October 22, 2007

Charlie Savage's "Takeover"

We are so screwed.

That's the message I take away from Takeover. Roberts and Alito as proponents of the Unitary Executive Theory? Pfui. Stacking the Justice Department with conservative lawyers in career positions? Bah. Signing statements which declare parts of laws unconstitutional? No biggie.

No, the reason the country is in deep trouble is simply this: smart legal maneuvering over the past seven years has created precedents which allow the President to do things without judicial review. This was written into law when Congress passed the Military Commissions Act.

For example, one of the things Congress did in the Military Commissions Act was help undermine the Geneva Conventions as a check on the power of the commander in chief.


Crucially, Congress delegated to the president alone the power to decide whether any particular coercive interrogation technique was prohibited by the list, and it stripped the courts of the power to hear lawsuits based on the Geneva Conventions, meaning the president's word was final. (Emphasis mine)

Savage cites Martin Lederman, writing about John Yoo's celebratory Op-Ed in the WSJ upon passage of the law:

they want the President to be able to act in accord with very radical and questionable legal interpretations, without any risk that anyone will ever call them on it. If this Administration had not chosen to take such a cavalier and dismissive attitude toward the substantive legal norms (of statute, treaty and laws of armed conflict) that govern the conduct of war, it would have nothing to fear from judicial review. The only reason they are desperate to shut the courts out is that their conduct is of such dubious legality.(Lederman's emphasis)

As Savage says later in the chapter,

the fact that Congress put the statute on the books left the executive branch in a very strong legal position. The Supreme Court has long held that the president's authority is at its maximum when he is acting with explicit congressional support. After all, under the Constitution Congress has the power to pass laws making all the rules and regulations for how the executive branch carries out its responsibility of protecting national security. Congress also has the power to change the government's understanding of treaties. And Congress can limit the jurisdiction of courts. It would not be easy to persuade the Roberts Court that Congress had gone too far in empowering the president.

Another example of the executive branch's successful legal maneuvering is the use of the State Secrets Privilege, which nations use to protect information they declare to be vital to national security. The president's men have been quite zealous in using this, notably in the case of Sibel Edmonds, a contract worker for the FBI. She filed a whistle-blower lawsuit against the Department of Justice, alleging that she was improperly fired by the agency in retaliation for embarrassing it. (Details of her case here.)

Attorney General Ashcroft claimed that fighting her suit couldn't take place without discussing her work, and that might endanger national security. He then retroactively classified information related to the case, information which had previously been available to Congress. The judge then threw out the suit, since no facts could be presented. Savage:

This use of the State Secrets Privilege essentially established the president himself as the sole arbiter of which matters could receive judicial review. Yet nothing in the Constitution itself gives the executive branch the right to dispose of lawsuits by uttering the magic words "state secrets."

So, Bush's legal team has managed to establish precedents for presidential power far beyond what was written into the Constitution, and it's now appointed two new justices to the Supreme Court who are firm believers in strong executive power.

We are so screwed.

Posted by Linkmeister at October 22, 2007 11:53 AM | TrackBack

Sounds like the Bush administration has figured out how to create its own facts using that neat little retroactive classification technique. Can I do that too?

Nice review.

Posted by: Lizzy L at October 22, 2007 01:22 PM

Sing along with me now boys und girls

America, America uber alles
Uber alles in die weld

Ya! We is a good Americans now.

Posted by: frankly at October 23, 2007 12:14 PM