Bernard Weiner: Rehnquist's Defeat-Bush Memo

I hadn't heard from Shallow Throat in nearly three months. The high-ranking mole in the Bush Administration contacted me last week, at the height of Rove's Smear Boat attacks, agitated because of the Kerry Campaign's belated, and at first, ineffectual response.

But when we finally met, a few days ago, in an out-of-the-way tavern near the old C&O Canal outside Washington, D.C., ST was almost giddy. What accounted for the change?

"Well, first of all, despite Kerry's latest goof-ups, most follow-up polls indicate that Bush hasn't gained all that much ground; the election is still Kerry's to lose. Bush, since he hasn't much positive to brag about, is running on fear, trust-me and a bag of phony promises left over from his 2002 campaign. The American public knows not to trust this guy in the slightest.

"Second, the GOP Convention was -- from the lame routine of the twins to Zell Miller's Nuremburg Rally speech -- so embarrassing that one almost believed the Dems had rented the time on TV for the Republicans to perform.

"Third, it seems that Kerry is finally getting his act together -- hitting back strongly when attacked, bringing in some old Clinton hands to shore up the spine and strategy, and learning how to perform early-response himself rather than relying on weak surrogates. But he's still way too East Coast Gentleman in his approach, refusing to recognize that, for the GOP, this is a street-brawl, where anything goes, including knees to the groin.

"And, finally," ST said, with a giant grin, "I have here in my hand a rather intriguing document from a yet-to-be-named famous rightist to his fellow elitist conservatives."

HOW KERRY CAN WIN

"I know you're dying to tell me who it is and what it says," I replied, "but I'm not taking the bait. At least not right away. I want to know how you think Kerry can turn this thing around in the less than 60 days left before November 2."

ST looked at me staring at the papers he held in his hand, then said: "I certainly admire your capacity for delayed gratification, but OK, here goes:

"If you and your liberal friends really want to ensure victory, and I mean a big victory -- a landslide kind of momentum that will discourage Rove from even thinking of diddling with the computer-voting machines or 'postponing' the election -- here's what I think Kerry has to do.

"First, he's got to get out of the trap set for him by Bush and which he entered into so blithely. That is, he's got to start attacking Bush frontally and fiercely for how he took the U.S. into Iraq through lies and deception, and how Bush has bungled the occupation ever since."

"But Kerry voted to give the president the authority to go to war," I said. "I don't see how he can now say he was wrong in voting for it without commiting a SuperSize Flip-Flop.

"It ain't gonna be easy," ST replied, "but Kerry could say -- and he laid the foundation for this approach the other night, when he accused Bush of 'misleading the nation into war' -- that the Bush Administration provided the Senate with false and phony intelligence. He believes that a president always has, and should have, the authority to take the nation to war if an emergency requires instant action, but Bush lied to the nation about an imminent threat to the U.S., Saddam's alleged WMD, nuclear threat, ties to 9/11, tight relationship to Al Qaida, and so on. In short, the senators were supplied with downright lies and deceptions by Bush and his key advisers, and nearly everyone in the Senate went along as a result of the con job -- or should I say neo-con job?

"If Kerry can climb out from under his ill-advised vote to authorize war in Iraq, thus getting rid of that giant albatross around his neck, he'll be a free man, politically speaking, able to go at Bush's jugular for his ill-advised rush to war, and for how incompetently Bush has been waging that war, the result of which is getting more and more American soldiers killed each day.

SERVICE AND SERVICE-AVOIDANCE

"Then he needs to pound the difference between his volunteering to fight in Vietnam, and Bush's checking off the box that he didn't want to go to Vietnam, and Cheney's taking five deferments to avoid service (because he had "more important priorities") -- plus Bush going missing in action for more than a year when he was in the Air National Guard.

"In sum, Kerry's gotta take off the gloves and start landing some good uppercuts and hooks. Enough with the jabbing already. Get in there and mix it up, on these topics and more contemporary ones as well -- the Medicare fee-raise and drug-discount scam, proper funding for education, improving the health-care delivery system, tax breaks for the middle-class, enforcing environmental laws, and so on."

"OK," I said, "for that analysis, it was worth waiting to hear what you've got in your sweaty little hand. Hand it over."

"What I have here is a memo from the Chief Justice of the United States Supreme Court to a lot of his conservative friends in high places, urging them to help ensure that Bush goes down, big time, in November."

"You've got to be joking," I said. "Not that Rehnquist wouldn't think that privately, but I can't believe he'd be courageous, or stupid, enough to write it down. You're sure this is authentic?"

"I can't guarantee anything in this town," said ST. "Conceivably, it could be a plant -- a total scam. But the source who supplied it -- a fellow traditional Republican -- assured me that Rehnquist wrote it. Whether this is an early draft, or the final copy, I don't know. Nor do I know to whom this memo went. But even if it's fiction, it's what a lot of elite conservatives are saying these days, some openly, some more covertly. In short, the old conservative power structure wants these arrogant, bumbling Texas fruitcakes out of power. Who knows? By writing it down, the Chief Justice, knowing how things leak in this town, almost is saying that he wants it to be made public. Here it is, read it yourself."

"REHNQUIST MEMORANDUM" ON BUSH
From: W.R.
Absolutely CONFIDENTIAL

I'll bet you never thought you'd hear this from me, but G.W. Bush has got to be defeated in November.

