War is Holy, This I Know -- For Dear Leader Tells Me So

Ed Schultz's ancestor, celebrating the Anschluss? "He's my Leader! That's all I need to know!"

 "I take President Obama's word for it that troops will not be engaged on the ground," eructated MSNBC's Ed Schultz, rebuking investigative reporter Jeremy Scahill for fomenting doubts about the wisdom of the Dear Leader's war in Libya. When Scahill made a passing reference to "your President Obama," Schultz morphed into a portlier, more articulate version of Sean Hannity: "`My' President Obama? Is he your president, too? Jeremy, is he your president, too?"

 

A suitable response to hectoring of this kind from a certified cultist would be the following:


"I am not a member of the U.S. military, which means that I do not have a commander-in-chief. I am not an employee of the executive branch of the federal government, which means that the occupant of the White House is not my supervisor. Mr. Obama does not preside over me in any sense that I recognize. To the extent we have any relationship at all, Mr. Obama should be considered my subordinate, one of the hired help. He certainly doesn't have any moral or legal standing to pretend that he can order me to do anything, and if I had the opportunity I would place him under citizen's arrest for his crimes against the Constitution, individual liberty, and the peace of nations -- of which his criminal assault on Libya is the most recent but hardly the only example."
 
There was a time, perhaps five of six years ago, when Ed Schultz was a genuinely independent radio commentator of a left-leaning populist bent. I doubt that the Ed Schultz of 2005 would recognize the triple-jointed sycophant who began the segment with Scahill by utterling the following homily on the theme of the Leader Principle: "This isn't Bush-talk, this is totally different from Iraq.... The president has gone on record saying that Libyan agents have killed Americans -- that's all as an American I need to hear; let's get it done."



The doctrine of citizenship-as-submission to the Dear Leader's divine will is indeed "Bush talk" of the most obnoxious variety. It was preached with remarkable clarity during a July 11, 2006 exchange between Senator Patrick Leahy (D-Vermont) and Steven Bradbury, at the time head of the Office of Legal Counsel for the "Justice" Department.

At issue was the Wee Emperor's deliberate misrepresentation of the Hamdan v. Rumsfeld decision, which did impose some trivial (and largely ignored) restrictions on the treatment of the detainees who are held illegally at the prison camp in Guantanamo Bay. Bradbury insisted that because the Hamdan ruling "does implicitly recognize we're in a war," it effectively authorizes the president to do anything he wants to anyone of his choosing, since such decisions are supposedly permissible "under the law of war."

Leahy pointed out that the Hamdan decision -- whatever its faults -- explicitly rejected the Bush administration's claim of illimitable war powers, and upbraided the OLC for giving Bush the "cockamamie idea" that such a claim had been validated in that ruling.

"Was the president right or was he wrong?" Leahy demanded of Bradbury.

"The president is always right," oozed Bradbury in reply.

The Leader speaks, the Leader lies.

 The instrument has yet to be invented that can identify a substantive difference between Bradbury's statement and Ed Schultz's insistence that an unsupported presidential assertion is sufficient authority to justify an aggressive war. 

A slightly less acute version of the same leader-cult mentality was exhibited by Kevin Drum of Mother Jones magazine. Drum's endorsement of Obama's illegal war in Libya rests heavily on what I've come to call the Gnostic Fallacy -- namely, that the president is invested with prophetic powers giving him wisdom and insight mere mortals don't possess:


"If it had been my call, I wouldn't have gone into Libya. But the reason I voted for Obama in 2008 is because I trust his judgment. And not in any merely abstract way, either: I mean that if he and I were in a room and disagreed about some issue on which I had any doubt at all, I'd literally trust his judgment over my own. I think he's smarter than me, better informed, better able to understand the consequences of his actions, and more farsighted. I voted for him because I trust his judgment, and I still do."

In matters of power, Thomas Jefferson advised, "let us hear no more of confidence in man, but bind him down from mischief by the chains of the Constitution." Modern collectivists, of both the Red State Fascist and Blue State Bombardier varieties, insist that the president himself is the Living Constitution, and that our duty is to make his will our law -- as long as their respective faction controls the White House, of course.

Bradbury, Schultz, and Drum reiterated a doctrine of executive authority under which the Leader "shapes the collective will of the people within himself," and his subjects are "bound to [him] in loyalty and obedience. The authority of the [Leader] is not limited by checks and controls ... but it is free and independent, all-inclusive and unlimited."

Leader Worship, circa 2003...

This, of course, was the official definition of Fuhrerprinzip -- the "Leader Principle," as found in The Organization Book of the National Socialist Workers Party. It is also a bedrock organizing principle of the National (or, since 2002, the Homeland) Security State.



John Yoo, the unindicted war criminal who composed most of the key memoranda outlining the Bush administration's doctrine of unlimited presidential war powers, has conferred his blessing on Obama's war in Libya. It is Yoo's position is that while it is wise for a president to seek political support from Congress, he doesn't need that body's "constitutional permission" to commit the U.S. government to war.

A few days after Yoo endorsed Obama's war, Senator Carl Levin (D-Michigan), chairman of the Senate Armed Services Committee, suggested that Congress should consider a resolution "authorizing" the war. Unless Levin has access to Doc Brown's flux capacitor-equipped DeLorean, what he is proposing is a purely Orwellian exercise in "rectifying" the record to conform to Dear Leader's will.

