Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“It is a general popular error to suppose the loudest complainers for the public to be the most anxious for its welfare.”     Edmund Burke

April 2, 2008

Constitution ? We Don’t Need No Stinkin’ Constitution !

by Doug Mataconis

The Bush Administration yet again demonstrates the depths of it’s depravity:

The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president’s ultimate authority as commander in chief overrode such statutes.

The 81-page memo, which was declassified and released publicly yesterday, argues that poking, slapping or shoving detainees would not give rise to criminal liability. The document also appears to defend the use of mind-altering drugs that do not produce “an extreme effect” calculated to “cause a profound disruption of the senses or personality.”

Although the existence of the memo has long been known, its contents had not been previously disclosed.

Nine months after it was issued, Justice Department officials told the Defense Department to stop relying on it. But its reasoning provided the legal foundation for the Defense Department’s use of aggressive interrogation practices at a crucial time, as captives poured into military jails from Afghanistan and U.S. forces prepared to invade Iraq.

Sent to the Pentagon’s general counsel on March 14, 2003, by John C. Yoo, then a deputy in the Justice Department’s Office of Legal Counsel, the memo provides an expansive argument for nearly unfettered presidential power in a time of war. It contends that numerous laws and treaties forbidding torture or cruel treatment should not apply to U.S. interrogations in foreign lands because of the president’s inherent wartime powers.

“If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network,” Yoo wrote. “In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.”

Interrogators who harmed a prisoner would be protected by a “national and international version of the right to self-defense,” Yoo wrote. He also articulated a definition of illegal conduct in interrogations — that it must “shock the conscience” — that the Bush administration advocated for years.

“Whether conduct is conscience-shocking turns in part on whether it is without any justification,” Yoo wrote, explaining, for example, that it would have to be inspired by malice or sadism before it could be prosecuted.

There are two types of government in this world. A government of laws, and a government of men. One exists with the restraints necessary to protect individual liberty. The other results in tyranny. Back in 1776, men like Jefferson, Washington, and Adams set America on a particular path because they rightly realized that only a government of laws would create a free society.

In 2003, John Yoo and the Bush Administration decided that law was irrelevant and the rule of man would suffice.

For that reason alone, George W. Bush is close to being the worst President in American history.

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19 Comments

  1. [...] one who believes in a government of men rather than a government of laws.   [...]

    Pingback by Below The Beltway » Blog Archive » The Worst President In American History — April 2, 2008 @ 2:37 pm
  2. “George W. Bush is close to being the worst President in American history.”

    I don’t think it is close. He is a runaway winner with no one else even in contention. He has done more damage to this country than any enemy, foreign or domestic, in the country’s history and the fallout will be felt for decades.

    Comment by kevin — April 2, 2008 @ 4:02 pm
  3. Although I think Kevin might be overstating it a little, as far as I’m concerned he’s the worst. I realize that many libertarians will name FDR as the worst offender, but I personally believe that Bush’s complete incompetence at almost every aspect of his presidency and the fact that he started an unjustified long-term war in Iraq (which he has then proceeded to lose through staggering ineptitude in both his own strategic thinking and his approach to foreign policy) pushes him over the top.

    Comment by UCrawford — April 2, 2008 @ 4:13 pm
  4. GWB has to beat FDR and LBJ for that title first. Almost everything GWB has done, FDR did in spades. And lest we forget, we are still dealing with the effects of his court-packing scheme on American jurisprudence. It’s long been my contention that FDR’s court-packing threat did more damage to liberty in this country than any government program ever could,since the fallout from it has allowed almost every single unconstitutional government program for the last 60 years.

    Lest we forget, FDR was also an outright socialist, while Bush’s views on the economy are just crony capitalism.

    Comment by Mark — April 2, 2008 @ 4:16 pm
  5. Mark,

    Lest we forget, FDR was also an outright socialist, while Bush’s views on the economy are just crony capitalism.

    I submit that Medicare Plan D exposes GWB as more socialist than you’re giving him credit for…even though the point was really just to buy votes among the elderly (most socialists in power are only that way because it aids them too).

    Also, while FDR did many horrific things on the domestic front, he still didn’t openly advocate for the usage of torture by the U.S. government. It may be a small distinction for some, but to me it’s a major line in the sand.

    Comment by UCrawford — April 2, 2008 @ 4:20 pm
  6. Just found the site, immediately bookmarked it. Just think, W still has 300 days to go. (not counting vacation days of course. He can get worse still.

    Comment by MikeF — April 2, 2008 @ 5:53 pm
  7. Mark –

    I half agree with you. I personally think Bush Jr. slots right between FDR and LBJ for second place. FDR so radically debased the concept of rights and liberties that it would take a full on dictator to top him, and while GWB is many things, he ain’t that.

