Blumenthal: Imperial presidency declared null and void

[kskiska]

Imperial presidency declared null and void
Bush may ignore the 4th Circuit's stinging rebuke of his war paradigm. But his policies are losing the cloak of legality.

By Sidney Blumenthal

Jun. 21, 2007 | In private, Bush administration sub-Cabinet officials who have been instrumental in formulating and sustaining the legal "war paradigm" acknowledge that their efforts to create a system for detainees separate from due process, criminal justice and law enforcement have failed. One of the key framers of the war paradigm (in which the president in his wartime capacity as commander in chief makes and enforces laws as he sees fit, overriding the constitutional system of checks and balances), who a year ago was arguing vehemently for pushing its boundaries, confesses that he has abandoned his belief in the whole doctrine, though he refuses to say so publicly. If he were to speak up, given his seminal role in formulating the policy and his stature among the Federalist Society cadres that run it, his rejection would have a shattering impact, far more than political philosopher Francis Fukuyama's denunciation of the neoconservatism he formerly embraced. But this figure remains careful to disclose his disillusionment with his own handiwork only in off-the-record conversations. Yet another Bush legal official, even now at the commanding heights of power, admits that the administration's policies are largely discredited. In its defense, he says without a hint of irony or sarcasm, "Not everything we've done has been illegal." He adds, "Not everything has been ultra vires" -- a legal term referring to actions beyond the law.

The resistance within the administration to Bush's torture policy, the ultimate expression of the war paradigm, has come to an end through attrition and exhaustion. More than two years ago, Vice President Dick Cheney's then chief of staff I. Lewis "Scooter" Libby and then general counsel David Addington physically cornered one of the few internal opponents, subjecting him to threats, intimidation and isolation. About that time, the tiny band of opponents within approached Karen Hughes, newly named undersecretary of state for public diplomacy, hoping that the longtime confidante of President Bush, now assigned responsibility for the U.S. image in the world, might be willing to hear them out on the damage done by continuation of the torture policy. But she rebuffed them.

Two weeks ago, Hughes unveiled her major report, extolling "our commitment to freedom, human rights and the dignity and equality of every human being," but making no mention of detainee policy. The action part consists of another of her campaign-oriented rapid-response schemes, this one a Counterterrorism Communications Center, staffed by military and intelligence officers, to rebut the false claims of terrorists. Asked whether the administration's policies might be a factor contributing to the problem, Sean McCormick, the State Department spokesman, replied, "You're always going to get people criticizing policy."

(snip)

Few, if any, presidents have ever been the subject of such a devastating legal decision. While presidential actions have been ruled illegal or unconstitutional in the past, they were individual acts. But in the case of Bush, the al-Marri decision not only discredits Bush's position but denies his idea of his presidential legitimacy in the American tradition. The decision also declares that Bush's idea is a mortal threat to the Constitution. And this ruling was issued by the most conservative court in the land.

more…
http://www.salon.com/opinion/blumenthal/2007/06/21/bush_torture/

[lurky]

1. The good news:

The courts have smacked him down.

The bad news:
He just ignores them. What can the courts do when the president doesn't listen to them?

[Demeter]

3. They Could Put Him in Jail

[many a good man]

2. "mortal threat to the Constitution"

K & R

[Peace Patriot]

4. "Al-Marri v. Wright"-6/11/07-against Bush tyranny, by "most conservative" court!

Blumenthal discusses this recent decision at length, and I need to quote him to make my point, concerning how the Bush Junta has tried to turn our legal system and the Constitution on their heads:

Blumenthal:

"On June 11, the U.S. Court of Appeals for the 4th Circuit, the most conservative in the country, issued a decision striking at the heart of Bush's conception of the presidency. In al-Marri v. Wright, the court ruled that Ali Saleh Kahlah al-Marri, a resident of Qatar, arrested as a student at Bradley University in the United States, accused of aiding al-Qaida, could not be held in indefinite detention as an "enemy combatant" and must be remanded to the civilian criminal court system. (Al-Marri, in an affidavit, claimed to have been tortured.) The decision acknowledged that al-Marri might have committed serious crimes. But the government's assertion that the president has 'inherent constitutional authority,' rooted in his 'war-making powers,' is a 'breathtaking claim' contrary to U.S. constitutional law and history.

