archived: 25 Jun, 2008         Back                 Next

UPDATED:  JUN 25, 2008 

“THE GEORGITE CONCEPT OF CONSTITUTIONALISM
              AND THE RULE OF LAW” (A RE-RUN)

   Continuing with Dr. J.’s Summer Re-Run Season, 2008, this year, I shall intermittently be offering re-runs of previous columns on what I believe are the two most important issues of the 2008 Presidential Election Campaign: the Intentional Destruction of Constitutional Democracy by the Georgites under Bush, and the attempt to create Permanent War in Iraq by the self-same Regime. 

   I am under no illusions that the issue of the Constitution will gain any prominence as a recognized issue by the Democratic candidate (as you know I hope that it will be Sen. Obama, but hey, as Billary have told us on more than one occasion, you never know).   But restoring the adherence to it by the Executive Branch of the Federal Government and the restoration of those many elements of Constitutional Democracy that have already been destroyed in U.S. law by the combination of the Georgite Presidency and their only-too-eager-to-do-their-dirty-work Republican allies in Congress, nevertheless is in historical terms the most important task facing the Democratic Party, in the Executive and Legislative Branches, should they regain power in the former and retain it in the latter.

   As for the War on Iraq, it and both its foreign and domestic outcomes, is the most important reflection of the destruction of Constitutional Democracy; it is a horror in itself both for our armed forces and the Iraqi people; and it, along with Georgite oil policy and their Grover Norquistian theory of the role and function of the Federal government, is a primary reason why the US economy (put in the first place of political importance by many political observers) is in such bad shape.  And so, I shall also be re-running some of my earlier TPJ columns on the War on Iraq.  And now to the first in the series of “Bush Re-Runs.”

On July 1, 2004, my column ran under the title “Counsel to the President.”  It was about the then Chief White House Counsel, Alberto Gonzales (remember him?), and some rather quaint views that he held about Constitutional government.  “Quaint” was of course the term he used to describe the Geneva Conventions, which just happen, through their ratification by the U.S. Senate over time, to have become part of “the highest law of the land” under provisions of Article VI of the U.S. Constitution itself (see below).  He thought the Conventions had become “outdated.”

   I use the term “quaint” to describe Gonzales’ views of the Constitution and the Rule of Law because they pre-date the adoption of the U.S. Constitution, and indeed the proclamations of the English Glorious Revolution of 1688.  That Revolution, from which so many of our nation’s Founding Fathers drew inspiration a century later, happened to have put an end, once and for all, to the doctrine held by certain of the Stuart Kings (including Charles I, who --- literally --- lost his head over it), that they ruled by “Divine Right.”  Well, our own George II, not of the House of Hanover, but of the House of Bush, too believes that he is divinely inspired.  And his then Counsel believed that at his whim and wish he could just change provisions of the U.S. Constitution, whether they pertain to his own powers or those of the other two supposedly co-equal branches of our government.  Gonzales also obviously believed that Bush could violate treaty obligations, without bothering to renegotiate the treaties, something that civilized countries do.  Together, this is nothing other than the restoration of the Doctrine of the Divine Right of Kings.  It was this man, who appears to have either skipped or slept through his introductory course in Constitutional Law in law school,  who went on to become U.S. Attorney General for some not-inconsiderable period of time.  Amazing!

   On Jan. 25, 2002, as Counsel to the President, Gonzales sent President George Bush a memo in which he warned the President about a United States law, the War Crimes Act of 1996 (18 U.S.C. 2441).  That law prohibits the commission of “war crimes” by any U.S. officials or other personnel.  Included in the definition are any violations of the Geneva Conventions concerning the treatment of prisoners of war.  Gonzales told the President that the Justice Department had concluded that the Geneva Conventions did not apply to any apprehended members of al Qaeda.  He also advised the President that the State Dept. did not agree with Justice.  He proposed to the President that he make a determination that the Conventions did not apply to either the Taliban or members of al Qaeda (both memberships to be determined by Bush, with no opportunity for the person in question to dispute the appellation). 

