How the Bush Administration Circumvented Congress and the Law
"The Bush Administration’s [circumvention of laws] was cloaked in secrecy and it excluded much of the government, including almost all of the administration’s most experienced experts in military and international law. [Vice President Dick]Cheney, [David] Addington, and the handful of other like-minded conservative members of the self-appointed War Council, none of whom were military veterans let alone experts in military law, stealthily usurped the decision making. Their solution—the imposition of an alternative legal system following rules of the executive branch’s own devising—has proven the origin of almost all of the Bush Administration’s most vexing legal problems in the war on terror."
Heroes Push Back: Albert Mora Against Torture
"Looking back, [U.S. Navy General Counsel Alberto] Mora believed that the media had focused too narrowly on allegations of U.S.-sanctioned torture. Waterboarding, in particular, was covered as the sine qua non of criminality. As he saw it, the authorization of cruelty was equally pernicious. “To my mind, there’s no moral or practical distinction,” he said. “If cruelty is no longer declared unlawful, but instead is applied as a matter of policy, it alters the fundamental relationship of man to government. It destroys the whole notion of individual rights. The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty. It applies to all human beings, not just in America—even those designated as ‘unlawful enemy combatants.’ If you make this exception, the whole Constitution crumbles. It’s a transformative issue.” [...] No Hungarian after Communism, or Cuban after Castro, is not aware that human rights are incompatible with cruelty.” He added, “The debate here isn’t only how to protect the country. It’s how to protect our values.”"
Interroggation Memos as "Golden Shields"
"[Two interrogation memos] had clearly been written to circumvent the 1994 torture ban. Both displayed what New York University law professor Stephen Gillers, a specialist in legal ethics, called “the veneer of serious scholarship (abundant footnotes, many citations, long dense paragraphs) to create an aura of legitimacy for near-death interrogation tactics and unrestrained executive power.” But beneath the surface, both of [John] Yoo’s interrogation opinions had the same flaw. As Goldsmith wrote in his account, The Terror Presidency, Yoo’s assertions of absolute power for the commander in chief in dictating the treatment of wartime captives “had no foundation.” It was so extreme it would mean the Uniform Code of Military Justice, and all laws written by Congress regulating warfare, were illegitimate. In Goldsmith’s view, Yoo’s legal guidance had “no basis in prior to [the Justice Department’s Office of Legal Counsel] opinions, or in judicial opinions, or in any other source of law.” Yoo’s adamant assertions—which were guiding the United States government in prosecuting a global war—were simply unsubstantiated."
Sum-up and Conclusions
"Seven years after Al Qaeda’s attacks on America, as the Bush Administration slips into history, it is clear that what began on September 11, 2001, as a battle for America’s security became, and continues to be, a battle for the country’s soul.
In looking back, one of the most remarkable features of this struggle is that almost from the start, and at almost every turn along the way, the Bush Administration was warned that the short-term benefits of its extralegal approach to fighting terrorism would have tragically destructive long-term consequences both for the rule of law and America’s interests in the world. These warnings came not just from political opponents, but also from experienced allies, including the British Intelligence Service, the experts in the traditionally conservative military and the FBI, and perhaps most surprisingly, from a series of loyal Republican lawyers inside the administration itself. The number of patriotic critics inside the administration and out who threw themselves into trying to head off what they saw as a terrible departure from America’s ideals, often at an enormous price to their own careers, is both humbling and reassuring. Instead of heeding this well-intentioned dissent, however, the Bush Administration invoked the fear flowing from the attacks on September 11 to institute a policy of deliberate cruelty that would have been unthinkable on September 10. President Bush, Vice President Cheney, and a small handful of trusted advisers sought and obtained dubious legal opinions enabling them to circumvent American laws and traditions. In the name of protecting national security, the executive branch sanctioned coerced confessions, extrajudicial detention, and other violations of individuals’ liberties that had been prohibited since the country’s founding. They turned the Justice Department’s Office of Legal Counsel into a political instrument, which they used to expand their own executive power at the expense of long-standing checks and balances. When warned that these policies were unlawful and counterproductive, they ignored the experts and made decisions outside of ordinary bureaucratic channels, and often outside of the public’s view. Rather than risking the possibility of congressional opposition, they classified vital interpretations of law as top secret. No one knows to this day how many more secret opinions the Bush Justice Department has produced. Far from tempering these policies over time, they marginalized and penalized those who challenged their idée fixes. Because the subject matter was shrouded in claims of national security, however, much of the internal dissent remained hidden.
Throughout this period, President Bush and Vice President Cheney have continued to insist that they never authorized or condoned ”torture,” which they acknowledge is criminal under U.S. law."