April Fool The US Department of Justice (DoJ) and the office of the White House Counsel are preparing a draft document laying out the President's wartime authority to remain in office past 2008, The Register has learned.
The scheme is described as an emergency "continuity presidency," made necessary by the extraordinary circumstances and unique challenges of protecting the United States from the threat of international terrorism.
"The world changed on 9/11," a confidential DoJ memo obtained by The Register explains, "and no Administration in US history is better suited to adapt productively to those changes than this one.
"The Attorney General supports the basic framework in the White House Counsel's draft proposal for a future Executive Order establishing a Continuity Presidency, with two provisos: 1. There must be at least the appearance of a time limit, which the AG believes might be satisfied by tying the duration of the Continuity Presidency to the duration of the GWOT [global war on terrorism]; and 2. The House and Senate Majority Leaders and the Chairpersons of the House and Senate Judiciary Committees must issue a written certification that they have approved the plan.
"AG does not believe that the plan will succeed unless those conditions can be met. Suggest you liase with [the White House office of] Legislative Affairs and get their sense of the liklihood that the key Members will work with us."
The memo is signed Christine McIntyre, Special Assistant to the United States Attorney General, and is addressed to Philip Van Zandt, Special Assistant to White House Counsel Harriet Miers.
A second memo leaked to The Register, this time from DoJ Assistant McIntyre to Jock Mahoney, Special Assistant to US Solicitor General Paul Clement, and to Philip Van Zandt at the White House, anticipates an immediate Supreme Court challenge to the scheme, and offers a few suggestions for defending the Administration's action.
"We will be attacked on the basis of Article II Section 1, and on Amendment XXII," McIntyre writes. "Thus it is absolutely crucial that the anticipated Executive Order for a Continuity Presidency make no mention whatsoever of a 'Third Term.' This will eliminate appeals to Amendment XXII, and leave us free to focus our attack on Article II Section 1 alone. Thus, the Executive Order has got to be framed as a necessary - and Congressionally authorized - extension of the President's Second Term, so that we can base our arguments on the Joint Resolution and Article II Section 2.
"Above all," McIntyre warns, "we must emphasize that the 2001 Joint Resolution, in which Congress empowered the President to 'use all necessary and appropriate force ... to prevent any future acts of international terrorism against the United States,' and Article II Section 2 of the United States Constitution, give the President ample authority to issue an Executive Order for a Continuity Presidency for the duration of the GWOT, to exercise fully his mandate to protect the American people from harm.
"We must also press the national security angle hard and emphasize that the United States would be endangered severely by a change of government at this time. America cannot afford to give the terrorists such an opportunity."
Now, this might not seem like much for the Bushies to pin their imperial hopes on, but the White House has already succeeded in expanding the 2001 Joint Resolution, and Article II Section 2 of the Constitution, to include virtually any step, legal and illegal, that the Administration wishes to take in prosecuting the war on terror.
For a recent example we might recall repeated White House and DoJ assertions that the Joint Resolution and Article II Section 2 authorize the President to eavesdrop on US citizens in clear violation of federal law. And neither Congress nor the Supremes have shown any inclination to rein him in.
So, as sketchy as the justification is, if the Congressional leadership and the US Supreme Court should capitulate to Bush, as they have tended to do in the past, it seems possible that he might remain in the White House past the expiration of his second term, as he obviously intends.
The Register contacted the offices of the US Attorney General and the White House Counsel, and both declined to comment. Neither denied the memos, however.
Are they a hoax? We consulted renowned constitutional scholar Bud Jamison, of the prestigious Washington legal firm Horwitz Feinberg & Horwitz, for insight.
"I don't think they're a hoax, but I also don't think that there's anything here for the public to worry about, except the sad comment it makes on the current Administration," Jamison told The Register.
"I think we can assume - even for the sake of argument alone - that there is a draft proposal along these lines circulating. Obviously, we can only speculate about the full content and wording of the proposal, but based on the comments in these memos, I think we can do that fairly productively," Jamison said.
"First, the fact that this proposal is in the works so far in advance of the 2008 elections suggests that real care is being taken, which in turn suggests that President Bush is, for the moment, anyway, quite serious about attempting this coup d'état.
"If it ever becomes public, I suspect we'll find that the proposed executive order will postpone the 2008 elections - citing the exigencies of war - rather than attempt to do battle with Article II Section 1 and the 22nd Amendment," Jamison explained.
"But, Constitutionally speaking, Bush hasn't got a leg to stand on. Article II Section 1 states plainly that the president is elected to a four-year term, and the 22nd Amendment states plainly that he can serve only two terms. He's looking for weasel room, and he thinks that merely extending his second term, rather than declaring a third term, will give it to him. He's mistaken.
"I can't imagine even a sympathetic Supreme Court going along with this - although I'll admit that I was surprised when they handed him the Florida election in 2000. Still, what's being proposed here is literally a coup d'état; the Court is not going to sanction it, even if key members of Congress do.
"If you think about what would happen, it quickly becomes a reductio ad absurdum, Jamison explained.
"Consider the practical problems: the election might well go on in defiance of the executive order. That might leave Bush no alternative but to declare martial law. He would need support from the military in that case, and I doubt he would get it. Remember, military personnel swear an oath to the Constitution first, and to the President second. Where the two are in conflict, most will consider the Constitution paramount.
"But suppose he were to let the election go on, and merely declare its results invalid, say with another executive order. Even a Republican House is going to impeach him, and even a Republican Senate is going to convict him. He'll be the ex-President in a heartbeat," Jamison predicted.
"And suppose he still refuses to leave? The Secret Service might forcibly eject him from the White House when the Senate conviction is handed down. What a gross public humiliation that would be, to be seen kicking and screaming as he's carried from the building. Bush can't risk it, especially with his grandiose personality.
"The best he could hope for is a military faction that would support him and defend the White House third-world-style, but there will certainly be a larger faction that will oppose him. Bush would become a prisoner in the White House, with his little Praetorian Guard. He'd be irrelevant. Congress would take over all of the day-to-day business of running the federal bureaucracy, and cut off money and other supplies to the White House. They'd probably cut the electricity, too.
"So you can see how quickly this becomes absurd. Bush will either finish his second term on schedule, or he'll be out of the White House before his second term expires."
"I'm sure he'll go with option one," Jamison chuckled.
"But," Jamison continued, "Bush is so accustomed to having his way, and he exists in such a weird bubble of manufactured reality, that I can picture him believing that his second term could be extended. Still, I'm confident that someone among the gaggle of boot-licking toadies he's surrounded himself with will muster the nerve to sit him down and explain the facts of life.
"This proposal will never see the light of day. It may take a while for reality to sink in, but once Bush appreciates the potential for grotesque public humiliation that he's courting, he'll kill it," Jamison concluded.
As for the inevitable political fallout from the leaked memos alone, Jamison sees little for Bush to worry about.
"It shows incredibly poor judgment and galling arrogance on the Administration's part, but that's nothing new. And you can be sure that Bush and Cheney have got complete deniability in this little caper," he said.
"And that goes for Gonzales, Miers, and Clement too. The five or six people involved will be sacked, and the press will be told that the affair was merely the unauthorized creation of a handful of over-zealous underlings acting on their own. The Republican-controlled Congress will decline to investigate, and the issue will soon be forgotten. A break in the Natalee Holloway investigation is all it takes for a story like that to be erased permanently from the news."
All too true, we have got to allow. ®