Congress under the Constitution has the sole right to establish federal court systems.It sets up district and appeals courts,and also courts martial.It establishes the number of justices on the Supreme Court.Yet President Bush,on his sole authority,set up a third entity that recognized none of the legitimate court systems and defied the Geneva Conventions on the treatment of war prisoners.The Bush system had no justification in constitutional or international law.The Bush people were as concerned with creating an unchecked and omnicompetent executive as with hunting for terrorists.The tight little circle around Cheney and Addington wanted to keep the Office of Legal Counsel memos from any who might oppose them including National Security Advisor Condoleezza Rice and Secretary of State Colin Powell.
Jack Goldsmith inherited the leadership role in the Office of Legal Counsel when Jay Bybee and John Yoo left the Justice Department.He was a conservative young lawyer,supporter of President Bush and a member of the Federalist Society.He was a friend of John Yoo who wrote numerous OLC memorandums used by the Bush administration to defy the constitution and international law for their own purposes.Unfortunately for the administration,Goldsmith was a good legal thinker and thought the memos by Yoo were legally flawed and had no foundation in prior OLC opinion or in any other source of law.The memos implied that many other federal laws that limit interrogation--anti-assault laws,the 1996 War Crimes Act,and the Uniform Code of Military Justice are also unconstitutional.What struck Goldsmith was the unnecessary exclusion of all parties but the executive--Congress,the courts,the American populace,allied governments--at a time when they were all anxious to cooperate with the efforts against al Qaeda.Cheney said the Constitution was irrelevant to executive power.Goldsmith concluded he had to reverse the legal opinion of his own office by canceling Yoo's torture memo.Goldsmith's decision to stand up to the White House had come at a price.There was no chance that he would ever be made a federal appeals court judge,something Jay Bybee got for toeing the line.Goldsmith,Alberto Mora,James Comey and Patrick Philbin all had their careers subverted for not cooperating with the Bush team.It was a reign where dissent was not merely discouraged,but punished.
The Bush circle also fought the McCain anti-torture bill during this time.Cheney tried to have Bill Frist block the legislation by withdrawing the budget bill.McCain responded by lining up two dozen retired generals(including Powell) to say that observing the Geneva Convention was necessary to ensure proper treatment of our own military personnel.The bill passed the Senate by 90 votes to 9,including 46 of 55 Republicans.Cheney had still not given up.He urged that the bill exempt CIA agents to allow them to torture.Eventually,the House passed the bill and it became the law.But then,as so often happened with Bush,the law was undone with a signing statement.Appended to McCain's law came a statement that the executive branch(Commander in Chief)will assist in achieving the shared objective of the Congress and the President of protecting the American people from further terrorist attacks.This signing really cancelled the law and the administration continued it's monarchy and the torture policies of the Yoo memo for the remaining days of the Bush Presidency.
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