Perhaps the most serious failure of the Supreme Court in this period was its refusal even to consider whether the Bush administration had the legal standing to round up well over a thousand foreigners in the United States in the wake of 9/11 and keep all details of their cases secret, including their names and the charges, if any, against them. We do not know whether these people were illegal aliens, visitors with tourist visas, permanent residents with Green Cards, or naturalized Americans. They were simply seized, incarcerated mostly in New York prisons, beaten by guards, and, after a lengthy time in jail, deported, usually for the most minor of offenses. Kate Martin of the Center for National Security Studies, comments, “We have a situation where the government arrested more than a thousand people in secret, and the courts let them get away with it. There is no accountability for the abuses, and secrecy allowed the abuses.”15 Not one of those arrested turned out to have the slightest connection to the 9/11 attacks.
The costs of such executive megalomania are high. As federal appellate judge Damon Keith wrote in his 2003 ruling against the Bush policy of holding hundreds of deportation hearings in secret, “Democracies die behind closed doors.... A government operating in the shadow of secrecy stands in complete opposition to the society envisioned by the Framers of the Constitution. When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation.”16 The failure of the Supreme Court—and ultimately the public—to take notice of such outrages encouraged the Bush administration to assert ever more grandiose claims for its imperial presidency. According to New York University law professor Noah Feldman, “These claims add up to what is easily the most aggressive formulation of presidential power in our history.”17
For some thirty years, a few Republican politicians from the Ford, Reagan, and Bush pere administrations—including former president George H. W. Bush himself (and through him his son George W.), his secretary of defense, Dick Cheney, and Ford’s secretary of defense, Donald Rumsfeld—have nursed grievances about the way Congress exposed illegal activities in the wake of Watergate, Vietnam, and Iran-Contra. They have never gotten over the public’s demand that presidents should no longer go to war based on lies to Congress, such as the Vietnam-era Tonkin Gulf Resolution; that the CIA and the American military should be stopped from assassinating foreign leaders, such as President Ngo Dinh Diem of South Vietnam in 1963, and overthrowing governments that have done nothing to the United States, as they did in Chile in 1973; and that congressional oversight of our often incompetent and always deceitful intelligence agencies was long overdue.
Over the years, Dick Cheney has inveighed against President Ford’s Executive Order 11905 of February 18, 1976, which stipulated that “No employee of the United States Government shall engage in, or conspire to engage in, political assassination”; the War Powers Act of 1973, which requires that the president obtain congressional approval within ninety days of ordering troops into combat; the congressional Budget Control and Impoundment Act of 1974, which was designed to stop Nixon and any other president from impounding congressionally mandated funds for programs they do not like; the Freedom of Information Act of 1966, which Congress strengthened in 1974; and the Intelligence Oversight Act of 1980, which set up the House and Senate select committees on intelligence. Similarly, in March 2005, former president George H. W. Bush, who headed the CIA from 1975 to 1977, spluttered at a conference on counterintelligence: “It burns me up to see the agency under fire.” He was even more incensed that Congress had “unleashed a bunch of untutored little jerks” to investigate the CIA’s involvement in domestic spying, assassinations, and other illegal activities and subsequently passed laws to prevent their recurrence.18 Those “untutored little jerks” were the members of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, chaired by Senator Frank Church, Democrat from Idaho, which issued its final report in 1976.
In January 2002, in an interview with ABC News, Cheney argued, “In thirty-four years, I have repeatedly seen an erosion of the powers and the ability of the president of the United States to do his job. One of the things that I feel an obligation on—and I know the president does too—is to pass on our offices in better shape than we found them.”19 But all of the legislation passed in the 1970s represented attempts to deal with crimes committed by government officials. Nonetheless, no president after Nixon has ever acknowledged the legitimacy of the War Powers Act, and most of these “limitations” on presidential power had been gutted, ignored, or violated long before Cheney became vice president. Bruce Fein, a constitutional scholar and former Reagan administration lawyer, calls them “museum pieces.”20 There is simply no evidence that, since the 1970s, there has been any real reduction in the powers of the presidency or that the Bush-Cheney government ever behaved as if it thought there were. “The vice president,” noted Republican senator John E. Sununu, “may be the only person I know of who believes the executive has somehow lost power over the last thirty years.”21
In pursuit of yet more power, Bush and Cheney have unilaterally authorized preventive war against nations they designate as needing “regime change,” directed American soldiers to torture persons seized and imprisoned in various countries, ordered the National Security Agency to carry out illegal “data mining” surveillance of the American people, and done everything they could to prevent Congress from outlawing “cruel, inhumane, or degrading” treatment of people detained by the United States (acts that were, in any case, already illegal under both U.S. law and international agreements the United States had long ago signed and ratified). They have done these things in accordance with something they call the “unitary executive theory of the presidency.”
