Franklin D. Roosevelt is considered by many to be the greatest president of this century. In many aspects, that assessment may well be correct. However, he did preside over a tremendous expansion of what can be called "the American empire" during his four terms in office, in part as a way out of the economic pit the country foundered into during the Great Depression, and in part because of his belief that American should be the dominant economic power in the world. Perhaps even more notably, Roosevelt was a multinationalist, believing that the only way the US could gain and retain economic dominance -- and the only way the world could remain essentially at peace -- was for the United Nations to help guide international relations and head off the worst of conflicts between, and within, nations.
In the summer of 1941, Roosevelt and Winston Churchill hammered out the precepts of the Atlantic Charter, binding both the US and Britain together in a covenant that precluded them from seeking any "aggrandizement, territorial or otherwise," and pledging both nations' respect for "the right of all peoples to choose the form of government under which they will live." Noble words, indeed, but behind the words lay, in Irons's view, "a hard-headed acceptance of the imperial status quo." Both Britain and the US, for example, supported France's imperialist expansion into Indochina, what we now call Vietnam. The region supplied tin and rubber vital to the Allied war effort, and neither the French nor the US-Britain alliance had any intention of letting it determine its own path of governance. When the Vietnamese independence movement seized on the Atlantic Charter to press their own suit for self-determination, Roosevelt ignored their calls. More to the US and Britain's taste was the control of the enormous petroleum reserves in the Middle East. While the British had controlled that area for decades, the US became more and more involved in it, particular since the oil fields of Texas and Oklahoma could no longer supply the oil the US needed, not only for the war effort, but for its own economic growth. The US used the Lend-Lease program, among other incentives, to lure Saudi Arabia's King Ibn Saud to grant special privileges to the Arabian-American Oil Company (ARAMCO); the British withdrew from the region and signed an agreement granting "the principle of equal opportunity" for American oil companies of both nations.
Once the war was concluded, American business interests drove the expansion of American control over the Middle East and other regions of the world, particularly in South America and, to a lesser degree, in Asia and Africa. Roosevelt's Secretary of State, Cordell Hull, said it plainly during the war: "Leadership toward a new system of international relationships in trade and other economic affairs will devolve very largely upon the United States because of our great economic strength. We should assume this leadership, and the responsibility that goes with it, primarily for reasons of pure national self-interest." US self-interest did not, of course, jibe with the self-interest of the people of Vietnam and other areas.
The US had new concerns after the war. While the former Axis powers were no longer a threat, and in fact were eager to join the West in an economic and military alliance, new threats loomed. The colonies of Britain, France, Portugal, the Netherlands, and Belgium were in nationalist ferment, with many of the nationalist independence movements led by avowed Communists. And the USSR's Joseph Stalin was widely, and correctly, believed to have designs of dominance over the Eastern European and Asian countries neighboring the core state of Russia. Worse, in the West's view, Moscow was the headquarters of the Communist International, the world federation of Communist parties, and the West saw any and all Communist insurgencies and movements as being controlled by the Soviets. Often, but not always, they were right. During the war, when Americans cheered newsreels of Red Army forces helping liberate German-dominated Eastern European countries and marching into Germany itself, most Americans, including many government and business leaders, anticipated a warm and lasting relationship with the Soviet Union. The USSR could be a tremendous outlet for American goods and a supplier of critically needed raw materials for the US manufacturing sector. "Whatever the outcome of the war," said Virgil Jordan, the president of the National Industrial Conference Board, in December 1940, "America has embarked on a career of imperialism, both in world affairs and every other aspect of her life." The USSR was foreseen to be a linchpin of that economic and political dominance. Many Americans agreed with conservative writer Eugene Lyons, who in 1946 wrote that the weakness of the British Empire forced the US to "fill the vacuum by building a world-wide American empire." To achieve this goal, both the US military, now the strongest military force in the world, and the collaboration of its junior partners in the Atlantic alliance, would be needed to extend and consolidate its control of world markets.
In early 1943, the Senate proposed the creation of the United Nations, with two Republicans and two Democrats joining to present legislation. Roosevelt concurred with the proposal, remembering the angry resistance from the Senate to Woodrow Wilson's attempts to create the League of Nations. The Senate, not the president nor the House of Representatives, would claim leadership in the creation of this new body. The House concurred with its own resolution, insisting that any such body would be joined by the US only under the observance of Constitutional processes. Some jockeying between the House and Senate ensued, and while this went on, two high-level conferences took place, in Moscow in 1943 and in Washington in 1994, the famed Dumbarton Oaks conference. The US, Britain, the USSR, and China (represented by Chinese nationalists and not the Communists of Mao Tse-Tung) joined in declaring the need for a "general international organization for the maintenance of international peace and security." Roosevelt insisted that the envisioned organization, now called the United Nations, must have at least some authority to respond to immediate international crises without Congressional debate and approval. Representatives from fifty nations worked for nine weeks in San Francisco to draft a charter in late 1945. Eased by a bipartisan US delegation made up partly of House and Senate members, Congress approved the charter.
The structure of the UN would center around an eleven-member Security Council, with five permanent members -- the US, Britain, France, the USSR, and China -- and six members serving two-year terms and elected by the General Assembly, made up of delegates from all member nations. The UN would be run by the Secretariat, with a Secretary-General in charge, and incorporated the International Court of Justice and a number of specialized agencies for humanitarian, scientific, and economic work. Under the UN Charter, military forces could be mobilized only at the direction of the Security Council "in accordance with a special agreement or agreements" with member states, "subject to ratification by the signatory states in accordance with their respective constitutional processes." This left unclear if the US president could dispatch troops for UN peacekeeping missions without Congressional approval. In Senate debate, it was agreed that there was a difference between "policing powers" that could be exercised by the president unilaterally, and "real war problems," to be authorized and overseen by Congress. While the idea was to ensure the president had the power to respond to international crises, the result has been a raft of undeclared "police actions" involving hundreds of thousands of American troops sent to, among other places, Korea, Vietnam, Grenada, and Iraq. Just as importantly, the US would become the major peacekeeping force of the UN -- the world's policeman, in essence. Senate Democrat Burton Wheeler thundered, "If it is to be contended that we enter into this treaty we take the power away from Congress, and the President can send troops all over the world to fight battles everywhere. I say that the American people will never support any Senator or Representative who advocates such a policy, and make no mistake about it." Wheeler was prescient, but wrong -- the Senate voted 89-2 to adopt the charter as it stood.
Once the UN charter had been adopted, in October 1945, Congress passed two important policies on the use of US forces as UN peacekeepers. The first stipulated that, once Congress approved a special agreement with the Security Council for the use of force, the president could implement the agreement without further consideration from Congress. The second made it illegal for the president could not make other agreements that might commit troops to combat without prior Congressional approval. The entire membership of the Senate Foreign Relations Committee "were agreed on the basic proposition that the military agreements could not be entered into solely by executive action." The bill signed into law by President Harry Truman expressly forbid the president to send troops into a UN mission without Congressional approval.
