The Bush Theory of the War Power: Authoritarianism, Torture and the So-Called “War on Terror”- A Critique

Christopher L. Blakesley, University of Nevada - Las Vegas
Judy Meyerson, University of Nevada-Las Vegas

Abstract

The Bush Theory of the War Power:

Authoritarianism, Torture and the

So-Called “War on Terror”- A Critique

Christopher L. Blakesley & Thomas B. McAffee

Abstract

Our article addresses the Bush administration’s arrogation of power to the President and its manifestation in the disappearance, imprisonment, and torture of detainees in prisons, including Guantánamo, Bagram, Abu Ghraib, and so-called “black sites,” or prisons in countries that engage in torture. These shameful practices were authorized in the infamous September 25, 2001 Torture Memo and other controversial legal memoranda by John Yoo and other Bush administration attorneys. The memos, which claimed authoritarian executive power is justified during war, are particularly ominous given that the War on Terror was to be perpetual and, thus, a permanent justification for unconstrained presidential power.

The Justice Department recently released seven additional memoranda providing significant new evidence of the Bush administration’s arrogation of power to the President, and implicating the Bush administration and its attorneys in aiding and abetting the commission of torture and other violations of domestic and international law. These memos, coupled with the original Torture Memos, are evidence of the Bush administration’s attempt to create an authoritarian regime. The memos highlight the urgent necessity that Bush administration attorneys be held accountable for their defective and incompetent legal advice that resulted in the evisceration of our constitutional principles and international promises.

Scholars agree that the Torture Memos are deeply flawed. It appears to us that the recently released memos claiming the authority to authoritarian rule, including the March 13, 2002 memo, authorizing the abduction and depositing of alleged terrorists to black sites, are as bad as and worse than the Torture Memos. The extent to which the memos violate all levels of legal reason, particularly principles of constitutional and international law, is shocking and underexplored.

This article makes a two-pronged critique of the Torture Memo, the policy positions, and actions taken by the Bush administration. First, we argue that the Bush administration used the Torture Memos as a vehicle to justify an unconstitutional expansion of President Bush’s commander-in-chief authority. We show the flaws in Yoo’s historical analysis and the defects in his claimed historical evidence for the memos in a way and with counter-evidence that has not been raised in this context. Second, we illustrate how the Bush Administration’s arguments for unconstrained presidential power to advocate conduct such as torture violated international law.

Yoo based his arguments for broad, virtually dictatorial, commander-in-chief authority on the heavily criticized Vesting Clause Thesis. His analysis ignored important precedents, including The Steel Seizure Case, and historical proof of the Framer’s original understanding of what it meant to “declare” war. Moreover, Yoo went so far as to turn America’s founding principles on their head by arguing that Congress has no power to check the president’s actions during a war, even during the never-ending War on Terror.

Additionally, we show how Yoo consciously manipulated United States treaty obligations to circumvent clear prohibitions of torture set out in the Geneva Convention and the Convention Against Torture. Even so, his interpretative gymnastics still do not shield the Bush administration from criminal liability under principles of international customary law, which recognize torture as a universal offense.

Taken together, the memoranda and policy positions adopted by the Bush administration show that we were driven into a legal and moral abyss, and show that we were in a ferocious constitutional crisis all built on manipulation of facts, law, history and truth.