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.