“I’m interested in a vote authorizing military action,” Levin said on March 29 — a week and a half after the missiles had started to fly, and most likely months after CIA and Special Forces operators had been insinuated into Libya, Ed Schultz's ingenuous faith in Obama's assurances to the contrary notwithstanding. “The president said he’d welcome it and I think it would be helpful," Levin continued. "It’d show public support for the effort. And that’s always useful."

The Constitution doesn’t describe a congressional declaration of war as a “useful” gesture to ratify an ongoing military campaign; it dictates that such a declaration is mandatory before the government of the United States commits itself to military action against another country.

Were this an actual constitutional republic, public support for a formally declared war, expressed through an appropriate vote by elected representatives before the war began, would be mandatory. This is something both Obama and Biden acknowledged as Senators; in fact, Biden went so far as to describe presidential usurpation of congressional war powers as an impeachable offense. Now we’re told that a useless resolution issued well after the fact would be taken as a binding statement of “public support,” which is “useful” but materially irrelevant to the actions of our rulers.

... Leader Worship, circa 2009.

 The only material check on presidential war-making ability, according to John Yoo and people of his repulsive ilk, is the power of the purse: Congress has the ability to de-fund military operations once they have begun. 

 Of course, this creates a perverse incentive for presidents to use military personnel as hostages -- deploying them in a war zone and then indignantly accusing Congress of betraying "our gallant and intrepid heroes on the front lines, oh may they be blessed forever" if the body moves to de-fund the war. 

As if in anticipation of such action by Congress, Secretary of State Hillary Clinton -- who seems to be channeling Dick Cheney --told Rep. Brad Sherman (D-California) during a classified briefing that the administration would ignore any congressional effort intended to end, restrain, or limit the war in Libya. Some of the administration's critics have described this as a threat to violate the War Powers Act of 1973, a peculiar little enactment intended to "restrain" the power of the president to do something he isn't authorized to do at all in the first place -- namely, to wage undeclared wars abroad.

Clinton displayed a certain forthright arrogance in telling congressmen that they wouldn't be permitted to end Mr. Obama's war. However, her statement is firmly rooted in a bipartisan doctrine of totalitarian presidential war powers -- one that would likely withstand a Supreme Court challenge, given that the current Chief Justice, John Roberts, has explicitly endorsed it.

On February 19, 1984, Roberts -- at the time a special assistant to White House Counsel Fred Fielding -- wrote a memo entitled "War Powers Problem" that examined a bill conferring benefits on veterans of the Reagan administration's disastrous military venture in Lebanon. The time of service covered by that bill would run from August 20, 1982, until "the date the operation ends" -- with the latter date to be determined either by presidential proclamation or by a concurrent resolution in Congress.

 For Roberts, the idea of Congress acting to end a military conflict would be an impermissible encroachment on what he considered to be the plenary war powers of the president. "I do not think we would want to concede any definite role for Congress in termination [of] the Lebanon operation, even by joint resolution presented to the president," he wrote.

"Your memo suggests that Congress is powerless to stop a president who is going to conduct an unauthorized war," observed Senator Leahy during Roberts's September 2005 confirmation hearings. "You're saying you don't want to concede any ability to let Congress stop a war."

"Do we have the power to terminate a war?" persisted Leahy (whose zeal to restrain the imperial presidency dimmed perceptibly after January 20, 2009). "We have the power to declare war. Do we have the power to terminate war?"

Roberts took refuge in dissimulation:

"Senator, that's a question that I don't think can be answered in the abstract. You need to know the particular circumstances and exactly what the facts are and what the legislation would be like.... The argument on the executive side will rely on authority as commander in chief and whatever authorities derive from that."

Of course, under the Constitution -- which, admittedly, has no tangible relationship to the exercise of governmental power in our current system -- all of the president's war powers are derivative. This includes his temporary role as commander-in-chief of the U.S. government's military forces when called into service by Congress, which has the sole and exclusive power to declare war and to issue regulations governing the military. 

That's what the Constitution says on the matter. However, Roberts -- like all other proponents of Fuhrerprinzip -- insists that the president's war powers are "not limited by checks and controls," as the definitive expression of that doctrine put it (albeit in the original German). In fact, the Bush administration -- building on a string of precedents going back to the Vietnam War -- actually held that the president has the authority to spend un-allocated funds to continue military operations even after Congress refuses to continue appropriating money for a war.

In 2007, Congress and the White House were at loggerheads over a "supplemental" spending bill to fund the wars in Iraq and Afghanistan. Insisting that "We expect there to be no strings on our commanders," Bush threatened to veto a spending measure that called for an end to the Iraq war by no later than September 2008. 

As the impasse deepened, a fascinating proposal was offered by economics pundit Stan Collender, an executive vice president for the PR firm Burson-Marsteller -- which received some very lucrative Iraq War agitprop contracts (and, appropriately, has made a fortune  sanitizing some of the world's most hideous dictatorships). Writing in the National Journal, Collender suggested that the administration could invoke the "Feed and Forage Act of 1861" in order to permit the Pentagon to continue procuring war materiel in the absence of an actual congressional appropriation.

