Wednesday, March 04, 2009

At Least There Is Light

They say light is the best disinfectant. I hope that's true, because that might be the only thing that really is brought to bear on the legal abuses of the Bush years. This week, the Department of Justice released a series of memos written in the wake of 9/11, and only repudiated just before Bush left office, that essentially rewrote the Constitution. Actually, "rewrite" is too kind of a euphamism. Shit upon and ripped apart is a more apt description.

Take, for example, one entitled "Authority for Use of Military Force to Combat Terrorist Activities Within the U.S," authored by Assistant Attorney General John Yoo and Justice Special Counsel Robert Delahunty. Glenn Greenwald sums it up:

The essence of this document was to declare that George Bush had the authority (a) to deploy the U.S. military inside the U.S., (b) directed at foreign nationals and U.S. citizens alike; (c) unconstrained by any Constitutional limits, including those of the First, Fourth and Fifth Amendments. It was nothing less than an explicit decree that, when it comes to Presidential power, the Bill of Rights was suspended, even on U.S. soil and as applied to U.S. citizens. And it wasn't only a decree that existed in theory; this secret proclamation that the Fourth Amendment was inapplicable to what the document calls "domestic military operations" was, among other things, the basis on which Bush ordered the NSA, an arm of the U.S. military, to turn inwards and begin spying -- in secret and with no oversight -- on the electronic communications (telephone calls and emails) of U.S. citizens on U.S. soil.
Emphasis Glenn's. Jack Balkin's assessment is even more stark:
The President, because he is President, may do whatever he thinks is necessary, even in the domestic context, if he acts for military and national security reasons in his capacity as Commander in Chief. This theory of presidential power argues, in essence, that when the President acts in his capacity as Commander-in-Chief, he may make his own rules and cannot be bound by Congressional laws to the contrary. This is a theory of presidential dictatorship.
The scope of what Bush sought, and the legal lemmings gave him, is frightening.

Obama and AG Eric Holder should be commended for releasing these documents and giving them the full airing they deserve. Unfortunately, that light may mean little if Obama continues to rely on Bush's legal positions in court, where the rubber meets the road. As Greenwald has repeatedly observed, the new look DoJ sounds an awful lot like the old one.

The most shocking part of all this, as an attorney, is that lawyers like Yoo and Delahunty signed off on whatever overreach the adminstration sought. When I joined the bar a decade ago, I had to affirm that:
I will support the Constitution of the United States and the Constitution of the State of West Virginia; that I will honestly demean myself in the practice of law; and, to the best of my ability, execute my office of attorney-at-law;
Yoo and his compatriots had to do the same or similar. Our job is to protect the Constitution, not help our clients wipe it away like a bad suggestion left on a school blackboard. It's what being "an officer of the court" is all about. Yoo and his ilk violated that affirmation and the trust that goes along with it. As Balkin points out:
These views are outrageous and inconsistent with basic principles of the Constitution as well as with two centuries of legal precedents.
This wasn't imcompetence, it was malice. I'm ashamed to share my profession with them.

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