Truman broke the law almost immediately, in the first instance of US deployment of troops under UN auspices, by sending troops to Korea, and technically before that, in 1947. The Korean War, or "police action," as it was termed, grew out of a number of factors, including the increasing tensions of what was becoming the Cold War between the US and the USSR, and their respective allies, and the increasing friction in the UN between the two polarizing blocs. Truman had agreed to let the Soviets build a "sphere of influence" in Eastern Europe during the 1945 Potsdam Conference, but the political backlash among American lawmakers, businessmen, and citizens cost the Democrats the House of Representatives and later, perhaps, the White House, with Truman winning a squeaker of a re-election contest in 1948 and Democrat Adlai Stevenson thrashed by Dwight Eisenhower in 1952. Most Americans disliked the Soviet expansion into Eastern Europe, while advocating increased expansion of their own country. Most hypocritically, American policy makers demanded that the USSR give them an "open door" into Eastern Europe and Central Asia for their economic and political use, but denied any reciprocal access by the Soviets into the Western Hemisphere. What the US wanted, according to War Department official John McCloy, was to "have our cake and eat it too; that we ought to be able to operate under this regional arrangement [in Latin America] and at the same time intervene promptly in Europe." Truman swore to oppose Soviet expansion with an "iron fist," as he told Secretary of State James Byrnes, and he did just that to the best of his abilities. (Additional material from Wikipedia.)
Soviet intervention in Greece and Turkey drew swift responses from the US. In Greece, the Nazis had been opposed by Greek nationalists with Soviet support, after fighting against the prewar right-wing monarchy and dictatorship. The British, with US aid, had forcibly suppressed the left-wing National Liberation Front and restored the dictatorship, eventually resulting in a far-right military junta. (See the Wikipedia entry on the Greek Civil War, which spanned 1941-1949, for far more details.) Turkey, too, with its strategic location controlling access by both the US and the USSR to the Middle East, was torn by conflict between left and right. In 1947, Truman asked Congress to authorize $400 million in military aid to the "free peoples who are resisting attempted subjugation by armed minorities or by outside pressures." In fact, the USSR was staying out of the Greek conflict, having promised Churchill to do so in return for a free hand in Romania, Poland, and Bulgaria. He also sent, without Congressional approval, 250 military "advisors" to aid the right-wing Greek forces of the Hellenic Army. After the Greek civil war ended in 1949, and the junta firmly in place, American business interests, such as Esso (now Exxon), Dow Chemical, and Chrysler moved in. Truman defended this blatant example of American imperialism by saying that the Soviet expansion into Eastern Europe must be countered.
In 1949, China was in an uproar. The Communists under Mao Tse-Tung, or Mao Zedong, had ousted the criminally corrupt government of Chinese Nationalists under US ally Chiang Kai-shek, who fled with the remnants of his forces to Taiwan, where they, with US support, implemented a harsh, rightist regime upon the native islanders there. China had long been the plaything of both European powers and its own unbelievably corrupt rulers, and the country's populace was ready for a change -- almost any change. Preoccupied with rebuilding their own devastated country, the Maoists were uninterested in competing on the global stage with the world's two empires, but it had interests in Korea, which had been recently liberated from 35 years of Japanese dominion. The Korean peninsula was divided into two nations along the 38th parallel, as part of an agreement between the US and the USSR bent on preserving both nations' influence in the area. Both countries labored under dictatorships, the North under a harsh Communist regime and the South under an equally brutal right-wing government. The two governments both claimed title to the entire peninsula, and bristled at one another over the divide. Until June 1950, it seemed that the two, weakened by war and internal strife, would do little more than rattle their respective sabers.
That changed when, on June 25, North Korean troops roared over the 38th parallel into the South, marking the first large-scale invasion of one country into another since World War II. The UN cranked up its unwieldy and untried peacekeeping machinery; what followed was a three-year disaster for almost everyone involved. Two million Koreans died in the war; the UN found itself unable to control the conflict, and found its peacekeeping forces, in Irons's words, "a very short tail on the massive American bulldog;" and Congress's control of the US's warmaking powers was permanently shattered. Within days, Truman had announced that, in cooperation with the UN Security Council's demand for North Korean withdrawal of forces (a demand that was ignored), he had ordered American air and naval forces to deploy in support of the South Koreans. In doing so, he broke the law three separate ways. He committed American military forces to combat, in what constituted an act of war, without Congressional approval or a formal declaration of war. He violated the provisions of the UN Charter, a US treaty obligation, by taking unilateral action even before the Security Council had called on its members for assistance. And he violated the UN Participation Act by ignoring its requirement for Congressional approval of any UN-based deployment of forces. While he claimed at a June 29 press conference that "we are not at war," in fact, the US was indeed involved in a war. "In the usual sense of the word, there is a war," Secretary of State Dean Acheson later admitted to the Senate.
Truman skirted the entire issue by calling the Korean intervention a "police action," which still was the provenance of Congress and not the executive branch. Acheson's claims that the US had intervened under the rubric of the UN peacekeeping efforts were false; the UN did not pass a resolution calling for deployment until a day after US troops had been dispatched. "And how did Congress respond to this presidential usurpation of its prerogatives and directives?" Irons asks. "With hardly a whimper of protest." Even though most lawmakers and most citizens did not support the war, feeling it was an unnecessary and tragic waste of American troops, Congress did nothing to oppose or counter Truman's actions. It can be argued that Truman's actions and Congress's refusal to counter those actions, set into motion the next half-century's trend of unilateral presidential deployments of American troops around the world -- Vietnam, Panama, Grenada, Afghanistan, Iraq, and perhaps beyond.
Truman also committed another unpardonable act against the Constitution. In late 1951, the United Steelworkers Union, after a long and arduous conflict with the nation's steel companies, gave notice that if its proposals were not adopted, it would go on strike on December 31. Federal mediation dragged out the conflict into April 1952, when the union gave notice that it would go on strike on April 9. Hours before the deadline, Truman issued an executive order directing Commerce Secretary Charles Sawyer to take government possession of the steel mills and keep them running. Sawyer told the mill managers that they were now, in effect, federal employees, as were the unwilling union members. He directed his new employees to keep the steel coming. The next day, Truman informed Congress of his actions, explaining that the nation needed the steel as part of its war effort. The steel companies, meanwhile, sent their lawyers to federal court to have Truman's executive order declared unconstitutional and an injunction to restrain its enforcement. Government lawyers argued that even a brief strike would "endanger the well-being and safety of the nation." They also argued that the president had the inherent power under the Constitution, by historical precedent and by judicial decisions, to seize the mills. The court disagreed, and issued an order barring Sawyer from continuing with his actions under Truman's order.
By May, the case was in front of the Supreme Court. The Court did not wait long to act. Writing for the six justices in the majority, Hugo Black, whom Irons describes as "perhaps the most fervent constitutional literalist on the Court's history," blasted the government and its concept of "inherent powers. He pointed out forcefully that the president had no such powers as he had exercised under the Constitution, and Congress had repudiated any such powers in the Taft-Hartley labor relations act of 1947. "The contention [of the government] is that presidential power should be implied from the aggregate of his powers under the Constitution," Black wrote, but they were wrong. Truman's actions were the equivalent of his unilaterally making laws for the nation, a power the executive branch does not hold. Even his "broad powers" as commander-in-chief give him no authority to do something like seize control of the nation's industry. "The Founders of this Nation entrusted the lawmaking power to Congress alone in both good and bad times," Black lectured. "It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand."
