Two fantasies

By Richard Abowitz

Thursday, May 14, 2009 | midnight

But what was the story? Nobody had bothered to say. So we would have to drum it up on our own. Free enterprise. The American Dream. Horatio Alger gone mad on drugs in Las Vegas. Do it now: pure Gonzo journalism. –Fear and Loathing in Las Vegas, Hunter S. Thompson

There are ample grounds for the President to determine that Afghanistan was a failed State, and on that basis to suspend performance of our Geneva III obligations toward it. ... We want to make clear that this Office does not have access to all the facts related to the activities of the Taliban militia and Al Qaeda in Afghanistan. –Memorandum for Alberto R. Gonzales, Counsel to the President, by Jay Bybee

No U.S. court (or at least no court Bybee quotes) has ever defined “failed state,” which is jargon manufactured by academics and politicians that must be distinguished among police states, religious tyrannies, countries with civil wars and countries divided into relatively autonomous regions. To understand: Try to imagine the distinction that argues that somehow a theocracy like the Taliban is a “failed state,” whereas a dictatorship like North Korea is not. That is only one example.

In short, for Bybee as much as for Thompson, reality must be mitigated, banished or defeated. Thompson uses drugs, and Bybee plays with the law until it goes blind. From the outset the goal of each of these two disparate yet now infamous writings connected to Las Vegas is to beat the game with a predetermined outcome.

Whatever his initial assignment, which happens to be to cover the Mint 400 desert race, Thompson broadens his mandate from the outset; he allows in his book that he will use Vegas as a Rorschach inkblot test for his views of the United States in the early ’70s. The now-infamous memo by tenured UNLV law professor Bybee, acting as assistant attorney general, also begins with an assignment that is quickly twisted:

You have asked for our Office’s views concerning the effect of international treaties and federal laws on the treatment of individuals detained by the U.S. Armed Forces during the conflict in Afghanistan.

If you want a sense of the prejudice with which the question is taken, note how “Armed Forces” is emphasized with capital letters, compared to apparently less proper nouns such as U.S.-signed “international treaties” and U.S. “federal laws.” Indeed, Bybee’s “Office” trumps such other entities, at least in grammar.

In fact, by the conclusion of the Bybee memo for federal law, the president has total latitude to interpret it—and international law as well, because it is not federal law. Further, there is no need for courts or Congress, because left to the discretion of the president, laws and treaties are reduced to such trivial entities that the president does not even have to suspend them; instead, he can ignore them. Here is the scary final conclusion of the Bybee memo on the power of the president (also capitalized in the Bybee memo):

… the President need not make any specific finding. Rather he need only authorize and approve policies that would be consistent with the understanding that al Qaeda and Taliban prisoners are not POWs under Geneva III.

In short, the legal advice is that the president can ignore any law at his discretion by simply refusing to acknowledge that the law has a relationship to the situation. The law states that only the president can violate the law, by simply ordering policies that do so. This is an imperial mandate that argues the executive branch can act without either court or congressional supervision. And though Bybee was asked in his assignment about the status of the prisoners under Geneva III protections, he answered a slightly different question, saying, in essence, in slime-covered logic: The president does not need to decide that issue of Geneva III—only treat prisoners as if they are not covered, and that is fine.

As for Thompson, he too made his political vision of America his sentinel view of Vegas, by literally placing the political figures he feared in charge of the town he clearly loathed:

After five days in Vegas you feel like you have been here for five years. Some people say they like it—then some people like Nixon, too. He would have made a perfect Mayor for this town; with John Mitchell as Sheriff and Agnew as Master of Sewers.

What is truly scary is to consider how history could have turned out if Nixon had a Bybee creating a false sense of legality and legitimacy behind the activities of Agnew or Liddy. At least the Nixon gang knew they were crooks. And Thompson sure knew he was on drugs.

As for Las Vegas, neither piece of writing is one that hometown boosters are likely to be proud of. Still, at least Thompson makes you laugh, whereas Bybee makes you realize that in the face of real power even the cynical Thompson was totally full of naiveté. Bybee can make you weep.