"'The President,' the court said, 'claims power that far exceeds that granted him by the Constitution." This extraordinary decision, citing the Framers, declared Bush's actions -- and his imperial presidency -- null and void. It is worth quoting at some length:

'Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls them "enemy combatants" ... Of course, this does not mean that the President lacks power to protect our national interests and defend our people, only that in doing so he must abide by the Constitution. We understand and do not in any way minimize the grave threat international terrorism poses to our country and our national security ... The Court has specifically cautioned against "break faith with this Nation's tradition" -- "firmly embodied in the Constitution" -- "of keeping military power subservient to civilian authority." Reid, 354 U.S. at 40. When the Court wrote these words in 1957, it explained that "he country ha remained true to that faith for almost one hundred seventy years." Id. Another half century has passed but the necessity of "remain true to that faith" remains as important today as it was at our founding.

"Then, the court delivered the coup de grâce to Bush's 'war paradigm.' Having cited the Framers, it now cited the example of Abraham Lincoln.

'In an address to Congress at the outset of the Civil War, President Lincoln defended his emergency suspension of the writ of habeas corpus to protect Union troops moving to defend the Capital. Lincoln famously asked: "re all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?" Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865 at 246, 254 (Don E. Fehrenbacher ed., 1989). The authority the President seeks here turns Lincoln's formulation on its head. For the President does not acknowledge that the extraordinary power he seeks would result in the suspension of even one law and he does not contend that this power should be limited to dire emergencies that threaten the nation. Rather, he maintains that the authority to order the military to seize and detain certain civilians is an inherent power of the Presidency, which he and his successors may exercise as they please. To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them 'enemy combatants,' would have disastrous consequences for the Constitution -- and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power -- were a court to recognize it -- that could lead all our laws "to go unexecuted, and the government itself to go to pieces." We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.'"

(MORE)

http://www.salon.com/opinion/blumenthal/2007/06/21/bush_torture/index1.html

----------------------

Blumenthal concludes with a discussion of Antonin Scalia's ludicrous remarks at a legal conference, citing the TV show "24" in defense of unconstitutional presidential powers to detain and torture civilians. Blumenthal notes that "The impulse for supporting (this) policy, on one level, remains visceral and virulent." (i.e., "'We need to humiliate them,' according to Henry Kissinger.") The classic "24" scenario posits terrorists with a nuclear bomb over Los Angeles. The President's best friend is suspected of having information about the attack. The President calls in a torturer and actually watches, by remote camera, as his best friend is tortured for the information. Similarly, the hero, Jack Bauer--a government agent--frequently finds himself in situations like this, where the law says one thing, and dire necessity requires something else (torture, murder, detention without charge).

Blumenthal cites Scalia saying: "Are you going to convict Jack Bauer? Say that criminal law is against him? 'You have the right to a jury trial?' Is any jury going to convict Jack Bauer? I don't think so. So the question is really whether we believe in these absolutes. And ought we believe in these absolutes."

Scalia is talking of the "absolutes" of the illegality of torture, etc. The law absolutely forbids it. And here is where the Bush Junta turns everything--the law, our Constitution--on its head, and avows fascism. They take an emergency situation (as in "24") and turn it into a general rule, overturning all our laws. Because some responsible person--the President, a government agent--feels compelled to break the law, in a given circumstance (say, because they think that 50 million people are about to be killed), all law ceases, and the President is justified in becoming "God" (in essence) in all circumstances.

Scalia fails to grasp the essence of the Constitution: The BALANCE OF POWERS! The Constitution was based on the premise that individual Presidents WOULD try to become tyrants. The power of government is thus distributed among three branches, with the People--via voting and a free press--being the ultimate check on tyranny, and the only sovereign power in the nation.

Thus, if a Jack Bauer (a gov't agent) or a President commits an illegal act, yes, they must be brought to trial! "Is any jury going to convict Jack Bauer?" Hard to say. Most jurors, if they were convinced that he acted to save the lives of 50 million people, would not convict--any more than they would convict a mother, say, who shot or stabbed someone who was trying to kidnap her baby. Necessity sometimes DOES justify breaking the law. That's what juries are FOR--to decide matters like this. Injustice is sometimes done in the system of trial by jury. Judges and appeals courts are supposed to rectify injustice, if it occurs. And, ultimately, if these facts are true--that a President or gov't agent JUSTIFIABLY broke the law, out of necessity--and they were nevertheless punished for it, by a judge or a jury, that is a price that they must pay--and that we all must pay--for abiding by the rule of law.

Gandhi, Martin Luther King, the Berrigan brothers, and others have broken the law in civil disobedience--for higher goals (to end grave injustice, to stop an unjust and heinous war)--and willingly took the legal and other consequences of their actions. They spent time in jail! None of them should ever have been put in jail--but they were. If the cause of saving 50 million people from a nuclear bomb attack is so overridingly important, then the people acting to save them should be willing to go to jail for it--if it comes to that.

