The Newly Released Secret Laws of the Bush Administration

Reviewing yesterday's front page of the print edition of The New York Times prompted this observation from Digby:

I
looked at the front page of the paper this morning and wondered for a
moment if I was looking at one of those historical documents about
which scholars would wonder if those who read it in real time had a
clue about the scale of what was happening.

There's a run on
the banks in Ukraine, the world's biggest insurer suffered the highest
quarterly losses in corporate history, Europe is starting to come apart
-- with Germany being the lead player. Major change seems to be
rumbling in a bunch of different ways right now --- with echoes of the
past overlaid with things we've never seen before. Maybe it's just a
blip. But maybe not.

Various universal
perception biases always make it difficult to assess how genuinely
consequential contemporary events are: events in the present always
seem more important than ones in the past; those that affect us
directly appear more significant than those that are abstract, etc.
(though powers of denial -- e.g.: all of those bad things I've read about in history can't happen to me and my country and my time
-- undercut those biases). Whatever else is true, it seems undeniably
clear, at the very least, that the extreme decay and instabilities left
in the wake of the Bush presidency will alter many aspects of the
social order in radical and irrevocable (albeit presently unknowable)
ways.

One of the central facts that we, collectively, have not
yet come to terms with is how extremist and radical were the people
running the country for the last eight years. That condition, by
itself, made it virtually inevitable that the resulting damage would be
severe and fundamental, even irreversible in some sense. It's just not
possible to have a rotting, bloated, deeply corrupt and completely
insular political ruling class -- operating behind impenetrable walls
of secrecy -- and avoid the devastation that is now becoming so
manifest. It's just a matter of basic cause and effect.

Yet those who have spent the last several years pointing out how unprecedentedly
extremist and radical was our political leadership (and how meek and
complicit were our other key institutions) were invariably dismissed as
shrill hysterics. As but one of countless highly illustrative
examples, here is a November, 2004 David Broder column
scoffing at the notion that there was anything radical or unusual
taking place in the U.S., dismissively deriding the claim that there
was anything resembling an erosion of basic checks and safeguards in
the United States:

Bush won, but he will have to work within the system for whatever he gets. Checks and balances are still there.The nation does not face "another dark age," unless you consider politics with all its tradeoffs and bargaining a black art.

That
was (and still is) the prevailing attitude among our political and
media elites: it was those who were sounding alarm bells about the
radicalism and damage of the Bush administration -- not Bush officials
themselves -- who were the real radicals and, worst of all, were deeply
Unserious.

* * * * *

Yesterday, the Obama administration,
to its credit, took steps towards fulfilling an important promise by
disclosing -- in response to a long-standing, hard-fought ACLU lawsuit
for disclosure -- multiple DOJ documents that contained Bush
administration decrees with regard to government power (these are the
documents that formed what, literally, was the regime of secret laws under which we were ruled for the last eight years). Unlike the NYT
front page which Digby examined yesterday, even a quick review of these
newly disclosed documents leaves no doubt about their historical
significance. They are the grotesque blueprint for what the U.S.
Government became, laid out so starkly that even the David Broders of
the world could recognize their extremism.

Let's just look at one of those documents (.pdf) -- entitled "Authority for Use of Military Force to Combat Terrorist Activities Within the U.S." It
was sent to (and requested by) Defense Department General
Counsel William J. Haynes and authored by Assistant Attorney General
John Yoo and DOJ Special Counsel Robert Delahunty. But it's not a "Yoo
memo." Rather, it was the official and formal position of the U.S.
Government -- at least of the omnipotent Executive Branch -- from the
time it was issued until just several months George Bush before left office (October, 2008), when OLC Chief Stephen Bradbury abruptly issued a memo withdrawing, denouncing and repudiating both its reasoning and conclusions.

The
essence of this document was to declare that George Bush had the
authority (a) to deploy the U.S. military inside the U.S., (b) directed
at foreign nationals and U.S. citizens alike; (c) unconstrained by any Constitutional limits,
including those of the First, Fourth and Fifth Amendments. It was
nothing less than an explicit decree that, when it comes to
Presidential power, the Bill of Rights was suspended, even on U.S. soil
and as applied to U.S. citizens. And it wasn't only a decree that
existed in theory; this secret proclamation that the Fourth Amendment
was inapplicable to what the document calls "domestic military
operations" was, among other things, the basis on which Bush ordered
the NSA, an arm of the U.S. military, to turn inwards and begin spying
-- in secret and with no oversight -- on the electronic communications
(telephone calls and emails) of U.S. citizens on U.S. soil.

