A Must Read!!!

Bush: 'I Am the Law'

By Max J. Castro
Progreso Weekly
Go to Original
22-28 December 2005 Issue

"L'état, c'est moi." I am the State:" That's what the 17th century French monarch, Louis XIV (1638-1715), told the Parliament of Paris after some of its members dared to question funding for the war against Spain.

"La Loi, c'est moi; I am the Law:" That is what George W. Bush, so anti-French, so unlike the Sun King and yet so monarchical, has in effect told those who question the president's right to do whatever he wants under the guise of the "war against terrorism." Or, Bush being Bush, he would probably say: "Me, I'm the law, that's me, the law is me."

Bush, aided by a handful of partisan lawyers willing to twist and bend legality in every direction or even to turn it on its head to suit convenience, has sought legal cover to subvert or ignore the law at every turn. Political appointees such as former White House Counsel and current Attorney-General Alberto Gonzalez and former Justice Department lawyer John Yoo have been more than willing to deliver tortuous legal opinions meant to give Bush carte-blanche and prevent any future liability for top officials and anyone else involved in the "war on terror."

Bush's legal enablers have been a busy and shameless bunch. International law regarding the justification for war? No problem, go to the UN Security Council to seek authorization. And, if the Council declines to approve war? Invade anyway and invoke violations of Security Council resolutions as the legal basis for military action.

The Geneva Conventions? No sweat: Its provisions have been rendered "quaint" by the "war on terror." Then coin a new category, label prisoners in this war "enemy combatants," and argue that for them no rules apply and anything goes.

The Convention Against Torture? Taking candy from a baby: Claim that it only applies to interrogations conducted in the United States. Then send them to other countries for the third degree. Just in case, redefine the terms. Torture is what we say it is; if they don't have that near-death experience, if they don't see the white light, it isn't torture. And, even if they die under torture, understand that was legal too because if the Commander-Chief says it is legal, then it is.

OK, but haven't we already heard it all when it comes to the Bush administration's Orwellian ways and its disregard for the law, from secret prisons to extraordinary rendition to indefinite detention to denial of the right to habeas corpus?

No: With Bush another week always means a new and more disturbing revelation. Until now the administration's numerous transgressions have involved violations of international law. International law? The Administration has had substantial success in selling the American people on the idea that international law is irrelevant at best and, at worst, an obnoxious interference with U.S. sovereignty. Meanwhile, on the domestic front, the President has relied on a compliant Congress and a deferential judiciary to legitimize bending the laws and the Constitution, manly through the Patriot Act.

Now comes news of a new entry in the annals of the Bush administration's illegalities, a secret program to spy on Americans in violation of the Fourth Amendment. The New York Times revealed last week that in 2002 Bush authorized the National Security Agency (NSA) to monitor international calls involving Americans located on U.S. soil. Congress, awakened from its slumber by the administration's brazen overreaching, put the brakes on the reauthorization of the Patriot Act.

It is not as if the government lacks the tools to protect the nation under the rule of law. Twenty-five years ago, in the wake of revelations about illegal spying by the Nixon administration, the Foreign Intelligence Surveillance Act (FISA) was passed to clarify the boundaries of the permissible. The act created a special court, known as the FISA court, which decides on requests for surveillance involving intelligence. The FISA court acts in secret and can grant a warrant within hours of its request. Moreover, it can grant warrants retroactively; the government can start listening 72 hours before a warrant is approved. According to news reports, during its history the FISA court has received over 19,000 requests for warrants and denied just 5.

But neither the lopsided odds in favour of the government nor the cloaked, expedited nature of the proceedings of the FISA court were good enough for this administration. That Bush felt it necessary to circumvent the minimal scrutiny of what is essentially a rubber-stamp court demonstrates better than anything what this administration has sought all along: an absolute license to do whatever it pleases in the conduct of its "war on terror."

Once again, there were administration lawyers willing to justify it all by arguing that the President could do just about anything in times of conflict. As the New York Times reported, "the same Justice Department lawyer, John Yoo, who helped write the twisted memo on legalizing torture, wrote briefs supporting the idea that the president could ignore the law once again when it came to the intelligence agency's eavesdropping on telephone calls and e-mail messages."

Wrote Yoo: "The government may be justified in taking measures which in less troubled times could be seen as infringements of individual liberties." Countered the New York Times editorial: "Let's be clear about this: illegal government spying on Americans is a violation of individual liberties, whether conditions are troubled or not."

Indeed, if rights could be suspended whenever the government considered the times to be troubled, the Bill of Rights would lose all meaning. Times are often troubled. History shows that the "troubled times and war argument" has been invoked whenever there has been a shameful trampling on individual liberties. It was used to justify illegal spying on opponents of the Vietnam War. It was invoked during the Cold War to rationalize the outrages of McCarthyism. It was used during World War II to confer a veneer of legality on the massive violation of rights perpetrated by the internment of the Japanese.

Bush already has begun a campaign to invoke the "war on terror" and the spectre of 9/11 to justify the trampling of the fundamental Constitutional right contained in the Fourth Amendment's prohibition of unreasonable searches and seizures. The president is hoping that, once again, the right-wing media and the see-no-evil lawyers and intellectuals will come to his rescue. They are already trying their best to do it.

Yet, perhaps this time the American people will not be deceived by the latest of this administration's many fallacies. It's just possible that, as has happened before in the course of American history, the tide is turning and the silence is in the process of being broken.

Fifty years ago, in the wake of the prolonged detainment of Japanese Americans, Eugene Rostow of Yale Law School broke with the war-induced atmosphere of hysteria and complicity that characterized the attitude of too many lawyers, intellectuals and ordinary citizens when he wrote: "The war power is the power to wage war successfully … But it is the power to wage war, not a license to do unnecessary and dictatorial things in the name of the war power."

Amen.