Marjorie Cohn: The Emperor-In-Chief

Rumor has it that George W. Bush's tailor is busily stitching a royal blue cloak to go with the gold crown that will adorn the president as he takes the oath of office on January 20. Now that Bush has secured a second term, it is no longer necessary to hide behind the subtle flight suit that bedecked him on the deck of the aircraft carrier declaring "Mission Accomplished" in May 2003. He can now come out of the closet as full-fledged Emperor of the World.

Notwithstanding the United States Constitution and the United Nations Charter, Bush nicely qualifies as "the male sovereign or supreme ruler of an empire," as required by Webster's New Universal Unabridged Dictionary.

Bush wasn't always riding high. Shortly before 9/11, his ratings were falling. It was a mere two weeks after the September 11 attacks that a secret memo prepared for Alberto Gonzales's office concluded Bush had the power to use military force "preemptively" against any terrorist organizations or countries that supported them. Any link to the attacks on the World Trade Center or the Pentagon was unnecessary, said the memo, even though Congress had so limited its license for the president to use force.

Treaties ratified by the United States, such as the Charter of the United Nations, are the Supreme law of the land under our Constitution. The U.N. Charter forbids the use of armed force against another State unless undertaken in self-defense or authorized by the Security Council. The necessity for self-defense must be "instant, overwhelming, leaving no choice of means, and no moment for deliberation," according to the leading Caroline Case of 1841.

The Charter's prohibition on the use of force has not prevented prior presidents from acting unilaterally. George H.W. Bush invaded Panama and Grenada, and Bill Clinton bombed Yugoslavia in 1999, the year after he bombed Afghanistan and the Sudan. Before invading Iraq, George W. Bush made war on Afghanistan to retaliate against the Taliban for harboring Osama bin Laden. None of these interventions was an exercise of self-defense; none was approved by the Council. All were illegal.

George W. Bush, however, has taken chutzpah to a higher level with his new doctrine of "preemptive war." It was first elaborated in the secret September 25, 2001 memo from Justice Department lawyer John Yoo to Tim Flanigan, Gonzales's chief deputy. Near the top of the 15-page memo is the following language:

The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations.

The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.

Nowhere does the U.N. Charter permit the use of force to "retaliate" against anyone or any State. Nowhere does the Charter allow military force to be used "preemptively" against any organization. Yet nowhere did John Yoo mention the United Nations Charter.

Nevertheless, George W. Bush adopted the Yoo theory as his own, publicly proclaiming in a June 2002 speech at the West Point Military Academy graduation, "If we wait for threats to fully materialize we will have waited too long." He added, "Our security will require all Americans to be forward looking and resolute, to be ready for preemptive action when necessary to defend our liberty and to defend our lives."

The new Bush Doctrine was again set forth three months later in the "National Security Strategy of the United States." It said: "America will act against such emerging threats before they are fully formed." This does not meet the Caroline test.

And in his March 17, 2003 speech that launched Operation "Iraqi Freedom" Bush maintained, "We choose to meet that threat now where it arises, before it can appear suddenly in our skies and cities," in spite of the fact that Iraq had not attacked any country for 12 years, and posed no threat to any other country.

When Bush's lawyers tried to defend the 2-3 year indefinite detentions of 600 men at the U.S. prison at Guantánamo Bay, Cuba, the Supreme Court scolded them, saying war is not a "blank check" for the president. The due process the Court required the Bush administration to provide these men has been slow in coming, however; six months after the Court's ruling in the Guantánamo case, very few have been afforded hearings.

Flush from their election "victory," Bush's men are hunkering down to remake the country in their own image. In the last Congress, the Senate Democrats worked with Bush to approve 204 judicial nominees, "rejecting only 10 of the most extreme," according to incoming Senate Minority Leader Harry Reid (D-Nev.).

Nonetheless, Bush has re-nominated several candidates who failed to win Senate approval during his first term. He is hoping the Republicans will destroy the filibuster, a time-honored procedure that keeps the majority from tyrannizing the minority.

Many of the names Bush is resubmitting to the Senate are right-wing ideologues, who oppose abortion. (See my editorial, Bush's Judges: Right-Wing Ideologues). Bush, empowered by the "mandate" he has secured, is gunning for Roe v. Wade. With the illness of Chief Justice William Rehnquist, it is likely Bush will have one to four Supreme Court appointments in his second term. We can expect to see abortion opponents nominated to the Court.

One of Bush's re-nominees is William J. Haynes II, who, as general counsel to the Defense Department, oversaw the preparation of a memo that argued Bush may not be bound by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Torture Convention, a treaty ratified by the United States, specifies that torture is never permitted, even in time of war. This memo is regarded as having set the tone for the widespread torture in Afghanistan, Iraq and Guantánamo Bay.

Although the torture was revealed with the pornographic photographs in April, no high level officials have been brought to justice. Even the conservative Washington Post said in an editorial Thursday, "The record of the past few months suggests that the administration will neither hold any senior official accountable nor change the policies that have produced this shameful record."

Emperor George W. Bush will continue to consolidate his empire. For the people of Iraq, our soldiers who are there, and our sons and daughters who will likely be drafted into that quagmire, the price is dear.

Marjorie Cohn, a contributing editor to t r u t h o u t, is a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists.

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