The Lincoln-era Feed and Forage Act, Collender insisted, "turns the federal budget world on its head. The standard procurement process is for obligations to be incurred by a federal department or agency only after an appropriation is enacted. Food [sic] and Forage allows funds to be obligated before the appropriation is in place. In other words, the deadlines the White House keeps using for the Iraq war supplemental are irrelevant. Indeed, the Pentagon may have already begun to obligate funds for this purpose while the debate on the supplemental is continuing."

An analysis of the issue published by OMB Watch pointed out that on at least a half-dozen occasions since 1968, the Feed and Forage Act was used to fund ongoing military operations. "The act gives the military, at its own discretion and in the absence of appropriations, some power to obligate the federal government to purchase goods and services during emergencies for use through the end of the fiscal year," explained the analysis. 

None of the "emergencies" described in the report involved an actual threat to the United States -- but this is entirely proper, since the text of the measure "does not expand upon conditions or circumstances that would constitute an `emergency,' relying instead on case-by-case determinations." A 1994 GAO Report entitled "Analysis of Options for Funding Contingency Operations" concluded that the Feed and Forage Act endows the Pentagon with "virtually unlimited contract authority" to purchase whatever it deems necessary to continue a war.

"With this understanding, it seems more than plausible that President Bush could use the powers in the Feed and Forage Act to sustain U.S. soldiers in Iraq and Afghanistan once other sources of funding have run out," concludes the report. This is to say that thanks to this measure -- an legacy of Abraham Lincoln's war to conquer the independent South -- the president and the Pentagon can continue to spend money in defiance of a congressional decision to de-fund a military operation.

What this means is that under present arrangements, Congress is not only denied a role in declaring war, it has no effective means of ending an undeclared war.  But this is troubling only to those heresy-riddled souls who refuse to submit to the infallible judgment of our Blessed Leader.

Obiter Dicta

My apologies for delaying the promised report on the outrageous Maryanne Godboldo case in Detroit; I'm still working on the piece, and hopefully I'll be able to publish it within the next several days.

I should acknowledge that the expression "triple-jointed sycophant," used above to describe the wretched Ed Schultz, was inspired by a line from Eric Metaxas's superb biography, Bonhoeffer: Pastor, Martyr, Prophet, Spy, which I would love to review if the opportunity presents itself.

My sincere thanks for your help in keeping Pro Libertate on-line! God bless.

Dum spiro, pugno!

Tortured by Self-Pity: The Sociopathic Judge Jay Bybee

The pious torturer: Jay Bybee, with his family and then-AG John Ashcroft.

Of those in the dock at the Nuremberg War Tribunal, Franz Schlegelberger was considered the most sympathetic, writes historian Doug Linder. In fact, he was the model for the character of Ernst Janning, the penitent German jurist portrayed by the incomparable Burt Lancaster in Judgment at Nuremberg.

 ***

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From 1931-1942, Judge Schlegelberger worked in the German Ministry of Justice, which was intended to be the institutional guardian of the rule of law. After the Nazi Party came to power in 1933, Schlegelberger made one tentative effort to restrain executive power: He objected to a decree retroactively imposing the death penalty on those blamed for the Reichstag Fire. 

This was a violation of the ancient legal maxim nulla poena sine lege ("no punishment without law"), he complained. This was quite likely the last time Schlegelberger -- who joined the Nazi Party in 1938 --  would insist that anything other than the will of the Fuhrer was the supreme law.

In March 1940, Schlegelberger proposed an official policy requiring "that lawyers, like civil servants, be formally subject to release from their profession if they could no longer guarantee that they would at all times without reservation support the National Socialist state," recalls Eli Nathans in the Law and History Review. As Minister of Justice, Schlegelberger reiterated that demand in an extraordinary conference of German jurists and lawyers in April 1941. 

The first item on the agenda at that gathering, recalls German historian Ingo Muller in his book Hitler's Justice: The Courts of the Third Reich, was to hammer down any legal resistance to the Nazi Regime's T-4 euthanasia initiative, which would eventually kill over 170,000 Germans (and train key personnel for service in the death camps). 

"Schlegelberg acquainted the participants `with all the decisions of the Fuhrer,' so that `judges and public prosecutors would not cause grave damage to the legal system and the government by opposing measures they sincerely but mistakenly believe to be illegal, and would not place themselves in opposition to the will of the Fuhrer through no fault of their own,'" writes Muller. 

For reasons he never made clear, Schlegelberg resigned as Justice Minister in 1942. (One indirect consequence of that decision was the appointment of the deranged Ronald Freisler -- a fanatical Communist who became a "Beefsteak Nazi" -- brown on the outside, red in the middle -- to head the so-called People's Court, better known as the Blood Tribunal.) 

Although he never expressed contrition in terms akin to those used by his cinematic avatar Ernst Janning, Schlegelberger was perceived as a reluctant supporter of Hitler's rule and given a lenient sentence. From the available records it appears that Schlegelberger's most acute regrets dealt with what he experienced, rather than what he helped inflict on others.

The product of a pious Christian family, Schlegelberger was typical of the functionaries who implemented policies of torture and mass murder on behalf of the Nazi Regime. 

Those men "were not sadists or killers by nature," observed Hannah Arendt in her book Eichmann in Jerusalem. This meant that some method had to be devised "to overcome not so much their conscience as the animal pity by which all normal men are affected in the presence of physical suffering."

