So it finally comes down to this... After years of pushing the boundaries of executive power and claims of the "unitary executive" overriding the very foundations of the rule of law in this country for the sake of "national security," Bush White House officials are reduced to defending their policies with one amazing statement:
"Not everything we've done has been illegal."
Simply stunning. The tacit admission of the illlegality in Bush's policies should be blood in the water to a Congress controlled by Democrats and circling a president with a mere 26% approval rating. The public should be outraged that an official would make such an admission without immediately expressing deep regret and shame and tendering his immediate resignation.
Sadly, it appears we can't count on Congress to make the stand.
In an editorial for Salon, Sidney Blumenthal lays out the stunning failures that now sum up the attempts to legitimize the imperial presidency concept and reveals that even the die hards have given up hopes of salvaging the image of this White House.
In private, Bush administration sub-Cabinet officials who have been instrumental in formulating and sustaining the legal "war paradigm" acknowledge that their efforts to create a system for detainees separate from due process, criminal justice and law enforcement have failed. One of the key framers of the war paradigm (in which the president in his wartime capacity as commander in chief makes and enforces laws as he sees fit, overriding the constitutional system of checks and balances), who a year ago was arguing vehemently for pushing its boundaries, confesses that he has abandoned his belief in the whole doctrine, though he refuses to say so publicly.
Another official goes on to say,
Yet another Bush legal official, even now at the commanding heights of power, admits that the administration's policies are largely discredited. In its defense, he says without a hint of irony or sarcasm, "Not everything we've done has been illegal." He adds, "Not everything has been ultra vires" -- a legal term referring to actions beyond the law.
This is where we have gotten to. We are now at a point so far removed from what previously passed for reality, that a Bush legal official can justify his actions by simply stating that not everything was illegal.
Blumenthal then goes on to examine the recent al-Marri v. Wright decision issued by the hyperconservative 4th District. Blumenthal rightly concludes that such a scathing attack by possibly the friendliest court in the country has completely discredited the Bush concept of the presidency.
Few, if any, presidents have ever been the subject of such a devastating legal decision. While presidential actions have been ruled illegal or unconstitutional in the past, they were individual acts. But in the case of Bush, the al-Marri decision not only discredits Bush's position but denies his idea of his presidential legitimacy in the American tradition. The decision also declares that Bush's idea is a mortal threat to the Constitution. And this ruling was issued by the most conservative court in the land.
Sadly, Bush himself and the cadre of "yes-men" he's surrounded himself with simply refuse to get it. They can never admit a mistake and consequently, can never correct one either.
And yet, nothing changes. After such a stinging rebuke as the decision handed down by the 4th Circuit a reasonable president might well contemplate changing his approach. Instead, Bush digs in, doubles down, surges. As with his other discredited policies, Bush attempts to salvage them through willpower and extra effort, throwing more resources down black holes. Ultimately, his position is losing its cloak of legality. Piece by piece, case by case, the courts are exposing it as ultra vires.
I can only hope that Blumenthal is right. The time has come for SOMEONE (ANYONE!)with the legal authority to do something about this to take a stand. If Congress won't do it, then the Judiciary must.
God help us if they don't.