George Bush's Rough Justice

By Sidney Blumenthal

‘If the president deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?" "No treaty," replied John Yoo, the former justice department official who wrote the crucial memos justifying President Bush’s policies on torture, detainees and domestic surveillance without warrants.

Yoo publicly debated last month the radical notion of the "unitary executive" - that the president, as commander-in-chief, 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.

Yoo’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: "Also no law by Congress. That is what you wrote in the August 2002 memo."

"I think it depends on why the president thinks he needs to do that," said Yoo.

The "unitary executive" is nothing less than "gospel", declared the federal judge Samuel Alito in 2000 - it is a theory that "best captures the meaning of the constitution’s text and structure". Alito’s belief was perhaps the paramount credential for his nomination by Bush to the Supreme Court.

Alito’s manner before the Senate judiciary committee’s hearings has been prosaic and dutiful. He seems like an understudy for the part of Willy Loman in Death of a Salesman. But behind the facade of the supplicant who wants to be liked seethes a man out to settle a score.

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. "Both opened up new worlds of ideas," he testified. "But this was in the late 1960s and early 1970s. It was a time of turmoil at colleges and universities. And I saw some very smart and privileged people behaving irresponsibly."

In his application to the Reagan justice department, Alito wrote that his interest in constitutional law was "motivated in large part by disagreement with Warren court decisions ... particularly in the area ... of reapportionment" - which established the principle of one person, one vote. Alito’s law career has been a long effort to reverse the liberalism of the Warren Supreme Court.

In the Reagan justice department, he argued that the federal government had no responsibility for the "health, safety and welfare" of Americans (a view rejected by Reagan); that "the constitution does not protect the right to an abortion"; that the executive should be immune from liability for illegal domestic wiretapping; that illegal immigrants have no "fundamental rights"; 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 programs, people with Aids, because of "fear of contagion ... reasonable or not".

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 O’Connor,

On the Supreme Court, as O’Connor’s replacement, he will codify the authoritarianism of the Bush presidency, even after it is gone.

• Sidney Blumenthal, a former senior adviser to President Clinton, is the author of The Clinton Wars