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.
It has taken time, but Bush is learning the hard way that he acts without Congressional approval at his peril–even with a firmly Republican Congress. The Supreme Court sharply rebuffed his position on enemy combatants in June 2004, and this past fall the President ducked a Supreme Court test of his detention of José Padilla when another loss appeared likely [see Cole, “Post-9/11 Shell Game,” December 19].
In December Bush was forced to agree to an amendment offered by Senator John McCain banning cruel, inhuman and degrading treatment in all circumstances. He had initially threatened to veto the measure outright, and then had sought an exemption for foreigners held by the CIA abroad. In the end he had no choice but to sign McCain’s version, with only a small concession extending a “superior orders” defense to nonmilitary interrogators who reasonably believe they are following lawful orders.
And now the President faces a firestorm of controversy over a New York Times report that he secretly authorized wiretaps on hundreds of people within the United States, many of them Americans, without judicial or Congressional approval. Congress’s anger over the National Security Agency spy program scuttled a bill to extend most of the Patriot Act’s sunsetted provisions, and it has prompted bipartisan demands for a full investigation.
The momentum has plainly shifted. And for good reason. Why should we trust an Administration that secretly spies on Americans without judicial or Congressional authorization, disappears suspects into undisclosed “black sites” where they are subjected to waterboarding and other torture, unleashes the Pentagon to spy on antiwar demonstrators and issues tens of thousands of “national security letters” demanding telephone and e-mail information on innocent people without judicial review?
But there are still many battles to fight. Bush, perhaps realizing that his wiretapping orders may well constitute criminal conduct, has come out fighting, blaming those who leaked the story and claiming, without evidence, that the wiretaps saved lives. (The only individual he claims to have netted through the program is Iyman Faris, a truck driver who pleaded guilty to plotting to bring down the Brooklyn Bridge with an acetylene torch, a plot that raises more questions about Faris’s sanity than about our security.) Congress must demand accountability.
Meanwhile, the victories on the Patriot Act and the torture issue were both tainted. The struggle over the Patriot Act remains distressingly narrow, with no discussion of many of its most troubling provisions [see Cole, “The Missing Patriot Debate,” May 30, 2005]. And while Senator McCain’s amendment bans cruel, inhuman and degrading treatment, another amendment, sponsored by Senators Lindsey Graham, Carl Levin and Jon Kyl, would sharply limit access to courts for those held at Guantánamo to complain about torture and other mistreatment. Worse still, it would allow the use of coerced testimony in hearings to determine the status and the culpability of those detained there.
The veil of secrecy, however, is being lifted–if only by unauthorized leaks to the media. Every disclosure brings further confirmation of an Administration that thinks it can ignore the rule of law. We must continue to insist that in a democracy, it cannot.