10 February, 2008

Quickstepping towards authoritarianism

This week, it was openly admitted that the Bush Administration on various occasions used water-boarding on accused Al-Qaida operatives. Beyond the arguable merits of whether or not the practice works and whether or not it should be legal, what is clear is that it is not and has never been legal. With the Supreme Court having ruled in 2006 that all prisoners are entitled to the protections of the Geneva Conventions, the real significance of this news lies in what it reveals about this administration's utter disdain for the rule of law and the checks and balances at the heart of our constitution -- a disdain which only becomes more and more stunning.

Dahlia Lithwick, Slate's legal analyst, has a wonderfully scathing critique of how "in the course of a few short years, water-boarding has morphed from torture that unquestionably violates both federal and international law to an indispensable tool in the fight against terror."

Charting that progression is almost not worth doing anymore, so familiar are the various feints and steps. First, the administration breaks the law in secret. Then it denies breaking the law. Then it admits to the conduct but asserts that settled law is not in fact settled anymore because some lawyer was willing to unsettle it. Then the administration insists that the basis for unsettling the law is secret but that there are now two equally valid sides to the question. And then the administration gets Congress to rewrite the old law by insisting it prevents the president from thwarting terror attacks and warning that terrorists will strike tomorrow unless Congress ratifies the new law. Then it immunizes the law breakers from prosecution.


Deny, admit, codify, then immunize. The law as quickstep.


But the scary part of this episode is not that the administration is playing fast and loose with the law -- that has been part of the presidential landscape from the Alien and Sedition Acts, to Nixon's extra-curricular activities, to Reagan's Contras. The scariness is, rather, that this administration believes that the executive branch actually makes the law, and that, further, the law it makes is exempt from review by either of the other two branches.

The claim on which they were all perfectly clear is that the legality of future torture will be determined by the president and the attorney general as the occasion arises...

This vision of executive power is that the law not only emanates from the president but also ebbs and flows with his hunches, hopes, and speculations, on a moment-to-moment basis. What we are hearing now from senior Bush administration officials is that if the president thinks someone looks kinda like a terrorist and the information sought from him seems kinda worth getting, it will be legal to torture him. And it's legal no matter who justified it, regardless of the supporting legal doctrine, because, well, the president just had a feeling that the information would prove valuable.

That's not an imperial presidency. That's the kind of presidency Yahweh might establish.

In the past, I've felt that seriously using the word authoritarian to refer to the past seven years smacked of counter-productive partisan exaggeration. But with the Director of the CIA, the National Intelligence Director, and, most importantly, the Attorney General all giving the President the go-ahead to treat the other two branches as optional participants in the governing process, its hard to exaggerate the danger to our democracy any longer.

This has all been on my mind since I watched "Cheney's Law", the Frontline documentary on the behind the scenes campaign to establish a Unitary Executive. For "further reading", I recommend it:

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