What the Bushites assert is that we should eliminate that accountability--that right of the people to lawful government--and just let the President do whatever the hell he pleases, because sometimes emergencies arise. That is completely upside down--and is a road straight to tyranny. SOMEBODY has to hold the President (or his agents) accountable!

Lincoln suspended habeas corpus, he said, because the rebel southern troops were threatening the capitol, and all lawful government was at risk. His point was that, absent his violation of this one law, all law would be toppled. I believe that Congress soon overruled him. And that is how the system is supposed to work! It is a BALANCE OF POWERS. Checks and balances. More than one person making important decisions. Democracy. Accountability.

Despite the 4th Circuit's ruling in "Al-Marri v. Wright"--upholding the Constitution and the rule of law--lawlessness in the Executive Branch is still out of control. They are asserting powers of torture, indefinite detention without trial, preemptive war, massive secrecy, pervasive domestic spying and writing their own laws with virtually no check upon them. The last Congress endorsed suspension of habeas corpus, and the present Congress has yet to undo that outrage, or in any way hold this junta accountable for its many, many crimes and egregious assaults upon the rule of law.

Our system seems to be TRYING to recover its balance, in fits and starts. This ruling. Libby's conviction. Various Congressional investigations. But recovery is agonizingly slow and inadequate. And the Bush Junta--which long ago should have been impeached--is still in power. I don't think anything much is going to change--or be changeable--until we get rid of the "trade secret, proprietary programming code that has infested our election system. Code so secret that not even our secretaries of state are permitted to review it. Code owned and controlled by rightwing Bushite corporations--of the kind that put Antonin Scalia on the Supreme Court. Diebold--whose CEO was a Bush-Cheney campaign chair and major fundraiser. ES&S, its brethren corporation, initially funded by a far rightwing 'christian' extremist. What can we expect, with such people "counting" all our votes under a veil of corporate secrecy?

[muriel_volestrangler]

6. Excellent commentary - thank you

You're right - the system, as designed, has jurors, and appeal courts, to give a hearing to people who claim they had to break the law to prevent worse harm - but if they are still sent to jail, that's because many people have judged them. They can't pre-empt all that by saying "we say there's a risk - therefore we should be allowed to do anything we say is necessary".

Republicans seem to be stuck in a mindset of "homeland security" (whether real or Potemkin) trumping everything - both Bush and his regime, and the Republican candidates. Whether they're just fooling themselves, and will get even more humiliated at the next election, or whether they're planning on inducing more fear in the population, as they did in 2004, I don't know.

[Peace Patriot]

7. My final point got a little truncated, cuz I had to go do something else. But

it was this: If you have an illegal, secret, unaccountable vote counting system, owned and controlled by rightwing Bushite corporations, what can you expect such an election system to produce, except a lawless, secretive, unaccountable government?

We are not going to see any serious change or reform until we get rid of these voting machines and their 'trade secret' code, or find a way round them (such as demanding a ballot for every vote, and, at minimum, a 10% automatic recount of those ballots, in full public view, BEFORE any electronics are involved).

The two things go together--privatized, "trade secret," corporate vote counting, and tyranny.

And if you think that this Diebold/ES&S (s)elected "Democratic" Congress ESCALATING the war, and larding $100 billion MORE of our tax dollars into Dick Cheney's retirement fund, is bad, wait until we get a Diebold/ES&S (s)elected "Democratic" President with the autocratic powers pioneered by the Bush Junta. A military Draft and war with Iran (Mideast-wide war, and possibly WW III) is not unimaginable--at all. At the least, we are going to witness the last chapter of American democracy, and the final looting of our country by the Corporate Rulers. Their object, I think, has been first of all to bleed us dry with war profiteering--to disempower us, to pit us against one another and to further enrich themselves--and secondly, and perhaps most importantly, to remove us as the only sovereign power in the world--We, the People of the United States--that has the legal right and potential power to regulate them, and to pull their corporate charters and dismantle them, if necessary.

The Bush Junta has been an all-out attack not just on our democracy, but on our very sovereignty as a people. And I don't see our Democratic Party leadership doing a goddamned thing about it. So I can only presume that they intend to use the powers that the Bush Junta has asserted, to suppress dissent here and to continue this Nazi imperialism abroad. I've noted elsewhere that I think that the presidential candidates are not running for president; they are running for king. Diebold/ES&S provides the anointing oils. That is our situation, until we restore vote counting that everyone can see and understand. Transparent vote counting IS our sovereignty.

[VanPelt4IndSenate]

5. Some how I see the World Court getting Bush after his rein as king

The dude has up-set some serious folks.