Faith & Social Justice: In the spirit of Richard Overton and the 17th C. Levellers

Another Bybee Memo: Expanded Presidential War Powers

Remember Jay Bybee, who was Bush’s Asst. Attorney General for the Office of Legal Counsel? The one who wrote many of the torture memos, authorizing specific acts of so-called “harsh interrogation methods,” (the actual torture exceeded the memo guidelines and was used before the authorization, we now know)? The same Jay Bybee who was later nominated by Bush (and confirmed by a Senate that had no knowledge of his torture memos) as a Circuit Court Judge? Who, to this day, is a sitting federal judge? THAT Jay Bybee?  Well, it seems he had another memo that was even worse in its implications.

This memo purported to give Bush (or ANY president) the authority to start wars unilaterally!  What’s the problem? Doesn’t the president have that authority as Commander-in-Chief of the Armed Forces? NO!  Article 1, sec. 8 of the U.S. Constitution states, “Congress shall have the Power . . . to declare war, grant letters of marque and reprisal, and make rules concerning capture on land and water. . .” Congress, NOT the president, alone has the power to declare war.  Now, legal scholars have debated whether or not a formal declaration is needed or just something like an “authorization to use force” when other means are exhausted.  I tend to side with the formal declaration because I think the Framers wanted to make it as hard to get the nation involved in war as possible.  They gave the power to Congress knowing that the Executive Branch would be more willing to make war.  So, even though the Pres. is Commander in Chief of the Armed Forces, it is unconstitutional for him (or her) to make war without Congressional approval.  But the Bybee memo said otherwise! (It was not clear in October whether or not Congress would authorize war for Iraq and Congress’ authorization to use force as a last resort had all sorts of conditions in it. Technically speaking, after Saddam allowed the weapons inspectors into Iraq and cooperated, Bush went to war WITHOUT Congressional approval.  The war was illegal.)

What’s worse is that this also violated international law.  At the Nuremberg Trials (which Americans, the British, French, and Russians conducted) of the Nazi soldiers, the Judges found 3 types of crimes against international law:  1. Crimes Against Humanity (like genocide). 2. War crimes (atrocities committed in the midst of battle and the torture of prisoners of war).  3. Crimes against peace.  This last category was reserved for starting a war in the absence of an imminent threat.  The generals who invaded Czechoslovakia and Poland and France, even if they were not engaged in any atrocities,  and even if ordered to do so by Hitler himself, were found guilty of “crimes against peace.” 

Later, in the United Nations Charter, nations are given the right to defend themselves militarilty against an aggressor (until  the UN can step in and restore peace).  UN members do not have to wait to be attacked. They have the right to strike first if someone is massing troops at the border or in other ways presents a credible IMMINENT threat.  But they cannot strike because they think a nation might be a threat some vague time in the future.  The U.S. largely wrote the UN Charter (Harold E. Stassen, former governor of MN, and special envoy for peace in the Eisenhower admin., and father to my Doktorvater, Glen Stassen, was the major author.) And the U.S. signed and ratified the UN Charter.  So, Article 6 of the U.S. Constitution gives ratified treaties equal status with the Constitution as supreme law of the land.  Therefore, the violation of the UN Charter by Bush was Unconstitutional.  And the Bybee memo “authorized” such illegal behavior.

Jay Bybee authorized Bush and other presidents to commit crimes against peace.  For this reason alone, he should be disbarred and have his law license revoked and be impeached and removed from office.  The Attorney General of the United States should then proceed to file criminal charges against him.


May 4, 2009 - Posted by | Uncategorized


  1. Michael,

    Yes, but…

    You probably have addressed this issue in previous posts on your blog, but I am too lazy to research before I comment. My understanding is that in the lead-up to the war in Iraq that congress effectively abdicated it’s responsiblity to wage war to the office of the president. (see article from The Progressive 10/11/02: http://www.progressive.org/node/1437)

    In any event, this is as good time as any for me to acknowledge my own culpability for our current state of affairs. For many years I became so cynical about politics and government that I essentially disengaged myself from the entire process. Following developments in American foreign and domestic policy throughout Bush Jr.’s tenure as president I determined that I bore a significant personal responsibility for the state of our nation. I had essentially abdicated my responsibility as a citizen as demonstrated by the level of political participation that I chose. I still wrestle with a tendency to throw my hands up in the air and say, “What can I really do about anything?” Yes, I am still somewhat cynical. I am not a particular fan of the Democratic party and I am definitely opposed to the Neo-Con Republicans. That’s my confession. Following your blog helps me, I hope, re-engage in some meaningful way with my responsibilities as a Citizen.

    Comment by Steve Schuler | May 5, 2009

  2. Yes, Steve, we are all culpable. I argued that Congress could NOT legally abdicate its responsibility to declare war.

    Comment by Michael Westmoreland-White | May 5, 2009

  3. Maybe Congress could not legally abdicate it’s responsibility, but somehow it did. I don’t mean to be argumentative as I have insufficient knowledge or understanding to argue very much about anything. It does appear to me that at least twice in my lifetime, in Viet Nam and now in Iraq/Afghanastan, our system has gone topsy-turvy in regards as to who is responsible for what.

    I do admire you for the positions you have taken and the fact that you have for many years gone against the popular current at the intersection of religion and politics. I would say that you have been responsible while people such as myself have sat on the sidelines being insufficiently engaged in the process to make a difference. Don’t read any syncophancy into that statement, I can assure that none is there.

    Comment by Steve Schuler | May 5, 2009

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