An Immodest Proposal
Secretary of Homeland Security Michael Chertoff made an impassioned plea to the Federalist Society the other day for "judicial modesty." Modesty is of course a virtue, but Chertoff failed to say why he had singled out judges for this particular lesson in manners. What about executive modesty? The Bush Administration has in recent weeks done everything it could to coerce the courts into a "modest" position, so that they will not interfere with the Administration's own immodest arrogations of power.
What Chertoff actually meant by modesty turned out to have little to do with Emily Post. He was peeved that some have suggested that international law is a relevant guide to how the United States should conduct itself. He complained bitterly of the European Union's objections, predicated on international law, to handing the United States personal details on every airline passenger traveling to the United States. But he also singled out for criticism human rights lawyers, in particular University College of London professor Philippe Sands, author of Lawless World, a trenchant critique of the damage our country has done to international law in the "war on terror." Sands's sin was to have suggested that international law might over time develop rules that are binding on countries like the United States. The notion that the United States might actually be accountable to any authority other than itself, Chertoff complained, is simply undemocratic--despite the fact that we have long insisted that other democratic nations abide by international law obligations.
Chertoff omitted reference to the most recent culprit in the effort to hold the United States accountable to international law--the Supreme Court. Its June decision in Hamdan v. Rumsfeld held that George W. Bush's military commissions violated the Geneva Conventions. But that's of little concern, apparently, because the Administration successfully employed the democratic process (read, a Republican-controlled majority in Congress) to enact a statute that overrode the Supreme Court's decision and barred the courts, including the Supreme Court, from even considering the Geneva Conventions in any lawsuit against the United States.
The Administration has already invoked the Military Commissions Act (MCA) to argue that the many cases that have sought to hold it accountable for its treatment of "enemy combatants" must be dismissed, and the courts will soon rule on whether this enforced modesty is unconstitutional for, among other things, denying detainees judicial review of their treatment while confined. The Administration has aggressively invoked the MCA, arguing that it applies not only to those held at Guantánamo but to any foreign national detained in the "war on terror," including Ali Saleh al-Marri, a student from Qatar arrested far from any battlefield, in his home in Illinois, and held as an enemy combatant.
The Administration has also invoked the MCA in an attempt to deny lawyers access to people recently transferred to Guantánamo from the CIA's "black sites." The Center for Constitutional Rights filed suit on behalf of one such detainee, Majid Khan, but the Administration has argued that CCR's lawyers cannot even meet with Khan. First, it claims that the MCA bars judicial review of Khan's detention. Second, and more troubling, it contends that even lawyers with security clearance cannot meet with Khan because by virtue of having been held in a secret prison, he may disclose top-secret information, specifically including the techniques of interrogation used against him.
Talk about modesty. This argument maintains that the United States can "disappear" suspects into secret prisons, a violation of basic human rights; hold them there incommunicado for years without charges, another human rights violation; interrogate them using "alternative techniques" that have reportedly included waterboarding and that almost certainly rise to the level of torture, a third human rights violation; and then label its own abuses "top secret" to preclude the victims from talking to a lawyer.
Finally, during the same Federalist Society conference that Chertoff addressed, Vice President Cheney, never accused of being overly humble, lashed out at a federal district court in Michigan for having had the temerity to rule the Administration's warrantless wiretapping program illegal. According to the Vice President, the legality of the National Security Agency's wiretapping program "is a matter entirely outside the competence of the judiciary." Cheney never attempted to explain why the case, which involves straightforward interpretation of statutes and the Constitution--the kind of work courts do every day--was beyond judicial competence. Apparently no explanation was necessary.
Arguments like these suggest that Chertoff's call was misdirected. It is the executive branch, not the judiciary or the international legal community, that needs to rein itself in. Despite the Supreme Court's rejection, three times, of executive claims of unilateral, uncheckable Commander in Chief authority--and despite having become a pariah in the eyes of the world for its refusal to be bound by the laws of war at Guantánamo, its defiance of the UN Security Council in invading Iraq, and its failure to demand accountability for systemic abuse at Abu Ghraib and the CIA black sites--the Administration continues to act as if the problem lies with everyone else. This is an Administration that truly ought to be modest, and if it can't be, we need the courts, actively, to hold the line.