Monday, January 02, 2006

The Usurpers of Our Freedoms

For those of you who have not seen this article, “The Usurpers of Our Freedoms” by Law School Dean, Lawrence R. Velvel I strongly recommend a good reading of it (below my short comments). It is lengthy, but it is more than worth taking the time to read.

I find it rather disconcerting that today, after learning of the extent of the internal spying on us authorized by Bush/Cheney (which is not only supported by the
Federalist Society, and the PNAC--who are after the centralization of executive power--but strongly support it) that the discussion is whether Bush broke the law by doing that. Of course he broke the law. Good grief, people, Bush broke the “law” when he authorized the unleashing of the “Dogs of War” upon Afghanistan and then Iraq. If impeachment is to be brought against Bush, Cheney or any of the rest of that marvelous mob of megalomaniacs, it needs to list first and foremost the illegal invasion and occupation of Iraq. Everything else, including the internal spying on us taking place today, stems from that point!

These people see congress and us, the American people as complete idiots and a total hindrance to the “one party rule” they are after. We are not little children in need of some all protective “father” to “protect” us. What we have is a gross usurpation of Power by Bush/Cheney & Co., Inc. with the full cooperation of our courts and the Department of (In)Justice--all of whom are members of the Federalist Society, and all of whom want all power vested in the one party rule by the Executive Branch of government—the very thing the framers of our Constitution tried to prevent.

We need to get to the point where we are the “tellers” and no the “tellees” we currently are. The war powers Bush/Cheney & Co are so fond of telling us about, and contrary to what they try to convince us of, do not extend to nor do they include internal spying or anything like it. Was it not George W. Bush who stated 5 years ago, “…this would be much easier if this were a dictatorship, as long as I was the dictator”? Was it not George W. Bush who was quoted recently stating, “The Constitution is just a goddamn piece of paper”? Was it not
the criminal Tom DeLay who stated on Nov of 2004 that, “…now that Bush is back in the White House, and a Republican majority in the House and the Senate, we will now be about the business of making Republican “rule” permanent and establishing a Bible based government”? On to Prof Velvel’s essay -- Jack

The Usurpers of Our Freedoms
By: Lawrence R. Velvel

CounterPunch

Lawrence R. Velvel is the dean of Massachusetts School of Law.

AT STAKE in the so-called war on terror is longer just treatment of detainees, but the freedom of Americans.

Bush and company have very wrongly used the commander-in-chief power as a lever to make the President far, far too powerful, powerful far beyond anything intended by the framers, who created a government in which the legislature was to be the more powerful branch.

John Yoo has despicably abetted this process by writing intellectually corrupt legal opinions, which were to be used to shield officials high and low against the possibility of criminal prosecutions even though their acts plainly are criminal. The legal opinions, moreover, were classified, were all kept secret, in major part because Congress and the public would never stand for what is being done if they were to learn about it by reading the opinions

Congress has been ineffective and cowardly.

George Bush has committed the impeachable felony of conspiracy to commit torture, but the media and the politicians refuse to discuss this. He should, however, be impeached for this felony.

The New York Times has apparently withheld information about various important subjects, and one wonders what those subjects might be.

Samuel Alito should be asked very specific, pointed questions about the extent of Presidential power.

In accordance with first amendment values, there should be reporters' privilege when confidential sources alert them to evildoing by government, but not when confidential sources try to use reporters to further evildoing by government.

All-Powerful President

Bush's claims of power all come down to a single overarching principle, articulated for him in legal terms by John Yoo, and articulated in political speech by Bush himself. That overarching principle is that the President is all powerful whenever he asserts a claim that what he authorizes or does is for the purpose of fighting a war.

Yoo said that such all-surpassing power comes from the commander-in-chief clause and cannot be limited by Congress. Of course, Yoo shamelessly distorts the commander-in-chief power, which was intended simply to put a civilian in charge of the military lest a general seek to take over the country and become dictator, and was not intended to make the President a dictator, was not intended to give him the dictatorial power that the framers were guarding against in a general.

Never has this been put more eloquently than in a passage in a concurring opinion written in the Korean War's Steel Seizure Case by that most eloquent of all Supreme Court Justices, Robert Jackson:

"His command power is not such an absolute as might be implied from that office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose law and policy-making branch is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role."

Bush, of course, doesn't write, and most likely doesn't even read, legal opinions, whether from Supreme Court Justices or Department of Justice lawyers. (Opinions are more than one page long.) Bush merely says, echoing Yoo, that because he is commander-in-chief he can do whatever he claims is necessary to protect Americans. He also says that Congress's authorization of the use of force allows him to engage in warrantless electronic surveillance.

Of no concern to Push is the fact that legislators say they never even thought about warrantless electronic eavesdropping when considering an authorization of force (they were, after all, focused on military action, not surveillance); that people who apparently have read the Congressional history find no mention of surveillance, that there is a specific law against what he is doing. Ich bin der Staat, after all.

Attorney General Alberto Gonzalez, in Bush's defense, says that a few Justices of the Supreme Court -- not all -- said in the Guantanamo case that the authorization of force means we can imprison enemy fighters. Therefore, concludes Gonzalez, the authorization also means we can wiretap citizens without a warrant. It does not seem to occur to this mental giant of an Attorney General that in every war one takes and holds prisoners, so that an authorization of force must mean you can do this. But why the authority to take enemy prisoners -- an incident of every war -- means you can also wiretap American citizens without a warrant, and why it means this even in the face of a contrary statute, simply escapes one who is not a hack henchman for Bush. On the other hand, L'Etat, c'est moi, so what a statute of Congress says is irrelevant.

Stupid, Frivolous Statements

The statements of people like Bush, Gonzalez and Dick Cheney, and the so-called legal opinions of Yoo, are not to be taken seriously from the intellectual standpoint. Indeed, one wonders if they are even seriously meant, since they are too stupid, too frivolous, to be intellectually serious. The true, underlying intended function of these claims, and particularly of the legal memos, is really something quite different.

The intended function is to provide a shield for Bush and company, down to the lowest CIA operative, NSA operative, or grunt, if someone were ever to think about putting them in the criminal dock for what they have done. The possible defendant, be he Bush on down to a grunt, could point to the legal opinions of Yoo (and his one time boss, now Federal judge Jay Bybee) and say, "I cannot be fairly accused of a crime. There were legal opinions from high Department of Justice officials -- opinions on torture, on surveillance [and possibly on God knows what else that we don't even know about yet] that said what I was doing was legal." It was, indeed, CIA personnel's desire for protection -- dare one say cover -- that led to the torture opinions. Gonzalez recently pointed out that Bush had documents from lawyers all over Washington (as I believe Gonzalez put the matter) saying that what Bush was doing was lawful. Some NSA officials were very worried about the legality of the warrantless surveillance. Some of the NSA people were -- and still are -- so worried about its legality that they apparently wouldn't participate in it and/or blew the whistle to The New York Times despite Yoo's classified memos claiming legality.

The Heart of the Problem
Rotten Cluster of Views
Rotten Cluster of Views
Rot in Congress
Founders' Plan Distorted

Read The Above Sections and Full Essay Here: http://www.counterpunch.org/velvel12262005.html


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