After six years, America’s post-9/11 discourse has not changed much. Politicians and journalists still present most homeland security debates as tradeoffs between security and liberty. But the Bush Administration’s most severe security measures since 9/11 are actually premised on radically different tradeoff: pursuing security by sacrificing the rule of law itself.
The Administration has launched several programs in direct violation of American law, such as detaining citizens without trial and flouting the Geneva Conventions. Yet President Bush never summoned the courage to advocate these initiatives before the public or Congress. He never said, for example, that new threats must be fought with torture, and thus the public should support legal withdrawal from the Geneva Conventions. Instead, government officials secretly authorized and oversaw illegal torture. That approach was so inherently undemocratic and contrary to the rule of law, some of its fiercest resistance arose within the Administration itself, as the public was reminded this week.
Conservative Republican Jack Goldsmith resigned in 2004 as Director of the Office of Legal Counsel–the powerful office that tells the President what he cannot do–over Bush’s attempts to defy the Geneva Conventions. As Goldsmith recounts in his new book, The Terror Presidency, he resigned after just seven months “driven by a desire” to compel the administration to accept his final act in office, the retraction of an indefensible memo justifying torture. And Goldsmith clashed with officials over several other programs that skirted or broke the law. He was even in John Ashcroft’s hospital room when Alberto Gonzales infamously tried to pressure the sick Attorney General into authorizing illegal spying. That was the program which almost sparked protest resignations from Ashcroft, Robert Mueller, and James Comey, who recently recounted the experience in Senate testimony.
These stalwart Republicans were not civil libertarians opposing a policy tradeoff between security and liberty. Goldsmith’s new narrative is significant because it diverges so sharply from the liberty-security axis that has anchored so many debates since 9/11. These were not, for example, legitimate debates over how airport searches protect flights while invading privacy, (which the public accepts), or how national identity cards would tighten policing while restricting personal liberty, (which the public resists). The Republican dissenters were protesting the Administration’s illegitimate assault on the rule of law itself. Goldsmith has long supported a powerful and aggressive Executive Branch–views that helped him get the job in the first place– but what concerned him was the blatant law-breaking.He explains this delicately in his book: “I could not understand why the administration failed to work with a Congress controlled by its own party to put all of its antiterrorism policies on a sounder legal footing.”
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It is not actually very hard to “understand” the Administration officials’ approach. We can take them at their word, even when it sounds backwards. They seem to think that American law is not only a barrier to security, but literally a weapon of our enemies, while crime is a legitimate tool to fight terror.
That’s why the Administration’s 2005 National Defense Strategy report asserts that enemies of the US will use both terrorism and “judicial processes” to challenge “our strength as a nation state.” Goldsmith writes that report revealed how the Defense Department conceived of “judges as threats on par with terrorism.”
Meanwhile, the Administration advocates retroactive immunity for war criminals (in the Military Commissions Act) and retroactive immunity for telephone companies that facilitated illegal government surveillance (in pending surveillance legislation). As law professors David Cole and Jules Lobel explain in this week’s edition of The Nation, the Administration “has come to view the rule of law as an obstacle, not an asset, in its effort to protect us from terrorist attack.” Of course, recent history demonstrates that democratic rule of law advances national security. It is only through judicial or congressional oversight that we learned about massive intelligence failures, wasteful defense spending and vulnerabilities exploited by the 9/11 hijackers.
Yet even if destroying American rule of law did advance our security, it would be an unacceptable sacrifice. In an asymmetric battle with terrorists, our enemies are not seeking a traditional military victory, like occupying American cities. Instead, they aim to erode our power abroad, terrorize our society at home, advance Islamism and destroy the American way of life. No US government would ever accede to those objectives. But suppose, as a thought experiment, that Americans could prevent all terrorist attacks by converting to Islam, as Osama bin Laden urges in his new video. Would we willingly trade our faith and freedom for security? Of course not. Now suppose that Bush’s extremist advisers are right, and we could actually end terrorism by aborting the rule of law. Would we trade our laws and freedom for security? After touting Muslim conversion in his new video, Bin Laden’s other stated goal was to “do away with the American democratic system of government,” as ABC News’ Jonathan Karl reported. If we let our leaders pursue security by destroying the democratic rule of law in this country, then yes, the terrorists will already have won.
