Bush Uses Executive Order to Legalize Torture

Busy, busy, busy.

George Bush has been moving toward empire in the open with the occupation of Iraq and in secret with directives and signing statements enlarging his power at the expense of the Constitution for most of his 6-year reign, but in the last two busy days he has taken not one but two significant steps to openly declare his unchallengeable imperial authority.

The first you probably already know about. Everybody has been appalled by it and an awful lot of people have said so.

Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.

A lot of people have raked this brazen power grab over the coals. Constitutional lawyer Glenn Greenwald calls it a frontal assault on the judiciary.

What the Bush administration is doing here is not merely defying (another) Congressional statute, but — as usual — also denying the power of the judiciary to interpret the law and compel adherence to the mandates of law. The great unanswered question of the Bush administration has been, and continues to be, whether, upon losing a judicial battle, they would explicitly claim the right to defy the judicial order on the ground that the order exceeds proper judicial authority.

In the typical Bush signing statement, the President emphasizes that he will execute laws not only consistent with his claimed executive power (meaning he will ignore the parts of the law which he thinks unduly restrains him), but will also execute the law “consistent with the constitutional limitations on the judicial power.” Always lurking at the core of these radical assertions of executive power is the belief that they can defy court orders due to the claimed “constitutional limitations on the judicial power.”

Limitations, he points out, that Ted Olson, working with Dick Cheney, simply made up out of whole cloth. Scott Horton, another Constitutional lawyer, is looking a little further ahead, arguing that it isn’t simply that the judiciary under attack, Bush – like the Monarchs of old – is arguing that he is the law because he controls the law.

Now we’re hearing something we’ve heard before. The administration authorized and directed the use of torture, which is a felony. It directed a massive program of electronic surveillance without court approval, which is a felony. When challenged on these points, it trotted out legal justifications which are now used in law schools as models of legal absurdity—demonstration that formal legal opinions can indeed be issued in the name of the attorney general that have not a shred of reason or legal authority to back them up. Call it the ipse dixit school of jurisprudence—”because I say so.” But what difference does it make? The Bushies control the apparatus of Government, and they could care less about all these stupid legal niceties.

So what happens when an Administration systematically breaks the law for years, with complete impunity? It is enabled by the judiciary to a large extent, particularly by judges that Bush appointed who consistently find, contrary to 300 years of legal precedent and the tradition of our own Revolution, that now suddenly the holders of our democratic executive office are even less accountable in the courts than was the last man to formally wear a crown in America, George III.

What happens is that executive privilege is now used to block any inquiry by the legislative branch—the ultimate power play used to turn the Congress into a meaningless ornament, stripped of the core of its Constitutional function. The White House’s calculus now is that it can transform Congress into an impotent and meaningless collection of busybodies. It will do this by invoking executive privilege and instructing administration officials not to cooperate with inquiries that look into its serious wrongdoing on one end, and it will use the filibuster to block any serious measure from even coming to a vote in the Senate. All it needs for this charade is the support of 40 Republican senators. And at this point it has that number—though just barely.

Will Bunch puts it more bluntly.

The pro-Bush spinners are citing the so-called “unitary executive” theory, but at this point it’s time to call it what it is, which is a “unitary emperor” theory.


The worst part is that — even with Bush’s popularity at an all-time low — I fear that his last-chance power drive is a fait accompli. The biggest problem is my own chosen profession, the American media, which has shown itself to be utterly incompetent in explaining any issue more complicated that Britney’s haircut. If you don’t believe me, check out all the news coverage and journalists calling the Democrats “obstructionists” when the Republicans filibustered and blocked a vote on Iraq withdrawal.

I was a little bit surprised, I confess, when no one asked the obvious question: “Why is he doing this now? What is it he wants to do that he hasn’t already given himself the legal authority to do?” In general, the question may not have been asked because everyone thought they knew the answer: he was doing it to protect the Administration from potential legal consequences of their unConstitutional acts.

I’m sure that’s a big part of it but on the other hand, since when have any of these guys been concerned with legalities? They have never for a moment acted as if they believed it was even remotely possible that they could be held accountable by anyone. And always in the past when they’ve done something like this, it was to further and protect an initiative not then inside the bubble of “presidential prerogatives”. So why did they want it now? Surely not just to protect Harriet Miers & Co?

Maybe not. While we have been engulfed in Thursday’s unilateral announcement that America is now ruled by an Emperor with dictatorial powers rather than a president answerable to law, on Friday – Dump Day for announcements Rove wants ignored – Bush, using his new “unitary privileges”, quietly signed an executive order explicitly legalizing torture.

President Bush breathed new life into the CIA’s terror interrogation program Friday in an executive order that would allow harsh questioning of suspects, limited in public only by a vaguely worded ban on cruel and inhuman treatment.

The order bars some practices such as sexual abuse, part of an effort to quell international criticism of some of the CIA’s most sensitive and debated work. It does not say what practices would be allowed.

The executive order is the White House’s first public effort to reach into the CIA’s five-year-old terror detention program, which has been in limbo since a Supreme Court decision last year called its legal foundation into question.

The “vaguely worded ban” is indeed so vaguely worded that nobody knows what it means.

Bush’s order requires that CIA detainees “receive the basic necessities of life, including adequate food and water, shelter from the elements, necessary clothing, protection from extremes of heat and cold, and essential medical care.”

A senior intelligence official would not comment directly when asked if waterboarding would be allowed under the new order and under related — but classified — legal documents drafted by the Justice Department.

However, the official said, “It would be wrong to assume the program of the past transfers to the future.”

A second senior administration official acknowledged sleep is not among the basic necessities outlined in the order.

Even though the order repeats the standard lip service forbidding “torture or other acts of violence serious enough to be considered comparable to murder, torture, mutilation or cruel or inhuman treatment”, they have so fudged the meanings of those words in the last couple of years that the order is tantamount to a last step rendering them meaningless. I mean, if waterboarding isn’t torture any more just because the Emperor says it isn’t, then neither is attaching wires from a car battery to a prisoner’s testicles if the Emperor approves it.

Tom Malinowski, Washington director for Human Rights Watch, said the broad outlines in the public order don’t matter. The key is in the still-classified guidance distributed to CIA officers.

As a result, the executive order requires the public to trust the president to provide adequate protection to detainees. “Given the experience of the last few years, they have to be naive if they think that is going to reassure too many people,” he said.

IOW, this is Directive 51 all over again: a public statement hinting at a minor expansion of powers but with secret annexes attached to it that very possibly – very probably, one would have to conclude after Thursday’s announcement – instruct and approve much harsher methods than the public statement suggests, and purely on the Emperor’s say-so. Otherwise, why make them secret?

If these two sequential actions don’t signify a Constitutional crisis, I should like someone to explain to me what exactly would.

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