June 27, 2008—All over the world down through history, political leaders who have engaged in torture and other grotesque crimes of state have justified their actions as necessary to protect their governments or their people or themselves.
It was true when England’s King Edward I had William Wallace – “Braveheart” – drawn and quartered in 1305 for resisting the crown’s rule in Scotland, and a gruesome death was what King George III foresaw for America’s Founding Fathers in 1776 when they stood up to his abuses in the Colonies.
Kings and tyrants often inflicted special pain on people they viewed as challenging their authority and – at such times – they wiped away the rules of justice. But the United States was supposed to be different.
Indeed, reaction to tyrannical monarchs was what compelled the Founders to establish a government of laws, not men, based on “unalienable rights” for all mankind, including protection against arbitrary detention and prohibition of “cruel and unusual punishment.”
Which is why it was stunning to watch the June 26 hearing before the House Judiciary subcommittee on the Constitution as two representatives of George W. Bush’s presidency responded with disdain when pressed on the administration’s extraordinary vision of an all-powerful Executive operating without legal limits.
While Vice President Dick Cheney’s chief of staff David Addington treated the committee Democrats with haughty contempt, former State Department lawyer John Yoo expressed the ultimate arrogance of power with his muddled responses and evasions of direct questions.
The soft-spoken Yoo, who authored some of the key legal opinions justifying the abuse of detainees, wouldn’t even give a clear answer to the simple question of what atrocity might be beyond President Bush’s power to inflict.
Rep. John Conyers, D-Michigan, cited a news report quoting an ambiguous response from Yoo, who is now a law professor at the University of California at Berkeley, about whether the President could torture the child of a “war on terror” suspect to induce the suspect to talk.
The Judiciary Committee chairman asked: “Is there anything, Professor Yoo, the President cannot order to be done to a suspect if he believes it’s necessary for national defense?”
When Yoo dissembled, Conyers posed the question more pointedly: “Could the President order a suspect buried alive?”
Yoo continued to fence with the congressman, avoiding a direct answer.
“I don’t think I ever gave advice that the President could bury somebody alive,” Yoo said, adding he believed that “no American President would ever have to order that or feel it necessary to order that.”
Pointedly, however, Yoo avoided a direct response to the question of whether he believed the President had the authority to do it.
Later in the hearing, Rep. Steve Cohen, D-Tennessee, returned to the administration’s legal theories that Bush holds “plenary” – or unlimited – power at a time of war and that the President’s motivation, i.e. protecting the country, justifies taking extreme actions.
“So, if I want to take somebody’s fingernails out if I think it’s for the good of the country, that’s not torture?” Cohen asked. “If I want to cut someone’s appendage off, it’s okay as long as I think it’s important for the country? ...
“Is there anything you think the President cannot order in terms of interrogation of these prisoners in a state of war?”
Again, dodging a direct answer, Yoo responded that those examples “are not addressed in these memos. ... I would say there are things I don’t think any American President would order in order to protect the national security and one of those things is the torture of detainees.”
At this point, Rep. Jerrold Nadler, D-New York, subcommittee chairman, interrupted:
“This is the second time today ... that you’ve said that you don’t believe an American President would order certain heinous acts. Would you answer the question, not would he order it, but could he order it under the law in your opinion?”
Yoo responded, “It’s not fair to ask that question without any kind of facts,” prompting Nadler to rephrase the question again:
“There’s nothing conceivable to which you could answer ‘no’ that an American President could not order this without knowing facts and context?”
Yoo: “I can’t agree with that because you are trying to put words in my mouth attempting to get me to answer some broad question covering all circumstances and I can’t do that.”
Though refusing to answer, Yoo reaffirmed – through his circumlocution – what has been a central tenet of Bush’s view of presidential power, that there are no limits to his power for the duration of the “war on terror,” even though it is a vague conflict that has no definable end and that is fought on a global battlefield including U.S. territory.
In other words, it is the opinion of the right-wing lawyers who have constructed this legal theory that Bush truly can do whatever he wants to whomever he wants anywhere in the world as long as he couches his actions under his Commander-in-Chief authority.
And when it comes to torture, other word games come into play, such as categorizing “waterboarding,” a form of simulated drowning that has been regarded as torture for centuries, as something other than torture. Reality is all in the eye of the all-powerful President.
Though this right-wing concept of unlimited presidential power appeals to some Americans who consider their personal safety more important than the Constitution and the Bill of Rights, it is so radical a break with American traditions that even its chief advocates, such as Yoo and Addington, duck and weave when the questions are presented directly.
This theory of an all-powerful President now is at stake in Election 2008, as was made clear after the Supreme Court ruled, 5-4, on June 12 that the administration couldn’t deny habeas corpus rights to detainees at the U.S. Naval Base at Guantanamo Bay, Cuba, some of whom have been held as long as six years.
In his dissent, right-wing Justice Antonin Scalia not only challenged the majority’s legal arguments but pushed the emotional hot button that by recognizing this ancient right for challenging a government’s power to imprison someone, the Supreme Court was putting Americans in danger.
The ruling, Scalia said, “will almost certainly cause more Americans to be killed.” Three other right-wing justices – Clarence Thomas, John Roberts and Samuel Alito – concurred in Scalia’s dissent.
Reacting to the Supreme Court, Republican presidential candidate John McCain backed the right-wing minority and called the majority's ruling “one of the worst decisions in the history of this country.”
By contrast, Democratic presidential candidate Barack Obama sided with the majority, calling habeas rights for detainees “an important step toward reestablishing our credibility as a nation committed to the rule of law.”
If elected, McCain has vowed to appoint more justices like Roberts and Alito – George W. Bush’s choices – meaning that if a President McCain gets to replace one of the five majority justices, the new court might well reinterpret the Constitution to legalize an all-powerful President who can act much like ancient kings once did.
Then, if a President thinks that it might be a good idea to torture someone’s child or bury somebody alive, the questions about the limits of his authority might not be hypothetical anymore.
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This story was published on June 27, 2008.