Neocons Advocate Neoconstitution.

i think this one requires a preface, so please bear with me a moment. contrary to what some of you may believe--or want to believe--i don't hate george bush. hate is an emotion that should be reserved or restricted to people with whom one has a personal connection, and there are only three people who've come close to provoking hatred from me during my adult life. i don't even truly dislike him. i didn't think he was a very competent governor and i'm even less impressed by his performance in the whitehouse. nothing ive seen him do or say has improved my opinion of him since he first became prominent in texas and many of the things he's done as president have diminished it . before you presume to conclude im revealing a goofy liberal, leftie, anti-american character flaw, please consider this: one of bush's major failings is, to my way of thinking, his transparent impersonation of a conservative and his cynical certainty--manifested by that smarmy smirk--that many of those who consider themselves conservatives swallow it hook, line and sinker

cheney is an entirely different story. i do dislike and distrust him. i believe hes greedy, duplicitous and possibly even dangerous. hes the best reason i can think of to keep bush alive and well. ashcroft may not be money-hungry as cheney but hes perhaps even more of a threat because he is a fanatic who clearly has no qualms when it comes to doing something that is the very anathema of american thought: limit the rights codified in our constitution. there are several other neocons in the whitehouse whom i feel deserving of constant scrutiny, chief among them being one elliot abrams.

the subject of this article is the product of at least one, possibly all four of these men--either directly or indirectly as a result of their influence on subordinates. that is solely my opinion.

i will also admit one error in judgment as regards these men. when i learned that bush had 'unsigned' the us from the international criminal court--an entity we'd originally helped to establish, i thought it was just project for a new american century posturing. it never occurred to me that he had much more deliberate reasons for his stand.

which leads me to the real topic of this article.

ashcroft's justice department's office of legal counsel--led by jay s bybee and john c. yoo-- prepared an arguments in 2002, claiming unprecedented broad new presidential authority in the war on terrorism. their work became the basis for a pentagon 'working group' memo regarding the treatment of prisoners that surfaced about 10 days ago.

bybee and yoo asserted the president was empowered to arrest and hold american citizens in military custody if they were considered 'enemy combatants." this was the authority claimed by the administration for detaining jose padilla--the gangbanging alleged dirty bomber-- in exactly that fashion.

briefly summarized, they claimed bush--in his role as commander in chief--and the military were subject neither to federal law or international treaties, to which we are signatories, forbidding torture.

there is some sorta semi quasi precedent for presidents to claim special wartime powers (lincoln suspended habeas corpus and bound those accused of treason over to military courts; roosevelt suspended the civil rights of japanese-americans after pearl harbor).

there is also one MAJOR difference between those actions and the findings of the bybee/yoo group:

both lincoln and roosevelt had the approval of their respective congresses. 10 years agoo a more contemporary congress adopted an anti-torture law in 1994 expressly outlawing americans abroad from inflicting 'severe physical or mental pain' while acting under the authority of the usa.

based on the bybee/yoo work, someone--exactly whom is still unknown--prepared a 56-page "detainee interrogation in the global war on terrorism" memo, dated march 6 2003 (so 2 weeks before the war in iraq began) that surfaced about 10 days ago. altho not officially speaking for or endorsed by bush, this memo states the president and his commanders are NOT subject to that 1994 law in violation of both the spirit and letter of the constitution which clearly states the president's duty to " take care that the laws (of congress) be faithfully executed"

according to the constitution, "congress shall have the power … to declare war and make rules concerning captures on land and water … to define offenses against the law of nations [and] to make rules for the government and regulation of the land and naval forces."

in direct contradiction, the pentagon 'working group" memo claims the commander in chief now occupies a "constitutionally superior position" to congress and has "inherent authority" to prosecute the war with or without the approval of congress.

"congress lacks authority … to set the terms and conditions under which the president may exercise his authority as commander in chief to control the conduct of operations during a war," the memo asserts. "congress may no more regulate the president's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. accordingly, we would construe [the law] to avoid this difficulty and conclude that it does not apply to the president's detention and interrogation of enemy combatants."

here are some reported reactions by both civilian and military law experts:

"it is an extraordinary claim. it is as broad an assertion of presidential authority as i have ever seen. this is a claim of unlimited executive power. there is no reason to read the commander-in-chief power as trumping the clear power of congress." --michael glennon, a war law expert at tufts university.

"it can't be right. it is just wrong to say the president can do whatever he wants, even if it is against the law."--university of texas law professor douglas laycock.

"it's an argument i have never seen made before — that the commander in chief's war-fighting powers trump the restrictions in the geneva convention. i am having a difficult time even following the logic, that somehow because this is a new type of war that these military commanders' authority has somehow grown larger than the restrictions that we have accepted in the geneva convention."--grant lattin, former us marine corps judge advocate.

former judge advocate general for the navy, retired rear adm. john hutson (now dean of the franklin pierce law center, concord, nh) claims this memo evidences lawyers trying to bend the law rather than stating it fairly and clearly. "that is not the job of people advising the president or the attorney general or the secretary of defense. they have to be right legally, and i think they have an obligation to be right morally. i think they failed on both counts. the argument proves too much. if the president's inherent authority as commander in chief trumps domestic and international law, where is the limit? if every sovereign can ignore the law, then no one is bound by it."

last week, administration officials, including ashcroft, insisted the us did not condone or authorize the use of torture. ashcroft also denied knowing who prepared the memo. ashcroft also refused to provide copies of the bybee/yoo memo to a congressional committee even in the face of a contempt of congress citation. he also claimed the president had not authorized torture even though bush refused to condemn torturing prisoners twice at a g8 press conference last thursday.

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as i said in the preface to this article, this administration is anything but conservative regarding interpretation or application of the constitution. rather than being the sacred document on which this country is based, it is apparently just another obstacle in their path. no matter what happens in guantanamo's xray prison (a facility that castro must envy) the real victim of torture is our constitution.

bybee and yoo have left the government. bush nominated bybee as a judge on the u.s. 9th circuit court of appeals in san francisco, and march 14, 2003, he won confirmation by the senate. yoo, a former clerk to supreme court justice clarence thomas, has returned to his position as a law professor at uc berkely