January 5, 2006
In my last dispatch, The Unrestrained President,
I suggested that what we were dealing with in Washington was a virtual
cult of the presidency and that its believers were more fervent than
any religious fundamentalists in their focus on the quite un-Christian
attribute of total earthly power. Their urge to create a President
accountable to no one, overseen by no one, and restricted by no other
force in his will to act was amply demonstrated in a simple
bill-signing at the White House last Friday. It was then that George
Bush inked the Defense Appropriations bill containing Senator John
McCain's anti-torture amendment (vigorously opposed by the President
and the Vice President), which was meant to close various loopholes in
prohibitions on torture. The President, according to Charley Savage of the Boston Globe,
issued a "signing statement" -- "an official document in which a
president lays out his interpretation of a new law" -- in which he
"quietly reserved the right to bypass the [McCain] law under his powers
as commander in chief." So much for the ability of Congress to
legislate, if the President can simply declare anything it passes
whatever he decides it should be. ("A senior administration official,
who spoke to a Globe reporter about the statement on condition
of anonymity because he is not an official spokesman, said the
president intended to reserve the right to use harsher methods in
special situations involving national security.")
Nick Turse shines a new light on the Bush administration's cult of
presidential power by showing just how far back its adherents would
roll our constitutional and legal system -- back to the Middle Ages and
the rule of kings. Tom
What Year Is This Anyway?
Rollback to 1214 AD
By Nick Turse
What might happen to an "often cruel and treacherous" national leader who "ignored and contravened the traditional" norms at home and waged "expensive wars abroad [that] were unsuccessful"?
On June 15, 1215, just such a leader arrived at Runnymede, England and
--under pressure from rebellious barons angered by his ruinous foreign
wars and the fact that "to finance them he had charged excessively for
royal justice, sold church offices, levied heavy aids," and appointed
"advisers from outside the baronial ranks"-- placed his seal on the
Magna Carta. The document, which was finalized on June 19th, primarily
guaranteed church rights and baronial privileges, while barring the
king from exploiting feudal custom. While it may have been of limited
importance to King John or his rebel nobles (as one scholar notes, "It was doomed
to failure. Magna Carta lasted less than three months"), the document
had a lasting impact on the rest of us, providing the very basis for
the Anglo-American legal tradition.
Over the years, the Magna Carta came to be interpreted as a document
that forbade taxation without representation and guaranteed trial by
jury. In the U.S., it is seen as providing a basis for the 5th
Amendment to the Bill of Rights that holds: "No person shall… be deprived of life, liberty, or property, without due process of law…" (The Magna Carta states: "No Freeman
shall be taken, or imprisoned… but by lawful Judgment of his Peers, or
by the Law of the Land.") While many progressive and democratic
understandings of the document, popular from the seventeenth to the
nineteenth century, have now been dismissed as misinterpretations, the
Magna Carta has one absolutely significant feature. As the website of
the U.S. National Archives and Records Administration (NARA) notes,
"When King John confirmed Magna Carta with his seal, he was
acknowledging the now firmly embedded concept that no man -- not even
the king -- is above the law."
Fast forward 561 years. Says NARA, "In 1776, the Founding Fathers
searched for a historical precedent for asserting their rightful
liberties from King George III and the English Parliament." They found
it in the Magna Carta. Fast forward another 230 years. Their war for
independence long since over, Britain's former rebel colonies begin the
new year of 2006 on a precipice. During the previous 365 days, they
saw, among other shocking displays, their Vice President publicly
campaign against Senator John McCain's anti-torture amendment and, as
such, essentially offer his support for illegal torture. Then,
following a failed attempt by the President to quash a New York Times story
on the National Security Agency (which the paper had already suppressed
for a year), the people also found out that their President had ordered
unlawful spying on American citizens.
After the latter scandal became public, Attorney General Alberto Gonzales (who, in 2002 as White House counsel, penned a memo
advising the President on how to circumvent the 1996 War Crimes Act)
claimed that George Bush had the right to violate the 1978 Foreign
Intelligence Surveillance Act (which makes it illegal to spy on U.S.
citizens in the United States without prior or retroactive -- within 72
hours-- court approval) due to his "inherent authority
as commander in chief under the Constitution." This, despite the fact
that in 2004 Supreme Court Justice Sandra Day O'Connor, writing for the
court, insisted, "A state of war is not a blank check for the president
when it comes to the rights of the nation's citizens." Bush himself
then came out swinging, claiming that he had no need for the courts
since he acted as his own agency of oversight, and his acts were legal because he "swore to uphold the laws."
The President's threatened veto of the McCain anti-torture amendment,
the Vice-President's pro-torture campaign, the President's illegal
spying, which he proudly claimed he had re-authorized many times over,
his attempt to squelch the free press (which Thomas Jefferson once called
"the only security of all" and about which he stated, "Were it left to
me to decide whether we should have a government without newspapers or
newspapers without a government, I should not hesitate a moment to
prefer the latter"), and his own and the Attorney General's defense of
all of the above, are not only the latest examples of the
administration's quest to shred the U.S. Constitution and expand
already vast presidential powers past anything conceivably envisioned
by the founders of the United States, but also a direct attempt to
overturn nearly 800 years of Anglo-American legal precedent. In other
words, the administration has launched nothing short of a bid to
invalidate the guiding precepts of what the U.S. government acknowledges
to be the Ur document that inspired and provided precedent for
America's founders to issue their Declaration of Independence in 1776:
the Magna Carta.
In 1957, the American Bar Association erected a monument at Runnymede
to "acknowledg[e] the debt American law and constitutionalism" owed to
the Magna Carta. Today, the defining tenet of the American legal system
is in jeopardy as the Bush administration has attempted to roll back
the clock to the 13th century. Such a gambit seeks to do nothing short
of shatter and effectively bury the framework for the Anglo-American
legal tradition by transforming the chief executive into an unchecked
despot and so plunging us into a pre-1215 world. The implications are
dire. As Harold Hongju Koh, dean of the Yale Law School, observed,
"If the president has commander-in-chief power to commit torture, he
has the power to commit genocide, to sanction slavery, to promote
apartheid, to license summary execution."
During the birth of the United States, John Adams -- who also proclaimed
that Britain's rule under which "The Law, and the Fact, are both to be
decided by the same single Judge" was "directly repugnant to the Great
Charter [Magna Carta] itself" --
wrote of "a
government of laws and not of men." During the Watergate crisis (to hop
a couple of centuries) and just after he was fired by a President who
wanted to shield his criminal acts by citing the doctrine of executive
privilege, Special Prosecutor Archibald Cox warned,
"Whether ours shall continue to be a government of laws and not of men
is now for Congress and ultimately the American people." Just 33 years
later, the question again begs answer -- is this to be a nation of laws
or of men? Is this to be a nation that recognizes nearly 800 years of
Anglo-American legal precedent in which even the nation's chief
executive is subject to the rule of law, or one that allows that leader
to assume the unchecked rights of a sovereign during the Middle Ages?
Are we willing to accept the Bush administration's latest rollback
campaign and reset the calendar to 1214?
Nick Turse is the Associate Editor and Research Director of
TomDispatch.com. He has written for the Los Angeles Times, the San
Francisco Chronicle, the Nation, the Village Voice, and regularly for
Tomdispatch. If you have whistles to blow or muck you think Nick should
rake, send your insider information to fallenlegionwall@yahoo.com
Copyright 2006 Nick Turse
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