Earlier this week details of legal memoranda from the Office of Legal Counsel in the Justice Department dating from early 2002 were released by the Obama Administration. The main author was John Yoo, who has often publicly defended his views. Approximately two years ago two other memos by Yoo became public. In these first two memos he argued that the congressional resolution authorizing the use of force in Iraq and the President's inherent power as Commander-in-chief allowed him to do such things as conduct warrantless wiretaps, jail people without charge, etc. The more recently released memos used the same rationales to say that the President could also inhibit free speech and use regular military troops (as opposed to the National Guard) within the United States for civil enforcement. The interesting, even amazing, thing to me is that only very recently have I seen commentary that Yoo's legal analysis was, to say the least, suspect. You don't have to be a constitutional law attorney to recognize the total fatuousness of this argument. Regarding the congressional resolution, to argue that a resolution can invalidate statute, the constitution, and 200+ years of jurisprudence is beyond belief. Secondly, to say that an implied power can override an enumerated right, especially when it goes against historical precedence, is total nonsense. In the case Schecter v. U.S. (aka, the "sick chicken case"), Chief Justice Hughes, writing for a unanimous (and mostly conservative) Supreme Court said: "Extraordinary conditions may call for extraordinary remedies, " but "Extraordinary conditions do not create or enlarge constitutional power." (See A Traitor to his Class by H. W. Brands or The American Constitution by Kelley and Harbison, to name a couple of sources).
Having worked in a staff position in a large bureaucracy, I can tell you that Yoo did not write these memos for his own amusement or to try to persuade someone to take a position. Given the sweeping nature of these extreme views, the fact that they are ahistorical and have as much foundation as a house of cards built on sand, you can bet the mortgage on the fact that these memos were written in response to a directive from someone high up in the administration. It was most probably one of those "I want you to look into these issues and tell us what we can do", wink, wink, nod, nod. Yoo knew what answer they wanted and wrote accordingly.
Some of the first things the Bush Administration did was to repudiate the Kyoto Treaty on global warming, abrogate the Anti-ballistic Missile Treaty with Russia, and withdraw from the International Criminal Court. The last event got little notice and has been mostly forgotten. Even less noticed was the fact that the Bush Administration followed withdrawal from the ICC with a series of bilateral agreements with every country possible wherein US troops (and officials) were given immunity from local laws. When a country balked, the Bushies threatened to withhold any financial or other assistance from that country. Only a few countries failed to sign.
We know from Treasury Secretary Paul O'Neill and Richard Clarke that the Bush Administration was talking about invading Iraq even before 9/11. Even as far back as 1991 Cheney and Wolfowitz began pushing for Saddam Hussein's removal (see Fall of the House of Bush by Craig Unger, pp. 181-182).
So here's what we know. Bush officials were determined to invade Iraq regardless of the facts, Bush officials then used the war to justify crimes such as illegal wiretapping, torture, kidnapping and illegal detention, and before committing these crimes the Bush Administration withdrew the US from participating in the International Criminal Court and sought to remove any jurisdiction over US committed crimes by other countries. Just a coincidence? What do you think?
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