   As we now know well in Gonzales’ view, the “war on terror” had rendered certain sections of the Conventions obsolete; “quaint” was a descriptor he used.  One John Yoo, a University of California law professor on leave with the Justice Department, had begun working on legalistic ways and means for the US to avoid being charged with war crimes in reference to how certain prisoners taken in Afghanistan were treated in the fall of 2001, as the invasion of Afghanistan was getting under way.  Why might he need to have done this?  Because, according to The New Yorker’s Seymour Hersh’s sources at least, Secretary of Defense Donald Rumsfeld had authorized an approach to prisoner treatment that included physical coercion and sexual humiliation.  The Pentagon denied these charges, of course, although that they did authorize them has become a matter of the public record.  But even it had not, if such a plan did not exist, why on earth would they have had a legal defense for its implementation prepared? 

   The Pentagon, and the CIA, asked for legal rulings justifying the use of what most observers, as well as the usual interpretations of the Geneva Conventions, would define as torture.  It happens that Article VI of the Constitution says, among other things, that: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”  Sect. 2, Article II, empowers the President “. . . by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur. . . .” The clause from Article VI quoted above has always been interpreted to mean that treaties are part of the Constitution. 

   Jay Bybee, now a Federal Appeals Court judge, then of the Office of Legal Council of the Justice Department, the federal government’s ultimate legal advisor, wrote the principal memo that Gonzales used in advising the President, describing certain provisions of the Geneva Conventions as “outdated” and “quaint.”  Further, he told the President that with a simple re-labeling of persons captured in Afghanistan from “prisoners of war” to something else and a redefinition of “torture,” provisions of U.S. law (passed by a Republican Congress and signed by a Democratic President, by the way) concerning the commission of war crimes could be by-passed.  In addition, a group of Pentagon lawyers told Rumsfeld that “inherent” in the President’s power as Commander-in-Chief, in war-time, was the authority to authorize essentially anything he wanted to, regardless of US law or treaties.  In this case too, even if such a power could be found anywhere in the Constitution (and I hard looked hard in Article I, Sect. 2 that defines the President’s powers -- and could not find it, and neither can a host of Constitutional Law experts), it happens that under the Constitution the only US government entity empowered to declare war is the Congress.  Although the President and Fox News say repeatedly that “we’re at war,” we are not, at least in Constitutional terms.  

   In the eyes of most of the rest of the world, what Gonzales, Woo, Bybee, Ashcroft, Addington (“Counsel” to Cheney) and Rumsfeld’s lawyers did was to amend a series of treaties unilaterally.  And they did this without bothering even to inform, much less negotiate with, our treaty partners (most of the other countries in the world).  Since treaties are part of the Constitution, they were thus also unilaterally amending the Constitution without bothering to go through the amendment process. 

   There are two major issues here.  One is that if Bush, on Gonzales’ advice, authorized the breaking of the Geneva Conventions, since they are part of the Constitution, he has committed an impeachable offense.  The other, even more important in my view, is that what is going on here is the substitution of the Rule of Man for the Rule of Law.  This is a very serious threat to every US citizen, and other persons for that matter residing in the United States, as well as to US captives abroad, to say nothing of our 200-year history of Constitutional government.  Under this doctrine, if the President, on his own authority, labels you, or re-labels you something in some new category his lawyers dream up, then all of a sudden you live outside of the protections of the US Constitution, whether those protections are to be found in its body or in treaties that become part of it. 

   All of this is as determined by the President under something called “inherent powers.”  Since the President has leave under this doctrine to define those powers in any manner he sees fit, it then explicitly sanctions the substitution of the Rule of Man for the Rule of Law (in Bush’s case a Rule of Man that is divinely inspired, so I guess that makes it OK.  But it does sound an awful lot like the Divine Right of Kings, doesn’t it?)  In so doing, the process also explicitly endorses the eventual end to American Constitutional Democracy, which rests on the bedrock of the Rule of Law, as we have known it. It seems to me that an Executive undertaking to act in just this manner was a major factor in a Revolution that began around 1776.  

   The English Civil War (1642-1651) was fought over this one.  The conflict that ended with the (English) Glorious Revolution of 1688 was fought over this one.  And so (without in the case of King George III his claiming any Divine Right) was the American Revolution.  This, in my view, is the most important single issue facing the nation as we head into the actually campaign for the Presidency in 2008: the Georgites have rewritten the Constitution on their own authority.  “We’ll tell you what rights you have and what rights you don’t have, and we’ll tell you what powers we have and don’t have.”  There is not much time.  U.S. Constitutional Law and the Rule of Law, to use an Al Gore phrase, hang in the balance.

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