The Unrestrained President

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Thu, 5 Jan 2006 22:16:35 EST

The Unrestrained President

 

 

 

 

Tomgram: Nick Turse on Repealing the Magna Carta

 

In my last dispatch, The Unrestrained President, I suggested that what

we were dealing with in Washington was a virtual cult of the

presidency and that its believers were more fervent than any religious

fundamentalists in their focus on the quite un-Christian attribute of

total earthly power. Their urge to create a President accountable to

no one, overseen by no one, and restricted by no other force in his

will to act was amply demonstrated in a simple bill-signing at the

White House last Friday. It was then that George Bush inked the

Defense Appropriations bill containing Senator John McCain's

anti-torture amendment (vigorously opposed by the President and the

Vice President), which was meant to close various loopholes in

prohibitions on torture. The President, according to Charley Savage of

the Boston Globe, issued a " signing statement " -- " an official

document in which a president lays out his interpretation of a new

law " -- in which he " quietly reserved the right to bypass the [McCain]

law under his powers as commander in chief. " So much for the ability

of Congress to legislate, if the President can simply declare anything

it passes whatever he decides it should be. ( " A senior administration

official, who spoke to a Globe reporter about the statement on

condition of anonymity because he is not an official spokesman, said

the president intended to reserve the right to use harsher methods in

special situations involving national security. " )

 

Nick Turse shines a new light on the Bush administration's cult of

presidential power by showing just how far back its adherents would

roll our constitutional and legal system -- back to the Middle Ages

and the rule of kings. Tom

 

What Year Is This Anyway?

Rollback to 1214 AD

By Nick Turse

 

What might happen to an " often cruel and treacherous " national

leader who " ignored and contravened the traditional " norms at home and

waged " expensive wars abroad [that] were unsuccessful " ?

 

On June 15, 1215, just such a leader arrived at Runnymede, England

and --under pressure from rebellious barons angered by his ruinous

foreign wars and the fact that " to finance them he had charged

excessively for royal justice, sold church offices, levied heavy

aids, " and appointed " advisers from outside the baronial ranks " --

placed his seal on the Magna Carta. The document, which was finalized

on June 19th, primarily guaranteed church rights and baronial

privileges, while barring the king from exploiting feudal custom.

While it may have been of limited importance to King John or his rebel

nobles (as one scholar notes, " It was doomed to failure. Magna Carta

lasted less than three months " ), the document had a lasting impact on

the rest of us, providing the very basis for the Anglo-American legal

tradition.

 

Over the years, the Magna Carta came to be interpreted as a

document that forbade taxation without representation and guaranteed

trial by jury. In the U.S., it is seen as providing a basis for the

5th Amendment to the Bill of Rights that holds: " No person shall… be

deprived of life, liberty, or property, without due process of law… "

(The Magna Carta states: " No Freeman shall be taken, or imprisoned…

but by lawful Judgment of his Peers, or by the Law of the Land. " )

While many progressive and democratic understandings of the document,

popular from the seventeenth to the nineteenth century, have now been

dismissed as misinterpretations, the Magna Carta has one absolutely

significant feature. As the website of the U.S. National Archives and

Records Administration (NARA) notes, " When King John confirmed Magna

Carta with his seal, he was acknowledging the now firmly embedded

concept that no man -- not even the king -- is above the law. "

 

Fast forward 561 years. Says NARA, " In 1776, the Founding Fathers

searched for a historical precedent for asserting their rightful

liberties from King George III and the English Parliament. " They found

it in the Magna Carta. Fast forward another 230 years. Their war for

independence long since over, Britain's former rebel colonies begin

the new year of 2006 on a precipice. During the previous 365 days,

they saw, among other shocking displays, their Vice President publicly

campaign against Senator John McCain's anti-torture amendment and, as

such, essentially offer his support for illegal torture. Then,

following a failed attempt by the President to quash a New York Times

story on the National Security Agency (which the paper had already

suppressed for a year), the people also found out that their President

had ordered unlawful spying on American citizens.