This “theory” is, in fact, simply a bald-faced assertion of presidential supremacy in all matters relating to foreign affairs dressed up in legalistic mumbo jumbo. Its classic expression is contained in the August 1, 2002, “torture memo” conceived and written by a group of ultraconservative lawyers in the White House, Justice Department, and Vice President’s office. Among them are John Yoo, a young, right-wing Korean-American scholar and a former law clerk for Supreme Court Justice Clarence Thomas, who served as a lawyer in the Justice Department’s Office of Legal Counsel; Alberto Gonzales, then the White House’s legal counsel; and David S. Addington, a former lawyer for the CIA, the Pentagon’s general counsel when Cheney was secretary of defense, and then chief of staff in Cheney’s office.22
The torture memo justified its extreme views by claiming that the commander-in-chief power even overrides U.S. laws: “In light of the president’s complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the president’s ultimate authority in these areas.” Ratified treaties, congressionally enacted statutes, and military orders prohibiting torture “must be construed as inapplicable to interrogations undertaken pursuant to his commander-in-chief authority.... Congress may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” The same principle holds for “federal officials acting pursuant to the president’s constitutional authority... . The Framers understood the [commander-in-chief] clause as investing the president with the fullest range of power,” including “the conduct of warfare and the defense of the nation unless expressly assigned in the Constitution to Congress.” That “sweeping grant” of power, the memo continued, is given because “national security decisions require the unity in purpose and energy in action that characterize the presidency rather than Congress.”23
Yoo and company have concocted something that looks very much like an American version of the Chinese Communists’ “Two Whatevers.” These were the basic principles that prevailed during the years when the cult of Mao Zedong was ascendant: “We will resolutely uphold whatever policy decisions Chairman Mao makes; and we wi
ll unswervingly follow whatever instructions Chairman Mao gives.” Substitute Bush for Mao and you get the idea. Time magazine contends that, according to the White House and the Justice Department, “The Commander in Chief’s pursuit of national security cannot be constrained by any laws passed by Congress, even when he is acting against U.S. citizens.”24 Bruce Schneier, author of Beyond Fear: Thinking Sensibly About Security in an Uncertain World, sees an even more ominous development: “The president can define war however he chooses, and remain ‘at war’ for as long as he chooses. This is indefinite dictatorial power. And I don’t use that term lightly; the very definition of a dictatorship is a system that puts a ruler above the law.”25 The implications for the constitutional separation of powers are thus grave, particularly since the unitary executive theory flies in the face of the Constitution itself.
As Dan Farber, a professor of law at the University of California, Berkeley, and author of Lincolns Constitution, reminds us, “Constitutional law derives from the language of the Constitution, the original understanding, and two centuries of Supreme Court precedent. Often, these three are ambiguous or contradict each other, but not here. All three make it clear that the president must share power with Congress and the courts, in war as well as in peace.”26 Article 2 stresses without qualification that the president “shall take care that laws be faithfully executed.” Many famous Supreme Court justices have emphasized, as Justices Felix Frankfurter and Hugo Black did in 1952, “The power to execute the laws starts and ends with the laws Congress has enacted.” The Constitution explicitly gives Congress the power to declare war, to raise and support armies, to equip the navy, to call out the militia (today, the National Guard), and to “make rules for the Government and Regulation of the land and naval forces.”
Perhaps the closest thing to malpractice in Yoo’s theory is his failure to mention the most important legal precedent defining the balance of power between Congress and the president during wartime: the 1952 case Youngstown Sheet and Tube Company v. Sawyer.27 During the Korean War, faced with the possibility of a strike that threatened to shut down the steel industry, President Harry Truman ordered the Department of Commerce to seize all steel plants and suspend the labor laws. The Supreme Court promptly declared that the president’s commander-in-chief powers did not extend to areas in which Congress had passed legislation—in this case, the Taft-Hartley Act of 1947, which regulated strikes—and that he had exceeded his authority.
Concurring in the judgment and the opinion of the court, Justice Robert H. Jackson wrote, “[T]he Constitution did not contemplate that the title Commander-in-Chief of the Army and Navy will constitute [the president] also Commander-in-Chief of the country, its industries, and its inhabitants. He has no monopoly of ‘war powers,’ whatever they are.... His command power is not such an absolute as might be implied from that office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose law and policy-making branch is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a president can escape control of executive powers by law through assuming his military role.” In the Youngstown case, both Justices Robert Jackson and Frankfurter, in their concurring opinions, quoted Justice Louis Brandeis’s dissent in the 1926 case Myers v. United States: “The doctrine of the separation of powers was adopted by the Convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.”
