Why the survival of our Constitutional Democracy may hinge on factually justified criminal prosecutions of the Bush/Cheney cabal...

[UPDATED: Spanish prosecutors file complaint calling for arrest of Bush 'torture attorneys']

Ernest A. Canning Byon 3/25/2009, 5:05am PT

Guest Blogged by Ernest A. Canning

"It will remain one of democracy's best jokes that it provided its deadly enemies with the means by which it was destroyed." - Joseph Goebbels

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Gradually, as the veil of secrecy lifts, a growing number of Americans are beginning to comprehend the lawlessness of the cabal which seized control of the White House in 2000 in what amounted to a judicially-aided coup d'etat.[i] This lawlessness extended across the board. It included the packing of federal agencies with lobbyists from industries they were designed to regulate, deception to take this nation into a war of choice, fraudulent no-bid contracts, torture, extraordinary rendition, warrantless NSA eavesdropping on the entire stream of domestic electronic communications, and, if Seymour Hersh's recent allegations are accurate, the creation of a highly secretive "executive assassination ring" which reported only to Dick Cheney's office and which had "been going into countries, not talking to the ambassador or the CIA station chief, and finding people and executing them and leaving."[ii]

The reaction of leading Democratic politicians to these unprecedented high crimes has been ambivalent, at best. Even before she assumed the role of Speaker, Nancy Pelosi announced that impeachment was "off-the-table," thereby enabling two more years of executive lawlessness, not to mention the nation's economic demise. Pelosi evaded so much as mentioning their high crimes until February 2009. President Obama acknowledged that "no one is above the law," but added that the focus of his administration is to look forward, not back.

There are fundamental deficiencies in the President's formulation. First, it is impossible to observe the rule of law without looking back. It would make no sense, for example, for a man charged with armed robbery to come before a judge and say, "Well, the robbery was in the past. You've got to look forward. I have every intention of abiding by the law in the future. So why prosecute me?" Second, looking forward does not mean handling current events at the expense of the rule of law. The point is to look far enough into the future to appreciate that the same people who brought us the last eight years of executive lawlessness could one day return to power...

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As noted by Scott Horton, citing remarks by "Professor Manfred Nowak, the United Nations Rapporteur responsible for torture," existing treaties, which the president is obligated to enforce, mandate the commencement of "an investigation of Bush's torture practices." Law Professor Jonathan Turley, who concurs, notes that in calling for foreign prosecutions while protecting our own, "the U.S. is seen as a nation of hypocrites."

Undoubtedly, both the Speaker and the President, a magna cum laude graduate of Harvard Law School, are well aware of our treaty obligations. They know that neither those obligations nor the rule of law can be satisfied by Senator Leahy's proposed "truth commission." So why do they not insist on criminal investigations and, where factually warranted, prosecutions?

Setting aside the exigencies of having to clean up the disasters the cabal left them, I believe the principle reason stems from a failure to comprehend the true nature of the American hard-right --- a billionaire-funded, well-organized group of anti-egalitarian ideologues. It is a "revolutionary power"[iii] whose agenda is aimed at nothing less than smashing the framework of the American constitutional order. Any doubts as to their radically subversive aims ended with the recent release of a series of Justice Department memos...

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In a 10/23/01 memo [PDF], John Yoo concluded that, in the wake of 9/11, the president could deploy the military inside the U.S. and ignore all constitutional safeguards of individual liberty, including those provided by the 1st and 4th Amendments.

A 6/27/02 Yoo memo [PDF] asserted the president had the unchecked power to declare American citizens "enemy combatants" who could then be placed in "preventative detention" indefinitely without any right to challenge their detention in court.

These memos flow from the "Unitary Executive" theory first enunciated in 1986 by Samuel Alito when he was an attorney in the Reagan Justice Department. It is a theory that is not merely radical but subversive to the rule of law. It postulates that, despite a president's solemn oath to enforce the law, a president is free to disregard any provision of the law which the president perceives to interfere with his executive powers. Under "Unitary Executive" theory, a president is not simply above the law. The president is the law.

As revealed by Jane Mayer in a New Yorker piece entitled "The Hidden Power," it was a spin-off of this radical theory --- dubbed "the new paradigm" by Cheney's chief of staff, David Addington --- which formed the quasi-legal basis for the nearly 1,200 presidential signing statements, torture, military tribunals that were straight out of Kafka and warrantless NSA eavesdropping on Americans. The Mayer article reveals that Addington knew torture, often applied to innocent men, was ineffective, but he didn't care. A Bush administration lawyer, quoted by Mayer, said: "Torture isn't important to Addington as a scientific matter, good or bad, or whether it works or not. It's about his philosophy of Presidential power. He thinks that if the President wants torture he should get torture. He always argued for 'maximum flexibility.'"