"The trick used by Himmler ... was very simple and probably very effective; it consisted in turning these instincts around, as it were, in directing them toward the self," Arendt continued. "So that instead of saying: What horrible things I did to people!, the murderers would be able to say: What horrible things I had to watch in the pursuance of my duties, how heavily the task weighed upon my shoulders!"

There are some striking similarities between Schlegelberger, the self-pitying instrument of Hitler's will, and Judge Jay S. Bybee of the Ninth Circuit Court of Appeals, who played a key role in devising the Bush junta's torture policies. Both of them came from conservative religious backgrounds; both believed in unqualified obedience to established authority. 

And as Bybee's May 26 testimony before a closed-door meeting of the  House Judiciary Committee demonstrates, he -- like Schlegelberger -- has mastered Himmler's method of redirecting pity from the victims of state-authorized crimes to the perpetrators thereof.

Bybee -- described in a flattering profile as a pious man, a Sunday School teacher who established a household rule forbidding his children to hit each other -- signed off on a series of memos written by John C. Yoo that "authorized" the torture of detainees, as long as the methods used fell short of "organ failure, impairment of a bodily function, or even death." That standard, as we will shortly see, was meant as a suggested guideline, rather than a rule.

Although he told the House committee that certain degrading techniques employed by the CIA "were not authorized," the memos he and Yoo devised purported to offer legal shelter for a torturer in the employ of the president who killed a detainee. 

Furthermore, since Yoo -- who fleshed out the details on behalf of Bybee -- has claimed that the president can authorize the sexual torture of a detainee's child, it's difficult to take at face value Bybee's May 26 claim that forcing detainees to wear diapers and soil themselves somehow ran afoul of the torture guidelines he devised.

As the song says, Bybee wasn't a bad man -- just ambitious. He was appointed assistant Attorney General in charge of the "Justice" Department's Office of Legal Counsel (OLC) on the understanding that he would receive a coveted judicial appointment if his performance pleased his boss, Attorney General Alberto Gonzalez.

For his part, Yoo had designs on Bybee's position, which -- although all but unknown to the public -- offers access to lucrative and powerful positions in both the government and major government-aligned private law firms.

Yoo dutifully devised specious arguments in favor of unlimited presidential "war powers," and Bybee eagerly gave them the OLC's imprimatur. As Judge Andrew Napolitano points out in his book Lies The Government Told You, this is exactly the opposite of how the OLC is supposed to function: "[T]he OLC is supposed to work as a check on the executive branch, representing a line of defense against unlawful executive activity."

The Bybee/Yoo view of presidential war powers was identical to that expressed by Schlegelberger. In an August 1, 2002 memo offering retroactive "authority" for the Bush regime's existing practice of torture, Bybee endorsed the claim that those who tortured a detainee to death on presidential orders were immune to prosecution. Permitting enforcement of anti-torture statutes in any way, he insisted, "would represent an infringement of the President's authority to conduct war."

Schlegelberger's work to institutionalize torture in the Third Reich displayed a hypocritical punctilio similar to that exhibited by Bybee. Muller points out that after defendants accused of "political" crimes began to display tell-tale signs of torture, the German Justice Ministry under Schlegelberger "legalized the terror, to such an extent that they even established a `standard club' to be used in beatings, so that torture would at least be regularized." 

Although torture of "normal" criminal defendants was still forbidden -- and punishable by a prison term -- Schlegelberger, like Bybee and Yoo, was willing to arrange a work-around on behalf of the Fuhrer's dutiful servants.

In 1941, Police Captain Wilhelm Klinzmann was convicted of torture for beating an arson confession out of a farm laborer named Robert Blodling. When the German Supreme Court refused to hear an appeal of Klinzmann's sentence, Schlegelberger created a new procedure called "cancellation" that, in Muller's words, "gave the government a means to end every current investigation or trial independently of judicial decisions." Thus "Klintzmann was [set] free and was not even considered to have a criminal record." 

This practice of "cancellation" prefigured both the Bybee/Yoo doctrine of transcendent presidential war powers, and the Obama administration's de facto ratification of Bush-era torture in the interests of "closure" -- or, as the estimable Glenn Greenwald puts it, looking "forward" rather than "backward." 

In search of personal gain, Bybee and Yoo perverted the law in order to enable torture. They are therefore liable to prosecution under bribery statutes. At the very least, Bybee should face impeachment, since bribery is specifically mentioned in the Constitution as an impeachable offense.

 

"Cheer up -- Jay Bybee has it MUCH worse than you!"

Obviously, Jay Bybee has ample cause for remorse -- even leaving aside the fact that he enabled the torture of human beings, many of whom were (and are) completely innocent.

Yet when asked during the May 26 hearing if he had any regrets, Bybee displayed what Glenn Greenwald correctly describes as "sociopathic self-absorption." 

According to the New York Times, Bybee described himself as "proud" of the suborned memos he signed at the OLC,  insisting that they were "well researched” and "very carefully written."

"Still, he said the controversy surrounding his tenure there had been difficult," observed the Times:

"`I have regrets because of the notoriety that this has brought me,' he said. `It has imposed enormous pressures on me both professionally and personally. It has had an impact on my family. And I regret that, as a result of my government service, that that kind of attention has been visited on me and on my family.'"

 

Weep not for those drowned, beaten, blinded, suffocated, subjected to genital mutilation, and murdered because of policies Bybee crafted in the service of fuhrerprinzip and his own ambition. Spare your tears instead for Bybee himself, who -- despite a lucrative, life-tenure judicial position -- suffers profoundly as a result of being criticized for the pivotal role he played in institutionalizing such barbarism.

