s only option.
In contrast, the modern GOP brought together what marginalized dissenters wereavailable: theocrats who would rather impose their religious ways on everyone, including their partners in the libertarian wing of the conservative movement, who just want to be left alone. They in turn march side-by-side with jingoistic war-mongers who never got that part of the Bible suggesting we live together in peace; along with the tax-cheating money-men that didn’t take the biblical admonitions about helping the poor, money-changers in the temple, rendering unto Ceasar, or camels and needle-eyes seriously. They distrust convention and fear anyone they sense is different or a threat to their white, straight, Christian, male dominated world.
It’s a hodge-podge movement at best, appealing to those willing to hold their nose for their pet single-issue, and low-information voters more persuaded by bumper-stickers than any political discourse lasting more than 30 seconds. They’ve always been the outliers, even when Lincoln took the reigns. At their inception they were a third party in a two nation, not a two party system. Today, to hold it all together they use the hard sell and still attempt to exploit the regional/racial divides that formed the genesis of their initial sucesses 150 years ago. They would be nothing without a nation-wide network of radio stations, newspaper chains and their own television “news” channel, wingnut-welfate blogs, tweets, astroturf organizations, push-polls and phony protests used to bring together all these disparate elements, and keep that base placated with daily faux outrage and outright slander thrown like spaghetti at a wall to see what might stick.
The Democrats have never needed to resort to this kind of orchestrated coercion. They have always been able to be competitive everywhere because they represent the basic instincts of what it really means to be an American. What we’re seeing today, the regional rump party of only 21% of the country is probably a very realistic accounting of the core — the true-believers of the conservative movement. Any periods of political domination by the Republicans in the last century or so have either been the result of a concerted effort to sell their snake-oil assisted by a complacent (bought and paid for) media and the lock-step inclination of the authoritarian personalities that make up their followers — or the failure of the Democratic Party leadership to hold faithful to the ideals of the nation, which are Democratic principles writ large, and violations of their trust to govern competently and honestly. Often as not it was a combination of the two, hard sell plus Democratic fumbles.
This explains the popularity within conservative circles of anti-government messaging. Taxes are always the enemy as they represent the tactile intrusion of government everyone can feel. They want to drown government in a bathtub and treat as received Gospel such Reaganite trope as “Government is not the solution to our problem; government is the problem,” and “The nine most terrifying words in the English language are, ‘I’m from the government and I’m here to help.’“ To oppose the basic philosophy of the Democratic Party, you must oppose the very idea of the government you wish to run. As we’ve seen recently, this nihilistic sentiment is alive and well.
It’s convoluted logic at best, as counter-intuitive as tax cuts being the solution to every goddamn thing, always, during times of plenty or famine. The tax cut panacea presumably raises revenue even if slashed to nothing. It helps businesses and workers in all circumstances, heals the sick, raises the dead and keeps the islamofacist-socio-French-communists at bay. Any casual glance at the reality of tax policy exposes this mantra as utter crap — bumper-sticker bullshit — but it lives on because debunking it in less than 140 characters or on a cute bumper-sticker isn’t easy.
Exposed and demoralized, reduced to conspiracy theorists and bigots, tax-cuts and torture are all they attempt to defend, fighting abortion and Teh Gay seemingly all that unites them. I don’t know if it is possible that a Republican can emerge from their midst with the strength of character to stand on principle and denounce torture with the same zeal and absolutism they bring fighting abortion, oppose crony capitalism, oppose divisive partisanship, and oppose Rush Limbaugh and the other purveyors of hate and ignorance permeating our public airways. I don’t know if such a leader could survive politically, or even remain in the party, let alone be successful.
But simple opposition to war crimes is easy, required actually. They’re already in the habit of opposing everything, so this should be easy for some of them to keep on message.
Prosecution of war crimes is what justice demands, in addition to a full airing of what was done in our names, by whom, and why. But I believe even more important is a complete exorcism of the disgraceful doctrine of the unitary executive that attempted to justify ripping the guts out of the world longest standing and most respected democracy. I for one want to stab this thing in the heart. But the zombie threatens to live again as long as people like John Yoo are paid to teach a new generation of lawyers how to twist the law, Dick Cheney is given air time on any program moer serios than Southpark, or Sam Alito and Jay ByBee sit in judgment while remaining faithful to this despicable theory that “if the president does it, it’s not illegal.“
