Civil liberties had not been protected under the Democratic president Bill Clinton, who endorsed amendments that undermined various privacy laws, for example, by circumventing normal subpoena and warrant requirements. In 1994 he signed into law an expansion of the Foreign Intelligence Surveillance Act, with its secret courts and secret warrants, to allow not only clandestine electronic surveillance but physical searches as well. Two years later, he broadened the law to apply not just to foreign intelligence but “to international terrorism.” In 1995 he authorized “extraordinary renditions,” secret transfers, of suspected terrorists to Egypt after they were captured by the CIA in Croatia, Albania, and possibly elsewhere.44 He signed an immigration law in 1996 that expanded retroactively the list of relatively minor crimes for which noncitizens had to be deported, even if committed decades before. He put his pen to a 1996 antiterrorism act establishing Special Administrative Measures under which certain prisoners—not only terrorists—are so closely restricted that privileged attorney-client conversations are monitored by the government, legal documents are screened before going to defendants, and lawyers are barred from conveying their clients’ statements to third parties. Clinton thereby laid the groundwork for some of the abuses that followed 9/11.
In the period that Bush labeled “the war on terror,” America lived at a juncture formed by historical coincidence: a terrorist threat driven by religious militance, a right-wing administration bolstered by another brand of religious militance, a Congress controlled by the administration’s party, and a national consensus dissolved by corrosive polarization. This permitted extra-constitutional policies, both secret and overt, both outside the country and within.
Obama’s election in 2008 shook the kaleidoscope sharply but did not discard all pieces of the troubling pattern. His administration released documents on torture but withheld photographs of abuse in Abu Ghraib prison, transferred some terrorism suspects to criminal courts but reserved the option of indefinite detention, and continued widespread monitoring of Americans’ communications. He sought legislation to force companies to give government the keys to their codes, in effect to facilitate surveillance by requiring that encrypted networking Web sites such as Skype and Facebook, and e-mail devices such as BlackBerry, be redesigned to empower the FBI and intelligence agencies to unscramble conversations and messages. His Justice Department invoked state secrecy (in one case using language identical to the Bush administration’s) to block lawsuits by those who had been spied on or subjected to “extraordinary rendition.”45 In fact, Obama continued the practice of capturing suspects overseas and spiriting them to other countries, and fought their efforts to gain access to federal courts. He rejected calls to investigate the torture and surveillance programs, an investigation that could have been as self-correcting as the Church committee’s work more than three decades before. Clearly, it would be a long way back from the country’s sixth major detour.
CRIMINAL ACTS
As no one can forget, the morning of September 11, 2001, had a deceptively beautiful beginning, heralding one of those crystal days between late summer and early autumn. The clarity of the air provided unlimited visibility, deadly visibility. In Boston, New York, and Washington, a total of nineteen men, some carrying box cutters, passed through airport security. They boarded four passenger jetliners fully loaded with fuel, and after takeoff seized control of the cockpits. Two planes were driven at high speed, one after another, into the two looming towers of the World Trade Center in lower Manhattan, bringing the symbols of financial might down in a whirlwind of fire and debris. A third rammed the Pentagon, carving a cavernous wound in the fortress of American military power. The fourth, recaptured by passengers who had learned by cell phone about the other attacks, plunged to earth in Pennsylvania before it could reach its supposed target of the Capitol or the White House.
The hijackers were quickly identified as Muslim followers of Osama bin Laden, the militant son of a wealthy Saudi family, whose al-Qaeda movement had been training jihadists in Afghanistan to strike at the promiscuous, crusading American empire, as he saw it. His success surely surpassed his plan. In the end, he did more than destroy buildings and kill nearly 3,000 people. He traumatized the nation and provoked Americans into damaging their own moral enterprise, at least for a time.
Government officials never show fear, but they feel it, as they often confess in later memoirs and interviews. Sometimes it’s for a good cause, as during Mikhail Gorbachev’s liberalization of the Soviet system. “Fear” was the word that one of his closest colleagues, Politburo member Aleksandr Yakovlev, used when I asked what he had been feeling at the time. I thought he might say pride or exhilaration, but no, he had feared the unknown consequences of their uncharted path. “I am surprised I am still alive,” Yakovlev declared. It got me wondering if Václav Havel felt fear as he brought Czechoslovakia out of communism, and if Nelson Mandela, beneath his inspirational assuredness, endured fear as he led South Africa from its bondage of apartheid. Perhaps if you’re not at least a little scared, if you do not go to the edge of your comfort zone and beyond, you are not doing anything worthwhile.
In other circumstances, though, fear in high places can infect values, as it did following September 11. With heavy responsibility for preventing further attacks, those in powerful offices moved rapidly into a wartime mentality, with all the world a battlefield. Vice President Dick Cheney was frequently secreted in “an undisclosed location,” probably Mount Weather, the underground command complex fifty miles west of Washington, to keep him apart from the president so the government could not be decapitated. Cofer Black, who headed the CIA’s Counterterrorist Center, was so convinced that more was coming, possibly with blackmarket nuclear weapons, that “he warned a colleague not to travel to New York for the weekend,” Jane Mayer reports in her book The Dark Side. “His wife told [a] friend that when Black came home, he would turn off the lights and just sit there in the dark with a glass of something to drink and a cigar, lost in apocalyptic gloom.”46 Systematically terrified early each morning with the scariest intelligence organized into the so-called Threat Matrix, President Bush and other top officials were “plunged into a state of controlled panic,” in Mayer’s words, especially after the attacks were followed by powdered anthrax mailed to a few victims. When you start every day seeing a list of dire threats to national security, it must be hard to keep your equilibrium.
