Tuesday, November 11, 2008

On Veteran's Day

Photo: Pablo Martinez Monsivais/Associated Press
In honor of Veteran's Day, I think it's important to reflect on what led us to invade Iraq and what a complete cluster fuck it became in the hands of an administration that was more concerned with ideology and fear-mongering.

The war is just one example of the Bush Administration's systematic and arrogant refusal to follow the international law or even the Constitution of the United States or accept any dissent, even from their own people.

One thing that should not be overlooked when examining the Bush Administration is to understand that its critics are not just left-wing radical crazies and Democrats. A good number of the Administration's critics -- especially the ones who spoke up against the secret detention and interrogation program and the black sites and Gitmo came from insider the Administration. They were Conservative lawyers who found themselves morally opposed to the Bush policies. A host of others spoke up as well, many at the risk of their careers in public service, including experienced military, intelligence and law-enforcement people. In fact, it is a fact that the upper levels of the White House, including Bush himself, were warned early on that what they were doing was not only wrong and politically stupid but possibly criminal. And yet, they pushed forward because they were convinced they were right.

It's curious for me to hear the Conservative wingnuts call President-elect Barack Obama (shown above embracing Iraq War Veteran Tammy Duckworth) a socialist, Marxist and a man who would endanger the rights of Americans. It's curious because this is exactly what's been happening under George W. Bush. I wonder what your average American might think if they discovered that since 9/11, the Bush White House has enacted laws, sometimes without any oversight or input from anyone who remotely disagreed with them, including consent or dissent from the American public, that would allow the President of the United States to kidnap, torture and indefinitely detain any person deemed an enemy of the United States, even American citizens.

I'm not making that up either. It's freaking true.

Consider for example, the 2003 so-called "Torture Memo" written by John Yoo. In this 81-page outrageous and amateurishly argued legal memo Yoo (pronounced You) -- a lawyer in the Bush White House’s Office of Legal Counsel (more on the OLC later) – contends without any sense of irony, the following (taken verbatim from the memo):

"Any effort by Congress to regulate the interrogation of enemy combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President....Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield."

I know it’s hard to believe that a trained lawyer made this argument but there it is in black and white. The scope of the memo frightening -- for anyone who lives under a democratic government. Yoo matter-of-factly (and quite incorrectly) interprets the U.S. Constitution as giving the President virtually unlimited powers in wartime, saying that the President alone has the right to do whatever he wants even to enemies, whether they are inside the United States or not, and that said actions should be unfettered by any laws, domestic or international. Nor by any treaties even those signed by former Presidents, not by Congress, not even by the Constitution.

Unfortunately, this was not an isolated memo, a single error by a radical member of the Bush White House.

As brilliantly detailed in Jane Mayer's recent book, “The Dark Side: The Inside Story About How the War on Terror Turned into a War on American Ideals,” this type of reasoning is at the foundation of the Unitary Executive Theory, a philosophy espoused by Vice President Dick Cheney for years and one which he publicly and privately supported and then actively tried to enforce in post 9/11 America. Among its major proponents were David Addington, the Vice President’s chief of staff and recently confirmed Supreme Court Justice Samuel Alito.

This theory, refined during the Reagan administration, is that where the Constitution vests power in the executive, especially power over foreign affairs and war, the president, as chief executive, is rightfully immune to legislative abridgements of his autonomy. Judicial abridgements are another matter.
Those words were not spoke by what Addington might refer to as a "squishy" Liberal, but by Conservative columnist George Will, who also wrote in the same article condemning other righties belief in the theory:

"Because contemporary conservatism was born partly in reaction against two liberal presidents -- against FDR's New Deal and LBJ's Great Society -- conservatives, who used to fear concentrations of unchecked power, valued Congress as a bridle on strong chief executives. But, disoriented by their reverence for Reagan, and sedated by Republican victories in seven of the last 10 presidential elections, many conservatives have not just become comfortable with the idea of a strong president, they have embraced the theory of the "unitary executive."
The Yoo Memo and dozens of others issued by the White House OLC, were clear attempts by the Bush Administration to use the Unitary Executive Theory as a legal umbrella to justify giving the President unprecedented authority to, among other things, torture, secretly detain and deny basic legal rights to terrorism suspects, despite being in direct violation of U.S. and international law. (I highlighted suspects because in this country, being arrested and accused of a crime does not make you guilty of that crime. We actually take into account a person might actually be innocent, not something the Bushies dwelt on, apparently. And it should be understood as well that even American citizens could be classified as enemy combatants and treated as such, meaning they would have no rights under Habeas Corpus or any other such quaint legal protections.)

To put this stuff into the right perspective, consider the historical role and importance of the Office of Legal Counsel.

In Mayer's book, she explains:

"The OLC plays a unique role in the federal government. Sometimes referred to as the Attorney General’s law firm, its small but often brilliant staff of lawyers, many of whom are political appointees, issue opinions that are legally binding on the rest of the executive branch. If the OLC interprets the law in a certain way, unless the attorney general overrules it, the government must too. If the OLC says a previously outlawed practice, such as waterboarding, is legal, it is nearly impossible to prosecute U.S. Officials who followed that advice on good faith. As Jack Goldsmith, who headed the OLC in 2003, put it, OLC memos were virtual ‘golden shields.” The office wields “one of the momentous, and dangerous powers in the government: the power to dispense get-out-of-jail-free cards.” At the same time, OLC decisions also stripped dissenters of the ability to make opposing legal arguments ...”