Yes, I know, I'm a diehard conservative and was part of the majority that greased his way into the White House. But we had no idea the damage this guy and his friends would do in just four years, and how far they are willing to go in amassing total power and control into their hands.

Most pertinent to us on the court is what he has done to the judiciary. In effect, he has told us we're irrelevant. Whenever he wants something badly enough, he bends the Constitution, ignores the Separation-of-Powers established so brilliantly by the Founding Fathers, and simply finds a way for the President to do whatever he and his friends decide they want to do. (For example, GOP extremists in the House have introduced bills that would set the precedent of totally abolishing judicial review.)

Take the torture scandal, which is connected to the post-9/11 Patriot Act. Bush and Ashcroft had lawyers at the White House, Justice and Pentagon draft memoranda that, they claimed, permitted the President to do anything whatsoever under his role as commander-in-chief during wartime. Since Bush has declared that we are in a state of war and that he's a "war president," it then follows that whatever action the President takes, under this claim of acting as "commander-in-chief" in "wartime," must be permitted to stand as legal orders of the Executive.

Under this claim, the President can authorize "harsh interrogation methods" -- a euphemism for torture -- and the "disappearing" of various citizens and foreigners into secret jails, out of the reach of juridical oversight. Bush officials, apparently adopting these legal strategems as policy, have done both, and they really thought they would get away with it.

They are sorely mistaken. I and most of my colleagues on the bench do not appreciate it when the concept of judicial review, first established two hundred years ago with John Marshall and Marbury v. Madison, is dismissed by the Executive Branch as an outdated constitutional frill. Terrorism or no terrorism, this is still a society where no man, not even the President, is above the law -- not even if he wraps his grab for power in the name of "anti-terrorism."

We tried to get the message to him recently in the Hamdi and Guantanamo cases, where we said, in no uncertain terms, that while the President assumes, and should have, wide latitude during wartime, this special consideration was not a blanket right to unfettered behavior. Justice O'Connor wrote that the court has ''made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens." And Justice Scalia wrote: "The very core of our liberty has been freedom from indefinite imprisonment at the will of the executive."

In short, we sent Bush a very strong message. Which he and his advisers seemed to agree to, only to try to go around the import of the Court's rulings, by testing the limits of what they could get away with -- the way they're delaying our orders on the Guantanamo detainees, for example, and the way military tribunals are organized that makes them little more than show trials.

PRESIDENTS ARE NOT KINGS/DICTATORS

Richard Nixon tried to hide his crimes by claiming that any action taken by a President cannot, by the very fact that he is Chief Executive, be illegal -- but he learned quickly enough, when the Court rejected this extreme claim, that the Executive and Legislative Branches are always and forever subject to the Constitution, as interpreted by the Judicial Branch.

Now we learn that Bush's White House lawyers are asserting even more outrageous claims to power. Even though the Constitution grants the States power in determining and running their own election rules -- well, OK, we violated our own principles, but without setting precedent, in Bush v. Gore -- the Bush Administration claims that is has the power to cancel or postpone a general election (presumably when it appears it would lose) in the face of perceived "terrorist" threats. And, worse still, that it could partially cancel or postpone an election in certain states (presumably in states it would have lost) and be declared the winner based on a partial vote (presumably from states it would have won).

There is no way we could, or would, let that happen. If Bush and his cronies persist in creating a constitutional crisis, they will get one -- and not one they will find agreeable. Even the military may refuse to follow Bush's dictatorial orders.

In short, I'm writing this memo and circulating it (on a CONFIDENTIAL basis) to you and other key Republican business and governmental leaders because it's plain now, as it wasn't in 2000, that Bush and his crowd are inimicable to our best financial and political interests -- and the interest of the American people in general -- and must be stopped here and now before they can do even more damage.

This crew appears to be so power-hungry, and so incompetent in carrying out their radical programs, that only disaster will result if they gain a second term. If you agree with my prognosis, I urge you to move quickly to do whatever you can, and use whatever influence and funds you must, to ensure that Bush goes down to defeat on November 2.

KERRY IS NO DANGER TO US

Kerry ordinarily would not be our choice, but, if elected, he will be pretty much a toothless tiger, struggling so hard to undo the worst damage done by his predecessor, that he'll have little time or energy to devote to liberal mischief.

In the four years of a Kerry administration, we can regather our forces and select someone less obvious and more competent to run against him in 2008, re-asserting true conservative dominance in the years to come.

But unless we get rid of this crass, arrogant, reckless Bush crowd -- by a landslide defeat, so as to obviate any late "surprises" Karl Rove may have up his sleeve -- we, and the country, are in for a hellacious administration run amok with its ruthless power. Please let me know your thoughts, by courier delivery only. Thank you.

I finished reading and looked up at Shallow Throat, whose grin was as wide as the Mississippi. And then I realized that my smile was equally as broad.

We high-fived each other, and, giggling, ordered two more pitchers. Help was on the way, from the strangest of places.

Bernard Weiner -- who has created numerous other "conversations" with Shallow Throat (available at http://crisispapers.org/weinerpubs.htm) -- is a playwright/poet, formerly a writer/editor with the San Francisco Chronicle; currently, he co-edits The Crisis Papers ( www.crisispapers.org). He is a contributing author to the recently released "Big Bush Lies" book.

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