Not every justice agreed with Black. In a concurrance, Robert Jackson wrote that presidential powers sometimes "fluctuate, depending upon their conjunction or disjunction with those of Congress," and called for the two branches to find a way to collaborate. And in a dissent, Chief Justice Fred Vinson wrote that the president should have "inherent" powers in times of national "emergency." But dissent is not law, and Vinson's backwards view of presidential powers had no legal standing.
Truman, already waning in popularity, suffered the same erosion of support from the Korean War and his own extralegal actions as his Democratic successor Lyndon Johnson suffered during the Vietnam War. Both claimed "inherent" powers that they did not hold to answer arguably imaginary threats to the nation's security; Irons writes that both Korea and Vietnam "demonstrate the consequence of imperial hubris, the intoxication of personal and national power that has caused the downfall of leaders and nations alike. Disregard of the Constitution, and even disdain for its commands, is often an early warning sign of excessive self-confidence, which can infect the humble as well as the arrogant.
Many Americans, if they remember Vietnam at all, recall it as a "lost war," in large part lost because of the efforts of anti-war protesters. In a larger and more applicable sense, Vietnam was another failed effort to, as Irons writes, "maintain an empire that requires all sorts of military operations -- from covert action by the CIA to full-scale invasion of countries such as Panama and Iraq -- that presidents order and from which Congress is shut out." Irons believes that America's "imperial presidency" reached its heights from the 1960s through the 1980s, under the Johnson, Nixon, and Reagan regimes, and the 2003 invasion and occupation of Iraq, with all the tremendous problems resulting from that decision, may mark the "decline and fall" of the American empire.
Few Americans think of the Vietnam War actually beginning in 1946. That year marked the turn of the Vietnamese nationalist movement, headed by Ho Chi Minh, from struggling for independence from Japanese occupiers to a struggle against the French, who occupied the country during World War II, reasserting their control over their former colony. While Ho himself was a Communist student of Marx, Lenin, and later Mao, most all of his followers knew nothing of Communist doctrine, and simply fought for their independence. His 1945 declaration of Vietnamese independence borrowed much of its language from the American Declaration of Independence of 1776, echoing that document's resolve to overthrow the imperial yoke of their European oppressors. Ho's forces, the Viet Minh, were strongest in the northern half of the country, and eight years of bitter fighting resulted in the gradual pushing back of French forces. By 1954, when the French surrendered at the climactic battle of Dien Bien Phu, the US had poured over $1 billion of aid, including small arms and machine guns, into the French military machine. Americans themselves, focusing on Korea and the Cold War, paid little attention to Vietnam, but Washington itself kept a close eye on that region. The fears were that if the Communists took over Vietnam, the other countries with which the Americans had close economic ties with -- Malaysia, itself the former British colony of Malaya, Indonesia, Thailand, Singapore -- would fall, a result of the so-called "domino effect." This "domino theory," largely promulgated by hawkish Democrats who would later evolve into the later "neoconservatives," would dominate American foreign policy thinking for the next 30 years. To counter, the US maintained powerful military forces and a string of bases throughout South Korea, the Phillippines, Taiwan, and Japan. The US plans were to regain the dominance it had enjoyed over Southeast Asia during World War II, and its control of the area's raw materials, particularly rubber, tin, coal, and oil. In 1953, a Congressional delegation warned that if the French failed to retain control of Vietnam, the US would have to strongly consider stepping in.
In 1954, the Geneva Accords formally partitioned Vietnam into two countries, North and South Vietnam, with the Viet Minh controlling the north and a US-backed regime in the South. National elections were to resolve the country's divide in two years, but the US, fearing a Viet Minh victory, cancelled the elections and installed Ngo Dinh Diem, a Vietnamese exile who had been living in New Jersey, as the puppet ruler of the South. As the Defense Department history of Vietnam showed, in documents later called the Pentagon Papers, "south Vietnam was essentially the creation of the United States." Diem was a tyrannical and corrupt leader, jailing scores of critics, few of them Communists. His army was trained and armed by the US, and essentially directed by US "advisors." Diem reneged on promises of land reform, alienating his citizens; by 1958, the country was in the throes of armed rebellion. By 1960, a broad coalition of nationalist forces came together to form the National Liberation Front, whose military arm was called the Viet Cong.
The Geneva Accords permitted the US to station 685 military advisors in South Vietnam. President Eisenhower broke that agreement, and violated his Constitutional authority, by sending several thousand troops to South Vietnam, some further violating the Accords by engaging in combat with the Viet Cong. But Eisenhower resisted calls from both sides of the political aisle to use more force in Vietnam, including some ill-chosen advice to use nuclear weapons, to rescue the French from impending defeat. "There is going to be no involvement of America in a war unless it is the result of the constitutional process that is placed upon Congress to declare it," he said in 1954.
Under Eisenhower's successor, Democrat John F. Kennedy, the US military presence in Vietnam escalated rapidly. By the time he was murdered in November 1963, US forces in Vietnam totaled over 16,000, and Kennedy had approved a secret plan for covert operations in both Vietnam and Laos, which was routinely being used by Viet Cong and NVA forces as sanctuary and as a launch point for attacks. (Irons fails to note that Kennedy was becoming increasingly disenchanted with the entire Vietnam debacle, and intended to begin withdrawing troops during his second term.) Kennedy was also becoming disenchanted with Diem, and failed to notify the despot of growing insurrection in his own ranks. Just days before Kennedy's own death, Diem was routed from the presidential palace and executed; he was replaced by a string of weak and corrupt US puppets. Lyndon Johnson oversaw the dramatic escalation of US forces in Vietnam, even authorizing huge air strikes against NVA forces, again without consulting Congress or asking for a declaration of war. The media, and thusly a majority of the population, was strongly on Johnson's side; Congress wasn't being asked and for whatever reason, did not dare to raise strong objections.
By 1964, however, dissent in Congress was growing. Johnson used the early August "attack" by Viet Cong power boats on the USS Maddox to ram through Congress the Tonkin Gulf Resolution, which authorized him, without a formal declaration of war, to take "all necessary measures" to escalate the Vietnam presence however he saw fit, even, if he chose, the use of nuclear weapons (which some advisors urged, but Johnson overruled). The Tonkin Gulf resolution passed with only two dissenting votes in both houses of Congress combined, though it was later proven that the Maddox was, indeed, not attacked by Vietnamese forces, but instead overreacted to unusual weather conditions and misinterpreted sonar readings. Irons writes, "It may be facetious to blame an 'over-eager sonarman' for the political and military debacle that Johnson bequeathed to his Republican successor, Richard M. Nixon, who narrowly defeated Vice President Hubert Humphrey in the 1968 presidential election. But the real blame lay with Congress, whose members were overeager in accepting, without question, the Johnson administration's 'facts' about the Tonkin Gulf incident."
