1 Boring Old Man

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…}

^{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.}

^{The pages of my blog and a thousand others are filled with the drama of the Bush Administration. Unjust War, Torture, Politicization, Corruption, Secrecy, Power-Mongering – the list has seemed endless. But, in the end, for all of their destructive dramatics, it may well be that their greatest injury to America will be "what hasn’t been" in their two terms of office. Obsessed with foreign conquest and Neoconservative monomaniacal ideology, they’ve essentially ignored most other aspects of the job of running America. When problems arose in the economy, they’ve lowered interest rates, or cut taxes, or given rebates – putting a Band-Aid® in place when what was needed was a thorough physical exam and maybe an MRI. They’ve ignored the National Debt, the Trade Deficit, the Banking practices, Loan regulation, the Oil Market, Global Warming, etc. We learned in 1929 that unbridled Capitalism requires monitoring and regulation. The business-friendly Republicans have eroded the regulatory forces in our government since they were enacted back then. "Deregulation" has been a subtle campaign slogan until the Bush Administration, when it became a roar.}

^{In this Administration, these noisy, dramatic people have ignored so many important aspects of our economy – probably more out of incompetence and support for their greedy contributors than from malice – that our economy is tanking under the weight of ignored warning signs and ignorance [A person who ignore things is an "ignorant."]. That’s what I’m getting at with all this talk of the most important thing being "what isn’t." The tragedy of the Bush years, the September 11th attack on New York, will be dwarfed by the tragedy they’ve created with their unjust war. But I expect that, when it’s all said and done, even their absurd war will pale in the face of the consequences of their ignoring everything else – their legacy of "negation."}