The immediate targets of governmental reaction were Muslim residents of the United States, mostly those here illegally, but some legal immigrants as well. In the first seven weeks, at least 1,182 foreigners were seized on little more than hunches, rumors, and vindictive calls from estranged spouses or hostile neighbors. Their names were kept secret, and their families and lawyers had trouble finding them in scattered jails, where they were held with common criminals and abused by guards who presumed them guilty of terrorism, which none turned out to be.
Thereafter, immigration authorities gave priority to finding and deporting 6,000 Muslims among the 300,000 foreigners who had defied previous orders to leave the country. In addition, over the objection of James W. Ziglar, the commissioner of Immigration and Naturalization, the Justice Department commanded “nonimmigrant” male adult citizens of twenty-five predominantly Muslim countries to register with the immigration agency. Several thousand who dutifully appeared, but lacked legal immigration papers, were arrested before the program was dropped as ineffectual: No terrorists hastened to register.47 Then, during the 2004 presidential election campaign, sloppy intelligence from the CIA about “priority leads” to possible plots sent federal agents scurrying to interrogate more than 2,500 foreigners, 79 percent of whom were from Muslim countries. They were peppered with astute questions about their opinions of America, the mosques they attended, and whether they had chemical or biological weapons. Some were detained, those with expired visas were deported, but none was charged with national security offenses.48
It got worse. The Fourth Amendment�
�s promise of individual privacy was gravely compromised, both by the Patriot Act and by President Bush’s secret order to the National Security Agency to intercept huge volumes of communications by phone and the Internet, from Americans and non-Americans alike. Ignoring the Constitution’s separation of powers, Bush—driven by Cheney and his zealous counsel David Addington—authorized the sweeping surveillance without approval by the legislative branch or oversight by the judiciary.
Basing his decrees on tendentious legal reasoning in memos he tried to keep out of public scrutiny, the president signed secret executive orders authorizing commando raids, kidnappings, clandestine imprisonment, and the torture of suspected al-Qaeda members around the world. He unilaterally declared the Geneva conventions on the treatment of prisoners inapplicable to terrorism suspects, creating a lawless landscape without boundaries. The military and the CIA conducted missions in fifteen or twenty different countries, often without their governments’ knowledge.49 If the targets were not killed, they were captured, stripped, forcibly sedated with suppositories, and flown in executive jets to an American ship or secret CIA “black sites” overseas, or to a country the State Department listed as a premier human rights violator, usually Egypt, Syria, Jordan, Uzbekistan, Morocco, or Afghanistan, where questioning was not known for being gentle.50
In the government’s Orwellian lexicon of euphemisms, this kidnapping was called “extraordinary rendition.” Torture by Americans was termed “enhanced interrogation.” Prisoners locked up for years without charges or definite sentences at the American naval base in Guantánamo Bay, Cuba, were “detainees,” as if they had been merely delayed inconveniently for a while on their way somewhere. “Waterboarding,” named as if it were some fun sport, was a medieval technique deemed acceptable in the new era. The prisoner was strapped to a board and tipped with his head down. A cloth was held over his mouth and nose, and as water was poured onto it, he gasped and gagged and in seconds descended into utter panic that he was drowning. Two years after leaving office, Bush wrote that he had personally approved waterboarding, prompting the ACLU to call for a criminal investigation into the former president.
There seemed to be no moral brakes, or legal ones, either. As Mayer tells it in The Dark Side, even pragmatism fell away. Despite early success in getting information with soft methods, and strong evidence from experienced interrogators that torture produces false confessions and erroneous leads, al-Qaeda suspects were crammed and folded painfully into tiny boxes, deprived of sleep for days at a time, kept naked and doused with water in the cold, humiliated sexually by female questioners, and forced to stand for up to eight hours with wrists shackled so high that if they so much as bent their knees they would hang in excruciating positions. Wearing black goggles and earplugs or kept in pitch-dark cells, they were assaulted with complete sensory deprivation—or the opposite, with blaring music and unending bright lights. Their meals were served irregularly, with varying amounts of food, to disable their sense of routine or predictability. One said he had been told that a recording he heard of a woman’s scream was his wife’s. Some were slapped on painful wounds.