That the U.S. Government had suspended the Fourth Amendment itself isn't exactly news. A fleeting reference to that event (largely ignored by the media) was made in a footnote to one of Yoo's previously released torture memos (release
of which was also compelled not by the U.S. Congress or the media, but
by the ACLU). But reading the document that actually effectuated (in
secret) that suspension -- released only yesterday -- is genuinely
breathtaking.

First, the document states its general conclusion regarding the President's authority to use military force inside the U.S.:

The
President not only possesses these powers, but can wield them --
including within the U.S. -- independent of anything Congress or the
courts do:

Long-standing
laws that were enacted precisely to limit the use of the U.S. military
inside the U.S. and against U.S. citizens -- such as the Posse
Comitatus Act -- have no application:

No limits -- not even those in the Bill of Rights,
such as those imposed by the Fourth Amendment -- are applicable to
the President's use of the U.S. military inside the U.S. Thus,
the President can order the U.S. military to search or invade our homes
or eavesdrop on our communications (as he did) all without warrants or
any Constitutional constraints of any kind:

The President's power to use military force domestically in violation of the Bill of Rights applies equally even if the actions are ordered against American citizens on U.S. soil:

The
President, when using military force against American citizens on U.S.
soil, is "free from the constraints" not only of the Fourth Amendment,
but also of other core guarantees of the Bill of Rights -- including
First Amendment liberties, Due Process rights, and the takings clause:

If
this isn't the unadorned face of warped authoritarian extremism, what
is? And that's just one of the numerous documents that were released
yesterday. Others vested the President with the power to imprison American citizens on U.S. soil indefinitely without charges of any kind.

Let's
underscore: these weren't just abstract theories. They served as the
basis for many U.S. government actions. Military actions were, in
fact, directed at American citizens on U.S. soil (that's what the NSA
program was, as but one example). Both legal residents and American
citizens captured on U.S. soil were put in cages for years with no
trial or charges of any kind. And, of course, the U.S. instituted a
systematic torture regime that led to the brutalization and even deaths
of many detainees in our custody.

* * * * *

More amazingly
still, there is almost certainly a whole slew of other activities that
remain concealed, and very well may remain undisclosed for years, as a
result of the creepy Orwellian slogans embraced in unison by our
political class -- look towards the future, not the past!;only"liberal score-settlers"want an investigation of any of this.
That mentality is being aided by a new administration that seems
bizarrely desperate to keep concealed the secrets of the old one. As
but one example, we know that the Bush administration was engaged in
certain surveillance activities aimed at U.S. citizens that were so
patently illegal and wrong that even the right-wing fanatics in Bush's
own Justice Department (such as John Aschroft) threatened to resign
immediately if they didn't cease, yet we still, to this day, don't know what those domestic surveillance activities were.

The most vital point is that all of the documents released yesterday by the Obama DOJ comprise nothing less than a regime of secret laws
under which we were governed. Nothing was redacted when those
documents yesterday were released because they don't contain any
national security secrets. They're nothing more than legal decrees,
written by lawyers. They're just laws that were implemented with no
acts of Congress, unilaterally by the Executive branch. Yet even the
very laws that governed us were kept secret for eight years.

This
is factually true, with no hyperbole: Over the last eight years, we
had a system in place where we pretended that our "laws" were the
things enacted out in the open by our Congress and that were set forth
by the Constitution. The reality, though, was that our Government
secretly vested itself with the power to ignore those public laws, to declare them invalid,
and instead, create a whole regimen of secret laws that vested
tyrannical, monarchical power in the President. Nobody knew what those
secret laws were because even Congress, despite a few lame and meek
requests, was denied access to them. What kind of country lives under secret laws?

No
special knowledge or elaborate debates are required to see how
violently inconsistent all of this is with the system of Government we
claim to have. Even Fox News' Shepard Smith yesterday, when describing
how the Bush administration imprisoned Ali Al-Marri for the last five
years with no trial, reacted with extreme anger over what was done:

He
has been held in a military prison for more than five years - not Chris
Wallace - this next person. And he wasn't ever charged. Think about
that. I mean just think about it fundamentally. You are held
for five years in prison, and you're never charged! Oh well it was an
al-Qaeda suspect, suspected al-Qaeda operative. Who cares who it is?!
You don't get to - this is America; you do not get to hold people for
five years without - actually, you do. But he's getting its day in court now.

