America Itself, Not Iraq, Is Now At Stake

Dear Colleagues:

It has been urged here on several occasions -- most recently, just yesterday -- that the press should consider whether George Bush and his colleagues are guilty of war crimes because they condoned torture in order to obtain information from prisoners. But revelations in the Monday Wall Street Journal and today’s New York Times make it clear that what is at stake goes far beyond “mere” war crimes. It goes to the very existence of the United States as a democracy under law -- which is at the very heart of our national existence.

As must be known by almost any reader of [this blog], it has now been disclosed that, in (truly disgraceful) memoranda, administration lawyers have advised that the President is not bound by the law. Please read this attentively -- they have said that he is not bound by the law and can do virtually anything he wants to obtain information from prisoners. Therefore, he can order torture in violation of any domestic and/or international law. Any soldier or civilian official engaging in torture is not subject to the law and cannot be prosecuted. Congress has no power to change any of this.

This claim of nearly unlimited power to violate the law was designed and signed off on by top administration legal officials, including ones in the White House, the Vice President’s office, the Pentagon and the Department of Justice. The main basis of the claim is that, as commander-in-chief of the armed forces, the President can override any and all laws to advance a war effort. A secondary basis is the so-called law of necessity, which one Supreme Court Justice (I think it was Robert Jackson) once described as necessity knows no law.

As far out as it may seem to say so, it is possible that never before has the United States faced such a serious internal threat from the Executive or Congress - - not in the Alien & Sedition Acts, not in Lincoln’s suspension of habeas corpus to put down a rebellion, not in the Palmer raids which occurred due to the red scare after World War I, not in the McCarthy era. For here the inevitable bottom line is that the Administration is saying that, primarily because of the President’s role as commander-in-chief, he can override any and all laws if he feels like it, so long as he claims, as he will, that this is necessary to further a war effort.

That claim -- as the framers of the Constitution knew and tried to guard against -- is the end of democracy, the end of freedom, and the end of government under law, and is the herald of despotism. Knowing from British and other history that freedom cannot survive if the military is free to break the law in alleged pursuit of what today we call “national security,” the framers made the President commander-in-chief so that a civilian official could control the military, could require it to obey the law. What the Bush administration is claiming is the exact opposite of this: they are saying that, in his military role as commander-in-chief, the President can himself break all laws and can authorize the military to do so. The Bushies, in other word, have turned the commander-in-chief power upside down, from a method of insuring obedience to law, to a method of authorizing violations of law.

The Bushies, I note, are not the first administration to misuse the commander-in-chief power. The Johnson and Nixon administrations misused it previously. They claimed that, even though the war in Viet Nam had not been authorized by the body to which the Constitution gives the decision on war, i.e., by the Congress, nevertheless the President could fight a war there because he is commander-in-chief. Subsequent presidents have likewise misused the commander-in-chief power as alleged justification for military actions not authorized by Congress. But as far as I recollect, neither in Viet Nam nor at any other time did the President act contrary to specific laws passed by Congress forbidding what he was doing (here forbidding torture) and contrary to specific international agreements which the U.S. has joined (here the Geneva Conventions). On the contrary, even Richard Nixon conceded he had to stop fighting in Cambodia when congress passed a law cutting off funds for this fighting. So far as I can remember, no administration before this one has ever said the commander-in-chief power authorizes the President to act contrary to specific laws of Congress and specific international agreements. To put the matter in plain language, no administration before this one has used the commander-in-chief power to claim dictatorial authority.

As discussed previously on this blogsite, it seems virtually a sure thing that Bush, Rumsfeld, et. al knew what was going on in the prisons, but condoned it to get information -- the recent news reports, by the way, say the memoranda claiming power to violate law were written because of a claimed need to do better at getting information from prisoners. The press really must continue to pursue the question of, in Watergate terms, “what did the President know, and when did he know it.” For what we have here is, beyond any question, an impeachable offense. To argue that Rumsfeld, Bush or other officials are not subject to almost any law the President cares to break, and to then have laws broken by torture and interminable incarcerations on the claim that the President is not subject to law, must inevitably be a high crime destructive of the constitution and of the very basis of our nation if the impeachment clause is to have any meaning worthy of its name. What we have here is not “merely sex” in the oval office, which was disgraceful enough. Here we have a threat to one of the very bases of our country -- a threat to the idea that the President is subject to law. Both for the sake of history and to show that the country will not tolerate dictatorial claims of the President being above the law, it is important that bills of impeachment be filed even though the impeachment process cannot be concluded before the election and probably cannot even be advanced very far by the beginning of November. The Democrats should not shirk this duty -- it is a duty.

(In addition to the fact that bills of impeachment should be filed, as one expert consulted about these developments said was possible, the lawyers who participated in writing these memos should be brought up on ethics charges and disbarred for facilitating violations of law consisting of torture and, apparently, even murder.)

One last point. The Administration apparently claims that violations of domestic and foreign law are necessary to get information about Iraqi insurgents, Al Qaeda, etc. Putting aside the truth or falsity of this claim -- and many experts think it’s false because, they say, torture usually is not effective at getting true or useful information -- if the Administration wanted to use torture, what it should have done is ask Congress to repeal the law against torture, and withdraw the country from international agreements forbidding torture. It is obvious, however, that the administration did not want to do this. Obviously it feared -- I would say it knew -- that most members of Congress, even if not the Trent Lotts and Zell Millers, would be aghast at a request to repeal laws so we can torture people, and the international reaction to America withdrawing from international conventions forbidding torture would have been an incredible uproar. To the Administration, it obviously was therefore far easier not to go to Congress or withdraw from conventions, and instead to claim for the President dictatorial powers that lay the basis for a militarily run police state instead of a democracy under law.