It really is tough to continue to work up outrage at the maniacs running the country, even for the worst of their misdeeds:
I want to second Dahlia's frustration with those who don't see the newly released Office of Legal Counsel (OLC) torture memo as a big deal. Where is the outrage, the public outcry?! The shockingly flawed content of this memo, the deficient processes that led to its issuance, the horrific acts it encouraged, the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it--all demand our outrage.
Yes, we've seen much of it before. And yes, we are counting down the remaining months. But we must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power. Otherwise, our own deep cynicism, about the possibility for a President and presidential lawyers to respect legal constraints, itself will threaten the rule of law--and not just for the remaining nine months of this administration, but for years and administrations to come.
Dahlia's aptly summarizes this just-released memo's constitutional conclusion: "if the president authorizes it, it isn't illegal."
OLC, the office entrusted with making sure the President obeys the law instead here told the President that in fighting the war on terror, he is not bound by the laws Congress has enacted. That Congress lacks the authority to regulate the interrogation and treatment of enemy combatants. The earlier-leaked 2002 OLC torture memo said the same in connection with the CIA (a program the Bush administration sought to reassure us was extremely limited and controlled). Here, the military is the group exempt from the laws.
One striking example of the memo's plainly flawed reasoning: In an 81-page memo, Yoo relegates to a footnote (footnote 13) and then quickly dismisses the clearly correct counter-argument that Congress may regulate interrogations under its constitutional authority to "make Rules for the Government and Regulation of the land and naval Forces." His only support to the contrary is another still-secret OLC Bush administration memo, issued just the year before, that concluded Congress "cannot ... make rules for the Armed Forces to regulate military commissions." If Congress cannot regulate military commissions, Yoo argues, it cannot regulate interrogations. Of course, the Supreme Court in Hamdan has since held that not only does Congress have the authority to regulate military commissions, it had regulated them to render Bush's military commissions unlawful.
John Yoo, the memo's author, has the gall to continue to defend the legal reasoning in this memo, in the face even of Bush administration OLC head Jack Goldsmith's harsh criticism--and withdrawal--of the memo. Not only that, Yoo attempts to spin the memo's advice on presidential power as "near boilerplate:" "Far from inventing some novel interpretations of the Constitution, our legal advice to the President, in fact, was near boilerplate."
I served at OLC for 5 years, including in the very position Yoo held and then later as its head (as acting assistant attorney general from 1997-98) and I have studied OLC and presidential power for the 10 years since. I know (many of us know) Yoo's statement to be false. And not merely false, but irresponsibly and dangerously false in a way that impugns OLC's integrity over time and threatens to undermine public faith in the possibility that any administration can be expected to adhere to the rule of law.
Far from "near boilerplate," recall that the last President who took the view that "when the President does it that means that it is not illegal" was forced to resign in disgrace.
At this point we could learn Bush and Cheney were personally eating live Muslim children as snacks and you'd get a day or two of glowing coverage from Fox News and "both sides of the controversy" from CNN. And of course no one "serious" would suggest impeachment as an appropriate punishment - that's best saved for 'high crimes' like blowjobs. Certainly not for minor infractions like declaring yourself dictator of the United States in all but name
At least we still have hope for a good old fashioned war crimes trial:
It would be wrong to consider the prospect of legal jeopardy unlikely. I remember sitting in the House of Lords during the landmark Pinochet case, back in 1999—in which a prosecutor was seeking the extradition to Spain of the former Chilean head of state for torture and other international crimes—and being told by one of his key advisers that they had never expected the torture convention to lead to the former president of Chile’s loss of legal immunity. In my efforts to get to the heart of this story, and its possible consequences, I visited a judge and a prosecutor in a major European city, and guided them through all the materials pertaining to the Guantánamo case. The judge and prosecutor were particularly struck by the immunity from prosecution provided by the Military Commissions Act. “That is very stupid,” said the prosecutor, explaining that it would make it much easier for investigators outside the United States to argue that possible war crimes would never be addressed by the justice system in the home country—one of the trip wires enabling foreign courts to intervene. For some of those involved in the Guantánamo decisions, prudence may well dictate a more cautious approach to international travel. And for some the future may hold a tap on the shoulder.
“It’s a matter of time,” the judge observed. “These things take time.” As I gathered my papers, he looked up and said, “And then something unexpected happens, when one of these lawyers travels to the wrong place.”
