Friday, March 06, 2009

The theory - and practice - of Presidential Dictatorship

The GW Bush administration directed a putsch through the Department of Justice, which included a full court press of personnel, policy, practice and Patriot Action.

Sheriff GW's Little Deputy John Howard imitated that leadership and directed a similar putsch with his own Terror Laws down in Australia.

Just some of the secretly held memos prepared by the Bush-led Republican Full Court Press legal team that supported and underwrote the Bush administration actions have recently been released by the Obama administration.

Holder Declassifies Controversial Bush-Era Legal Opinions
Attorney General Eric Holder, in releasing the documents, said, "Americans deserve a government that operates with transparency and openness. It is my goal to make OLC opinions available when possible while still protecting national security information and ensuring robust internal executive branch debate and decision-making."


Bush memos on presidential power shock legal experts
The newly released memos were mostly written between 2001 and 2003, and they gave the government broad legal authorization for fighting a new war in a new way. Their common theme was that no laws can limit the president's power in fighting terrorists.

Yale law professor Jack Balkin called this a "theory of presidential dictatorship. They say the battlefield is everywhere. And the president can do anything he wants, so long as it involves the military and the enemy."

"This was a period of panic, and panic creates an opportunity for patriotic politicians to abuse their power," Balkin said.

The criticism was not limited to liberals. "I agree with the left on this one," said Orin Kerr, a law professor at George Washington University. The approach in the memos "was simply not a plausible reading of the case law. The Bush [Office of Legal Counsel] eventually rejected [the] memos because they were wrong on the law, and they were right to do so."

Defenders of the administration stress that the memos were written during a time of national emergency. Officials feared, and indeed, expected another terrorist attack within the U.S. They were determined to take all possible steps to prevent it. And by the time the Bush administration came to an end, views within the Justice Department had changed dramatically.

"You can never get over how bad these opinions were," said Duke Law School professor Walter Dellinger, who headed the Justice Department's Office of Legal Counsel in the Clinton administration. "The assertion that Congress has no role to play with respect to the detention of prisoners was contrary to the Constitution's text, to judicial precedent and to historical practice. For people who supposedly follow the text [of the Constitution], what don't they understand about the phrase 'make rules concerning captures on land and water'?"

Most of the memos were written by John Yoo, a deputy director of the Office of Legal Counsel. This small, obscure office writes legal opinions for the attorney general and others in the government. Yoo's memos gave legal guidance to the Defense Department and the White House.

Five days before the Bush administration came to an end, Steven Bradbury, the head of the office, wrote an 11-page memo "for the files" explaining how his office had gone wrong.

Rosa Brooks, in an opinion piece in the LA Times, asks and answers the question, How did they ever get away with it?
One answer is suggested by the so-called Big Lie theory of political propaganda, articulated most infamously by Adolf Hitler. Ordinary people "more readily fall victim to the big lie than the small lie," wrote Hitler, "since they themselves often tell small lies ... but would be ashamed to resort to large-scale falsehoods. It would never come into their heads to fabricate colossal untruths, and they would not believe that others could have the impudence to distort the truth so infamously."

In other words: Paradoxically, the more outrageous the claim, the more apt we are to assume there must be some truth to it. Just as some banks and insurance companies are apparently "too big to fail," some claims from those with political power seem to strike us as "too big to disbelieve." "That seems so outrageous it must be right," we tell ourselves. "The important people keep saying it -- they must know something I don't know."

Big lies prevail because we can't bring ourselves to believe that our leaders could be so dishonest or deluded. And big lies can do terrible damage, of course. The Bush administration's big legal lies paved the way for some of the most shameful episodes in our history, including the official authorization of torture.

Back in 2005, the conservative US political/social scientist Francis Fukuyama wrote an opinion piece published in the SMH, Wasted lives, then wasted opportunity, which prompted a Guambat post, Of hearts, minds and balls.

Like Rosa Brook's piece, Fukuyama began with a question, but phrased more Socratically:
As we mark four years since September 11, 2001, one way to organise a review of what has happened in US foreign policy since that terrible day is with a question: to what extent has that policy flowed from the wellspring of American politics and culture, and to what extent has it flowed from the particularities of this President and this Administration?

The Administration could instead have chosen to create a true alliance of democracies to fight illiberal currents coming out of the Middle East. It could also have tightened economic sanctions and secured the return of arms inspectors to Iraq without going to war. It could have had a go at a new international regime to battle proliferation.

All of these paths would have been in keeping with American foreign policy traditions. But Bush and his Administration chose to do otherwise.

We do not know what outcome we will face in Iraq. We do know that four years after September 11, the whole foreign policy of the United States seems destined to rise or fall on the outcome of a war only marginally related to the source of what befell America on that day. There was nothing inevitable about this. There is everything to be regretted about it.

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