The federal courts wrestled with over a dozen cases brought against one aspect or another of Johnson's war-making, often dismissing them outright and sometimes deferring to the argument that the question of Johnson's or Nixon's Constitutional authority to deploy forces was political and not legal in nature, a question only raised in courtrooms and not in the Constitution itself. "Indeed," writes Irons, "several of the Vietnam War cases resulted in significant judicial rulings that, for all practical purposes, read the 'declaration of war' clause out of the Constitution," even supporting the reinstated military draft for an undeclared war. Though the courts repeatedly refused to grant "ordinary" citizens the right to challenge the president's authority, a lawsuit filed by a member of Congress presented a thornier issue. In 1973, when the Paris Peace Talks had resulted in a peace agreement, after the Kent State and Jackson State murders, and after the revelation of the invasion into Cambodia, Congress passed a bill refusing to authorize any more funding for the war after August 15, 1973 (a bill that Nixon vetoed, but Congress overrode). But hostilities would continue, and Representative Robert Drinan, a Democrat, filed a suit claiming that hostilities after the August 15 deadline conflicted with earlier resolutions to end US military action in Vietnam. Drinan was joined by three other members of Congress and a member of the Air Force. Though the suit would not be settled until well after the August 15 deadline, and was thusly more symbolic than effectual, federal judge Joseph Tauro, finding in favor of the government, wrote, "should it be apparent that the political branches themselves are clearly and resolutely in opposition as to the military policy to be followed by the United States, such a conflict could no longer be regarded as a political question, but would rise to the posture of a serious constitutional issue requiring resolution by the judicial branch." Tauro thusly threw into question the entire concept of the "political nature" of the Constitutional question of what is and is not presidential prerogatives of military actions.
Another judge took on the issue of presidential and Congressional authority head-on. Hearing the case of Democratic representative Parren Mitchell that the government had for seven years conducted an unlawful and unconstitutional war, which was on appeal after being dismissed, Judge Charles Wyzanski found that no "political question" at all existed except in the minds of politicians and lawyers. He found that just because Congress voted to authorize funding for a military action did not, by default, make those actions a war, but ruled against Mitchell, saying he could find no evidence of "clear abuse amounting to bad faith" on the part of the Nixon adminstration. Then another Democratic representative, Elizabeth Holtzman, filed two suits, one against Defense Secretary Elliot Richardson and another against his successor, James Schlesinger, seeking a judicial injuction to stop the bombing of Cambodia. Judge Orrin Judd found the bombings were, indeed, unauthorized by Congress, that Congress had voted to stop their funding, and that Nixon had continued the bombings anyway. Such presidential actions, if allowed to stand, would essentially cut Congress completely out of its Constitutional role as the only governmental body allowed to declare, or to end, military actions; Judd issued the injunction, but postponed its implementation until Nixon's lawyers could ask for a stay. Holtzman and the ACLU asked Justice Thurgood Marshall to vacate the stay; Marshall declined, but wrote that in his judicial opinion, Nixon had exceeded his authority by ordering the bombings. Justice William Douglas vacated the stay on August 3, 1973, but was overruled by his colleagues the next day. Clearly the Supreme Court was unwilling to take on the Constitutional questions raised by the Vietnam War. Judd's injunction was voided on appeal.
In 1973, in response to loud and widespread criticism about Nixon's one-man war-making, Congress passed the War Powers Resolution, designed to limit the president's powers to enter the military into combat without Congressional authorization, but the law was so badly written and filled with loopholes that every president since Nixon has ignored the law without consequence. Irons dissects the War Powers Act in detail on pages 196-199. "Despite Nixon's weakening grasp on his office," writes Irons, "Congress was no longer a 'real power' in controlling American foreign policy or military action."
Events like 1975's USS Mayaguez incident, resulting in the death of 39 American sailors, 1980's disastrous attempt to rescue American hostages held in tehran, the 1983 deployment of US troops to Lebanon (which resulted in the deaths of 241 Marines in Beirut), the 1983 invasion of Grenada, and the 1990 ousting of Panama's Manuel Noriega, were all allowed to take place without serious questioning or intervention by Congress. In 1983, Congress even gives President Ronald Reagan an extension on the War Powers Act limitation of 60 days to withdraw troops from hostilities without Congressional approval -- to 18 months. The capture and arrest of Noriega is of particular interest, since President George H.W. Bush's justification for sending troops into Panama -- that Noriega was cooperating with Latin American drug dealers -- constitutes no legal authority whatsoever to justify the deployment of the military. Once again, a supine Congress bowed to the president's "inherent powers." Interestingly, the State Department's legal advisor at the time, Abraham Sofaer, later stated that the United States "does not accept the notion that a state is entitled to use force to overthrow the dictator of another state," a notion that, if adhered to, would have precluded both the 1990 ouster of Noriega and the 2003 ouster of Saddam Hussein.
Irons notes that America's establishment of its own imperial empire was joined, and aided, by its establishment of a global network of military bases, making it possible for any president to dispatch troops to areas of "vital interest" without Congress having the time -- even if it showed the inclination -- to oppose the deployment. And the judiciary has shown itself unwilling to curb the increasing powers of the imperial executive. Irons writes, "the Gulf War of 1991, and the invasions of Afghanistan in 2001 and Iraq in 2003, were funded by the same blank checks that Congress had handed out to a parade of chief executives, who cashed them in a dozen countries into which US troops marched with imperial force."
Two reasons lay behind George H.W. Bush's invasion of Iraq in January 1991, and neither of them were the desire to restore the sovereignty of Kuwait. One, of course, was to raise his level of support among American voters, which was dropping precipitously by the day. War is a proven vote-getter for incumbents, with Americans traditionally rallying around their "war leaders" (though with the kinds of war waged by the US in the second half of the 20th century, often the voters became quickly disenchanted with the war once it was over, and punished the incumbent president and his Congressional supporters by turning them out of office). The other was to secure America's access and control over the Middle East oil fields, upon which the US economy had become increasingly dependent, and over which the US oil companies had become accustomed to handling as they saw fit.
Americans had traditionally paid little attention to the political machinations and fluxes of the Middle East -- most were barely aware that Iran and Iraq had just concluded a long and exhausting war, and of those few who knew about it, most of them had little idea that Saddam Hussein's Iraq was, at least putatively, our ally and our preferred victor. So Americans were ready to accept the idea that, when Hussein's armies crossed into Kuwait on August 2, 1990, he was merely a mustachioed tyrant who gassed his own people and wanted to destabilize the region. They did not realize that it was Saudi Arabia almost as much as Kuwait who was rattled by the invasion, and demanded American intervention; they did not know, and the media did not tell them, that as late as July of 1990, State Department diplomats gave Hussein what amounted to permission to invade the small monarchy on his southern border. The House of Saud had pumped millions of dollars into Bush's 1988 presidential bid, and demanded a return on their money. Too, Hussein threatened American access to both Kuwait's and perhaps Saudi Arabia's oil fields. The Washington Post wrote in late October 1990, "some observers in his own party worry that the president will be forced to initiate combat to prevent further erosion of his support at home." Even though the Democrats gained seats in Congress in the 1990 midterm elections, they were mostly uninterested in opposing a war to "preserve Kuwait's independence," especially in the face of the public relations propaganda campaign waged on the American people by the Bush administration and its supporters. Bush's top political strategist, John Sununu, was telling listeners "that a short, successful war would be pure political gold for the President and would guarantee his re-election" in 1992, according to the New Yorker.
Bush ordered, without Congressional approval but without opposition, the doubling of the American troop presence in the region, to 500,000; meanwhile, the UN had imposed economic sanctions on Iraq that would not have any short-term effect on the country or its invasion, which was proceeding almost unchecked by the tiny Kuwaiti military. On November 29, the US rammed through the Security Council a resolution authorizing any member state to use "all necessary means" to expel Hussein from Kuwait. A Congressional delegation that met with Bush on October 30 was not informed of Bush's troop deployments, a violation of the War Powers Act and, in Irons's words, "a sham: Bush pretended to listen, but his mind was already made up to begin the Gulf War."
January 1991 saw a sharply divided Congress narrowly give Bush the authorization to use military force against Iraq; though it was not a declaration of war, it was in essence another "blank check," and Bush cashed it. A ferocious aerial bombardment on Baghdad was unleashed on January 15, and, mesmerized by Pentagon-approved media footage of "smart" bombs apparently destroying buildings with laser precision, like a video game, the US electorate rallied with flag-waving patriotic fervor to support the war. The Pentagon did not allow to be shown the raw footage of dead and maimed Iraqi civilians, which were staples of news broadcasts elsewhere in the world. "To tell you the truth, we're really not focusing on [the] question" of Iraqi civilian casualties," said a senior administration official. By February 28, 1991, the "police action" was officially over, with Hussein still in power but badly weakened. The aim had never been to overthrow Hussein, but to contain him; advisors feared a splintered Iraq and the endangering of American access to Iraqi and Middle Eastern oil. "President Bush has decided to let President Saddam Hussein put down rebellions in his country without American intervention rather than risk the splintering of Iraq," the New York Times reported in March. Bush declared "Operation Desert Storm" a tremendous success, and declared "[t]he spectre of Vietnam has been buried forever in the desert sands of the Arabian peninsula."
Only one significant challenge in the courts was mounted against the war. Representative Ron Dellums, a liberal Democrat, was joined by 53 other Democrats in filing a suit against Bush in federal court in November 1990. Dellums's suit sought to block any military intervention in Kuwait without Congressional authorization, basing his claim directly on Constitutional prerogatives. The court denied the request for an injunction, saying that the suit was not "ripe" for judicial decision because Bush had not yet publicly issued any orders placing troops in harm's way. The court did note that the Constitution forbade any military action without Congress's approval, but with the January authorization in his pocket, Bush moved without judicial or Congressional hindrance. "Though I felt after studying the question that I had the inherent power to commit our forces to battle after the UN resolution," Bush later said, "I solicited Congressional support before committing our forces to the Gulf War." Such "solicitation" was, as noted above, a sham. And his feelings about his inherent power to commit American troops was reflected in a 1992 statement on the campaign trail in Texas, when he said, "I didn't have to get permission from some old goat in the United States Congress to kick Saddam Hussein out of Kuwait."
Regardless of his bluster, voters had forgotten their support for Bush by the time the elections rolled around; a young, forward-looking Democrat named Bill Clinton and a maverick populist named Ross Perot scotched his ambitions for a second term. Clinton, perhaps feeling the need to assert his own toughness after being assailed as a draft dodger during Vietnam, didn't wait long to deploy America's military might; in June 1993, less than six months after taking office, he ordered missile strikes against Iraqi targets, and justified his action by telling the people that the strike was in retaliation for a plot that was underway (but never attempted) to assassinate Bush during his postwar visit to Kuwait. Republicans waxed wroth over Clinton attacking the same country they had cheered Bush for attacking scant months before, and assailed him for not consulting Congress before ordering the strikes, even though they themselves had defended Bush for not consulting Congress before mobilizing troops, ships, and planes into the Middle East in 1991. Like four presidents before him, Clinton said that as president, he had the inherent power to initiate military action without legislative approval.
Clinton would send American forces into three more areas during his tenure: Somalia, Haiti, and Bosnia. Unlike some of his predecessors, he attempted to keep deployment to a minimum, and tried, at least somewhat, to follow UN resolutions in committing troops. Like Ford, Carter, Reagan, and Bush before him, Clinton violated the War Powers Act by refusing to gain Congressional approval before mobilizing. The Somalia intervention was a disaster, one that Clinton inherited from Bush, who had put the first troops into that chaotic hotbed of Islamic and tribal insurrection before leaving office in 1992.
His intervention in Haiti was half-hearted and fruitless; after the politically disastrous Somalia incursion, made famous in the novel and subsequent movie Black Hawk Down, Clinton yanked American troops back out of Haiti in the face of a mob of rock-throwing civilians who had helped depose democratically elected president Jean-Bertrand Aristide, even though the UN had authorized its members to use force to place Aristide back in power. Bosnia was a qualified success, bringing a modicum of peace to the historically unstable Balkans and preventing a small-scale despot, Serbian Slobodan Milosevic, from carrying out the worst of the "ethnic cleansings" that he envisioned (and had already begun). Though Republicans in Congress railed against Clinton's every military move, and his own Democrats were lukewarm at best in their support, Congress never formally opposed any of his actions.
Perhaps most notably for our current position, Clinton inherited a huge, if rather formless, problem from Bush: the question of how America would deal with international terrorism. Although terrorism is hardly a new phenomenon in any guise, dealing with an enemy who wears no uniform, is deployed by no nation, and is not represented in the UN or any community of nations, is a difficult issue for any nation's leaders. Governments themselves often indulge in terrorist-like actions, though no nation will ever admit to such. Among those nations, the US itself has been responsible for many such actions, from the covert assassination of Chile's Salvador Allende to the killing of perhaps thousands of Viet Cong and Vietnamese sympathizers by secret commando squads. "Thus terrorism has never been the exclusive tactic of political and religious zealots," Irons writes; "government agencies from the CIA to the Soviet KGB have used various forms of terrorism against their enemies." The constant strife between Israel and the homeless Palestinians was a particular thorn in Clinton's side, and has been the birthing of many related Islamic fundamentalist terrorist groups, including the infamous al-Qaeda. Like his predecessors, Clinton continued the heavy US support for Israel, though he made far more effort to reach out to the Palestinians than did his Republican predecessors, much less his successor, George W. Bush, who has all but abandoned any pretense of trying to negotiate objectively or even sympathetically with the Palestinian leadership. Islamic fundamentalism sprouted in such disparate Middle Eastern nations as Egypt, Iran, Saudi Arabia, and Afghanistan, not technically part of the region.
A scion of a powerful Saudi family, Osama bin Laden, is primarily responsible for creating and financing the umbrella group of terrorist organizations known as al-Qaeda, with covert support from the House of Saud and his own family members, who ironically continue to maintain their strong financial and social connections with the Bush family. It is also ironic that many current Islamic terrorists got their start, and their training, in CIA-sponsored camps as part of the late 1970s resistance to Soviet domination of Afghanistan. Although bin Laden had nothing to do with the 1993 bombing of the World Trade Center, his organization was behind the 1998 embassy bombings in Kenya and Tanzania. Clinton ordered a retaliatory strike against terrorist training camps in Afghanistan, though the strikes did little to damage the organizations, whose personnel had abandoned them in anticipation of retaliation weeks before. And of course, bin Laden's most successful terrorist strike came on September 11, 2001, when over 3000 Americans died in the horrific strikes of four hijacked airliners on targets in New York City and Washington.
The events surrounding 9/11 are examined in detail throughout this site, and though Irons gives a detailed summation of the situation, I will not repeat it here. The situation as it impacted the presidency grows directly out of the events and decisions, by former presidents, members of Congress, the judiciary, the media, and the American people, made before the strikes were launched. George W. Bush, the son of the former president, was caught in what some have called a "death spiral" of unpopularity before the strikes, with his economic plan backfiring in every regard, his rigidly conservative and corporate-friendly methods of governance coming under fire, and his rank ignorance and uninformed belligerence alienating Americans and others alike. However, the horrors of 9/11 unified the American people, as well as allies and even putative enemies such as Iran, behind the new president (for varying lengths of time), and Bush, seeing a unique opportunity to tighten his grasp on the presidency, extend the powers of the imperial president, and reassert American dominance both economically and militarily around the globe and especially in the turbulent Middle East, moved to take full advantage. Bush originally demanded a blanket authorization from Congress to attack any nation he saw fit in retaliation for 9/11, and only reluctantly acquiesced to a more limited authorization to move against only nations that could be shown to have been involved in the attacks; his adminstration, with the complicity of the mainstream media, immediately began a campaign of disinformation to bring the American military machine to bear against Afghanistan, which had housed and supported al-Qaeda, and later against Iraq, who had nothing at all to do with the attacks or with supporting the Islamic terrorists who had masterminded the operation.
An in-depth examination of the invasion of Iraq, which ended in April 2003 after less than a month's fighting to be supplanted by a seemingly endless occupation of that beleagured and increasingly violent country, would be repetitive here, as it is covered elsewhere in this site. The decision to invade Iraq had been made by the Bush administration long before the 9/11 attacks, but until the attacks, the administration's hawks and war planners had no excuse to justify a military move. Other options had been considered, including support for opposition groups that might carry out a coup d'etat, or a covert assassination mission against Saddam Hussein, both perhaps aided and even carried out by the best-organized resistance group in Iraq, the Kurds.
Deputy defense secretary Paul Wolfowitz, who planned the administration's incursion into Iraq, didn't like the idea of a long, drawn-out occupation of Afghanistan: its mountainous terrain and disparate tribal and religious factions would make the idea as untenable for the US as it was two decades before for the Soviets. Iraq presented a much better target -- it is a largely flat, desert country, and Wolfowitz and his colleagues knew that, despite conflicting intelligence reports, Hussein's army was not particularly powerful, and the likelihood of it possessing chemical or biological weapons that could cause serious damage to a US force was minimal. Better, Hussein's people were ready for a change from the tyrannical rule of the CIA-trained despot, and the case that Hussein, already a villain in the eyes of most Americans, could have at least some responsibility hung on him for the 9/11 attacks was strong. Wolfowitz and several Bush administration senior officials had, as part of their involvement in the Project for the New American Century, been uring Clinton for years to pre-emptively attack Hussein as part of their neoconservative blueprint for American economic and military domination of the globe. Many of this "new" breed of neocons were former Democrats in the mold of Kennedy's former defense secretary, Robert McNamara; others were conservatives with a far larger interest in remaking the world in their own vision than concerned with traditional conservative values -- smaller government, more isolation from the world's problems, and so forth. The roots of Bush administration neoconservatism stretch as far back as the Ford administration, when Donald Rumsfeld and Dick Cheney sowed the seeds of the movement that would capture the foreign policy of the new administration.
In their view, there were only two options for the future of the globe: American domination or a world torn by factional disputes and small wars, with America unable to command the resources and markets it needed to grow and expand. Unilateral military actions on a scale undreamed of by any president in American history -- except, perhaps, in his most private dreams of empire -- were not only an option, the neocons argued, but a necessity. "In other words," Irons writes, "the United States would become the world's police officer, with a roving warrant to arrest rogue nations that possessed or were developing weapons of mass destruction." That self-granted authority would transcend the desires of other nations or even the mandates of the UN; in effect, the world would become the new American empire, and would trifle with American policy decisions at its peril. This neoconservative ideology, known now as the "Bush Doctrine," though its development far preceded that president, would become the driving force behind the American occupation of Iraq, and, in its bloody consequences, would prove the ideology's fundamental failure.
Largely because of the objections raised by the less warlike Secretary of State, Colin Powell, and because of the insistence of large sections of Congress, the Bush administration reached out to the UN for validation of the plans for conquest already underway. The UN's failure to find any stockpiles of WMDs, or even evidence that Iraq had any programs to develop such weapons that had survived the Gulf War, was ignored or "spun" by administration officials and media propagandists into fear-mongering proclamations of "proof" of Hussein's intent to lay waste to the Middle East, and even, possibly, to strike at American soil. In the process of preparing to invade Iraq, the "war on terror," a linchpin of adminstration rhetoric, was all but forgotten. Troop mobilizations and deployments in preparation for the invasion began at least fourteen months before the March 2003 invasion, in fact, within weeks of the incursion into Afghanistan. Having decried the concept of "regime change" in the 2000 presidential campaign, by 2002, Bush was announcing the necessity of just such change in Iraq -- for our protection, he claimed. According to Bush, and without any hard evidence, Hussein presented a "clear and present danger" to America and the entire world. Swayed by anger over the 9/11 attacks and the relentless drumbeat of administration propaganda, the majority of Americans agreed. But two obstacles remained: the Constitutional prerogatives of Congress to authorize such military action, and the Constitutional restrictions on a president to make war on other nations. The second obstacle could easily be ignored, just as so many presidents had ignored it beforehand. Constitutional scholars in and out of Congress could object, but their objections would be ridden over roughshod. As for Congress, the Republicans controlled the House, and the Bush administration controlled the House leadership. The Senate was basically split, with the Democrats holding on to a razor-thin majority. Though the rhetoric was hot and impassioned from all sides, there was never any serious doubt that Congress would grant the authority to use force against Iraq.
The international community was harder to convince. Britain, of course, was on board from the outset, with Prime Minister Tony Blair indulging in the same obfuscations and lies about the Iraqi "threat" as Bush. Australia followed suit. Russia, France, and Germany came out in opposition to any invasion of Iraq, resulting in Republican and media bashing and insulting of France, Germany, and "old Europe" as being behind the curve. Powell, a veteran and well-respected diplomat, was a key player in lining up what limited support the US could muster for the invasion. Russia finally withdrew its public objections, and Powell helped muster an odd coalition of supporters -- among them the conservative governments of Spain and Italy; Pakistan, the US's unreliable "ally" against al-Qaeda; several Central Asian nations that had formerly been part of the Soviet Union and wanted more American economic and military aid; and a number of smaller countries whose support would be more symbolic than concrete. Powell's warnings that a move to topple Hussein might precipitate chaos in the Middle East went unheeded. Oil, of course, was a deciding factor in the incursion, though Donald Rumsfeld told one of the biggest lies in American history when he told reporters in November 2002 that the upcoming invasion "has nothing to do with oil, literally nothing to do with oil." Iraq, of course, owns the second largest oil reserves in the Middle East, behind Saudi Arabia, and the American oil conglomerates wanted that oil under their control -- whether to open the spigots or to keep it in the ground and drive up profits. Two weeks after Rumsfeld's amazing statement, US officials met with exiled Iraqi opposition leaders to plan how the upcoming overthrow of Saddam would effect Iraq's oil industry. And, of course, America's overthrow of Hussein would, in the neocon viewpoint, send a chilling message to other recalcitrant world leaders about dealing with America on their terms and not Washington's. "[Y]ou have to control resources to have access to them," said Charles Freeman, a former ambassador to Saudi Arabia under the first Bush administration. "They [the current leadership] are taken with the idea that the end of the Cold War left the United States able to impose its will globally -- and that those with the ability to shape events with power had the duty to do so. It's ideology." The "ideology of empire," Irons reminds us.
The religious connotations cannot be ignored, either. Like Christopher Columbus, who subjugated and enslaved the natives of the Caribbean in the name of God (not to mention stripped them of their gold and valuables), Bush infuses his foreign policies with the rhetoric of divine mandate. Saddam Hussein and Islamic terrorists become Biblical founts of evil; in his mind, and in the minds of many of his followers, divine mandate and a "Crusade" mentality trumps Constitutional restrictions or cautious international relations. Better, the same rhetoric can be used to send American troops against other "evil dictators," perhaps Kim Jong-il of North Korea or the mullahs of Iran, with the same religious fervor. Iran, of course, has a far more powerful military than Iraq, and North Korea has no oil and precious little natural resources worth whipping up a religious frenzy over.
At any rate, the march to war was on, with the people mesmerized by the lies and propaganda about Iraq's "weapons of mass destruction" poised to rain death on Israel and perhaps America, and the equally brazen raft of lies about Iraq's "proven" ties to al-Qaeda, and Congress in full retreat away from any sort of principled opposition. On October 11, four days after a speech in Cincinnati laced with a staggering amount of lies about Iraq's chemical, biological, and even nuclear capabilities, Congress overwhelmingly voted to give Bush the authority to use military force against Iraq. Every Democrat who worried about his re-election chances voted for the bill, including future presidential contender John Kerry, who tried and failed to justify his vote by explaining over and over that he didn't realize Bush was so determined to abandon diplomacy and roar into Baghdad with guns blazing. Adminstration attempts to secure UN approval failed, but an astonishing presention to the General Assembly in February 2003 by Colin Powell, who presented a farrago of lies, half-truths, and falsified intelligence to the stunned members, worked wonders in shoring up support among American citizens and the media. If Powell said it, it must be true, they determined. With a patchwork of nations led by Britain making up the "coalition of the willing" supporting the invasion, only one obstacle remained -- the Constitution.
Liberal Democrats and active-duty soldiers led by Representative John Conyers filed a lawsuit to block the invasion on Constitutional grounds in February 2003; the lawsuit was brushed aside with many of the same arguments used in similar lawsuits years before, with a string of judges ruling that the Bush administration had not yet made up its mind to invade (it had, over a year before), and refusing to question the president's "inherent power" to use military force, especially with Congressional authorization in his pocket. The appellate court said that "questions remain about whether there will be a war, and, if so, under what conditions;" six days later, Bush launched the first strike against Iraq, settling the question.
The invasion itself went off with hardly a hitch; the occupation that followed was, and remains, a disaster. Looters despoiled virtually every museum and government building they could find (with the exception of the Oil Ministry, the only facility under heavy American guard), making off with everything from priceless antiquities to munitions, guns, explosives, and radioactive waste from Hussein's long-abandoned nuclear energy program. The insurgency grew and metastized rapidly, further factionalizing an already-divided population. The Coalition Provisional Authority disbanded the Iraqi Army, sending tens of thousands of well-armed and well-trained soldiers into unemployment; many of them joined one or another insurgent faction, and the country had no indigeneous police or military force to aid US troops in keeping order. The June 2004 turnover of power from the CPA to an Iraqi government was a charade, with the government made up of a group of exiles and power brokers hand-picked by the US, without checking with the Iraqi populace. Weapons of mass destruction were never found. Connections between Hussein's government and al-Qaeda were disproven. Iraq dissolved into chaos. Yet the war of words for American hearts and minds was won, at least in November 2004, when around half of the American electorate, buffaloed by propaganda and accusations of treason against dissenters and foiled by rampant electoral fraud, gave George W. Bush a second term as president in November 2004.
The Justice Department's Office of Legal Counsel has long been considered "the president's law firm." At least three recent Supreme Court Justices, William Rehnquist, Antonin Scalia, and Samuel Alito, are all OLC alumni. Its job is technically to provide legal interpretations for the executive branch. But in reality, it "is calculated to defend as robustly as possible presidential authority, that's what it's all about," according to OLC alum and former Justice Department official Bruce Fein.
Dick Cheney, long an advocate for unbridled executive power, had had his eye on law professor John Yoo since at least 1996, when You wrote a book-length article for the California Law Review that argued the Constitution gave far more power to the president during wartime than anyone had previously believed. Congress could only manage the finances and impeach, Yoo argued. The judiciary had no role whatsoever. Yoo had apparently been influenced by the 1987 arguments by Cheney and David Addington during the Iran-Contra scandal that made the same points Yoo made almost a decade later. Yoo then clerked for Justice Clarence Thomas, where he primarily worked on issues of national security and the separation of powers.
Yoo was a deputy attorney general at the OLC when, after the 9/11 attacks, he worked with Cheney's right-hand man, Addington, to create the legal architecture for an extraordinary powerful commander-in-chief. Cheney knew just what he wanted; it just took the right question. "You have asked for our opinion as to the scope of the president's authority to take military action in response to the terrorist attacks on the United States on September 11, 2001," Yoo wrote on September 25." Yoo's answer pleased Cheney.
Yoo argued that the president's authority is virtually unlimited, and not subject to Congressional oversight or judiciary review. Yoo wrote that the president could legally attack any terrorist organization or the nations that sponsor terrorism, whether or not they had any part in the 9/11 attacks. By making this argument, Yoo said that if it so desired, the US could attack -- among others -- Cuba, Iran, Libya, North Korea, Syria, or the Sudan, all countries identified by the State Department as terrorist supporters. Add in nations considered "terrorist safe havens," as Yoo wrote, and the list of countries that the US could attack grew exponentially. But Yoo didn't stop at nations. Terrorist organizations and even individual persons could be targeted as well.
