home

Did Bush Sell Us a Bill of Goods on Torture?

One of TalkLeft's most astute readers (and a major expert on all Department of Justice matters) suggests a connection between today's two news stories - the Times disclosures about secret wiretapping of domestic telephone calls, and the President's apparent yielding on the McCain amendment.

According to the Times, the Administration justifies its wiretapping under the President's inherent national security authority, even though there are specific statutes by Congress that prohibit it. The Wiretap Act specifically says that all wiretapping not authorized by statute is illegal, and that "procedures in [the Wiretap Act and the Foreign Intelligence Surveillanc Act] shall be the EXCLUSIVE MEANS by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted."

If the President can ignore that statute and authorized wiretaps "to protect the nation," then equally he can ignore the McCain Amendment and order torture of detainees "to protect the nation."

Have we been sold a bill of goods?

< The (Other) War | Bob Novak Leaves CNN, Moves to Fox >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft


  • Re: Did Bush Sell Us a Bill of Goods on Torture? (none / 0) (#1)
    by owenz on Sat Dec 17, 2005 at 01:07:06 PM EST
    The Washington Post's article today says something along the same lines:
    The NSA activities were justified by a classified Justice Department legal opinion authored by John C. Yoo, a former deputy in the Office of Legal Counsel who argued that congressional approval of the war on al Qaeda gave broad authority to the president, according to the Times. That legal argument was similar to another 2002 memo authored primarily by Yoo, which outlined an extremely narrow definition of torture. That opinion, which was signed by another Justice official, was formally disavowed after it was disclosed by the Washington Post.
    It all comes back the Yoo Doctrine, which also applies to the Jose Padilla case. Essentially, Yoo said that the President has unlimited powers during wartime. These powers include torturing foreigners in direct violation of international treaties and U.S. law, holding U.S. citizens indefinitely without trial as enemy combatants (in direct violation of the 6th amendment's gaurantee of a speedy public trial), and - apparently - spying on American citizens in direct violation of the Foreign Intelligence Surveillance Act. Under Yoo, presidential powers are unlimited. As extentions of the executive branch, the CIA, FBI, DOD, and NSA have blanket authority to conduct whatever activities the President believes are necessary. Statutes, treaties, and laws simply don't apply. The White House publicly repudiated the Yoo torture memo in the past, but continued to torture in secret prisons and U.S. detention centers, and through its rendition program. If the Yoo Doctrine is still the law of the land, there is no reason McCain's bill should stop the torture. Will the same be true for its NSA spying program, which shouldn't even be necessary given the broad scope of the Patriot Act? Under Yoo, the President is free to ignore U.S. statutes, if not the constitution itself. There are certainly balance of power issues between the executive and legislative branches that, ordinarily, would be settled by the Supreme Court -- which may do just that with the Padilla case. If the Supremes choose to ignore Padilla's lawyers because Padilla has finally been charged (making the issue of whether he can be held indefinitely without charge "moot"), the Administration may take that as a sign that the Supremes tacitly approve of the Yoo Doctrine. And if that's the case, there's no reason to stop the torture of prisoners or the surveillance of American citizens.

    Re: Did Bush Sell Us a Bill of Goods on Torture? (none / 0) (#2)
    by theologicus on Sat Dec 17, 2005 at 01:07:06 PM EST
    Over at Balkinization, Marty Lederman has an extensive analysis of the McCain Amendment: the Good and the Bad.

    Re: Did Bush Sell Us a Bill of Goods on Torture? (none / 0) (#4)
    by owenz on Sat Dec 17, 2005 at 01:07:06 PM EST
    A minor technical note - Foreign Intelligence Surveillance Act as originally enacted did not apply to US persons, however a number of amendments, (Patriot Act among them) changed that. FISA courts can issue surveillance, surreptitious entry orders against any US person now.
    Point taken. But the NSA program circumvented the FISA courts altogether, using no warrants - secret or otherwise - whatsoever. The entire NSA program is a clear violation of the Act.

