"No one owes obedience to a usurper government or to anyone who assumes public office in violation of the Constitution and the law. The civil population has the right to rise up in defense of the constitutional order. The acts of those who usurp public office are null and void."
—Article 46, Constitution of Peru
NEW YORK—Comedian Bill Maher is a brilliant contrarian. He dislikes George Bush. Yet his view of the stolen 2000 election is conventional, ahistorical and quintessentially American: Forget it! Move on! "Oh, Ted," he replied when I mentioned the judicial coup d'etat on his TV show, which aired October 3, 2001. "That's so September 10th. It really is."
It has been nearly eight years since the U.S. Supreme Court violated the Constitution by installing George W. Bush as president. Their ruling was immaterial. They shouldn't have agreed to hear Bush v. Gore in the first place. Under Article II of the Constitution, federal courts don't have jurisdiction in election disputes. The state supreme courts—in that case, Florida—have the final word.
It's tempting, as Maher suggested, to try to move past 2000. But we can't. What followed doesn't allow it.
When a ruler seizes office by extralegal means, he rules the same way. Because he does not derive his power from the people—indeed, his rule relies on their passivity—he is not beholden to them. Selling the public on his policies is hard enough for a legitimately elected ruler; an illegal one has to resort to bullying, presented as a stern, autocratic triumph of the will. He is forced to order his lawyers to find legal loopholes using the most tortured reasoning imaginable. In the end, when citizens turn against him, the tyrant shrugs his shoulders. "So?" This is what the vice president replied when a reporter asked about polls showing that Americans have turned against the Iraq War. Cheney's question was perfectly reasonable. Why should he care what we think? We didn't elect him. He doesn't owe us the slightest consideration.
Electoral illegitimacy begets illegitimate rule: secret detentions and torture redefined into meaninglessness. Secret prisons. Ending habeas corpus, the right to have one's case heard before a judge—a right English-speaking people had enjoyed for 800 years. Secret "signing statements" purporting to negate laws signed in public. Spying on Americans, lying about it to Congress, and then, after getting caught, trying to legalize it retroactively. Destroying evidence. An executive order granting the president the power to declare anyone—without evidence—an "enemy combatant," then order that person imprisoned for life, or even assassinated.
Even if the next president has promised to end extraordinary renditions (which began under Bill Clinton), close Gitmo, outlaw torture and overturn the Military Commissions Act, which eliminated habeas corpus, he or she will surely be tempted to retain some of Bush's beefed up new executive powers upon moving into the Oval Office. Who wouldn't want to read their political opponents' e-mail and listen to their phone calls?
But, what if Bush's evildoing comes to an end next January? There will still be a mess to clean up.
One million Iraqis and Afghans are dead. Tens of thousands more have been tortured and maimed. Thousands of dead soldiers; tens of thousands more grievously wounded. Millions of Americans have had their privacy violated. They deserve justice. We deserve justice. The war criminals, torturers and phone companies deserve due process. If there are consequences for driving fast and cheating on your taxes, after all, there surely ought to be a price to pay for urinating on an innocent man in a dog cage at Guantanamo.
America might want to move on. How can the rest of the world let us?
Bush v. Gore gave us an illegitimate president. Bush presided over an outlaw government. If we sit on our asses, as we've done since that weird, soul-crushing day in late December of 2000, illegality will be hardwired into the U.S. government. The country itself will become, like the Soviet Union and its wonderful freedom-guaranteeing constitution, a caricature of itself. "What is the difference between the constitutions of the USA and USSR? Both guarantee freedom of speech," the old Russian joke went. "Yes, but the Constitution of the USA also guarantees freedom after the speech." A gangster regime presiding over the trappings of law and order is a vicious joke—illegitimate and ultimately doomed.
There's one way—only one way—to avoid ratifying Bush's legacy. The next president must do the following three things immediately upon taking office:
1. Issue an executive order declaring all laws and actions undertaken by the Bush administration, the states and local municipalities (because many state and local ordinances are influenced by national politics) between January 2001 and January 2009 null and void.
2. Act quickly to restore the rule of law—freeing Gitmo inmates, offering compensation to victims of torture and rendition, order immediate withdrawals of U.S. troops from Afghanistan, Iraq, Somalia and other undeclared wars.
3. Create a cabinet-level department to investigate top officials and subordinates of the Bush interregnum for crimes they may have committed and refer them to the appropriate courts for arrest, prosecution and imprisonment.
When Charles de Gaulle took over as president of France at the end of World War II, he erased the Vichy regime from the history books. "Vichy is, and remains forever, null and void," he declared. Yale historian Jay Winter explained de Gaulle's reasoning: "Petain's government was de facto, not de jure; therefore, the Republic had not died [in 1940]; it had been usurped by the traitors who had signed the armistice with the Nazis." It's a kind of fiction (Vichy had a stronger case than Bush to be considered legitimate), but defining Vichy as an aberration reaffirmed France's commitment to democracy and the rule of law. Petain was convicted of treason. His death sentence was commuted to life in prison. Hundreds of officials were prosecuted during the postwar epuration (purge). France moved on.
I know none of this is likely to happen. But this is no time to be "realistic." The German patriot Henning von Tresckow, leader of a circle of officers who tried to kill Hitler in 1944, knew that their plot was a long shot. Nevertheless, the general urged his comrades to go ahead "at any cost ... We must prove to the world and to future generations that the men of the German Resistance movement dared to take the decisive step and to hazard their lives upon it."
Now it is time for Barack Obama, Hillary Clinton and John McCain to prove that they are true patriots. Unlike Tresckow, they need risk neither life nor limb. Their supporters should press them to declare that, should they become President, they will erase George W. Bush and his deeds from American history.
Ted Rall is the author of the book Silk Road to Ruin: Is Central Asia the New Middle East?, an in-depth prose and graphic novel analysis of America's next big foreign policy challenge.