Commenting on the scope of the Justice Department memos, attorney Scott Horton observed that John Yoo, the principal author of the memos, had "concluded that in wartime, the president was freed from the constraints of the Bill of Rights with respect to anything he chose to label as a counterterrorism operation inside the United States…We may not have realized it at the time, but for the period from late 2001-January 19, 2009, this country was a dictatorship."

Horton overstated his case. While the aim was dictatorship, several factors prevented its fruition: Alternative media countered the propaganda that flowed from the right-wing echo chamber; hardworking bloggers like Brad Friedman exposed how easy it was to manipulate E-voting, and a slender Supreme Court majority in Hamdan (2006) slammed the administration's effort to utilize an endless "global war on terror"[iv] as justification for unlimited presidential power. The court found the military tribunals to be at odds with Common Article III of the Geneva Conventions. In his concurring opinion, Justice Kennedy fired a shot across the bow of the U.S.S. "Unitary Executive," noting that violations of Common Article III were war crimes within the meaning of the U.S. War Crimes statute...

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The loss of democracy was averted, but only because a right-wing project to remake the federal judiciary had not been completed. It is a project in which, following the Senate's 1987 rejection of Robert Bork, whose subversive views were well known, future nominees affiliated with Bork's Federalist Society secured confirmation by evading hard questions designed to expose their radical legal theories. Although seven of the nine Justices are Republican appointees, only four are connected to the Federalist Society. All four are what Law Professor Cass Sunstein refers to as "radicals-in-robes." The Federalist Society is committed to all of the hard-right agenda, especially Unitary Executive theory.

Thanks to a bottling up of Clinton nominees in committee, the judicial project enjoyed greater success in the intermediate appellate courts where, by the end of 2005, approximately 60% of federal appellate judges were Republican appointees. This was followed in 2006 by a Republican threat to end the right of a filibuster in order to secure the appointment of Bush's most radical nominees.

The danger to democracy and the rule of law remains. While the 2008 election placed Democrats in control of the executive and legislative branches, the right-wing judicial project continues with the circulation of a new Senate Republican letter which not only threatened to filibuster Obama's appointees but suggested that "Obama begin by appointing holdover Bush nominees who were never confirmed by the Senate."

Other set-backs --- Nixon's forced resignation; Iran-Contra convictions --- were followed by Ford's pardon of Nixon and G.H.W. Bush's pardoning of his Iran-Contra co-conspirators. These pardons set a dangerous precedent-impunity-which emboldened the hard-right to return with a vengeance during the Bush/Cheney reign.

Unless the rule of law is restored and applied to the Bush/Cheney cabal, the next time around our constitutional democracy could be lost, forever. The survival of the republic mandates nothing less than criminal investigations and prosecutions not only of war crimes and financial crimes but "crimes against democracy," an apt phrase that should be applied to voter suppression, illegal manipulation of election results and the attempted misuse of the Justice Department to gain partisan advantage.

Note: For those so inclined, they can petition Attorney General Eric Holder to appoint a special prosecutor right here.

UPDATE 3/29/08: A 98-page complaint has been filed by Spanish prosecutors with Baltasar Garzón, the judge who ordered the arrest of the former Chilean dictator Augusto Pinochet. As reported by the New York Times today, the complaint is based on the Geneva Conventions and the 1984 Convention Against Torture. "The move represents a step toward ascertaining the legal accountability of top Bush administration for allegations of torture…" A Spanish "official said that it was 'highly probable' that the case could lead to arrest warrants." The complaint specifically targets Alberto Gonzalez, Douglas J. Feith, John C. Yoo, Jay S. Bibee, David S. Addington and William J. Haynes II.

It is nothing short of shameful that a Spanish court has to step forward to carry out a task that our own Justice Department should be pursuing.

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Ernest A. Canning has been an active member of the California State Bar since 1977 and has practiced in the fields of civil litigation and workers' compensation at both the trial and appellate levels. He graduated from Southwestern University School of Law where he served as a student director of the clinical studies department and authored a Law Review Article, Executive Privilege: Myths & Realities. He received an MA in political science at Cal State University Northridge and a BA in political science from UCLA. He's also a Vietnam vet (4th infantry, Central Highlands 1968).



