No Comment — March 3, 2009, 7:16 am

George W. Bush’s Disposable Constitution

Yesterday the Obama Administration released a series of nine previously secret legal opinions crafted by the Office of Legal Counsel to enhance the presidential powers of George W. Bush. Perhaps the most astonishing of these memos was one crafted by University of California at Berkeley law professor John Yoo. He concluded that in wartime, the President was freed from the constraints of the Bill of Rights with respect to anything he chose to label as a counterterrorism operations inside the United States.

Here’s Neil Lewis’s summary in the New York Times:

“The law has recognized that force (including deadly force) may be legitimately used in self-defense,” Mr. Yoo and Mr. Delahunty wrote to Mr. Gonzales. Therefore any objections based on the Fourth Amendment’s ban on unreasonable searches are swept away, they said, since any possible privacy offense resulting from such a search is a lesser matter than any injury from deadly force. The Oct. 23 memorandum also said that “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” It added that “the current campaign against terrorism may require even broader exercises of federal power domestically.”

John Yoo’s Constitution is unlike any other I have ever seen. It seems to consist of one clause: appointing the President as commander-in-chief. The rest of the Constitution was apparently printed in disappearing ink.

We need to know how the memo was used. Bradbury suggests it was not much relied upon; I don’t believe that for a second. Moreover Bradbury’s decision to wait to the very end before repealing it suggests that someone in the Bush hierarchy was keen on having it.

It’s pretty clear that it served several purposes. Clearly it was designed to authorize sweeping warrantless surveillance by military agencies such as the Defense Intelligence Agency and the National Security Agency. Using special new surveillance programs that required the collaboration of telecommunications and Internet service providers, these agencies were sweeping through the emails, IMs, faxes, and phone calls of tens of millions of Americans. Clearly such unlawful surveillance occurred. But the language of the memos suggest that much more was afoot, including the deployment of military units and military police powers on American soil. These memos suggest that John Yoo found a way to treat the Posse Comitatus Act as suspended.

These memos gave the President the ability to authorize the torture of persons held at secret overseas sites. And they dealt in great detail with the plight of Jose Padilla, an American citizen seized at O’Hare Airport. Padilla was accused of being involved in a plot to make and detonate a “dirty bomb,” but at trial it turned out that the Bush Administration had no evidence to stand behind its sensational accusations. Evidently it was just fine to hold Padilla incommunicado, deny him access to counsel and torture him–in the view of the Bush OLC lawyers, that is.

Among these memos was one for the files from Steven Bradbury, whom the Senate refused to confirm to run OLC, but who continued as a squatter in the position through the end of the Bush Administration. In his memo, the self-styled OLC head rejected a series of John Yoo-authored memos, noting the painfully obvious reasons why they were incorrect (for instance, Yoo’s penchant for misquoting the Constitution). He did this on January 15, 2009—as he was clearing his desk and preparing to hunt for a new job. So why did he leave the ridiculous Yoo memos in place until the last possible second? Michael Isikoff furnishes a very plausible analysis on MSNBC:

We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship. The constitutional rights we learned about in high school civics were suspended. That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution. What we know now is likely the least of it.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 165 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

March 2017

City of Gilt

= Subscribers only.
Sign in here.
Subscribe here.

Tyranny of the Minority

= Subscribers only.
Sign in here.
Subscribe here.

Texas is the Future

= Subscribers only.
Sign in here.
Subscribe here.

Family Values

= Subscribers only.
Sign in here.
Subscribe here.

Itchy Nose

= Subscribers only.
Sign in here.
Subscribe here.

Black Like Who?

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Texas is the Future·

= Subscribers only.
Sign in here.
Subscribe here.

I first heard the name Barack Obama in the spring of 2004, while visiting my mother in Chicago. As we sat around the kitchen table early one spring morning, I noticed a handsome studio portrait among the pictures, lists, cards, and other totems of family life fastened to the refrigerator door. “Who’s the guy with the ears?” I asked, assuming he was some distant relative or family friend I didn’t know or else had forgotten. “Barack Obama,” she answered with a broad smile. “He’s running for Senate, but he’s going to be the first black president.”

Illustration (detail) by John Ritter
Post
The Forty-Fifth President·

= Subscribers only.
Sign in here.
Subscribe here.

I first heard the name Barack Obama in the spring of 2004, while visiting my mother in Chicago. As we sat around the kitchen table early one spring morning, I noticed a handsome studio portrait among the pictures, lists, cards, and other totems of family life fastened to the refrigerator door. “Who’s the guy with the ears?” I asked, assuming he was some distant relative or family friend I didn’t know or else had forgotten. “Barack Obama,” she answered with a broad smile. “He’s running for Senate, but he’s going to be the first black president.”

Photograph (detail) by Philip Montgomery
Article
Itchy Nose·

= Subscribers only.
Sign in here.
Subscribe here.

I first heard the name Barack Obama in the spring of 2004, while visiting my mother in Chicago. As we sat around the kitchen table early one spring morning, I noticed a handsome studio portrait among the pictures, lists, cards, and other totems of family life fastened to the refrigerator door. “Who’s the guy with the ears?” I asked, assuming he was some distant relative or family friend I didn’t know or else had forgotten. “Barack Obama,” she answered with a broad smile. “He’s running for Senate, but he’s going to be the first black president.”

Artwork (detail) © The Kazuto Tatsuta/Kodansha Ltd
Article
A Matter of Life·

= Subscribers only.
Sign in here.
Subscribe here.

I first heard the name Barack Obama in the spring of 2004, while visiting my mother in Chicago. As we sat around the kitchen table early one spring morning, I noticed a handsome studio portrait among the pictures, lists, cards, and other totems of family life fastened to the refrigerator door. “Who’s the guy with the ears?” I asked, assuming he was some distant relative or family friend I didn’t know or else had forgotten. “Barack Obama,” she answered with a broad smile. “He’s running for Senate, but he’s going to be the first black president.”

Photograph (detail) by Edwin Tse
Article
Black Like Who?·

= Subscribers only.
Sign in here.
Subscribe here.

I first heard the name Barack Obama in the spring of 2004, while visiting my mother in Chicago. As we sat around the kitchen table early one spring morning, I noticed a handsome studio portrait among the pictures, lists, cards, and other totems of family life fastened to the refrigerator door. “Who’s the guy with the ears?” I asked, assuming he was some distant relative or family friend I didn’t know or else had forgotten. “Barack Obama,” she answered with a broad smile. “He’s running for Senate, but he’s going to be the first black president.”

Photograph © Jon Lowenstein/NOOR

Ratio of the average cost of a gallon of gas in Britain last September to that of a gallon of Starbucks coffee:

1:4

The faculty of embarrassment was located in the pregenual anterior cingulate cortex by neurologists who made brain-damaged subjects sing along to “My Girl” and then listen to their own singing played back without musical accompaniment.

Greece evacuated 72,000 people from the town of Thessaloniki while an undetonated World War II–era bomb was excavated from beneath a gas station.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Who Goes Nazi?

= Subscribers only.
Sign in here.
Subscribe here.

By

"It is an interesting and somewhat macabre parlor game to play at a large gathering of one’s acquaintances: to speculate who in a showdown would go Nazi. By now, I think I know. I have gone through the experience many times—in Germany, in Austria, and in France. I have come to know the types: the born Nazis, the Nazis whom democracy itself has created, the certain-to-be fellow-travelers. And I also know those who never, under any conceivable circumstances, would become Nazis."

Subscribe Today