Despite the Bush administration’s go-it-alone tactics in foreign and military policy, its officials tapped the international community for torture methodology. Six of the fourteen highest-ranking al-Qaeda prisoners, including the supposed mastermind of 9/11, Khalid Sheikh Mohammed, told the International Committee of the Red Cross independently, without the opportunity to coordinate their stories, that towels wrapped around their necks had been used to smash them into walls (while preventing whiplash, one of the Justice Department memos asserted)—a technique suggested by the Israelis, according to a CIA official Mayer interviewed. The Americans adopted stress positions and other approaches that the army had been teaching soldiers to resist, because they had been used by the Russians, Chinese, North Koreans, North Vietnamese, and other despotic regimes.51
A few died along the way, but nobody in the CIA was prosecuted. Neither would President Obama authorize criminal investigations after he took office, nor—more significantly—support a systematic study to find the facts and propose remedies to prevent recurrences.52 Wishing away history had bipartisan support.
Bush also arrogated to himself the power to designate anyone—whether inside the United States or not, whether citizen or not—as an “enemy combatant” eligible for indefinite imprisonment without charge or trial. Three “U.S. persons” were so classified—an American who had been captured during the war in Afghanistan, and two arrested in the United States, one a citizen, the other a legal immigrant. Two of the cases were transferred to criminal court just before the Supreme Court could step in; the third man, who won his habeas corpus appeal in the Supreme Court, was released to Saudi Arabia after he relinquished his American citizenship.
Bush tried to suspend habeas corpus for such prisoners to deny them access to federal courts. He took it upon himself, ignoring the legislative branch, to establish military tribunals to process Guantánamo “detainees” and others, dodging and weaving in and out of a series of adverse Supreme Court rulings, finally enlisting Congress in the sordid business of denying habeas rights and creating military commissions. These commissions could admit coerced confessions, hearsay evidence, and the fruits of illegal searches. The Supreme Court struck down the habeas denial and left the rest of the law in doubt—but on the books.
The Military Commissions Act of 2006 was potentially one of the most repressive statutes in American history and remains a grave legacy of the country’s sixth major deviation from constitutional values. While public attention centered on how it applied to the suspected terrorists in Guantánamo, the law recognized no geographical limits, in fact; it could be used inside the boundaries of the United States as well as outside. Obama refused to call for its repeal, just its revision, which was effected in 2009 to restore significant rights to defendants. Still, if a president were to employ its full powers, America would become a very different place.
LAWYERS VERSUS THE RULE OF LAW
From 1798 on, these episodes of history had several notable characteristics. First, the abuses derived from lawmakers and laws or had the blessings of lawyers; most were not the product of some rogue vigilantism. Second, they were not the rule but the exception: aberrations against a background of liberty and justice. Finally, every one of the steps, justified at the time by threats to the nation’s security, is now viewed as a disgrace. Looking back into history through the smoke from the World Trade Center and the Pentagon, to take the latest example, many Americans feared a massive roundup of Arabs and made urgent calls to avoid repeating the crime of the Japanese internment.
It remains to be seen how history will judge the violations after September 11, and how lasting the legal corruptions in constitutional protections will be. In general, George Bush based his actions on a sweeping interpretation of his constitutional powers, under Article II, as commander in chief of the military. An astonishingly small coterie of lawyers—mobilized by Cheney’s Addington with the collusion of Jay S. Bybee, head of the Justice Department’s powerful Office of Legal Counsel; his assistant John Yoo; and the Defense Department’s general counsel, William J. Haynes II—was able to invent rationales in memos and opinions giving the president virtually unfettered authority to arrest, imprison, torture, and murder. A few other lawyers in the Justice Department, the military, and the CIA who tried to resist this juggernaut of legal aggression were ridiculed, marginalized, dismissed, or subjected to threatening investigations. They were quiet heroes who risked their careers out of public view.
One infamous legal opinion was the so-called torture memo of August 1, 2002, written mainly by Yoo and endorsed by Bybee for then White House Counsel Alberto R. Gonzales. It interpreted so narrowly the federal law enacted to implement the international Convention Against Torture that nothing illegal was found in the CIA’s methods. Even that limited prohibition, they argued, would be unconstitutional if used to restrict a president in
wartime. They advised that anyone prosecuted for torture could defend himself with the opening sentence of Article II of the Constitution: “The executive Power shall be vested in a President of the United States of America.” In an attempt to expand Bush’s latitude, the lawyers read this as a “sweeping grant” of “unenumerated ‘executive power.’ ” They saw no limits, no checks, no balances. “In wartime,” the Bush lawyers declared ominously, “it is for the President alone to decide what methods to use to best prevail against the enemy.… One of the core functions of the Commander in Chief is that of capturing, detaining, and interrogating members of the enemy.”53
In another official opinion, Yoo and a colleague determined that the Constitution permits the president “to deploy the military against international or foreign terrorists operating within the United States,” superseding law enforcement agencies. On that basis, Cheney proposed (and Bush rejected) using the military to arrest a group of suspected terrorists in upstate New York. “The Fourth Amendment would not apply in these circumstances,” Yoo’s finding declared. “Thus, for example, we do not think that a military commander carrying out a raid on a terrorist cell would be required to demonstrate probable cause or to obtain a warrant.”54
Under these authoritative interpretations, practically everything that a Soviet leader in the 1970s had ordered the KGB to do in the name of “national security” would have been legal under the United States Constitution.
The Rights of the People Page 5