 

After the latter scandal became public, Attorney General Alberto

Gonzales (who, in 2002 as White House counsel, penned a memo advising

the President on how to circumvent the 1996 War Crimes Act) claimed

that George Bush had the right to violate the 1978 Foreign

Intelligence Surveillance Act (which makes it illegal to spy on U.S.

citizens in the United States without prior or retroactive -- within

72 hours-- court approval) due to his " inherent authority as commander

in chief under the Constitution. " This, despite the fact that in 2004

Supreme Court Justice Sandra Day O'Connor, writing for the court,

insisted, " A state of war is not a blank check for the president when

it comes to the rights of the nation's citizens. " Bush himself then

came out swinging, claiming that he had no need for the courts since

he acted as his own agency of oversight, and his acts were legal

because he " swore to uphold the laws. "

 

The President's threatened veto of the McCain anti-torture

amendment, the Vice-President's pro-torture campaign, the President's

illegal spying, which he proudly claimed he had re-authorized many

times over, his attempt to squelch the free press (which Thomas

Jefferson once called " the only security of all " and about which he

stated, " Were it left to me to decide whether we should have a

government without newspapers or newspapers without a government, I

should not hesitate a moment to prefer the latter " ), and his own and

the Attorney General's defense of all of the above, are not only the

latest examples of the administration's quest to shred the U.S.

Constitution and expand already vast presidential powers past anything

conceivably envisioned by the founders of the United States, but also

a direct attempt to overturn nearly 800 years of Anglo-American legal

precedent. In other words, the administration has launched nothing

short of a bid to invalidate the guiding precepts of what the U.S.

government acknowledges to be the Ur document that inspired and

provided precedent for America's founders to issue their Declaration

of Independence in 1776: the Magna Carta.

 

In 1957, the American Bar Association erected a monument at

Runnymede to " acknowledg[e] the debt American law and

constitutionalism " owed to the Magna Carta. Today, the defining tenet

of the American legal system is in jeopardy as the Bush administration

has attempted to roll back the clock to the 13th century. Such a

gambit seeks to do nothing short of shatter and effectively bury the

framework for the Anglo-American legal tradition by transforming the

chief executive into an unchecked despot and so plunging us into a

pre-1215 world. The implications are dire. As Harold Hongju Koh, dean

of the Yale Law School, observed, " If the president has

commander-in-chief power to commit torture, he has the power to commit

genocide, to sanction slavery, to promote apartheid, to license

summary execution. "

 

During the birth of the United States, John Adams -- who also

proclaimed that Britain's rule under which " The Law, and the Fact, are

both to be decided by the same single Judge " was " directly repugnant

to the Great Charter [Magna Carta] itself " -- wrote of " a government

of laws and not of men. " During the Watergate crisis (to hop a couple

of centuries) and just after he was fired by a President who wanted to

shield his criminal acts by citing the doctrine of executive

privilege, Special Prosecutor Archibald Cox warned, " Whether ours

shall continue to be a government of laws and not of men is now for

Congress and ultimately the American people. " Just 33 years later, the

question again begs answer -- is this to be a nation of laws or of

men? Is this to be a nation that recognizes nearly 800 years of

Anglo-American legal precedent in which even the nation's chief

executive is subject to the rule of law, or one that allows that

leader to assume the unchecked rights of a sovereign during the Middle

Ages? Are we willing to accept the Bush administration's latest

rollback campaign and reset the calendar to 1214?

 

Nick Turse is the Associate Editor and Research Director of

TomDispatch.com. He has written for the Los Angeles Times, the San

Francisco Chronicle, the Nation, the Village Voice, and regularly for

Tomdispatch. If you have whistles to blow or muck you think Nick

should rake, send your insider information to fallenlegionwall

 

Copyright 2006 Nick Turse

 

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