Cheat Sheet

by Katherine

The current debates over the Feingold resolution and the NSA surveillance program & the ongoing debate over the torture scandals involve a lot of convoluted legal arguments about executive power. It can get really difficult and frustrating for non-lawyers to sort them all out. (Actually it can be that way for lawyers too, but lawyers get three years of instruction in legalese & then get paid to read and write it for a living, It's a lot worse for everyone else.)

To make this a little easier, I've prepared a handy-dandy little guide for decoding the administration's arguments and reassurances on these topics:

Understanding the Bush Administration's Statements About Executive Power And Treatment of Prisoners in Nine Easy Steps

1. Cross out the word "battlefield" wherever it occurs and replace it with the word "earth."

2. Cross out the phrase "length of the war", "duration of the conflict", or similar, and replace it with the phrase "indefinite future."

3. In front of the terms "enemy combatant", "terrorist", "member of Al Qaeda", "trained killer", "enemy of the United States," "illegal combatant," "member of the enemy" etc., insert the words "anyone the President claims, with or without evidence, is a[n]".

4. After all reassurances that the President's conduct is "lawful" or "legal" or "complies with the law", add an asterisk. At the bottom of the page, insert this disclaimer

*It is legal for the President to secretly violate any treaty, statute, or regulation that limits his commander-in-chief power in any way.

5. Whenever the word "torture" appears, add two asterisks. At the bottom of the page, insert this disclaimer:

**Simulated drowning is not torture. Mock burial is not torture. Stripping a detainee naked, and chaining him to the floor of a fifty-degree-Fahrenheit cell, and pouring cold water on him for extended periods is not torture. Prisoners being "forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours" is not torture. Threatening detainees with military dogs is not torture. Prolonged sleep deprivation is not torture. Prolonged isolation is not torture. Repeating these techniques again and again, and combining them in creative ways, is not torture.

6. Whenever a promise to treat detainees "humanely" appears, add three asterisks. At the bottom of the page insert this disclaimer:

***It is fine to abuse and degrade prisoners as long as you do so humanely.  Here are some specific examples of humane treatment.

7. Whenever a claim that Congress has authorized a presidential action appears, insert four asterisks. At the bottom of the page insert this disclaimer:

****When Congress authorizes the use of military force, it authorizes the President to secretly violate any other law if he decides it interferes with the war effort. This is true even if Congress has no idea it's authorizing the President to do this, no desire to authorize the President to do this, and would vote down the use of force resolution if they understood that it meant giving the President this power.

8.  Whenever you read any reference to the "U.S. Constitution", remember that they are referring to this U.S. Constitution, not the quaint, outdated one you studied in seventh grade social studies.

9. Read all restrictions on the President's power as narrowly as it's possible to read them. Read all grants of power to the President as broadly as it's possible to read them. That's "possible", not "plausible".  An easier way to remember this one is to ask yourself "W.W.J.Y.D.?"--"What would John Yoo do?". (Or David Addington, but his initials don't work as well).

I'm sure I'm forgetting some steps--please feel free to suggest additions in the comments.

(edited for typos & clarity).

Comments

[cleek]

funny and depressing!

[Katherine]

I'm not being especially satirical here. I mean, the link to the graphic depiction of the Bush Constitution is more snark than anything else. But as far as the additions, substitutions, and disclaimers--those are intended to be accurate (corrections are welcome, naturally).

[Katherine]

Seriously, try it out on this White House press conference from last month and see how the accuracy improves.

[liberaljaponicus]

definitely need three more step to make it a 12 step program.

[kenB]

Re the Bush Constitution, I think the words "the Army and Navy of" should also be in small print.

[cleek]

here, i made a handy automated way to do this. (but not pt #9 - that's a tough one)

[bob mcmanus]

Alternately deny and admit that the nine steps are policy or practice. Do so in a random and unpredictable manner. Sometimes proclaim in an imperious and arrogant manner, and when confronted, deny you said any such thing. Always claim you are being misinterpreted with malicious intent. Forget a lot. Change the subject, misdirect.

Wait, aren't these the posting rules?

[Tad Brennan]

Suggested revision:
from point 4, explicative footnote, delete the phrase "commander-in-chief". Revise to:

*It is legal for the President to secretly violate any treaty, statute, or regulation that limits his [] power in any way

Even to say that the president's unlimited power is restricted to his commander-in-chief power is to restrict his commander-in-chief power. And that is unconstitutional. After all, as Sen. Frist has told us, the president is the commander-in-chief of all of us, all the time, in every exercise of his power.

I'd make this revision soon, if I were you. Restricting the President's unlimited powers only to unlimited commander-in-chief powers means that you are helping the terrorists.

[bartkid]

addendums:

10. The word "accountability" does not mean what you think it does.

11. Replace the words "Not only did the President break the law, he also actively misled Congress" to "Congress saw the same intelligence as the President".

12. Replace the words "You do need a warrant to wiretap Americans on American soil and Congress passed FISA specifically to lay out the rules for these types of domestic wiretaps" to "Fightin' 'em over there, so we don't have to fight 'em here".

(BTW, even tho' it's Lent, I hafta say, "Hallelujah".)

[Ginger Yellow]

Whenever a reference to "strict construction" or "legislating from the bench" appears, add five asterisks. At the bottom insert the footnote: "Strict construction and legislating from the bench applies only to the unenumerated rights of the people protected by the ninth amendment of the old constitution (see point 8), and not the inviolable rights of the unitary executive protected by the new constitution (see point 8)."

[Ginger Yellow]

Whenever the president tells the American public: "Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way," add "except for the whole warrantless wiretapping of American citizens thing"

Whenever the attorney general says that the government does not wiretap entirely domestic conversations between American citizens, add "as part of the programme under which the government wiretaps conversations between American citizens and foreign based terrorism suspects".

[hilzoy]

I'd amend Ginger Yellow's suggestion to read as follows: "Strict Construction should be understood in accordance with the standard spelled out in US v. Smith:

"In light of this criticism, the Court today announces a new clear standard to guide lower courts in their application of the commerce clause. This new standard will govern when a law exceeds Congress’s power under the commerce clause and when it does not. The new standard is this – a law passed pursuant to the commerce clause is constitutional if Justice Scalia likes the law and unconstitutional if he does not. Similarly, if the law is regulating things that Justice Scalia wants regulated, it is constitutional. If it does not, it is not."

(And if you haven't read this wonderful post from Legal Fiction, you should. Consider the justification for this new standard:

"In justifying any new constitutional doctrine, we must first of course look to the original understanding of the Holy Framers who ascended Mount Sinai and brought back down the Constitution on stone tablets in 1787. A close look at the ratification debates reveals that the scope of the commerce clause was intended to be equal to, and co-extensive with, Justice Scalia’s political preferences. Here is James Madison in Federalist No. 10:

"AMONG the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it."

While at first glance this appears to have nothing to do with the commerce clause, if you switch around some of the letters, it spells: Do What Scalia Wants. See, e.g., Hamburgler v. Burger King, 521 U.S. 321, 341-42 (2003) (Thomas, J., concurring) (“As Harry Potter has taught us, mixing around letters can reveal important insights into the Framers’ original understanding and Lord Voldemort’s evil plans.”)."

Tee hee.