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Tim Rutten

Back from the brink of executive tyranny

Vice President Dick Cheney and Secretary of Defense Donald Rumsfeld brought to the Bush administration an abiding conviction that, since the Ford administration in which they both had served, U.S. presidents had suffered a disastrous erosion of executive power.

Just how close to the brink of executive tyranny did the United States come in the panic that swept George W. Bush's administration after 9/11? The answer, it now seems clear, is that we came far closer than even staunch critics of the White House believed.

On Monday, Barack Obama's administration released nine legal opinions produced for the Bush White House by the Justice Department's Office of Legal Counsel shortly after the attacks on the World Trade Center and the Pentagon. That heretofore obscure office essentially serves as the president's arbiter of what's legal and what isn't. Among other things, the memorandums issued by the office in 2001 asserted that Bush had the power to order the military to capture terrorism suspects on U.S. soil and to treat them as enemy combatants without any rights to due process.

In the course of such operations, according to the Office of Legal Counsel, the military was free to ignore Fourth Amendment prohibitions on illegal search and seizure and to engage in warrantless wiretapping. First Amendment protections of free speech also could be suspended at the chief executive's directive, according to these opinions, and the president has the power to abrogate any international treaty at will.

Other opinions asserted that the president, acting under his inherent powers as commander in chief, is free to ignore laws passed by Congress and cases decided by the U.S. Supreme Court, particularly on the treatment of "detainees."

An opinion sent to the White House on Oct. 23, 2001, flatly stated that First Amendment "speech and press rights may also be subordinated to the overriding need to wage war successfully. … The current campaign against terrorism may require even broader exercises of federal power domestically." Less than a year later, this same office advised Bush that he was free to authorize the torture of terrorism suspects.

These opinions were largely the work of John Yoo and a relatively small cadre of like-minded conservative lawyers. Many were passionate advocates of a marginal constitutional theory called "unitary executive," which holds that — when it comes to matters of national security — the president is free to exercise virtually unfettered powers as an inherent aspect of his constitutional duty to act as commander in chief.

Suffice it to say that the arguments and precedents marshaled on behalf of this notion about the balance of powers give new weight to the adjective "attenuated." In fact, what comes most readily to mind is the style of Talmudic argument called pilpul, in which texts and precedents are tortured out of context to arrive at a predetermined conclusion.

That, however, never bothered then-Vice President Dick Cheney and his ally, then-Secretary of Defense Donald Rumsfeld, who brought to the Bush administration an abiding conviction that, since the Ford administration in which they both had served, U.S. presidents had suffered a disastrous erosion of executive power. Both had become proponents of the unitary executive theory during their years out of power.

Cheney and Rumsfeld understood that a few well-placed zealots with hands on critical levers — such as those in the Office of Legal Counsel — can send even the federal government spinning in new directions.

They came perilously close to doing that in the frantic and fearful months after 9/11, though the record must reflect that their first and firmest opponents were other conservative lawyers who found what was being proposed horrifying. Jack Goldsmith, who headed the Office of Legal Counsel after Yoo and who repudiated many of the office's opinions, was one of those. So too was then-Attorney General John Ashcroft.

Understanding how all this occurred, as well as how the CIA came to destroy 92 videotapes of the torture and incarceration it carried out under the authority of the Yoo memos, is vital. The problem is that ordinary congressional hearings would inevitably be attacked as partisan. And we don't need a witch-hunt or a series of prosecutions of CIA officers who were following orders they'd been told were based on legal opinions from the Justice Department.

That's why Congress should take up the suggestion of Sen. Patrick Leahy, D-Vt., and establish a bipartisan citizens commission to investigate and report on exactly what occurred. We need to understand just how close fear and overweening ambition took us to executive tyranny.

Vice President Dick Cheney Secretary of Defense Donald H. Rumsfeld brought to the Bush administration an abiding conviction that, since the Ford administration in which they both had served, U.S. presidents had suffered a disastrous erosion of executive power.

Back from the brink of executive tyranny 03/05/09 [Last modified: Thursday, March 5, 2009 7:07pm]

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