    Re: Did Bush Sell Us a Bill of Goods on Torture? (none / 0) (#5)
    by Patriot Daily on Sat Dec 17, 2005 at 01:07:06 PM EST
    This is one example of what I was talking about in earlier private email this morning. Yesterday we posted a blog entryon issue of press secretary claiming a "presidential prerogative" for Bush to declare DeLay innocent while remaining silent on Plame. [Ed. Links must be in html format. We fixed this one, please remember for the future.] According to one conservative article, theory is that 3 clauses in the constitution give Bush a "presidential prerogative" during times of national crisis or "war on terror" (which administration lawyers argued in court that entire US is battlefield in this war) that empowers Bush to do anything, including violate constitution. Did not do extensive research, but this theory explains much of Bush/Cheney claims in terms of issuing secret orders and taking actions that violate US laws: “The adherents of prerogative theory hold that the presidential prerogative is a broad power to act in the national interest, or general welfare, of the U.S.A. during time of a very serious national crisis or extreme emergency. They contend that the President has general, undefined authority and responsibility to take rapid and decisive action to cope with a national crisis or emergency situation of extraordinary proportions, e.g., the U.S.A. being subject to foreign invasion or attack or being in imminent danger of foreign invasion or attack.” very scary.

    Re: Did Bush Sell Us a Bill of Goods on Torture? (none / 0) (#6)
    by txpublicdefender on Sat Dec 17, 2005 at 01:07:06 PM EST
    Isn't this the exact same defense that Nixon (and his underlings) used in the Watergate hearings? I seem to recall videotape of Haldeman and/or Ehrlichman sparring with Sam Ervin about whether the Nixon was exempt from the wiretapping laws because he was exercising his duty under the Constitution to protect the national security of the United States. It didn't work that time. So, when do the impeachment proceedings begin?

    Re: Did Bush Sell Us a Bill of Goods on Torture? (none / 0) (#7)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:07:06 PM EST
    I've no expectation that the McCain Ammendment, despite its good intentions, ever really mattered to Bush anyway. The Administration has been clearly thumbing it's nose at the laws and the Constitution since they were appointed by the Supreme Court. So, I appreciate McCain's position on the subject, but given the current Administration's contempt for existing laws, and the Congress' lack of oversight, McCain's bill just seems sort of quaint.

    Re: Did Bush Sell Us a Bill of Goods on Torture? (none / 0) (#8)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:07:06 PM EST
    Bush has continually ignored US law, international law, and the Constitution. 4th Amendment guarantees every citizen the right to be free from unreasonable searches and have the right: "to be secure in their persons, houses, papers, and effects..." from searches without a warrant based upon probable cause. Apparently Bush doesn't like us because we love freedom. We're fighting in Iraq so the Administration can justify the violation of our civil rights. The NSA is the new version of the Stasi.

    Re: Did Bush Sell Us a Bill of Goods on Torture? (none / 0) (#9)
    by kdog on Sat Dec 17, 2005 at 01:07:06 PM EST
    which administration lawyers argued in court that entire US is battlefield in this war
    That is one silly argument. Is the moon part of the battlefield as well? I can only speak of my small corner of the globe, but all is quiet at this undiclosed location. No battle to be found. And judging from past experience with the rats in power...we are always being sold a bill of goods.

    Re: Did Bush Sell Us a Bill of Goods on Torture? (none / 0) (#10)
    by Edger on Sat Dec 17, 2005 at 01:07:07 PM EST
    Bush has continually ignored US law... Apparently Bush doesn't like us because we love freedom. He always did say that "they attacked us because they hate our freedom". Ahem...

    Re: Did Bush Sell Us a Bill of Goods on Torture? (none / 0) (#11)
    by chemoelectric on Sat Dec 17, 2005 at 01:07:07 PM EST
    People who believe they can see how horrible the Bush regime is have, in fact, not yet seen it. With Supreme Court cases, for instance, what we are hoping for is not that the Court stops the Bushist 'excesses'. What we are hoping for is that the Supreme Court will rule and then the Bushist failure to comply incites outrage, despite the tendencies of our media and our Democrats to bury outrage.

    Re: Did Bush Sell Us a Bill of Goods on Torture? (none / 0) (#12)
    by cpinva on Sat Dec 17, 2005 at 01:07:07 PM EST
    i'm kind of curious: what are the limits of authority under executive orders? could bush, by executive order, declare the 22nd amendment null and void? or, postpone national elections? his counsel's position seems to be, he can do whatever the hell he wants, cause he's the prez, and we're "at war".

    Re: Did Bush Sell Us a Bill of Goods on Torture? (none / 0) (#13)
    by Johnny on Sat Dec 17, 2005 at 01:07:07 PM EST
    I can only speak of my small corner of the globe, but all is quiet at this undiclosed location. No battle to be found.
    That's because of our fearless leaders policies! Remember the strife you were undergoing when that terrorist lover was preznit? Sheez kdog, ya gotta give this admin some credit... *snicker*