The last part of this is significant because it goes to the heart of the way Bush governed this nation. These opinions were almost entirely made in secret by unelected officials -- five lawyers who called themselves “the War Counsel” – without for the most part the input or consent of Congress or even the Pentagon, CIA or FBI. These five men – Yoo, Addington, Timothy Flanigan, Alberto Gonzales and William Haynes had almost no experience in counterterrorism, law enforcement or even a rudimentary understanding of Islamic fundamentalism or the Muslim world. None of them had any real-world military experience. These were the men who were making post-9/11 policy – they were literally running the war on terror.

As Mayer goes on to argue, the policies of the Bush Administration were in direct conflict with the ideals set by men such as John Adams, Benjamin Franklin and Thomas Jefferson. These men were deeply influenced by the ideals of the European Enlightenment, the very ideals which inspired the first Americans to rise up against the tyranny of the British King. No sane person could argue that it was not the express and clear goal of the Founding Fathers to create a new kind of government that would ensure that the executive would not and could not claim sole power over the government and its people. And further, that he be limited by specific checks and balances those that reside in the hands of the judiciary (courts) and legislative (congress) branches. The single most important argument against the Unitary Executive Theory, which at its core is a direct assault on the very idea that is the United States of America.

The basis for the Bill of Rights can be found in the writings of Cesare Beccaria, specifically his groundbreaking work “On Crime and Punishments” which men such as Jefferson and Franklin had read and deeply admired. They saw its tenets as the building blocks of a democratic nation, on which it would have to stand to survive as a place that was truly free from tyranny and oppression. This is where they got the basis for the Fifth (against self-incrimination) and Eighth (a ban cruel and unusual punishment) amendments come from.

These are not mere ideals to be admired in history class or in a dusty document in the Library of Congress. They are time-tested principals that have set the standard for any nation hoping to be a true democracy.

Our belief in liberty has inspired not only the American people but other nations around the world. It was America, after all, that led the movement that championed the Geneva Conventions and later the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, or the CAT for short. There is no confusing legal mumbo jumbo about the CAT. It bans torture absolutely, under any circumstances. It leaves no question whatsoever as to the legality of torture, forbidding it completely and without reservation by any nation or nation’s representatives. There are no loopholes. The CAT was signed by the United States and it is therefore bound by its contents.

But Bush and Cheney, using their own lawyers and I say again WITHOUT THE CONSENT OR DISSENT OF THE AMERICAN PEOPLE, signed and/or approved legally-binding documents. It’s significant that they did not allow or apparently trust the people who elected them, to have a frank, open dialogue on any of this shit. While other Presidents have been guilty of trying to expand their authority and of making policy in secret, it could be argued that none have gone so far or claimed as much unfettered, broad-reaching, unabated power as this administration. What they have done is criminal.

There is no mistaking their attempt to circumvent U.S. and International laws, no arguing they did it in secret and did not in many cases even accept input from Bush’s own cabinet. It is a fact that they not only authorized the capture, torture and secret detainment of suspected terrorists but they actually committed these barbaric acts in the name of the United States.

And even if you make the argument that terrorists deserve to be tortured, you must also note that many of the suspects tortured and detained secretly by the U.S. were later found to be innocent or were simple released, no charges ever having been filed against them.

Beyond the Bush Administration’s obvious disregard for basic human rights, the violations of the Geneva Conventions and the clear and secretive end run around the U.S. Constitution, the War on Terror has been an epic failure.

Worse, it has made the world less safe.

On Veteran's Day, let's consider those real-world consequences. If the United States of America, the shining example of freedom, tolerance and democratic ideals around the world, can torture suspected enemies, imprison them in secret, deny them basic human and legal rights without cause, even kill them, where exactly does that leave other nations? Why, for example, would our enemies follow the Geneva Conventions or the CAT, now that they know that our President doesn’t think it applies to him and by extension to anyone he deems as an enemy?

What do you suppose will happen, to U.S. military, intelligence or law enforcement personnel -- even innocent Americans abroad – when (not if) they are detained by a foreign country and accused of a crime?

What possible footing would the U.S. Government have to protest such an arrest by arguing that the treatment violates international law, the detainee's civil rights, habeas corpus and basic human decency -- when it denied those same rights to others, with impunity and without regard or consequence?

What then?

There is a standard for decency that has been championed by this nation from its first hours on Earth. And despite dark moments when we have abdicated our responsibility to uphold our core values of liberty and freedom, we have managed to hold onto our nation's soul. But Bush and Cheney and their lawyers, along with their legions of sychophants, sold our ideals down a river of fear and arrogance and in the name of national security, all while making us less secure and more like our enemy. They claimed to defend our most precious ideals, while at the same time believing they those ideals did not apply to them. These so-called patriots diminished America and everything it stood for.

Anyone who argues that Obama will take away our rights might want to take a look at the rights they lost over the past seven years.

No comments: