This week Americans learned that in the days after 9/11, President Bush ordered the National Security to spy on Americans at home--and he did it over a dozen times. Using national security agencies to spy on citizens at home was...
This week Americans learned that in the days after 9/11, President Bush ordered the National Security to spy on Americans at home--and he did it over a dozen times.
Using national security agencies to spy on citizens at home was the foundation of totalitarian nations such as Soviet Russia, East Germany, Syria and Iraq. It means that you never know when your phone is 'tapped' or your library records have been snooped or someone at work is reporting on your conversations at work.
Be that as it may, the argument we will hear over the next few days, if not weeks, is that even though it seems President Bush violated the Constitution (over a dozen times), and even though it seems this should be grounds for legal action against President Bush (over a dozen legal actions)--the Republicans will tell us that it was all 'legal' or 'lawful.'
When they say this, what will it mean?
What they mean is: Sure the President acted as if he was above the law. But he had a note from his lawyer saying it was OK.
'Legal' or 'Lawful' means: 'President's lawyer wrote a legal memo saying it is OK.'
To understand this claim, Americans need to take five minutes from their busy schedules and read a legal memo published by John Yoo on September 25, 2001--but no doubt written within hours of the 9/11 attacks.
The Yoo Memo is important for one simple reason: It claims that during war, the President can do whatever he wants in the name of finding terrorist suspects.
That's right. Two weeks after 9/11, the President had on his desk, a legal memo that justified his total power to do whatever he wanted to anyone, anywhere, so long as he 'suspected' that person was a terrorist.
It was because of John Yoo's memo, that the President believed it was legal for him to order the NSA to spy on Americans he suspected were tied to terrorists.
It was because of John Yoo's memo that the President believed it was legal for him to invade Iraq on the mere suspicion that Iraq was linked to terrorists.
The John Yoo memo provides the legal basis for every unlawful action that the President has committed since 9/11. And it is remarkable--astounding--how obscure this memo is.
100 years from now, when historians are writing about the Bush Presidency, they will say that in hours following 9/11, as the nation mourned and feared for its future, the very first thing George W. Bush did as President was secure a legal memo justifying his claim to total power as President.
I'm Above the Law, but this Note From My Lawyer Makes it OK
The legal memo written by John Yoo in 2001 was the President's permission slip for dictatorship.
The general argument that Yoo makes is simple: During war, all legal restrictions on the President's power vanish, and he can do whatever he wants in the name of defending the American people. So far, pretty straight forward.
But here is the tricky part that makes the Yoo memo such a bold-faced attempt to claim total power for George W. Bush: The Yoo memo is based not on the military idea of 'war,' but on the criminal concept of 'suspects.'
This distinction is crucial.
Most Americans, I suspect, would agree that in a war, the President does and should have a great deal of power to fight the enemy's forces--to fight the battles. But most Americans agree that the President should not under any circumstances be given unlimited power to do fight suspected enemies.
Armies, soldiers, battles--these are military concepts, and the President has power granted by the Constitution to make military decisions.
Suspects, investigations, trials--these are police concepts, and the President does not have the power to make police decision.
And for very good reason.
The moment the President has the power to prosecute a suspected enemy, that is the moment that the United States of America because a dictatorship because--ask any lawyer--all that separates a democracy from a dictatorship is process of law standing between rulers and citizens.
When a President can prosecute a citizen simply by writing their name on a piece of paper, or whispering to the police--when the President has the power to make a citizen a criminal by naming him or her a criminal--that is the mark of a dictatorship.
And that is exactly what the Yoo memo claims.
Note to Self Constitution on Indefinite Leave Until 'Terror' Eliminated from Universe
Take a look at this opening paragraph from the Yoo memo in light of the above discussion of 'suspects':
You have asked for our opinion as to the scope of the President's authority to take military action in response to the terrorist attacks on the United States on September 11, 2001. We conclude that the President has broad constitutional power to use military force. Congress has acknowledged this inherent executive power in both the War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973), codified at 50 U.S.C. §§ 1541-1548 (the "WPR"), and in the Joint Resolution passed by Congress on September 14, 2001, Pub. L. No. 107-40, 115 Stat. 224 (2001). Further, the President has the constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. Finally, the President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.
(read the entire memo here)
What is so remarkable about this memo--handed to the President just days after 9/11--is that it basically says "The Constitution does not apply" to the President so long as there is terrorism in the world.
Let me repeat that, because I am sure that many readers will simply not want to believe that this was happening in the United States of America--in the oval office--days after 9/11.
John Yoo's memo argues that because there is terrorism in the world, the President of the United States can do whatever he wants, to anyone, at any time, without justification or warning--and it is all legal.
That any President should ask for such a memo is offensive, but that a sitting President should act on such a memo--should refer to such a memo as the legal basis for his actions--is possibly the most frightening thing I have ever come across in my life.
In simple terms, following this September 25, 2001 Memo From John Yoo, the only thing stopping the White House from dissolving Congress, imposing marshal law, and arresting anyone who spoke out against it--only thing that stopped that horrific scenario from taking place was the good will of the President.
Repeat after me: OH...MY...GOD!!!
Permission Slip for Dictatorship
I am not a huge fan of hokey one line slogans, but as this story grows over the next few days, it will be important for progressives to have a good, memorable response to GOP claims that the President's actions were 'legal.'
They were not legal.
The President had a legal memo on the subject that guided his actions, but that did not make them legal. It only means that a legal action has not yet been brought against the President.
And why have there not been any legal actions brought?
Because the Justice Department, the CIA and the NSA have made sure that anyone who might bring legal action has been seized, drugged, hooded, stuffed onto a private jet in the dead of night, and shuttled off to secret prisons in Eastern Europe. Yep. That makes it hard for them to file a civil suit against the President.
But Americans know that just because the President's lawyer gave him a permission slip for dictatorship, that doesn't mean it is legal.
Is the phrase 'permission slip for dictatorship' possibly too dramatic for these circumstances. Maybe. I am always open to better suggestions. But for now, the key for all progressives is to be aware of what the GOP means when they say that the President's decision to spy on Americans was 'legal,' and not to be intimidated by it.
What can we do about all this?
For starters, we can all read the Yoo Memo, we can recognize how it gave the President a 'Permission Slip' to do whatever he wanted to 'suspected' enemies, and we can bring this to the attention of everyone we know.
Because the best way to deal with an illegal permission slip, is to tear it up.
© 2005 Jeffrey Feldman