I don't get freaked out about the state of American politics very easily. I have always believed that the basic structures of our society are strong, that the American people are fundamentally decent, and that we will be able to repair whatever damage Bush and his cronies do to the basic fabric of our society. Yes, I find the war in Iraq profoundly disturbing, and yes, I worry about particular issues a lot - tax cuts, Arctic drilling, and on and on. But I've never really been one to think that this country is about to slip into la la land, and I haven't really taken talk of creeping facism all that seriously. I've generally been a member of the "it can't happen here" crowd.
But I just read the infamous Yoo memo, and I am now, officially, freaked out.
Because if I'm reading the situation right, they aren't just arguing that the President has the right to spy on whomever he wants - as awful as that would be in terms of the erosion of our civil liberties. They are actually arguing that the President has the right to unilaterally kill anyone, including American citizens, at anytime for undisclosed reasons.
Yikes.
Now, I'm no lawyer. But if I understand the situation right, defenders of the spying program are arguing that during wartime the President is not bound by the dictates of the legislative branch - in other words, that the President can do whatever he deems necessary to protect the American people.
Josh Marshall puts it this way:
As near as I can tell, they're actually not arguing that the Afghanistan War Resolution gave them the authority to override whatever laws or constitutional prohibitions exist against these warrantless searches/wiretaps. What they're arguing is that the Resolution affirmed the president's inherent power as commander-in-chief to do these things.
They really do seem to be arguing that the president's powers as a wartime commander-in-chief are essentially without limits. He's simply not bound by the laws the Congress makes.
Now, from what I understand, this type of argument dates back a while - at least to Nixon - but John C. Woo gave it a particularly strong formulation in a Sept. 25 2001 memo laying out what he saw as the president's authority to respond to 9/11. Here's the concluding paragraph:
In light of the text, plan, and history of the Constitution, its interpretation by both past Administrations and the courts, the longstanding practice of the executive branch, and the express affirmation of the President's constitutional authorities by Congress, we think it beyond question that the President has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001. Force can be used both to retaliate for those attacks, and to prevent and deter future assaults on the Nation. Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon: the Constitution vests the President with the power to strike terrorist groups or organizations that cannot be demonstrably linked to the September 11 incidents, but that, nonetheless, pose a similar threat to the security of the United States and the lives of its people, whether at home or overseas. In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.
This memo has not been repudiated by the administration, and its conclusions can in fact be logically drawn from the arguments currently being floated by the defenders of the spying program. If the President can simply ignore the law in pursuit of national security, then he can, at will, order the assination of anyone deemed a sufficient security threat.You, me, my mother. Anyone.
Somebody tell me I'm wrong here. Please.