[lit-ideas] [lit-id] NYT eds get serious
- From: Carol Kirschenbaum <carolkir@xxxxxxxx>
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Mon, 17 Jul 2006 02:35:51 -0700
Published: July 16, 2006
It is only now, nearly five years after Sept. 11, that the full picture of
the Bush administration's response to the terror attacks is becoming clear.
Much of it, we can see now, had far less to do with fighting Osama bin Laden
than with expanding presidential power.
Over and over again, the same pattern emerges: Given a choice between
following the rules or carving out some unprecedented executive power, the
White House always shrugged off the legal constraints. Even when the only
challenge was to get required approval from an ever-cooperative Congress,
the president and his staff preferred to go it alone. While no one questions
the determination of the White House to fight terrorism, the methods this
administration has used to do it have been shaped by another, perverse
determination: never to consult, never to ask and always to fight against
any constraint on the executive branch.
One result has been a frayed democratic fabric in a country founded on a
constitutional system of checks and balances. Another has been a less
effective war on terror.
The Guantánamo Bay Prison
This whole sorry story has been on vivid display since the Supreme Court
ruled that the Geneva Conventions and United States law both applied to the
Guantánamo Bay detention camp. For one brief, shining moment, it appeared
that the administration realized it had met a check that it could not simply
ignore. The White House sent out signals that the president was ready to
work with Congress in creating a proper procedure for trying the hundreds of
men who have spent years now locked up as suspected terrorists without any
hope of due process.
But by week's end it was clear that the president's idea of cooperation was
purely cosmetic. At hearings last week, the administration made it clear
that it merely wanted Congress to legalize President Bush's illegal
actions - to amend the law to negate the court's ruling instead of creating
a system of justice within the law. As for the Geneva Conventions,
administration witnesses and some of their more ideologically blinkered
supporters in Congress want to scrap the international consensus that no
prisoner may be robbed of basic human dignity.
The hearings were a bizarre spectacle in which the top military lawyers -
who had been elbowed aside when the procedures at Guantánamo were
established - endorsed the idea that the prisoners were covered by the
Geneva Convention protections. Meanwhile, administration officials and
obedient Republican lawmakers offered a lot of silly talk about not coddling
the masterminds of terror.
The divide made it clear how little this all has to do with fighting
terrorism. Undoing the Geneva Conventions would further endanger the life of
every member of the American military who might ever be taken captive in the
future. And if the prisoners scooped up in Afghanistan and sent to
Guantánamo had been properly processed first - as military lawyers wanted to
do - many would never have been kept in custody, a continuing reproach to
the country that is holding them. Others would actually have been able to be
tried under a fair system that would give the world a less perverse vision
of American justice. The recent disbanding of the C.I.A. unit charged with
finding Osama bin Laden is a reminder that the American people may never see
anyone brought to trial for the terrible crimes of 9/11.
The hearings were supposed to produce a hopeful vision of a newly humbled
and cooperative administration working with Congress to undo the mess it had
created in stashing away hundreds of people, many with limited connections
to terrorism at the most, without any plan for what to do with them over the
long run. Instead, we saw an administration whose political core was still
intent on hunkering down. The most embarrassing moment came when Bush
loyalists argued that the United States could not follow the Geneva
Conventions because Common Article Three, which has governed the treatment
of wartime prisoners for more than half a century, was too vague. Which part
of "civilized peoples," "judicial guarantees" or "humiliating and degrading
treatment" do they find confusing?
Eavesdropping on Americans
The administration's intent to use the war on terror to buttress
presidential power was never clearer than in the case of its wiretapping
program. The president had legal means of listening in on the phone calls of
suspected terrorists and checking their e-mail messages. A special court was
established through a 1978 law to give the executive branch warrants for
just this purpose, efficiently and in secrecy. And Republicans in Congress
were all but begging for a chance to change the process in any way the
president requested. Instead, of course, the administration did what it
wanted without asking anyone. When the program became public, the
administration ignored calls for it to comply with the rules. As usual, the
president's most loyal supporters simply urged that Congress pass a law
allowing him to go on doing whatever he wanted to do.
Senator Arlen Specter, chairman of the Senate Judiciary Committee, announced
on Thursday that he had obtained a concession from Mr. Bush on how to handle
this problem. Once again, the early perception that the president was going
to bend to the rules turned out to be premature.
The bill the president has agreed to accept would allow him to go on
ignoring the eavesdropping law. It does not require the president to obtain
warrants for the one domestic spying program we know about - or for any
other program - from the special intelligence surveillance court. It makes
that an option and sets the precedent of giving blanket approval to
programs, rather than insisting on the individual warrants required by the
Constitution. Once again, the president has refused to acknowledge that
there are rules he is required to follow.
And while the bill would establish new rules that Mr. Bush could voluntarily
follow, it strips the federal courts of the right to hear legal challenges
to the president's wiretapping authority. The Supreme Court made it clear in
the Guantánamo Bay case that this sort of meddling is unconstitutional.
If Congress accepts this deal, Mr. Specter said, the president will promise
to ask the surveillance court to assess the constitutionality of the
domestic spying program he has acknowledged. Even if Mr. Bush had a record
of keeping such bargains, that is not the right court to make the
determination. In addition, Mr. Bush could appeal if the court ruled against
him, but the measure provides no avenue of appeal if the surveillance court
decides the spying program is constitutional.
The Cost of Executive Arrogance
The president's constant efforts to assert his power to act without consent
or consultation has warped the war on terror. The unity and sense of
national purpose that followed 9/11 is gone, replaced by suspicion and
divisiveness that never needed to emerge. The president had no need to go it
alone - everyone wanted to go with him. Both parties in Congress were eager
to show they were tough on terrorism. But the obsession with presidential
prerogatives created fights where no fights needed to occur and made huge
messes out of programs that could have functioned more efficiently within
the rules.
Jane Mayer provided a close look at this effort to undermine the
constitutional separation of powers in a chilling article in the July 3
issue of The New Yorker. She showed how it grew out of Vice President Dick
Cheney's long and deeply held conviction that the real lesson of Watergate
and the later Iran-contra debacle was that the president needed more power
and that Congress and the courts should get out of the way.
To a disturbing degree, the horror of 9/11 became an excuse to take up this
cause behind the shield of Americans' deep insecurity. The results have been
devastating. Americans' civil liberties have been trampled. The nation's
image as a champion of human rights has been gravely harmed. Prisoners have
been abused, tortured and even killed at the prisons we know about, while
other prisons operate in secret. American agents "disappear" people, some
entirely innocent, and send them off to torture chambers in distant lands.
Hundreds of innocent men have been jailed at Guantánamo Bay without charges
or rudimentary rights. And Congress has shirked its duty to correct this out
of fear of being painted as pro-terrorist at election time.
. We still hope Congress will respond to the Supreme Court's powerful and
unequivocal ruling on Guantánamo Bay and also hold Mr. Bush to account for
ignoring the law on wiretapping. Certainly, the president has made it clear
that he is not giving an inch of ground.
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