The Emperor's Powers

When Congress authorized the President to use all "necessary and appropriate" military force to respond to the 9/11 attackers, little did members know that in George W. Bush's mind they were freeing him to wiretap innocent American citizens without probable cause or a judicial warrant, to hold indefinitely without charge US citizens arrested within US borders and to order torture and cruel, inhuman and degrading treatment of suspects.

Had the President forthrightly said this was what he was seeking, Congress would almost certainly have said no. After all, laws on the books forbid all such conduct. The Foreign Intelligence Surveillance Act specifically limits warrantless wiretaps during wartime to the first fifteen days after a declaration of war and makes it a crime to conduct wiretaps except "as authorized by statute." The Non-Detention Act bars preventive detention of citizens except pursuant to statute. And the Convention Against Torture absolutely prohibits torture and cruel, inhuman and degrading treatment under all circumstances, expressly including wartime.

On December 19 Attorney General Gonzales admitted that the President did not seek to change the law because members of Congress said "that would be difficult if not impossible." So rather than risk rejection, the President simply assumed these powers unilaterally. The only authorizations he sought were the opinions of his yes-men attorneys, who argued that His Eminence's powers of course encompassed all this and more, and that therefore if Congressional statutes were interpreted to the contrary they would be unconstitutional. Bush's favorite lawyer, John Yoo, personally advised that the President had the power to order torture, to spy on Americans without a warrant and even to use military force against terrorists without any Congressional approval.

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