UNDOING BUSH--Is Our President a War Criminal or Just a Bungler, or Both?
There Were Orders to Follow
There Were Orders to Follow
Published: April 4, 2008
You can often tell if someone understands how wrong their actions are by the lengths to which they go to rationalize them. It took 81 pages of twisted legal reasoning to justify President Bush's decision to ignore federal law and international treaties and authorize the abuse and torture of prisoners.
Eighty-one spine-crawling pages in a memo that might have been unearthed from the dusty archives of some authoritarian regime and has no place in the annals of the United States.
It is must reading for anyone who still doubts whether the abuse of prisoners were rogue acts rather than calculated policy.
The March 14, 2003, memo was written by John C. Yoo, then a Pentagon lawyer. He earlier helped draft a memo that redefined torture to justify repugnant, clearly illegal acts against Al Qaeda and Taliban prisoners.
The purpose of the March 14 memo was equally insidious: to make sure that the policy makers who authorized those acts, or the subordinates who carried out the orders, were not convicted of any crime. The list of laws that Mr. Yoo's memo sought to circumvent is long: federal laws against assault, maiming, interstate stalking, war crimes and torture; international laws against torture and cruel, inhuman or degrading treatment; and the Geneva Conventions.
Mr. Yoo, who, inexplicably, teaches law at the University of California, Berkeley, never directly argues that it is legal to chain prisoners to the ceiling for days, sexually abuse them or subject them to waterboarding - all things done by American jailers.
His primary argument, in which he reaches back to 19th-century legal opinions justifying the execution of Indians who rejected the reservation, is that the laws didn't apply to Mr. Bush because he is commander in chief. He cited an earlier opinion from Bush administration lawyers that Al Qaeda and Taliban prisoners were not covered by the Geneva Conventions - a decision that put every captured American soldier at grave risk.Then, should someone reject his legal reasoning and decide to file charges, Mr. Yoo offered a detailed blueprint for escaping accountability.American and international laws against torture prohibit making a prisoner fear "imminent death." For most people, waterboarding - making a prisoner feel as if he is about to drown - would fit. But Mr. Yoo argues that the statutes apply only if the interrogators actually intended to kill the prisoner. Since waterboarding simulates drowning, there is no "threat of imminent death."
After the memo's general contents were first reported, the Pentagon said in early 2004 that it was "no longer operative." Reading the full text, released this week, makes it startlingly clear how deeply the Bush administration corrupted the law and the role of lawyers to give cover to existing and plainly illegal policies.
The memo is also a reminder of how many secrets about this administration's cynical and abusive policies still need to be revealed. As Senator Edward M. Kennedy noted, the release of the Yoo memo is a reminder that neither Congress nor the American people have seen the policy memos that govern
interrogations today. We know of at least two being kept secret for supposed reasons of national security, including one authorizing waterboarding.When the abuses at Abu Ghraib became public, we were told these were the depraved actions of a few soldiers. The Yoo memo makes it chillingly apparent that senior officials authorized unspeakable acts and went to great lengths to shield themselves from prosecution.
Professor John Yoo, University of California Law School
UC Law Professor John Yoo
UNDOING BUSH--How to repair eight years of sabotage, bungling and neglect
George W. Bush has done more to transform the nation than any American since Franklin D. Roosevelt. He has taken a prosperous nation and mired it in war, replaced our national composure with terror, and left behind him a legacy of damage so profound that repairing it will likely be the work of generations.
1. THE CONSTITUTION by David Cole
No one has captured George W. Bush's understanding of constitutional law more precisely or presciently than Richard M. Nixon who told David Frost in 1977 "When the president does it, that means that it is not illegal."
The Constitution at the end of Bush's two terms is much the worse for wear.
The First Amendment right of association, for starters, has been rendered virtually meaningless by the Bush administration, which shortly after 9/11 issued an executive order authorizing the freezing of all assets of any person or entity the Treasury Dept deemed "otherwise associated" with anyone the administration deemed a "terrorist"--regardless of whether the individual had engaged in terrorist activity of any kind.
