If US president Bush deems that heâ€™s got to torture somebody, including by crushing the testicles of the personâ€™s child, there is no law that can stop him?â€™â€™ â€œNo treaty,â€™â€™ replied John Yoo, the former justice department official who wrote the crucial memos justifying Bushâ€™s policies on torture, detainees and domestic surveillance.
Yoo publicly debated the radical notion of the â€œunitary executiveâ€™â€™ â€” that the president is sole judge of the law, unbound by hindrances such as the Geneva conventions, and has inherent authority to subordinate independent government agencies to his fiat. This is the cornerstone of the Bush legal doctrine.
Yooâ€™s interlocutor, Douglass Cassel, a professor at the Notre Dame law school, pointed out that the theory of the unitary executive posits the president above other branches of government. The â€œunitary executiveâ€™â€™ is nothing less than â€œgospelâ€™â€™, declared the federal judge Samuel Alito in 2000 - it is a theory that â€œbest captures the meaning of the constitutionâ€™s text and structureâ€™â€™. Alitoâ€™s belief was the paramount credential for his nomination by Bush to the supreme court.
Few public figures since Nixon have worn their resentment so obviously as Alito. The son of a civil servant, he attended Princeton and Yale law school. â€œBoth opened up new worlds of ideas,â€™â€™ he testified. â€œBut this was in the late 1960s and early 1970s. It was a time of turmoil at universities. And I saw some very smart people who were highly powerful behaving irresponsibly.â€™â€™
In his application to the Reagan justice department, Alito wrote that his interest in constitutional law was â€œmotivated by disagreement with Warren court decisions, particularly in reapportionmentâ€™â€™ â€” which meant one person, one vote.
In the Reagan justice department, he argued that the federal government had no responsibility for the â€œhealth, safety and welfareâ€™â€™ of Americans (a view rejected by Reagan); that â€œthe constitution does not protect the right to abortionâ€™â€™; that the executive should be immune from liability for illegal domestic wiretapping; that illegal immigrants have no â€œfundamental rightsâ€™â€™; that police had a right to kill an unarmed 15-year-old accused of stealing $10(a view rejected by the supreme court and every police group that filed in the case); and that it should be legal to fire, and exclude from funded federal programmes, people with AIDS, because of â€œfear of contagion ... reasonable or notâ€™â€™.
Against the majority of his court and six other federal courts, he argued that federal regulation of machine guns was unconstitutional. He approved the strip search of a mother and her daughter although they were not named in a warrant, a decision denounced by fellow judge Michael Chertoff, now secretary of homeland security. And Alito backed a law requiring women to tell husbands if they want an abortion, which was overturned by the supreme court on the vote of Justice Sandra Day Oâ€™Connor, On the supreme court, as Oâ€™Connorâ€™s replacement, he will codify the authoritarianism of the Bush presidency, even after it is gone. â€” The Guardian