All Lawyered Up in Washington

By Philip Giraldi • January 3, 2014 • http://www.unz.com/article/all-lawyered-up-in-washington/

The “unitary executive” crowd that came to the fore under George W. Bush argue basically that because the government does something it is therefore ipso facto legal. It is not a new concept though one heard only intermittently in the United States where constitutional checks and balances were long the Gospel prior to 9/11. Ironically, the juridical theory justifying an all-powerful executive was first described by Carl Schmitt, the German jurist who defended the legitimacy of the Nazi usurpation of the Weimar constitution, later referred to as the “Fuhrer principle.” In the United States its chief advocates have been John Yoo, Jay Bybee, and Eric Posner. Yoo and Bybee were the authors of several notorious Justice Department memos that stated that torture by the CIA was legal because the government said that it was so. As Yoo put it , “Any effort by Congress to regulate the interrogation of enemy combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President….Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield… 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. 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.” Bybee meanwhile explained that harsh measures in interrogations were perfectly acceptable as long as they did not result in “death, organ failure or serious impairment of body functions…”
One of the ultimate ironies of America’s decline into madness post 9/11 is the way in which lawyers have led the charge to strip the rest of us of our civil liberties, perhaps suggesting that more law schools should require courses in both ethics and civics. A government lawyer tells President Barack Obama that it is okay to assassinate an American citizen overseas while another government lawyer explains how using CIA drones to attack civilians in a place like Pakistan or Yemen is not really an act of war or a war crime. It is always possible to find a lawyer to justify nearly anything while simultaneously making sanctimonious noises about protecting the constitution.