Memos Provide Blueprint for Police State

Seven newly released memos from
the Bush Justice Department reveal a concerted strategy to cloak the President
with power to override the Constitution. The memos provide "legal" rationales
for the President to suspend freedom of speech and press; order warrantless
searches and seizures, including wiretaps of U.S. citizens; lock up U.S. citizens indefinitely in the
United
States without criminal charges; send suspected
terrorists to other countries where they will likely be tortured; and
unilaterally abrogate treaties. According to the reasoning in the memos,
Congress has no role to check and balance the executive. That is the definition
of a police state.

Who wrote these memos? All but
one were crafted in whole or in part by the infamous John Yoo and Jay Bybee,
authors of the so-called "torture memos" that redefined torture much more
narrowly than the U.S. definition of torture, and counseled the President how to
torture and get away with it. In one memo, Yoo said the Justice Department would
not enforce U.S. laws against torture, assault,
maiming and stalking, in the detention and interrogation of enemy combatants.

What does the federal maiming statute
prohibit? It makes it a crime for
someone "with the intent to torture, maim, or disfigure" to "cut, bite, or slit
the nose, ear or lip, or cut out or disable the tongue, or put out or destroy an
eye, or cut off or disable a limb or any member of another person." It further
prohibits individuals from "throwing or pouring upon another person any scalding
water, corrosive acid, or caustic substance" with like intent.

The two torture memos were later
withdrawn after they became public because their legal reasoning was clearly
defective. But they remained in effect long enough to authorize the torture and
abuse of many prisoners in U.S. custody.

The seven memos just made public
were also eventually disavowed, several years after they were written. Steven
Bradbury, the Principal Deputy Assistant Attorney General in Bush's Department
of Justice, issued two disclaimer memos - on October 6, 2008 and January 15,
2009 - that said the assertions in those seven memos did "not reflect the
current views of this Office." Why Bradbury waited until Bush was almost out of
office to issue the disclaimers remains a mystery. Some speculate that Bradbury,
knowing the new administration would likely release the memos, was trying to
cover his backside.

Indeed, Yoo, Bybee and Bradbury
are the three former Justice Department lawyers that the Office of Professional
Responsibility singled out for criticism in its still unreleased report. The OPR
could refer these lawyers for state bar discipline or even recommend criminal
charges against them.

In his memos, Yoo justified
giving unchecked authority to the President because the United States
was in a "state of armed conflict." Yoo wrote, "First Amendment speech and press
rights may also be subordinated to the overriding need to wage war
successfully." Yoo made the preposterous argument that since deadly force could
legitimately be used in self-defense in criminal cases, the President could
suspend the Fourth Amendment because privacy rights are less serious than
protection from the use of deadly force.

Bybee wrote in one of the memos
that nothing can stop the President from sending al Qaeda and Taliban prisoners
captured overseas to third countries, as long as he doesn't intend for them to
be tortured. But the Convention Against Torture, to which the
United
States is a party, says that no country can
expel, return or extradite a person to another country "where there are
substantial grounds for believing that he would be in danger of being subjected
to torture." Bybee claimed the Torture Convention didn't apply
extraterritorially, a proposition roundly debunked by reputable scholars. The
Bush administration reportedly engaged in this practice of extraordinary
rendition 100 to 150 times as of March 2005.

The same day that Attorney
General Eric Holder released the memos, the government revealed that the CIA had
destroyed 92 videotapes of harsh interrogations of Abu Zubaida and Abd al Rahim
al Nashiri, both of whom were subjected to waterboarding. The memo that
authorized the CIA to waterboard, written the same day as one of Yoo/Bybee's
torture memos, has not yet been released.

Bush insisted that Zubaida was a
dangerous terrorist, in spite of the contention of one of the FBI's leading al
Qaeda experts that Zubaida was schizophrenic, a bit player in the organization.
Under torture, Zubaida admitted to everything under the sun - his information
was virtually worthless.

There are more memos yet to be
released. They will invariably implicate Bush officials and lawyers in the
commission of torture, illegal surveillance, extraordinary rendition, and other
violations of the law.

Meanwhile, John Yoo remains on
the faculty of Berkeley Law
School and Jay Bybee is a
federal judge on the Ninth Circuit Court of Appeals. These men, who advised Bush
on how to create a police state, should be investigated, prosecuted, and
disbarred. Yoo should be fired and Bybee impeached.