Himmler would recognize, and most likely admire, the ease with which Bybee has mastered the Nazi tactic of moral displacement. And Franz Schlegelberger may be driven to envy by the fact that his contemporary American counterpart found himself on the bench, rather than behind bars. 

(N.B. -- I'm constrained to observe that the Nuremberg Tribunal, as the heroic Robert Taft pointed out, was a corrupt and cynical exercise in victor's "justice." That body's lack of legitimacy in no way mitigates the crimes committed by the likes of Franz Schlegelberger.)

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The Bush Regime's Revolution in Legal Affairs

Sure, he was rich, but he wasn't particularly wise: Lydian King Croesus (enthroned) receives a visit from the Athenian lawgiver, Solon, in this depiction by the Dutch master Gerard von Honthorst.


If audacity were wealth, John C. Yoo would be richer than Croesus. But then, if wisdom were breath, he would have died of asphyxiation long ago.


Yoo has become properly notorious as a key legal architect of the Bush Regime's version of fuhrerprinzip -- the doctrine that the powers of a "war president" are essentially limitless, and include the right to order the torture of anyone upon whom he chooses to inflict such treatment, including innocent children.


He is the chief author of the so-called "Bybee Memorandum," the August 1, 2002 document that provided pseudo-legal justification for torture under the color of supposed presidential authority. (Jay S. Bybee, who signed the memo composed by Yoo, was the assistant Attorney General for the White House Office of Legal Counsel (OLC) at the time; he has since been appointed to the Ninth Circuit Court of Appeals.)


In recent days, thanks to the commendable persistence of the ACLU*, the Bush Regime has been compelled to disgorge another torture memorandum written by Yoo, this one composed on March 14, 2003. (Part one is here; part two, here.) Building seamlessly on the previous memo, this second installment in Yoo's apologia for torture was written for the apparent purpose of trumping objections to torture offered by high-ranking military personnel.


The second Yoo memo was largely a refinement of the first, differing primarily in the brazenness with which the case was made for official impunity: It asserted plenary immunity to criminal laws on behalf of those who committed acts of torture and even mutilation while acting on presidential orders. Physically maiming a detainee was described as a legally defensible tactic as long as the torturer was "fulfilling the executive branch's authority to protect the federal government and the nation from attack after the events of September 11, which triggered the nation's right to self-defense."


Thus if an intelligence officer or military interrogator were to cripple, blind, disfigure, or otherwise permanently mangle a prisoner under orders from the executive branch, he would be immune to prosecution. The same claim was made on behalf of those who tortured detainees to death.


Yoo's second memo was issued just a few days before the Bush administration attacked Iraq, and roughly a year before the disclosure of grotesque atrocities committed at Abu Ghraib -- the latter being the undeniable offspring of the policy adumbrated in the Yoo-authored memos. Commentator Marty Lederman is incontestably correct in stating that the Yoo memos, the second in particular, constitute "the source of the Nile for the abuses that occurred in Iraq in 2003."


Given that the original Yoo-authored "Bybee Memorandum" made all of the essential claims of unlimited executive power and derivative immunity for presidentially appointed torturers, why was the second one necessary? According to legal analyst Scott Horton of Harper's, the second memo was part of an effort by the deranged neo-"conservatives" running the "war on terror" to bring the military to heel.


From the beginning of the "war on terror," Horton observes, interrogators were authorized to employ torture at Gitmo and Afghanistan's Bagram Air Force Base. But while Rumsfeld, Cheney, and their epigones were ardently pushing for torture, "the intelligence professions were actually pushing back" against the practice. The same was true of career military legal officers, particularly Navy general counsel Alberto Mora.



The furious opposition to torture among uniformed personnel at the Pentagon prompted a tactical retreat by the neo-cons. Rumsfeld "suspended" the use of torture in December 2002, and William J. Haynes, Rumsfeld's legal counsel, instructed the OLC produce a second torture memo intended to placate the military lawyers.



In April 2003, a Pentagon Working Group on Iraq approved the findings of the second Yoo memorandum. In fact, they had no choice, since the White House, in an homage to the Brezhnev-era Soviet Politburo, informed the Working Group that its members were required to accept those findings. The effort to build a "consensus" on this matter was simplified by another Soviet-style touch: The top lawyers from each of the military services were excluded from the Working Group, and weren't informed about the contents of the second Yoo memorandum until more than a year later -- by which time the phrase "Abu Ghraib" had entered the colloquial vocabulary.


As far as the Bush Regime was concerned, legal objections to torture rooted in the Constitution, statutory law, the UCMJ, the Geneva Conventions, and centuries of Anglo-Saxon common law were irrelevant, because Deus vult -- with the holy personage of the Dear Leader serving as a substitute for the Deity.


Yoo displayed exactly the right combination of sycophancy and sophistry to win the coveted role of composing the Regime's briefs on behalf of torture. But he's just one unremarkable specimen from a large and thriving population of totalitarian pseudo-conservative legal activists.


