March 4, 2009 by J. Madson
So where are the elders of the church? The constitution has been hanging by a thread and what do we hear? not even a peep or a mutter?
For all of those Bush defenders out there, I’m sure today’s newly released memos only confirm your views that everyone critical of bush must suffer from some derangement syndrome or be a shrill liberal. Leaving aside the 92 tapes we now know were purposefully destroyed to obstruct justice at the behest of the white house (a felony), there is still that small matter of the bill of rights.
We all of course know that the bill of rights was an unnecessary appendage to the constitution. Surely we can trust those who rule over us to protect our liberty. In reality, absent the BoR, the constitution would not have been ratified because those with wisdom realized that government was force and those in power would quickly abuse it. The purpose of the BoR was meant to protect certain liberties and guarantee the federal government would never engage in certain conduct. Of course, that was until the bush administration and the lawyers got hold of the constitution.
In a memo called “Authority for Use of Military Force to Combat Terrorist Activity Within the United States,” Yoo argued that the president could use the military domestically to seize property, raid homes, and violate the fourth amendment. It was directed to Alberto R. Gonzales, then the White House counsel, who had asked whether Mr. Bush could use the military to combat terrorist activities inside the United States. In the memos released today we learn the following about the Oct 23, 2001 memo:
“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.”
Glen Greenwald summarizes the legal conclusions of the Oct 23 memo:
The essence of this document was to declare that George Bush had the authority (a) to deploy the U.S. military inside the U.S., (b) directed at foreign nationals and U.S. citizens alike; (c) unconstrained by any Constitutional limits, including those of the First, Fourth and Fifth Amendments. It was nothing less than an explicit decree that, when it comes to Presidential power, the Bill of Rights was suspended, even on U.S. soil and as applied to U.S. citizens.
In the memos, the following powers were prescribed to the president: that judicial precedents approving deadly force in self-defense could be extended to allow for eavesdropping without warrants; that Congress lacked any power to limit a president’s authority to transfer detainees to other countries; that Congress had no right to intervene in the president’s determination of the treatment of detainees (a proposition that has been invalidated by the Supreme Court); that the president could engage in sweeping warrantless surveillance by military agencies such as the Defense Intelligence Agency and the National Security Agency (using 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); and even more frightening that the president could deploy military units and military police powers on American soil.
John Yoo suggested that the Posse Comitatus Act could be treated as suspended. These memos gave the President the ability to authorize the torture of persons held overseas and in the case of US citizen, Jose Padilla the ability to violate habeas corpus, deny Padilla counsel, and torture him.
Jose Padilla, an American citizen, was 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.
Scott Horton, constitutional attorney, summarizes the memos in this manner
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 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.
Jack Balkin, a Yale Law Professor described the memos as:
“reasoning sought, in secret, to justify a theory of Presidential dictatorship.”