    LBJ, though, did nothing but extend FDR’s vision, and for that I can blame him only so much. He, and the rest of the left, we so drunk on the apparent success of the New Deal that one of the left-wing presidents would try to expand it. LBJ was caught between the assassination of a very popular president, a worsening situation in Southeast Asia, and a mandate that he “do something.” There’s nothing to say that another man in his spot wouldn’t have done the same.

    GWB, with his visionary incompetence and embrace of socialism under the title of “compassionate conservatism” are things not easily replicated. Let’s give discredit where discredit is due.

    Comment by Quincy — April 2, 2008 @ 6:17 pm
  8. UCrawford and Quincy- good points. I still think FDR was worse (he might not have tortured, but GWB can’t hold a torch to the internment camps in terms of scale and scope). When you add that FDR was regarded by a majority as a hero at the time, and continues to be held in high esteem by a huge number of people, while Bush is almost universally reviled, the lasting harm of FDR is likely to be more severe than the harm Bush has caused. But we’re talking a matter of degrees here.

    As for LBJ, you’re right that he was dealt a pretty rough hand. I’ll cop to being a bit unfair to him. And on the whole, I think he deserves credit for the Civil Rights Act- despite its flaws, I think it was clearly a net gain for liberty.

    What’s sad is that Bush has so far surpassed Nixon in bad governance that Nixon doesn’t even enter the conversation (a lot of Nixon’s foreign policy was actually pretty good, though he did plenty of crappy things in other arenas).

    Comment by Mark — April 2, 2008 @ 7:26 pm
  9. Mark,

    I kind of agreed with the New Republic’s rating of Nixon several years ago. They gave him both an A and and F. Seems appropriate on several levels.

    Dubya and FDR I consider straight “F” presidents. I’m intermittently reading the Caro biographies on LBJ so until I finish them he gets a D- from me. Maybe Caro will make me a little more sympathetic, but judging from what I’ve read of the first book it doesn’t seem likely :)

    Comment by UCrawford — April 2, 2008 @ 7:38 pm
  10. Mark,

    he might not have tortured, but GWB can’t hold a torch to the internment camps in terms of scale and scope

    Very true…but let’s also not forget that a) FDR did not pre-emptively invade Japan and b) he didn’t lose. Again, I realize that many libertarians will disagree with me on those points and on the value of WWII in general, but I also consider service in the role of Commander-in-Chief during wartime to be a prime judging characteristic of a president. FDR, for all his horrific faults, was a competent wartime leader…Bush has been anything but. In fact, I’d argue that he’s been far and away our most disastrous wartime president.

    Comment by UCrawford — April 2, 2008 @ 7:45 pm
  11. UCrawford- on those points, you will get no disagreement from me. And of course, FDR was a competent wartime leader at a time when we actually did face an existential threat from abroad, while GWB has started a preemptive war against a nation that was almost no threat at all, then run it as incompetently as possible, thereby turning it from a small-time operation to a five-year-and-counting disaster.

    I guess I still think FDR was worse in the long-run because his excesses have been responsible for not only his near-tyrannical governance, but also the vast majority of federal tyranny of the last 60+ years. I would further argue that FDR’s excesses did more than anything else to set the table for GWB’s abuses of power.

    Then again, reading the torture memorandum today, I may have to rethink my position.

    Comment by Mark — April 2, 2008 @ 7:57 pm
  12. Mark and UCrawford,

    One thing to point out is that part of GWB’s incompetence regarding Iraq can be pointed back to FDR. When FDR was attacking Germany, he was allowed a total war approach (destroy, then rebuild) rather than whatever the incompetence we hold today to be American military strategy. It also is important to remember that FDR and his wife were part of the creators of the United Nations, another black mark on the Presidency, and one of the stumbling blocks with GWB and Iraq.

    Overall, it is hard to fully blame GWB without acknowledging the things that he is allowed to get away with simply because Americans were conditioned to accept them under FDR.

    I do have to agree that FDR is worse simply because of his ability. GWB’s incompetence has gotten both sides to try and distance themselves from him. FDR is worse in my book simply because as the Left argues against GWB, they point at FDR with fond memories.

    (On a side note, technically FDR died before the end of WWII. While not necessarily an issue, it is always interesting to wonder if he would have had Truman’s courage in bombing Japan, but that is another conversation.)

    Comment by trumpetbob15 — April 2, 2008 @ 8:56 pm
  13. I think what GWB has shown is not all incompetence. He is more of a front man, but very good at distracting attention away from Cheney, who is not at all incompetent. We will (hopefully) be finding out what they have done for years to come behind the scenes, but some Democratic complicity might prevent that.