Key legal architects of the torture policy have been offered posts in the judiciary. As noted above, Bybee was appointed to a spot on the Ninth Circuit Court of Appeals. Haynes was nominated for a post on the Fourth Circuit Court of Appeals in November 2003. Republicans in the Senate Judiciary Committee approved the Haynes nomination in familiar lock-step -- make that goose-step -- fashion; however, Senate Democrats, in an all but unparalleled gesture of principled rebellion, filibustered the nomination to death.


So Haynes continued as General Counsel for the Defense Department until last February 25, when he suddenly resigned.


Oddly enough, after seven years of "public service," Haynes developed a sudden urge to return to private life immediately following the publication of an article in The Nation exposing his role in rigging capital trials of six detainees in Gitmo. This accusation came not from some ACLU lawyer in Poindexter glasses, or some pachouli-scented "peace creep," but from Col. Morris Davis, the former chief prosecutor for the Military Commission at Gitmo.


According to Col. Davis, Haynes told him in August 2005 that the trials of Gitmo detainees "`will be the Nuremberg of our time'." Davis, in reply, pointed out that some of the defendants at Nuremberg had been acquitted, a fact which conferred some credibility on the proceedings in the eyes of some skeptics.


A very sound criticism of the Nuremberg Tribunal was that it was an exercise in "victor's justice" -- a forum in which the accusers were also the prosecutors and the judges. And it shouldn't be forgotten that the Soviet Union, which sat in judgment of the Nazis at Nuremberg, began the war as allies of the Reich. Perhaps Davis had those criticisms in mind when he referred to the PR value of acquittals, should they occur at Gitmo:

"I said to [Haynes] that if we come up short and there are some acquittals in our cases, it will at least validate the process."

Davis, however, didn't understand that the Bush Regime wouldn't settle for anything less from him than the Full Vyshinsky: He was to be chief prosecutor in a neo-Stalinist show trial, the preordained outcome of which would validate the Regime's wisdom.

"[Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals.'" Davis recalled. "`If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions.'"

Davis resigned his position on October 4 of last year, just hours after learning that Haynes had been placed above him in the chain of command. Following Davis's disclosures, the Pentagon issued a statement "disputing" the former prosecutor's account of the conversation. Haynes made no public comment, but given his hasty resignation this is clearly a case of res ipsa loquitur.

Weep not for Haynes. True, he was denied a seat on the federal judiciary. However, later this month he begins his new job as corporate general counsel at Chevron, that charming little Mom-and-Pop business whose tanker fleet once included a vessel named after Condoleeza Rice.

John C. Yoo likewise landed on his feet with a teaching position at Berkeley Law School. Unlike Bybee and Haynes, however, Yoo's retirement from "public service" has been disturbed by some lingering legal unpleasantness, in the form of a lawsuit filed by attorneys representing Jose Padilla.


Mr. Padilla is an American citizen, albeit hardly an exemplary one. He was designated an "unlawful combatant" by George Bush in 2002 and held for more than three years without trial or legal recourse of any kind. During that time he was tortured by his captors, who (according to one Regime official) were deliberately trying to destroy Padilla's mind and personality.


All of this followed Yoo's prescriptions for unaccountable wartime presidential power. In fact, from Yoo's perspective Padilla should be abjectly grateful that he was not blinded, maimed, or crippled during his detention. And Yoo -- who, once again, considers such treatment to be perfectly just and legal when ordained by His Holiness the Decider (peace be upon him) -- simpers that the lawsuit filed on Padilla's behalf is nothing less than another form of terrorism.


Yes, those who commit torture and other abuses are covered by "qualified immunity," but
Padilla's lawsuit "shows that qualified immunity is not enough," whined Yoo in a January 19 Wall Street Journal Editorial. "The legal system should not be used as a bludgeon against individuals targeted by political activists to impose policy preferences they have failed to implement at the ballot box. The prospect of having to waste large sums of money on lawyers will deter talented people from entering public service, leading to more mediocrity in our bureaucracies. It will also lead to a risk-averse government that doesn't innovate or think creatively."


Yoo is not being sued because of a difference over "policy preferences"; he's being sued for his role in a criminal conspiracy to subvert the Constitution. His is a thoroughly mediocre mind, and what meager talents he possesses are confined to the realm of corrupt self-promotion. The repellently fascinating aspect of this tissue of special pleading, however, is the implicit assumption that those employed by the executive branch must be entirely free from accountability of any kind -- at least in the context of an open-ended war.


As is so often the case in examining the Bush Regime's assault on what remains of our heritage of liberty under law, we're drawn irresistibly to the early 1930s in search of apt parallels.


Politicized "justice": Christian truth-teller Sophie Scholl on trial before the Nazi "People's Court."




In his study Hitler's Justice: The Courts of the Third Reich, Ingo Mueller describes how the Nazified German legal system extended the kind of unqualified immunity Yoo covets to those who committed crimes on behalf of -- ahem -- Homeland Security:



"Since it was important for the courts to prosecute only the right sort of criminals, a whole series of laws and decrees passed after the Nazis seized power specified that the penalties for political offenses were to be increased; at the same time, a generous amnesty was provided for offenses committed `during the national revolutionary struggle of the German people, in preparation for this revolution, or in the struggle for the German homeland.' In addition, [an influential German jurist] ... argued that the `national aim' should be generally recognized as grounds for immunity. He referred to the decisions of the Supreme Court based on the doctrine of `national emergency,' which suggested such a line of reasoning. Of course [contended this jurist], judges should hand down fair decisions, `but objectivity finds its limits in the German understanding of the law when the national security is placed in doubt'; every judge is `a son of his country' and as such must `place the vital interests of the nation unconditionally above what is formally the law.'" (Emphasis added.)


