We do not torture. It has become progressively more difficult for proponents of the Bush administration’s own Verschärfte Vernehmung to honestly make the claim burdened by the knowledge that the Central Intelligence Agency destroyed videotaped evidence of “interrogations” in late 2005. Even more damning: the 24 scenario – hitherto the Kool-Aid drinking Republican’s bulwark against the wholesale roughshod handling of our captives – is useless here: by the CIA’s own admission, the suspects were not thought to have information on which the lives of millions of Americans hung in the balance.
Clearly the CIA – as well as the armed forces – are encouraged and enabled by a regime that decided early on the law does not apply to them or those following their orders, and have pursued their doctrine of lawlessness as far as they think it can go. And make no mistake: democracy is irreverent now. This is not an uninformed statement meant to sound good to those who oppose Bush without being empirically verifiable. The Bush doctrine has determined the president can do anything at any time, break or circumvent any law that inconveniently impedes his agenda, and twist the Department of Justice’s arm so charges are never filed. Further, no one ever has to know if Bush doesn’t want them to.
As a member of the Senate Intelligence Committee and a lawyer, Rhode Island Senator Shelton Whitehouse has a deep and nuanced understanding of the law. Troubled by certain behaviors inside the White House, Whitehouse has been investigating executive orders, an inquest which yielded some frankly mind-boggling discoveries.
For years under the Bush Administration, the Office of Legal Counsel within the Department of Justice has issued highly classified secret legal opinions related to surveillance. This is an administration that hates answering to an American court, that wants to grade its own papers, and OLC is the inside place the administration goes to get legal support for its spying program.As a member of the Senate Intelligence Committee, I was given access to those opinions, and spent hours poring over them. Sitting in that secure room, as a lawyer, as a former U.S. Attorney, legal counsel to Rhode Island’s Governor, and State Attorney General, I was increasingly dismayed and amazed as I read on.
To give you an example of what I read, I have gotten three legal propositions from these OLC opinions declassified. Here they are, as accurately as my note taking could reproduce them from the classified documents. Listen for yourself. I will read all three, and then discuss each one.
1. An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.
2. The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.
3. The Department of Justice is bound by the President’s legal determinations.
Again: The Bush doctrine has determined the president can do anything at any time, break or circumvent any law that inconveniently impedes his agenda, and twist the Department of Justice’s arm so charges are never filed. Further, no one ever has to know if Bush doesn’t want them to.
America may not have a functioning democracy, but at least we still have Dewmocracy.