Among the many instances in which George W. Bush has ignored his oath of office—”I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States”—perhaps the most blatant has been the way he secretly authorized the National Security Agency (NSA), the country’s leading cryptological and signals intelligence agency, to eavesdrop on Americans without a court-approved warrant. Such warrants are required by the Fourth Amendment to the Constitution and by the Foreign Intelligence Surveillance Act (FISA), which President Jimmy Carter signed into law on October 25, 1978.28 Except in terms of a raw expansion of basic presidential powers, it is close to inexplicable why Bush chose to ignore the FISA law, since it would have readily facilitated virtually anything he wanted to do in the way of wiretapping. Enacted in the wake of revelations that the federal government had routinely, if illegally, tapped the telephones of people who opposed the war in Vietnam, the FISA law was anything but a strong reaffirmation of the prohibition against unreasonable searches and seizures in the Bill of Rights.
As its title indicates, the Foreign Intelligence Surveillance Act allows the FBI and the NSA to listen in on American citizens in order to collect intelligence, and it set up a secret court to issue warrants based on requests from the intelligence community. From its inception in 1979 through 2004, the FISA court issued 18,742 secret warrants while denying only four government requests.29 The court was originally made up of seven federal judges appointed by the chief justice of the Supreme Court; the USA Patriot Act of 2001 expanded that number to eleven. The judges’ identities are secret. They meet in total privacy behind a cipher-locked door in a windowless, bugproof, vaultlike room guarded twenty-four hours a day on the top floor of the Justice Department’s building in Washington, D.C. Everything they do is “top secret.”
The judges hear only the government’s side. The court makes annual reports to Congress, normally just two paragraphs long, that give only the total number of warrants it has approved. Beyond that, there is no congressional oversight of the court’s activities whatsoever. The law even allows emergency taps and searches for which a warrant can be issued retroactively if the government notifies the court within seventy-two hours. Compared with ordinary wiretaps, for which the government must provide a federal district court judge with evidence of “probable cause” that the person or persons under investigation are likely to commit a crime, the FISA process is weighted toward the government, not the citizen, and not surprisingly the secret court has authorized more warrants than all federal district judges combined.30
Nonetheless, immediately following 9/11, the president issued a secret executive order authorizing the National Security Agency to tap at will into the private communications of American citizens. Unknown bureaucrats at the NSA make the decisions about who is to be tapped without any supervision by a court or elected representatives of the people. When newspaper reporters got wind of what the president had done, the White House intervened to try to keep the information secret. On national security grounds, the New York Times was asked to sit for more than a year on the story of how the NSA was violating the law. Finally, on December 6, 2005, when publication was imminent, President Bush summoned the Times s publisher Arthur Sulzberger Jr., and executive editor Bill Keller to the Oval Office and asked them to desist in the name of national security, the war on terror, and 9/11. But the president was unable to offer any sound legal basis for what he had done nor why the cover-up should continue. On December 16, 2005, a year late in terms of the public’s right to know, the New York Times finally printed the story.31 On December 20, one of the hitherto unknown FISA court judges, James Robertson, resigned in protest, a totally unprecedented action.
There is no obvious reason beyond trying to obtain pure power why the president chose to ignore FISA and go directly against an act of Congress. The syndicated columnist Paul Craig Roberts has speculated that Bush could not ask for warrants for the kinds of spying he wanted done because he had no legitimate reasons to offer even the lenient FISA court. Roberts suggests that he might have been using the spy apparatus of the U.S. government to influence the outcome of the 2004
presidential election or that he might have been collecting information on his Democratic Party opponents in order to blackmail them.32 Former senior adviser to President Clinton and Washington bureau chief of Salon.com Sidney Blumenthal believes the administration simply had no probable cause for the NSA surveillance. The court, after all, must adhere to the law and cannot simply authorize surveillance because the president or an intelligence agency wants to eavesdrop on someone. It is also possible that the administration wanted to avoid the FISA court because what evidence it had supporting probable cause had been obtained by torture, which conceivably might cause the court to reject an application (although these days no one should count on it).33
Intelligence expert Thomas Powers, author of Intelligence Wars: American Secret History from Hitler to Al-Qaeda, has another theory entirely. He believes that the issue was not specific surveillance but the administration s desire to use the NSA to keep alive an ambitious Pentagon data-mining project called Total Information Awareness (TIA) after Congress (and the public) expressed outrage over its existence and in September 2003 ordered it stopped. TIA was the brainchild of John Poindexter, a former admiral and Ronald Reagan’s national security adviser, who was convicted of seven felonies for his part in the Iran-Contra affair but was exonerated on appeal. A computer fanatic’s ideal of “data mining,” TIA, as Poindexter imagined it, was to compile everything that could be known about a vast range of individuals and then comb through such mountains of data for correlations that the government might find suspect. One of TIA’s key collaborators was the National Security Agency, which supplied much of the data that went into its individual profiles.34
Nemesis: The Last Days of the American Republic Page 33