As we can see, Germany in the early 1930s was blessed with an abundance of "talented" and "creative" public servants, as well.





On sale now!












Dum spiro, pugno!

*I know, I know: It pains me to make yet another favorable reference to the ACLU, but one must give credit where it's due.

The Dividing Line: HR 3835, The "American Freedom Agenda Act"

Reporter: Mr. President, following up on Vladimir Putin for a moment, he said recently that next year, when he has to step down according to the [Russian] constitution, as the president, he may become prime minister, in effect keeping power and dashing any hopes for a genuine democratic transition....

Bush: I've been planning on that myself.




Mr. Bush's latest thigh-slapper about formally assuming dictatorial powers, from an October 17 White House press conference.*

It really is this simple: Members of Congress either support the Constitution -- including all of that troublesome stuff dealing with checks and balances and non-negotiable guarantees of individual rights -- or they support some form of executive dictatorship.

How do we find out which Tribunes of the public weal (OK, I'll wait for derisive laughter to subside) take their constitutional oaths seriously and support the rule of law? And how do we ferret out those who support fuhrerprinzip, either actively or by default?

Dr. Ron Paul has assessed this problem with the trained eye of an accomplished surgeon, and he has cut to the essential question with the incisiveness of an artfully wielded scalpel: On October 15 he introduced H.R. 3835, the "American Freedom Agenda Act of 2007" (.pdf) which -- if passed by Congress and signed into law -- would demolish several key pillars of the executive dictatorship created by Bush before that edifice is completed.

Yes, I know: The chances of the measure passing are either "Slim" or "None," and "Slim" is saddled up and digging spurs into his mount.

Even if the craven and dishonest collectivists in the Democratic congressional leadership -- people just as disfigured by power-lust as the Republicans, but nowhere near as efficient in accumulating and exercising it -- were to permit that measure to reach the floor, they would never permit it to be passed. And if it somehow won congressional approval, the chances of it winning Bush's signature reside somewhere south of the possibility that the tangle-tongued little tyrant will repudiate his reign and start expatiating on the doctrines of liberty with the eloquence of Cicero.

But the point served by Rep. Paul in submitting that bill, and by liberty-supporting Americans in demanding that their representatives co-sponsor it, is not necessarily to see it enacted. We'd take that result gratefully, of course.

But something very useful can be accomplished merely by making it the focus of a nation-wide citizen campaign. The text of the bill describes its intention as that of restoring "the Constitution's checks and balances and protections against government abuses as envisioned by the Founding Fathers."

Point by point, the measure describes how the Bush Regime has made war on the Constitution -- through the creation of extra-constitutional military commissions; the presidential designation of U.S. citizens as "unlawful enemy combatants" devoid of due process rights; the effective abolition of the fundamental due process guarantee, the writ of habeas corpus; the institutionalization of the demonic practice of torture; the use of "extraordinary rendition" to outsource torture of detainees to terror states abroad; the employment of presidential "signing statements" to nullify laws; the practice of warrantless wiretapping....


The Bill of Particulars presented in the act is detailed, but not exhaustive. However, by addressing those specific abuses, and reversing the policy perversions that created them, the measure would bring our nation several important steps away from the abyss. Just as importantly, by putting congressmen on record about these matters, the bill will provide the public with a priceless tutorial regarding the true nature of our national representative body. A large-scale activist campaign based on this one piece of legislation could transform the Ron Paul presidential campaign -- whatever its outcome -- into a peaceful trans-partisan rebellion against Leviathan.

Consider this endorsement of the "American Freedom Agenda Act"(AFA) from Naomi Wolf, a former campaign adviser to Al Gore:

"Ron Paul was the first of all the presidential candidates, red or blue, to step up in this way -- and all credit is due to him for getting there first. May the others of both parties race to follow his lead.... A groundswell of millions of Americans of all parties rising up to insist on passage of the AFA legislation means that we are awake -- we get it -- and that we assert that an alert citizenry, not a whipped-dog Congress or a violently abusive executive, decides what happens in this nation still.

I am not a voter on his side of the ballot -- but I will move heaven and earth to support the passage of this lifesaving agenda.... There is no way to overstate how crucial this piece of legislation is. We are at a turning point, and without the restoration of the rule of law the `blueprint' for what I have called a `fascist shift' -- the closing down of democracy -- calls for scarier recriminations against citizens, greater tightening of social controls.... Without the rule of law we will be powerless as each of these assaults on liberty continue to escalate. With it we can fight back.

This is the answer both to those who say `What we can do?' and to those who claim (actually, sometimes whine) `there is nothing we can do.' And if we don't act on this now we will get the democracy we deserve -- which is no democracy at all.

Put aside your partisan ideal world -- sometimes issues simply transcend partisanship -- and if ever there is an issue that is above and separate from party politics, it is the restoration of the democratic system we inherited. There are good people and passionate patriots across the political spectrum."

There is nothing on the congressional agenda more important than the AFA, because if the "fascist shift" correctly discerned by Wolf is completed, our ability to change government policy, or mitigate its abuses, will be gone.