Apparently,
Shepard Smith hadn't heard until this week that the Bush administration
was imprisoning people -- including American citizens -- for years
without charges. Better late than never. But it wasn't merely the
fact that this was done, but was done pursuant to a regime of secret
laws that explicitly vested the President with these powers, that makes
it so radical.

Yet we never really came to terms -- and still
haven't -- with just how extremist and radical and tyrannical this all
was. Instead, we had the David Broders of the world (the Dean of the
Washington Press Corps) mocking those who pointed it out and assuring
us that we had a robust system of "checks and balances" in place to
prevent any actual mischief (what are the "checks and balances" against
a Government that rules by secret laws and that declares the Bill of
Rights inapplicable to itself?). And we had leaders of both political
parties and (with some noble exceptions) an
establishment media that submitted to all of this and were either
supportive of it all or pitifully afraid to criticize it. The
extremism and radicalism thus ran amok, unconstrained by any opposing
forces, and now we see the results in the wreckage around us.

And
yet even with all of that, our political elites -- the same people who
enabled all of this and cheered it on -- are doing everything possible
to ensure that none of it gets examined and that there's no
accountability for any of it, even if (or rather: especially if) it
involves extreme acts of criminality at the highest levels of
government. In fact, the only reason we know about most of it -- such
as the CIA's destruction of 92 interrogations videos, at the direction of the White House, despite the direct relevance of that evidence to numerous pending investigations
(that's called "obstruction of justice," a felony) -- is because groups
like the ACLU (with whom I consult), EFF, the Center for
Constitutional Rights and others have been so tenacious about trying to
compel its disclosure and combat it. If our political class had its
way, even the bits and pieces we've now seen would continue to be
hidden in the dark.

Most of the specific individuals who
initiated these measures may no longer be in power, but the
institutions and the political and media elites who enabled all of it
haven't gone anywhere. They're now actively working to keep as much as
possible concealed and to insist that nothing should be done about any
of it. It should all just be forgotten, blissfully erased from our
memories, so that none of those responsible are held accountable in any
way and can simply continue doing what they've been doing without
disruption. Does that sound like a particularly promising recipe for
"ensuring that this never happens again"?

UPDATE: Harper's columnist and international human rights lawyer Scott Horton:

We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship. The constitutional rights we learned about in high school civics were suspended. That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution. What we know now is likely the least of it.

How
shrill. And what's all this complaining about how we still don't know
much of what was done by our Government? As though we need to know or
should know. Hasn't Horton heard? There are apparently all sorts of
good reasons to engage in desperate measures to keep the actions of the Bush administration concealed and prevent courts from ruling on whether it was all legal. And only vengeful liberal score-settlers think we need to find out what happened. Serious people -- self-proclaimed centrists -- know that we must be blissfully content with our ignorance and lack of accountability.

Look to the future, not the past.
Just repeat that mantra enough times along with David Ignatius and
Stuart Taylor and all of this unpleasantess will fade painlessly away
and we can go back to being grateful for the wonderful, elevated
political and media institutions we have and for our good and
protective elites.

UPDATE II: It's somewhat surreal to witness -- now that George Bush is out of office -- the avalanche of establishment media reports suddenly acknowledging today, rather explicitly, how radical and lawless his presidency was, as though we only learned of that this week with the release of these memos. As the commenters to Michael Scherer's Time post point out,
there were people who have spent the last several years documenting
that and trying to sound the alarm over it, yet were largely dismissed
as shrill unSerious partisan "leftists" and "civil liberties
extremists." I suppose it's acceptable to observe these facts now that
Bush is no longer the President (this happened in the "past") and the
evidence for all of it is rubbed so unavoidably in our faces that
denial is no longer possible.

UPDATE III: TheWashingtonPost.com's Dan Froomkin has commentary on these memos which, as usual, is well worth reading, and he also rounds up commentary from others, including Yale Law Professor Jack Balkin's shrill observation that the memos' "reasoning [] sought, in secret, to justify a theory of Presidential dictatorship."