Our Fourth Amendment rights to privacy have been infringed the vastly expanded surveillance authorities under the USA Patriot Act.
The Fifth Amendment right to due process, meanwhile, has fallen victim to assertions that "enemy combatants" can be held indefinitely without trial, that suspicious organizations can have their assets frozen without notice or hearings, and that military tribunals can sentence defendants to death on the basis of hearsay and coerced testimony.
The single constitutional priciple most under attack, however is the separation of powers. Time and again, administration officials have sought to elevate the president above the law, agruing that, as commander in chief, he may choose to "engage the enemy" however he pleases.
RESTORING THE CONSTITUTION WILL BE A MONUMENTAL TASK, BUT DOING SO IS CRITICAL TO MAINTAINING THE CHARATER OF OUR DEMOCRACY.
2. THE COURTS by Dahlia Lithwick
Under the guise of rolling back decades of judicial activism, Bush has instead installed a small army of jurists who think of the law in strikingly active terms.
With cryptoactive promises, then, Bush allowed his base to dream of an America without gay marriage, without abortion, and where black people would know their place.
Bush judges are getting results too. A 2006 study by People for the American Way found Bush-appointed judges spearheading efforts to limit the Civil Rights Act and the Voting Rights Act, restrict the application of the Family and Medical Leave Act and limit access to the courts for wronged plaintiffs.
THE BEST THE NEXT PRESIDENT CAN DO, THEN, WILL BE TO DRAMATICALLY REFORM THE JUDICIAL CONFIRMATION PROCESS. NOMINEES SHOULD NOT BE ABLE TO HIDE THEIR VIEWS BEHIND CLAIMS THAT AN ISSUE MAY COME BEFORE THEM WHEN THEY ARE ON THE BENCH. THEY SHOULD HAVE TO ANSWER QUESTIONS ABOUT THEIR JURISPRUDENTIAL RECORDS, AND THERE MUST BE CONSEQUENCES IF THEY DO NOT.
3. CIVIL SERVICE by Ken Silverstein
"It's fair enough for a Republican president to want a Republican to head the Treasury Department," says Paul Light, a professor of public service at NYU. "What's not fair is to put the question of loyalty ahead of whether the candidate knows anything about tax and budget policy."
Perhaps most insidious, the Bush team has packed uncredentialed loyalists on to government advisory panels, which ostensibly consist of impartial experts with the result that political pressure has caused scientists at key agencies including the Centers for Disease Control, the Environmental Protection Agency, and the National Oceanic & Atmospheric Administration, to avoid addressing controversial subjects like climate change, reproductive rights, or clean air because they knonw it will create problems with administration appointees.
4. THE ENVIRONMENT by Bill McKibben
The Bush administration has taken over institutions ostensibly devoted to defending the natural world--the Department of the Interior, the Environmental Protection Agency, the Council on Environmental Quality and turned them into organizations devoted to environmental degradation. And it has passed a set of anti-environmental laws that sound like they were dreamed up by wild-eyed nature lovers--the Clear Skies Act turns out to gut the old Clean Air Act, for instance, and the Healthy Forests Initiative has initiated a great deal of unhealthy deforestation ("No Tree Left Behind," someone quickly dubbed it.)
But Bush's folly at home isn[t the worst of it. As soon as he took office, he also repudiated America's participation in the Kyoto treaty process, the one international attempt to begin reining in carbon emissions.
5. SCIENCE by Chris Mooney
Again and again the administration has sought to "manage" inconvenient scientific information on this subject from a public relations standpoint rather than take it seriously or use it to inform policy. And it's not just climate science. A similar PR oriented approach has been apparent across a range of issues, subjects sharing few commonalities save that they motivate the Republican base: embryonic stem cell research, mercury pollution, sex education and condom effectiveness, endangered species protections, and many more. In these and other areas, under the Bush Administration we have seen scientists suppressed, scientific reports forcefully edited or censored, scientific advisory committees politically tilted, and widespread distortion and misrepresentation of scientific knowledge.
