Tag: unitary executive

Today is Friday, January 29, the year 2010.  Remember this full moon evening.  

According to Newsweek’s Declassified Blog, http://blog.newsweek.com/blogs…

two Department of Justice anonymous sources said that a Senior DOJ official who finalized an Office of Professional Responsibility report, changed the assessment of the torture memo’s creator’s  Jay Bybee and John Yoo’s behavior to “poor judgement.”

But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.)  The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action-which, in Bybee’s case, could have led to an impeachment inquiry.  

/snip

Two of the most controversial sections of the 2002 memo-including one contending that the president, as commander in chief, can override a federal law banning torture-were not in the original draft of the memo, say the sources. But when Michael Chertoff, then-chief of Justice’s criminal division, refused the CIA’s request for a blanket pledge not to prosecute its officers for torture, Yoo met at the White House with David Addington, Dick Cheney’s chief counsel, and then-White House counsel Alberto Gonzales. After that, Yoo inserted a section about the commander in chief’s wartime powers and another saying that agency officers accused of torturing Qaeda suspects could claim they were acting in “self-defense” to prevent future terror attacks, the sources say. Both legal claims have long since been rejected by Justice officials as overly broad and unsupported by legal precedent.

John Yoo, a graduate of Harvard and Yale law school, who clerked for SC Justice Clarence Thomas, and served as a torture enabler in the Bush administration at the Dept of Justice from 2001 to 2003, is currently a law professor at the University of CA at Berkeley. http://www.law.berkeley.edu/ph…

Jay Bybee, a graduate of Brigham Young University and BYU’s J Reuben Clark Law School, helped John Yoo write the torture rationalization memos for President Bush during his Dept of Justice Office of Legal Counsel tenure from 2001 to 2003.  Bybee currently serves on the US Court of Appeals of the Ninth Circuit. http://www.fjc.gov/servlet/tGe…

It is not known at the current time when they will be displaying “poor judgement” again, nor how many fatalities might result.

Most folks when asked to define the Bush Doctrine, other than stealing elections, would point to a document called the National Security Strategy of the United States published in September 2002, which states among other things:

To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively in exercising our inherent right of self-defense.

Preemptive war. The idea if the United States perceives a threat outside of our borders, even a 1% chance of danger against American interests, then the U.S. has the right to “defend” itself preemptively.

But I would argue historians will define the Bush Doctrine as something else. Something much more dangerous, reckless and un-American. The Unitary Executive.

It comes down to this: the Bush Administration believes it is above the law, and Congressional Democrats concur. There is no other way to explain the unwillingness of the Democrats to force the confrontations that would reassert the primacy of law. The Administration demonstrates, time and again, that as long as it is allowed to get away with anything, it will do whatever it wants. The rule of law and the balance of powers are irrelevant. Obsolete, perhaps. Perhaps quaint. When Nancy Pelosi took impeachment off the table, it signaled to the Administration that it had a green light to function as a monarchy. If it wasn’t going to be held accountable for past crimes, it might as well continue committing them, abusing its power, and overstepping its authority whenever and however it pleased. The Democrats would not force confrontations, because to do so would inevitably lead to questions of consequences. Eliminate the very question of impeachment, and there are no consequences. All is allowed. All is acceptable. All is tacitly permitted.

At his confirmation hearings, Michael Mukasey gave lip service about being an independent Attorney General. Since taking office, he has been nothing but an Administration lackey. Yesterday, he proved it once again. First, Mukasey told Congress that he would not investigate waterboarding, if those who committed it had done so with DOJ approval, and he also explained that he will not investigate warrantless wiretapping, if it was ordered by the president, under DOJ advisement. The rationale, if you can call it that, is made clear in this exchange between Mukasey and Rep. Bill Delahunt, as paraphrased by emptywheel:

Delahunt: You said if an opinion was rendered, that would insulate him from any consequences.

MM: We could not investigate or prosecute somebody for acting in reliance on a justice department opinion.

Delahunt: If that opinion was inaccurate and in fact violated a section of US Criminal Code, that reliance is in effect an immunity from any criminal culpability.

MM: Immunity connoted culpability.

Delahunt: This is brand new legal theory.

MM: Disclosure of waterboarding was part of CIA interrogation and permitted by DOJ opinion, would and should bar investigation of people who relied on that opinion.

Delahunt: Let’s concede that waterboarding is in contravention of international obligation. If opinion rendered that amounted to malpractice, whoever employed that technique, simply by relying on that opinion would be legally barred from criminal investigation.

MM: If you’re talking about legal mistake, there is an inquiry regarding whether properly rendered opinions or didn’t. But yes, that bars the person who relied on that opinion from being investigated.

Delahunt: I find that a new legal doctrine. The law is the law.

MM: If it comes to pass that somebody at a later date that the opinion should have been different the person who relied on the opinion cannot be investigated.

Delahunt: Is there a legal precedent.

MM: There is practical consideration. I can’t cite you a case.

Now, keep in mind that Mukasey is not saying that these acts may not have been illegal, nor is he saying that there are questions about whether or not these acts were even committed. He is saying that neither the facts nor the law matters. He is saying that if officials of the Department of Justice give permission for the commission of possibly illegal acts, those perpetrating said acts are automatically immunized from legal consequences. As dday put it:

The Boston Globe sent a questionnaire out to all of the Presidential candidates in the Democratic and Republican parties, asking them their views on the power of the Presidency.  Without specifically using the phrase “unitary executive”, the 12 questions were nevertheless clearly designed to test each candidate’s willingness to roll back Presidential powers accumulated under George W. Bush.

A December 22 article on the results, as well as links to the full questionnaire and the responses, can be found here, along with a menu for viewing the questionnaire itself and the full responses, sorted by candidate or question number.  

This is among the most important issues, if not the most important issue, in the current election cycle.  The candidates’ responses to this questionnaire deserve scrutiny.

None of the front-runners are 100% reassuring.