How Close the Bush Bullet
Earlier this decade when some of us warned that George W. Bush was behaving more like an incipient dictator than the leader of a constitutional republic, we were dismissed as alarmists, left-wingers, traitors and a host of less printable epithets.
But it is now increasingly clear that President Bush and his top advisers viewed the 9/11 attacks as an opportunity to implement a series of right-wing legal theories that secretly granted Bush unlimited power to act lawlessly and outside the traditional parameters of the U.S. Constitution.
These theories held that at a time of war - even one as vaguely defined as the "war on terror" - Bush's powers as Commander in Chief were "plenary," or total. And since the conflict against terrorism had no boundaries in time or space, his unfettered powers would exist everywhere and essentially forever.
According to his administration's secret legal memos released Monday, Bush could waive all meaningful constitutional rights of citizens, including the First Amendment's protections on free speech and a free press.
John Yoo, a deputy assistant attorney general at the Justice Department's powerful Office of Legal Counsel - which advises a President on the limits of his constitutional powers - declared that Bush could void the First Amendment if he deemed it necessary to fight terrorism.
"First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully," Yoo wrote in an Oct. 23, 2001, memo entitled "Authority for Use of Military Force to Combat Terrorist Activities Within the United States."
Yoo then added ominously, "The current campaign against terrorism may require even broader exercises of federal power domestically."
What was particularly stunning about Yoo's reference to waiving the First Amendment - a pillar of American democracy - was his cavalier attitude. He tossed the paragraph into a memo focused on stripping Americans of their Fourth Amendment "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures."
While saying that Bush could order spying on and military attacks against U.S. domestic targets at his own discretion as Commander in Chief, Yoo added, almost in passing, that the President also could abrogate the rights of free speech and a free press.
Wiping Out Public Trials
Another Yoo memo, dated June 27, 2002, essentially voided the Sixth Amendment and a federal law guaranteeing Americans the right to public trials. In the memo, Yoo asserted that Bush had the power to declare American citizens "enemy combatants" and detain them indefinitely.
"The President's power to detain enemy combatants, including U.S. citizens, is based on his constitutional authority as Commander in Chief," Yoo wrote, adding that "Congress may no more regulate the President's ability to detain enemy combatants than it may regulate his ability to direct troop movements on the battlefield."
Yoo acknowledged that in "war on terror" cases, an "enemy combatant" may have no formal connection to an enemy group, may have no weapon, and may have no discernable plan for carrying out a terrorist attack. In other words, an "enemy combatant" could be anyone that Bush so designated.
Under Yoo's analysis, an alleged "enemy combatant" would have no legal recourse, since Bush's Commander in Chief powers trumped even habeas corpus requirements that the government must show cause for imprisoning someone. Further, this opinion wasn't just hypothesizing; it provided the legal basis for indefinitely detaining U.S. citizen Jose Padilla.
Though the U.S. Supreme Court ultimately issued a narrow 5-4 decision overturning Bush's supposed right to deny habeas corpus and punish "enemy combatants" through his own military court system, many of Yoo's concepts survived in the Military Commissions Act, which was passed by the Republican-controlled Congress in 2006.
While the law appears on the surface to target only non-citizens, fine print deep in the legislation makes clear that the Bush administration still was asserting its power to detain U.S. citizens who were viewed as aiding and abetting foreign enemies and to punish those citizens through military commissions that denied normal due-process rights to defendants.
"Any person is punishable as a principal under this chapter who commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission," the law states, adding that "any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States ... shall be punished as a military commission ... may direct."
The reference to people acting "in breach of an allegiance or duty to the United States" would not apply to Osama bin Laden or al-Qaeda but would cover American citizens.
The Military Commissions Act remains in effect to this day, although President Barack Obama has vowed not to apply it, favoring use of regular civilian or military courts.
Loss of First Amendment
Though some of us have cited Bush's determination to override key constitutional protections for years (see, for instance, our book Neck Deep), few critics - including me - thought to include the notion that Bush was interested in suspending the First Amendment.
The significance of Yoo's throwaway paragraph about throwing away the First Amendment is that it suggests that the Bush administration intended as early as October 2001 to act against journalists and citizens who were viewed as undermining Bush's "war on terror" through public comments or disclosures.
As a right-wing legal scholar, Yoo surely shared the Right's knee-jerk animosity toward past reporting on the Watergate scandal and the Vietnam War's Pentagon Papers, as well as contempt for Americans who demonstrated against the Vietnam War.
But his First Amendment reference also may have reflected the thinking of senior Bush aides in those early days of the "war on terror" as they collaborated with Yoo in formulating his legal opinions.
In his 2006 book War by Other Means, Yoo describes his participation in frequent White House meetings regarding what "other means" should receive a legal stamp of approval. Yoo said the "meetings were usually chaired by Alberto Gonzales," then White House counsel, and involved Vice President Dick Cheney's legal counsel, David Addington.
So, a seemingly incongruous reference to overriding the First Amendment - in a memo centered on overriding the Fourth Amendment - could be explained by the desire of White House officials to have some legal cover for actions aimed at journalists who were exposing secrets or whose reporting might weaken the national resolve behind Bush's actions.
It also suggests that Bush's critics who exercised their free speech rights in challenging his "war on terror" could have become targets of special government operations justified under Bush's Commander in Chief powers.
In other words, Bush's assault on America's constitutional Republic may have been more aggressive than many of us imagined. It was a bullet that came close to the heart of a dream dating back to 1776.
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