Yoo argued that Congress, when it authorized the use of military force against terrorists the week after 9/11, only confirmed a small portion of the sweeping powers the president already has, powers that in Yoo's opinion are nearly unlimited -- "The President's broad constitutional power to use military force to defend the Nation, recognized by the Joint Resolution itself, would allow the President to take whatever actions he deems appropriate to preempt or respond to terrorist threats from new quarters."
On December 28, 2001, Yoo co-wrote another memo with his fellow deputy attorney general, Patrick Philbin, who would later recant his support for Cheney and Addington's executive power grab and, as a result, would be blocked by Addington from being promoted within the Justice Department. Yoo and Philbin wrote that enemy detainees kept at Guantanamo Bay have no right to habeas corpus, the bedrock right of any accused person to appear before a judge after detention and have his incarceration justified.
In early June of 2002, Yoo co-authored another memo, this one with OLC attorney Robert Delahunty, arguing that the Geneva Conventions and other international agreements against torture "do not protect members of the al-Qaeda organization, which as a non-State actor cannot be a party to the international agreements governing war." (Yoo's argument against Geneva protections for individuals unaffiliated with national governments is sound, but the corollary that they do not receive the protections of the legal system strips them of all rights whatsoever, a status that the Founding Fathers specifically prohibited.) And if Congress said that American troops had to obey the Geneva Conventions, it "would represent a possible infringement on presidential discretion to direct the military," Yoo wrote. The fact that Congress had ratified Geneva didn't matter; presidential power, in Yoo's opinion, trumps the legislature entirely. Yoo's memo was supported by White House chief counsel Alberto Gonzales, who would go on to blight the office of Attorney General. Gonzales's own legal experience as a transactional (corporate) lawyer, and his brief, unremarkable stint on the Texas Supreme Court, gives him no working knowledge of national security or international law.
The State Department tried to put the brakes on. State counsel William Taft argued to Gonzales that if the US could legally torture detainees, US troops captured in battle could expect the same treatment. Also, US torture would inflame anti-Americanism in the Muslim and Arab worlds. Addington attempted to bully and marginalize DOJ lawyers who disagreed with the arguments in favor of US-sanctioned torture, but enough dissent crept through for Gonzales to prepare a "for-against" memo on the issue for Bush. Interestingly, one of his arguments in favor of jettisoning the Conventions was the concurrent War Crimes Act of 1996, which provides for harsh penalties against any American official convicted of serious war crimes as defined by Geneva. Without Geneva, there is no War Crimes Act -- and therefore, no reason for Bush or any administration official to worry about being prosecuted under the Act.
Bush decided to split the difference. On February 7, 2002, he, or his staff, wrote a memo saying, "I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time." Bush said that al-Qaeda detainees do not qualify as prisoners of war under Geneva, but the US military "shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva." Bush's memo is a masterpiece of weaselry. Legally, memos mean virtually nothing anyway, and neither Cheney nor then-defense secretary Donald Rumsfeld had any intention of worrying about humane treatment for anyone. "In going back and looking at the deliberations," Wilkerson recalls, "it was clear to me that what the president had decided was one thing, and what was implemented was quite another thing." The policy would be implemented just as Cheney had "briefed it" to Bush. Torture and indefinite, extrajudicial detention were in; Geneva and the Constitution were out.
Everyone in the field, from CIA interrogators to Army reservists, got the message. At Abu Ghraib, badly trained Army guards raped, murdered, and tortured in sadistic excess. The CIA routinely used torture techniques explicitly banned by Geneva, including waterboarding and mock executions. "The complicity of everyone down the line was mind-boggling to me, including the commander in the field, Rick Sanchez," Wilkerson recalled. "In some cases, Rumsfeld would protect himself very carefully. For example, I have his memo with appendixes and annexes where he goes from A to double D, telling them what they can do. When you read this, you read, for example, that dogs can be used but they have to be muzzled. Well, I'm a soldier. I know what that means to an E-6 [noncommissioned officer] that is trying to question a guy and he's got a German shepherd with a muzzle in there. If that doesn't work, the muzzle comes off. If that doesn't work, you kind of let the dog leap at the guy and maybe every now and then take a bite out of him. It's a very careful crafting of a memo that would probably never get [Rumsfeld] in a court of law or get him convicted at the International Criminal Court, but it's damn sure apparent to me that things were different, things had changed. And I can't imagine Rumsfeld doing that without at least having his head covered by the vice president."
In August 2002, the head of the OLC, Jay Bybee, wrote what has become "the torture memo." Yoo actually ghostwrote the memo. How much input Cheney and Addington had in the writing of the memo is unclear, but they certainly would have had the power to veto or modify its contents. They did not. According to the memo, something can only be considered torture "[w]here the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure." In the words of Dubose and Bernstein, "Short of homicide, everything was fair game." -- Lou Dubose and Jake Bernstein
Irons's conclusion is short and somewhat pessimistic, though he notes that rays of hope against the totalitarian despotism envisioned by some Bush officials and their supporters has been held off to an extent, with the adminstration's insistence that torture and indefinite detention of "enemy combatants," spanning the range from foreign terror suspects to American citizens, is unlawful and unconstitutional by the courts. Former Attorney General John Ashcroft's intent to lock up anyone who dared disagree with the administration has not yet been realized, and in many cases thwarted by judicial rebuke. Bush's suspension of habeas corpus for detainees has been challenged; his refusal to abide by the Geneva Conventions has been fought, with some success, in the nation's courts, who have often refused the government's attempt to jail internees without presenting evidence that might "threaten national security." During World War II, Roosevelt's Assistant Secretary of War, John McCloy, defended the internment of thousands of innocent Japanese-Americans with the contemptuous words, "The Constitution is just a piece of paper." Bush seems to have taken that statement to heart, but the judiciary, and increasingly Congress, has disagreed. Irons goes through a number of cases, particularly the Supreme Court cases of American citizens Jose Padilla and Yasser Esam Hamdi; those cases are detailed elsewhere in this site.
He notes somberly that, during the 2004 presidential campaign, neither Bush nor opponent John Kerry had any criticism of the "inherent power" of the president to make war upon another nation or entity; Kerry would have merely worked more closely with Congress and the community of nations than the go-it-alone Bush. Kerry, from what he said on the campaign trail, would have done little to trim the president's assumed mantle of military decision-making power, nor to curb the growth of the American imperial empire. As of the publication of his book in July 2005, Irons writes that Congress has done nothing to take back the powers of decision-making abrogated by the president since the time of Lincoln, a process that seems to be accelerating out of control of the legislative branch. And the judiciary, increasingly dominated by conservative appointees, has shown only a fitful and sporadic tendency to curb those imperial powers. Both have allowed the presidency to take powers upon itself in direct and systematic violation of the Constitution. Irons says only a resurgent Congress, newly determined to take back its Constitutional prerogatives, and a populace that holds the line against presidential belligerence and media propaganda, can reshape the imperial presidency in line with what the Constitution mandates. "Any movement to curb the powers of the imperial presidency cannot wait for or depend on another [John] Marshall or [Martin Luther] King," he declares. "Its success must depend on the American people, coming together in the kinds of town meeting gatherings that sparked the colonists to rebel against the imperial rule of King George III. ...To provide answers to the fateful questions of how and why we go to war, the country must decide."