1 Boring Old Man

The references at the end of this post are the Office of Legal Counsel Memos that have been officially repudiated by the Department of Justice, primarily in the OLC Memo [Re: Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001] written by Principal Deputy Assistant Attorney General Steven Bradbury and published five days before the Bush Administration left office. His legal arguments are sound, though he is something of an apologist – asking us to be more understanding than I’m inclined to be given the gravity of the actions of his predecessors. Nevertheless, I don’t want to pick at his arguments, but rather focus on the arguments of the original authors. And I don’t particularly want to question why the Administration wanted to do what it wanted to do. We’re all worn out with their argument that "torture works" or the "surge worked." Sometimes if you’re hard up for cash, "armed robbery works" too. In the courts, it’s called "theft by taking" and it’s a crime. So the "ends justify the means" has long ago been labelled as a fallacious argument.

A thirteen year old at a clinic where I volunteer who is at war with him mother argued, "She’s driving me nuts, saying the same thing over and over. ‘Did you wash the dishes?’ – in the kitchen, in my room, outside. I went to the basement and she yelled it down the stairs. She’s got a real problem!" Of course, when I asked if he’d washed the dishes, he said "No."

"My dad gets off on grounding me. Cigarettes in my backpack? Only one time! Found pot in my room? It was only two joints, little ones! He’s just crazy!"

There’s another kind of adolescent that believes their own self-serving arguments – called a bully. The bully backs up his/her argument with force, winning the day by intimidation rather than logic. There’s one of those in this story too – Cheney’s Lawyer/Chief of Staff, David Addington. Every report about this man confirms what we saw in his Congressional Hearing – he’s a contemptuous bully.

I don’t know about John Yoo. People talk about his background, being the son of Korean parents who escaped to America to become Conservatives. He’s a smart guy, but he seems like a "mark" to me – someone who can be engaged into going along with the "big guys." But that’s a guess. Whatever makes him tick, he’s a rationalizer of the first order.

And then there’s George W. Bush. He’s easy. He’s a spoiled brat who grew up with a silver spoon in his mouth and got his way too often. Like I said, Bush is easy…

In this first set of repudiated memos, The conclusions are simply wrong, so the rationalizations are immaterial. We have the right to privacy. We can only be deprived of that right if there’s a  person-specific reason involving infringement of the rights of others that has been heard and certified by a court of law. Likewise the Posse Comitatus Act of 1878 forbids the use of the Military inside our borders for very good reasons. There’s nothing confusing about these laws. The Administration wanted to do broad based data mining, and they wanted to use the Military which is unconstrained by Civil Law. Can’t do that without changing the Law or the Constitution. No wonder they kept these opinions secret.

Suspension of Rights

I don’t know why they wanted to break the treaty with Russia, but I do know why they didn’t want us to ignore Treaties and Laws with al Qaeda and the Taliban. But that’s why we have Treaties and Laws – to prevent vigilanties and lynch mobs. Breaking Treaties defeats the point of Treaties. We don’t do that. 

Breaking of Treaties

And P.O.W. status? "Why they weren’t P.O.W.s, they were common criminals! Wait, criminals have rights. Let’s call them detainees." The Bushites were mad and wanted to torture the "bad guys" and get them to "talk." We all felt the same way. After all, the Taliban and al Qaeda were barbarians, instead of civilized people like us. Again, people at war are always mad like we were after 911. We have Treaties and Laws to keep us from becoming barbarians ourselves. The biggest rationalization of all is to interpret "we don’t torture people in America" as meaning that it’s okay to torture people by setting up prisons outside the U.S. and doing it there or contracting other countries to do it for us – preadolescent logic at its most absurd. To me, this is not just conceptually criminal, it’s the real McCoy.

Treatment of P.O.W.s

But over and above the preteen logic in these memos, the thing that stands out in bold relief is their contempt for authority – the authority of either Congress or the Judiciary. In fact these bodies are treated as the enemy. While we expect to alter our system in times of an emergency [emergency powers], this is different. Many of these memos are obviously about something else – they propose fundamentally altering our system of government by fiat. At the core, these memos have nothing to do with 9/11 or the wars. They have to do with an indefensible ideological position. It’s in phrases like this monotonous kind of language that pervades these Memos and Bush’s endless Signing Statements: "Nothing in the text or the history’ of Article I’s general grant of authority to incorporate international law into federal law authorizes Congress to interfere with the President’s specific authority as Commander in Chief to …" do whatever in the hell he wants to do.