IN ORDER TO REPAIR THE RELATIONSHIP BETWEEN AMERICA'S GOVERNMENT AND ITS SCIENTISTS, A NEW ADMINISTRATION SHOULD MAKE THE RECONCILIATION A PUBLIC ONE. OUR NEXT PRESIDENT SHOULD PLEDGE, AFTER TAKING OFFICE OR PERHAPS EVEN ON THE CAMPAIGN TRAIL, TO ENSURE THAT THE SAME KINDS OF ABUSES WILL NOT RECUR ON HIS OR HER WATCH.
6. THE ECONOMY by Dean Baker
Two economic calamities have occured on Bush's watch. The first has been a radically overvalued dollar, which, it should be noted, is a legacy of the Clinton years
The other major economic disaster under Bush has ben the unchecked growth of the housing bubble, and although this, too, was inherited from his predecessor, Bush in this case deserves an even greater share of the blame. By the start of the Bush administration, housing prices (which over the prior forty years had just kept even with the overall rate of inflation) had on average, and after adjusting for inflation, risen approximately 23 percent over their mid-nineties levels--a substantial but still manageable surge. In 2001, however, when the stock bubble collapsed, the Federal Reserve Board chairman seized on the expanding housing bubble as the best tool for boosting the economy out of the recession. He pushed the short-term interest rate down to 1.0 percent--the lowest level in almost fifty years--and, more important, assured investors of the safety of the housing market.
7. THE MARKETPLACE OF IDEAS by Jack Hitt
Bush strategy basically takes any argument that does not comport with the forward momentum of the Bush agenda and, by means of numerous tactics, seeks to tamp down, crush sideline, segregate, circumscribe, cordon off, isolate, maroon, raze, shunt aside, eschew or quarantine the idea.
This has been accomplished through various specific tactics. For example:
--issue a directive to government scientists ordering them not to talk about polar bears.
--order soldiers hospitalized at Walter Reed to quit talking to the media.
--doctor White House transcripts so that the press secretary's response of "that's accurate"--to an NBC correspondent's assertion that Karl Rove did leak a spy's identy--read, "I don't think that's accurate."
--release Guantanamo detainee David Hicks (who said he was tortured) but force him to promise for the next year "not to communicate in any way with the media."
The one tactic that has yielded the best results, though, is to enfeeble entire arguments by destroying the reputation of the most prominent person making them.The administration has made the ad hominem argument a mainstay of contemporary politics.
8. INTELLIGENCE by James Bamford
By far the most significant intelligence error of the Bush administration has been the decision, contrary to established American policy and common sense, to treat terrorism not as a crime, to be solved by intelligence and law enforcement agencies but as an existential military threat, to be confronted with tanks and Marines.
9. THE MILITARY by Edward N. Luttwak
Senior U.S. military and government officials fear it will take years for the Army and Marine Corps to recover from what some officials have called a "death spiral" in which the ever more rapid pace of war-zone rotations has consumed 40 percent of their total gear, wearied troops, and left no time to treain to fight anything other than the insurgencies now at hand..
10. DIPLOMACY by Anne-Marie Slaughter
The paradox of American foreign policy today is that the United States, though more powerful than ever, has rarely been so lost in the world and never more reviled.
A new U.S. president
--must close Guantanamo
--get serious about nuclear disarmament
--join the International Criminal Court
--reform the U.N. Security Council and other global institutions
--try to stop global warming
11. THE NATIONAL CHARACTER by Earl Shorris
The undoing of the American character has a long history. It took more than half a century from a summer's day in August, when the United States used the first weapon of mass destruction, to the lies the Bush administration used to cover its invasion of Iraq.
Exerpted from an article in Harpers, June 2007