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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Tuesday, January 10, 2006

"Nobody is above the law"

Kevin Drum responds to the post I wrote at C&L by pointing out that Alito paid lip service today to the concept that "nobody is above the law," and then says this:

Is Alito fudging furiously? Probably. But it still doesn't give liberals much of a purchase to lead a battle against his nomination. Subtle arguments about the nature of stare decisis and the precise extent of the president's Article II powers just aren't going to get very many people ready to take to the streets with pitchforks. So what's the battle cry?

The point that must be emphasized is that the Bush Administration believes that under the law, it has the right to ignore and violate Congressional statutes. Therefore, when Bush defenders assure us that they are "acting in accordance with the law," what they mean is that they are acting in accordance with their understanding that the law permits the President in times of "war" to violate Congressional statutes, i.e., to ignore the law.

I made this point a few days ago this way:

What we have in our Federal Government are not individual acts of law-breaking or isolated scandals of illegality, but instead, a culture and an ideology of lawlessness. It cannot be emphasized enough that since September 11, the Bush Administration has claimed the power to act without any constraints of law or checks from the Congress or the courts. Its view of its own power and governing philosophy is based upon, and perfectly encapsulated by, [a] single paragraph from the incomparably pernicious September 25, 2001 Memorandum, written by then-Deputy Assistant Attorney General John Yoo . . . .

That decisions about what actions our country takes "are for the President alone to make" – without any interference from the Congress, the courts, or anything else – is not a fringe academic theory. It is a definitely authoritarian and lawless ideology that has truly -- expressly -- become the governing philosophy of George Bush and his Administration. And it is not something the Administration has merely embraced in theory. It has been aggressively exercising these limitless powers.

When the President and the Vice President assure us that all of their actions are in "full accordance with the law," what they mean by "the law" is what is described in the Yoo Memorandum. For everything broadly relating to the undeclared and eternal "war" on terror -- not just on international battlefields but domestically as well -- decisions are "for the President alone to make." Pursuant to this theory, even when the President acts in violation of what we used to understand as "the law" (i.e., acts of Congress which are signed into law by the President), he is still acting "in accordance with the law," because the power to make such decisions rests exclusively with him.

That is a real crisis in our Government. And the critical point to make is that if you searched the federal judiciary high and low, you will not find a federal judge who has displayed greater deference to Executive power than Sam Alito has. From the time he was in the Reagan Justice Department through his 15 years on the federal bench, he has time and again demonstrated a fealty to Executive power at the expense of the other two branches -- exactly what would be most dangerous for our country today in light of the truly unlimited power expressly claimed by the Bush Administration.

When Alito says that "nobody is above the law," it really means nothing. To the Bush Administration, "the law" has come to mean that the President has the constitutional authority to violate Congressional statutes and that neither Congress nor the judiciary has power to stop it -- that decisions which even broadly relate to terrorism are, to use the formulation of the Yoo Memorandum, "for the President alone to make."

Alito is infinitely more likely to endorse this theory than virtually any other judge one can find. It is precisely why he was nominated. The President was obviously in search of a nominee who will not stand in the way of these theories of the all-powerful Executive. It's why he chose the painfully reverent Harriet Miers, and when he couldn't have her, he took the next best thing. Alito's answers today -- including his refusal to say that the President would be constitutionally prohibited from ordering torture even in the face of a Congressional statute prohibiting it -- strongly bolster that view.

Sam Alito may or may not look extreme. But what is unquestionably extreme is the situation in this country where the President of the United States gets caught breaking the law, and then vows that he will continue to do that because he has the right to do so, because the law allows him to do so. Sam Alito is highly likely to endorse that theory when he is on the Supreme Court, an institution which has as its primary constitutional function serving as a last check on such abuses. That is why it's so imperative to keep him off the court, and banal claims that "nobody is above the law" are just meaningless.

I think Americans understand these concepts intuitively. Most remember another President who claimed these law-breaking powers, and the last image of him is waving good bye in disgrace as he flew away from the White House. These are not esoteric or confusing concepts to present.

UPDATE: I just saw that Atrios made this precise point today.

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