Are you talking about the memo I'm including below? If so, I'm not sure its authenticity has been verified. Come to think of it, it sounds extrememly contrived and fake.
"REHNQUIST MEMORANDUM" ON BUSH
I'll bet you never thought you'd hear this from me, but G.W. Bush has got to be defeated in November.
Yes, I know, I'm a diehard conservative and was part of the majority that greased his way into the White House. But we had no idea the damage this guy and his friends would do in just four years, and how far they are willing to go in amassing total power and control into their hands.
Most pertinent to us on the court is what he has done to the judiciary. In effect, he has told us we're irrelevant. Whenever he wants something badly enough, he bends the Constitution, ignores the Separation-of-Powers established so brilliantly by the Founding Fathers, and simply finds a way for the President to do whatever he and his friends decide they want to do. (For example, GOP extremists in the House have introduced bills that would set the precedent of totally abolishing judicial review.)
Take the torture scandal, which is connected to the post-9/11 Patriot Act. Bush and Ashcroft had lawyers at the White House, Justice and Pentagon draft memoranda that, they claimed, permitted the President to do anything whatsoever under his role as commander-in-chief during wartime. Since Bush has declared that we are in a state of war and that he's a "war president," it then follows that whatever action the President takes, under this claim of acting as "commander-in-chief" in "wartime," must be permitted to stand as legal orders of the Executive.
Under this claim, the President can authorize "harsh interrogation methods" -- a euphemism for torture -- and the "disappearing" of various citizens and foreigners into secret jails, out of the reach of juridical oversight. Bush officials, apparently adopting these legal strategems as policy, have done both, and they really thought they would get away with it.
They are sorely mistaken. I and most of my colleagues on the bench do not appreciate it when the concept of judicial review, first established two hundred years ago with John Marshall and Marbury v. Madison, is dismissed by the Executive Branch as an outdated constitutional frill. Terrorism or no terrorism, this is still a society where no man, not even the President, is above the law -- not even if he wraps his grab for power in the name of "anti-terrorism."
We tried to get the message to him recently in the Hamdi and Guantanamo cases, where we said, in no uncertain terms, that while the President assumes, and should have, wide latitude during wartime, this special consideration was not a blanket right to unfettered behavior. Justice O'Connor wrote that the court has ''made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens." And Justice Scalia wrote: "The very core of our liberty has been freedom from indefinite imprisonment at the will of the executive."
In short, we sent Bush a very strong message. Which he and his advisers seemed to agree to, only to try to go around the import of the Court's rulings, by testing the limits of what they could get away with -- the way they're delaying our orders on the Guantanamo detainees, for example, and the way military tribunals are organized that makes them little more than show trials.
PRESIDENTS ARE NOT KINGS/DICTATORS
Richard Nixon tried to hide his crimes by claiming that any action taken by a President cannot, by the very fact that he is Chief Executive, be illegal -- but he learned quickly enough, when the Court rejected this extreme claim, that the Executive and Legislative Branches are always and forever subject to the Constitution, as interpreted by the Judicial Branch.
Now we learn that Bush's White House lawyers are asserting even more outrageous claims to power. Even though the Constitution grants the States power in determining and running their own election rules -- well, OK, we violated our own principles, but without setting precedent, in Bush v. Gore -- the Bush Administration claims that is has the power to cancel or postpone a general election (presumably when it appears it would lose) in the face of perceived "terrorist" threats. And, worse still, that it could partially cancel or postpone an election in certain states (presumably in states it would have lost) and be declared the winner based on a partial vote (presumably from states it would have won).
There is no way we could, or would, let that happen. If Bush and his cronies persist in creating a constitutional crisis, they will get one -- and not one they will find agreeable. Even the military may refuse to follow Bush's dictatorial orders.
In short, I'm writing this memo and circulating it (on a CONFIDENTIAL basis) to you and other key Republican business and governmental leaders because it's plain now, as it wasn't in 2000, that Bush and his crowd are inimicable to our best financial and political interests -- and the interest of the American people in general -- and must be stopped here and now before they can do even more damage.
This crew appears to be so power-hungry, and so incompetent in carrying out their radical programs, that only disaster will result if they gain a second term. If you agree with my prognosis, I urge you to move quickly to do whatever you can, and use whatever influence and funds you must, to ensure that Bush goes down to defeat on November 2.
KERRY IS NO DANGER TO US
Kerry ordinarily would not be our choice, but, if elected, he will be pretty much a toothless tiger, struggling so hard to undo the worst damage done by his predecessor, that he'll have little time or energy to devote to liberal mischief.
In the four years of a Kerry administration, we can regather our forces and select someone less obvious and more competent to run against him in 2008, re-asserting true conservative dominance in the years to come.
But unless we get rid of this crass, arrogant, reckless Bush crowd -- by a landslide defeat, so as to obviate any late "surprises" Karl Rove may have up his sleeve -- we, and the country, are in for a hellacious administration run amok with its ruthless power. Please let me know your thoughts, by courier delivery only. Thank you.