    For instance, we now know that they were spying on Americans prior to 9-11. The Total Information Awareness program spent our tax money to spy on ordinary Americans conducting totally legal activities in their everyday lives. And it didn’t stop when found out, they just shifted to “the program”.

    Comment by MikeF — April 3, 2008 @ 5:23 am
  14. [...] MikeF: I think what GWB has shown is not all incompetence. He is more of a front man, but very good at distracting… [...]

    Pingback by The Liberty Papers »Blog Archive » Bill Of Rights ? We Don’t Need No Stinkin’ Bill Of Rights ! — April 3, 2008 @ 5:31 am
  15. I would still have to put FDR number one. With his court packing issue, the start of the welfare state in a big way, and maybe most importantly his actions in regard to gold, contracts, and the dollar.

    GWB and LBJ are fighting for second. Most of what GWB has done, other Presidents were doing as well, just not as in as big of way or as incompentently. Presidents have been spying on Americans for years. GWB has just taken it to another level. You can’t tell me that other Presidents have not used torture to get what they wanted as well, they just did a better job of covering it up. All Presidents in recent history have gone into other countries unprovoked, just on a smaller scale and with more compentency than GWB. For a republican, however, GWB has been by far the worst President in regards to economics in recent memory along with his disdain for individual rights and lust for power and control he is right up there with LBJ and maybe even in front of him for beinn the second worst President ever.

    Comment by TerryP — April 3, 2008 @ 7:13 am
  16. TerryP,

    You can’t tell me that other Presidents have not used torture to get what they wanted as well, they just did a better job of covering it up.

    True…but Bush isn’t even trying to cover it up. He’s been claiming that it’s the government’s prerogative to torture prisoners as well as strip them of their rights of due process (based on an almost completely arbitrary usage of unlawful enemy combatant status). And U.S. citizens have not been exempted from this treatment, as the case of Jose Padilla has illustrated. What he’s doing in regards to torture is worse than what any other U.S. president has done.

    All Presidents in recent history have gone into other countries unprovoked, just on a smaller scale and with more compentency than GWB.

    Also true…but the level of sheer incompetence pushes Dubya to the top in the category of “Worst President On Foreign Policy” to my mind.

    For a republican, however, GWB has been by far the worst President in regards to economics in recent memory

    No argument from me on that…he seems to be channeling Herbert Hoover lately.

    Of course, ultimately this is all just personal opinion based on how much we value certain issues. Our preferences aside, I think we can all agree that whatever his true ranking might be Dubya is one of the most horrific presidents ever to sit in the White House…and that’s saying a lot.

    Comment by UCrawford — April 3, 2008 @ 8:17 am
  17. trumpetbob,

    While not necessarily an issue, it is always interesting to wonder if he would have had Truman’s courage in bombing Japan, but that is another conversation

    I don’t think that there’s a chance FDR, or any other president, wouldn’t have dropped the bomb. The conventional wisdom at the time was that the death toll would be much higher with an invasion of the Japanese mainland (with a lower probability of success). Considering the information they had available and the information they didn’t (the lasting effects of radiation) the usage of the A-bomb on Japan was a no-brainer in 1945.

    I do wonder sometimes, what FDR’s legacy would look like today if he’d been the one to do it. Actually, I doubt it would have changed all that much. He might be a little less popular in some supportive circles, but most would probably be willing to write it off as a necessary action at the time and the people who would have hated him for dropping the bomb were most likely the same people who hated him for a lot of the other stuff he did (so their opinion would probably have been unchanged). For myself, I think FDR was an absolutely horrific president, but if it had been him in charge of dropping the bomb I probably wouldn’t have held it against him because I think it was a necessary action given the circumstances and the timeframe.

    Comment by UCrawford — April 3, 2008 @ 8:21 am
  18. The thing that makes GWB especially horrid is the fact that, unlike previous Presidents who hid wrongful deeds like this and covered them up, he and his Administration are cloaking them with legality and the imprimatur of the Constitution.

    They are, essentially, providing the legal basis for tyranny.

    Comment by Doug Mataconis — April 3, 2008 @ 9:07 am
  19. The thing that makes GWB especially horrid is the fact that, unlike previous Presidents who hid wrongful deeds like this and covered them up, he and his Administration are cloaking them with legality and the imprimatur of the Constitution.

    They are, essentially, providing the legal basis for tyranny.

    This cannot be stated often enough.

    Comment by Jeff Molby — April 3, 2008 @ 9:35 am

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