With the possible exception of the closely related struggle to end the abhorrent war in Iraq, there is no political issue more important than arresting and reversing our nation's descent into unalloyed executive dictatorship.

Get in touch with your Representative by e-mail, fax, phone, letter, semaphore, carrier pigeon, or telepathy -- or, preferably, all of the foregoing.

Hound him or her incessantly about HR 3835; hector, pester, harangue, persecute, brow-beat, upbraid and remonstrate with that public servant until he or she either co-sponsors the AFA or provides a formal statement explaining why it is supposedly unworthy of support. Make it clear that this is a strictly binary, either/or proposition: Either one supports the Constitution or an extra-constitutional executive dictatorship -- there is no via media, no "third way," no other choice on the menu.

Nothing cuts sharper than a clearly and cleanly articulated set of principles. It's high time that Congress felt the keen edge of the people's blade -- and Dr. Paul has put just the right implement in our hands for the job. Let's get to work.

Be sure to visit The Right Source and the Liberty Minute archive.
Dum spiro, pugno!

*Thanks to StrikeTheRoot.com.

Praetorian "Conservatism"

"I took an oath to the president, and I take that oath very seriously."

This declaration was offered as a pious summation civic duty by former White House Political Director Sara Taylor. She stated this without irony or self-awareness. Clearly, she was someone who had been immersed in a culture of fuhrerprinzip, in which there was no allegiance higher than loyalty to the Grand and Glorious Decider.

Senator Patrick Leahy quite correctly reminded Miss Taylor that even though "the president refers to the government being his government -- it's not," and that her "paramount" duty was to the Constitution:






A day before Sara Taylor's Senate testimony provided an inadvertent illustration of the Bush Regime's Leader Cult in action, former Surgeon General Richard H. Carmona described another example in his testimony before a House committee.


"In [speeches delivered during] my first year, clearly I was told a number of times that the president's name wasn't mentioned in the speech and I was told it should be mentioned -- at one point, at least three times on every page," Carmona recalled. "And I said, 'I'm not going to do that.' . . ."


During his press conference today (July 12), The Grand and Glorious Decider himself expatiated at length on his apparently limitless unilateral powers, his comments planted with a thick forest of vertical singular pronouns:

"I will rely on General Petraeus to give me his recommendations for the appropriate troop levels in Iraq. I will discuss the recommendation with the secretary of defense and the Joint Chiefs of Staff. I will continue consultations with members of the United States Congress from both sides of the aisle. And then I'll make a decision."

One reporter asked The Decider if he has "entertained the idea that at some point Congress may take some of that sole decision-making power away through legislation.... [C]an you tell us: Are you still committed to vetoing any troop withdrawal deadline?"

"I don't think Congress ought to be running the war," replied the Commander Guy. "I think they ought to be funding our troops.... I listen to Congress. Congress has got all the right to appropriate money. But the idea of telling our military how to conduct operations, for example, or how to, you know, deal with troops strength, is -- I don't think it makes sense."

On this construction, the sole duty of Congress is to appropriate money to keep the war going for as long as the Decider requires. It was dictatorial presumption of this sort that cost Charles I his head.


Under the U.S. Constitution, a document for which The Decider has expressed profane contempt, it is Congress -- not the president -- that decides when and against whom our nation goes to war. It has the power to de-fund the present war and to recall the troops.


But those delegated powers aren't in the Constitution as Bush understands it, which -- if reduced to print -- would read something like this: "Law consists of two lines above my signature." That was Saddam Hussein's description of his power, and there is something oddly appropriate in the fact that Saddam is the only individual or institution to whom Bush was supposedly willing to defer in deciding whether to invade Iraq.


During today's press conference, Bush pointedly refused to concede that he had made the decision to go to war. The one who decided on behalf of the United States, Bush insisted, was
"Saddam Hussein. He chose the course.... It was his decision to make. "


Actually, Saddam Hussein had agreed to abdicate power and flee into exile in order to prevent an attack on his country, which means that somewhere beneath the numerous layers of murderous corruption in his personality was an embattled spark of genuine patriotism.
Bush and the adults who script his lines weren't going to permit any arrangement that didn't involve an attack on, and occupation of, Iraq -- despite Bush's ongoing effort to assign the responsibility for the war to Saddam.


Unfortunately for Bush, in December 2005, before the occupation of Iraq had blossomed into the full-blown catastrophe it has become, Bush was eager to claim sole credit for making the decision for war. Bush told NBC correspondent Brian Williams:


"I remember the day we committed the troops, or I committed the troops, there's no `we' to it. I committed the troops to combat in Iraq. And I left here [the Oval Office], walked out that door, walked around that South Lawn there with my trusty dog Spot, just thinking about the consequences...."(Emphasis added.)


Imagining Bush in stoic contemplation of war's grim consequences summons up an amusingly implausible picture -- rather like one of those posed photographs of a Chimp dressed as a scientist contemplating some mysterious substance in a test tube.


Be that as it may, there is an interesting contrast between Saddam Hussein, and the American President whose doctrine of executive power is essentially identical to that of the Iraqi despot: Saddam was willing to surrender power, if it would spare his country a hugely destructive war. Bush is incapable of such a sacrifice.


Of course, that comparison is unfair -- to Saddam, who, repulsive as he was, killed fewer Iraqis and Americans than has George W. Bush.


Please visit The Right Source, and the Liberty Minute archives.