Last Thursday, President George W. Bush struck a deal to accept Senator John McCain’s ban on the torture of U.S.-held detainees. But by the weekend, all the shoddy rationales his administration had previously put forward to justify inhuman, cruel and degrading treatment were back in play—this time to justify the unauthorized surveillance of American citizens by the National Security Agency, which is empowered only to spy on foreign agents abroad.
Here, as with the official approval of brutal interrogation methods, Americans were told that the urgent and dramatically new nature of the war on terror made unilateral executive action the exclusive order of the day. There has been no regard for fussy procedural niceties such as observance of the law or constitutional checks on Presidential power. Speaking to his Saturday radio audience on a rare live-TV feed, filmed beneath a rough-riding portrait of Theodore Roosevelt, the President made with his own big stick.
“In the weeks following the terrorist attacks on our nation,” he said, “I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to Al Qaeda and related terrorist organizations …. This is a highly classified program that is crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies.”
Then, as administration officials have done with nearly every public report damaging to the White House’s credibility, the President proceeded to argue that the real crime lay in the act of exposure.
“Yesterday, the existence of this secret program was revealed in media reports after being improperly provided to news organizations,” Mr. Bush claimed. “As a result, our enemies have learned information they should not have. And the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies and endangers our country.”
Of course, the bit about the “illegal” release of classified information is especially rich, since if anyone has broken the law in this affair, it’s Mr. Bush.
Nor was this even the only report that surfaced this week of such illegal shenanigans within the White House’s orbit. NBC News reported that an obscure Pentagon agency, the Counterintelligence Field Activity, was conducting “person searches” that monitored the activities of American anti-war protestors.
But the larger vision behind these unlawful orders—all regarding that surreptitious, all-powerful enemy eternally in our midst—follows to a T the logic of the administration’s embrace of brutal interrogation regimens for detainees in the “war on terror.” That began with the President’s Sept. 17, 2001, executive order authorizing the use of “lethal measures” against any people designated “enemy combatants.”
The reasoning behind these orders is hermetically self-reinforcing, more suited to theologians than makers of policy.
“It’s a principled lack of principle in the service of what’s supposed to be a higher principle,” said Rebecca Lemov, the author of a recently published study of human engineering and Cold War science, World as Laboratory. The enemy is “completely unknowable, or other, outside of the scale of human decency. And this is what justifies preemptive action. That evil quality justifies our going into that realm. We know that we will be tainted by this, but also that we have to do it because of who the enemy is.”
This elastic rationale for executive impunity got its fullest airing in the long series of U.S. Justice Department memos seeking to retroactively justify any and all interrogation modes, from waterboarding to the dogs and electrodes at Guantánamo and Abu Ghraib. This was itself a willful inversion of the aims of the Justice Department, turning legal counselors into advisors on how to sidestep international human-rights law or define away its strictures.
Alberto Gonzalez, then counsel to the Justice Department and now the U.S. Attorney General, captained this ugly campaign, with the eager assistance of quisling legal theorist and Deputy Assistant Attorney General John C. Yoo. Mr. Yoo famously argued, in the course of his efforts to place terror detainees outside the protections of the Geneva Conventions, that “in the exercise of his plenary power to use military force, the President’s decisions are for him alone and are unreviewable.”
Mr. Yoo’s work is a mortifying specimen of a certain brand of constitutional scholarship, in which one always reasons backward from the confident assertion of executive prerogative. Likewise, Mr. Gonzales, his mentor, first argued that the domestic-surveillance program issued from an “inherent” Presidential authority to be found either in the section of the Constitution concerning executive war powers or—most mysteriously indeed—in Congress’ authorization of the President’s authority to wage war in Afghanistan against the perpetrators of the Sept. 11 attacks.
In other words, an “inherent” power of the office in the nation’s founding document gets transubstantiated, in Mr. Gonzales’ incoherent account, into an “implicit” diktat of the 2001 Afghan war authorization.
Truly we are here in a sanctum of sacred mysteries, and the nation’s top law-enforcement official urgently forbids us not to reason why—especially when we suggest that laws have been actively broken. “This is not a backdoor approach,” Mr. Gonzales told White House reporters. “We believe Congress has authorized this kind of surveillance.” Yet The Washington Post then noted that Mr. Gonzales “acknowledged that the administration discussed introducing legislation explicitly permitting such domestic spying but decided against it because it ‘would be difficult, if not impossible’ to pass.”
Got that? The administration finds it inconvenient to observe the law’s currently generous terms for the approval of a surveillance warrant, while also ruling out the proper constitutional remedy for a law perceived to unduly tie the hands of executive power (such as introducing the White House’s own law to grant itself warrantless surveillance authority) because it wouldn’t be opportune politically, even in a Republican Congress, to do so. This is, in other words, the very essence of “a backdoor approach”—pretty much identical to that adopted by the Reagan White House in the Iran-contra scandal, another great moment in constitutional history.
Much the same logic—assert first, ask questions later—has also governed the chief line of security-minded defense for the surveillance program, echoed last weekend by both Mr. Bush and Secretary of State Condoleezza Rice: that the President’s actions were grounded in the recommendations of the 9/11 Commission to close up the seam separating domestic law enforcement and overseas intelligence work, and to home in on foreign-born terrorist operatives who were communicating with colleagues abroad.
However, much about this claim is misleading. For one thing, the 9/11 Commission’s recommendations came more than two years after the first order to begin warrantless searches—which would make the administration, shall we say, improbably prescient.
For another, of course, the Bush administration fought tooth and nail against the establishment of any independent inquiry into the causes of the 2001 attacks, and it continues to treat the long list of panel recommendations in a dilatory fashion, as the recent commission report card on homeland-security efforts made embarrassingly clear.
Indeed, when it came time to issue a letter grade for the efforts to fix that crucial intelligence-communications gap that Bush, Rice and company claim to have sewn up tightly, the commission gave it a “D”—both for the intelligence-reform measures, and for the civilian civil-liberties review board that the commission wanted as a safeguard against this very sort of imperial violation of constitutional authority.
For the Bush White House to seize on the commission now as a wiretap enabler of first resort smacks of both desperation and opportunism—as well as a level of dishonesty shockingly high even for this administration.
It’s well worth keeping this disgraceful performance fixed firmly in mind as we try to size up the practical impact of Senator McCain’s amendment. The President, after all, only agreed with the broad provisions of the McCain ban after his hand was forced: Both houses of Congress had delivered veto-proof vote counts in support of the measure. And exceedingly welcome though the declaration against torture is, many key questions about our treatment of detainees still need to be worked out, perhaps chief among them the right to habeas corpus, which would be suspended under a bill by Senator Lindsey Graham of South Carolina that the Senate has already approved.
Regimes approving the routine use of torture, after all, don’t lose their essential character once they’ve been induced to officially recant. Human-rights scholar Marguerite Feitlowitz vividly renders this point in Lexicon of Terror, her indispensable study of Argentina’s “dirty war” against its own dissident citizens.
Argentina’s chief theorist of torture was Admiral Emilio Massera, who claimed that the state had to exert a virtual monopoly on civil rights and public trust. “The only safe words are our words,” Admiral Massera assured his listeners. “We live in a world where enemies are so mutually mimetic that their identities get confused.”
Professor Feitlowitz, now at Bennington College, hears distinct echoes of the Massera era in the Bush White House’s own lexicon. “These repeated calls of ‘Trust me, trust me’ are really eerie,” she said. They stem, in part, in the torturers’ “sense that they’re beyond moral reproach—that even though mistakes may have been made, this is all in your best interest.”
Emilio Massera, in other words, might have made a heck of an Assistant Deputy Attorney General.