A War Like No Other (15 page)

Prologue to Chapter 4

Trevor Sutton

“I believe with every fiber of my being that in the long run we also cannot keep this country safe unless we enlist the power of our most fundamental values.” So spoke Barack Obama in a closely followed speech on national security delivered at the National Archives in May 2009, nearly four months to the day after he succeeded George W. Bush as president of the United States. Much like his election campaign, Obama’s speech was presented as a direct repudiation of the counterterrorism policies of the Bush administration. After the September 11 attacks, Obama said, “we went off course,” and “made a series of hasty decisions” that had the effect of treating our enduring principles as “luxuries.” He added that this “ad hoc approach for fighting terrorism” was neither “effective nor sustainable”; in its place he promised an approach that drew on our “legal tradition” of “checks and balances,” the “rule of law,” and “due process.” The president explained that this return to core values meant a firm rejection of torture and the closing of the prison at Guantánamo Bay.

Beyond these pronouncements, however, the president’s National Archives speech suggested something other than a clean break with the past. Obama said that he would seek civilian trials for alleged terrorists “whenever feasible”—hardly an unqualified commitment to principle—and noted that in some cases military commissions would be more appropriate. Even more troubling, he stated that there were a number of detainees at Guantánamo who could not be prosecuted because of “tainted” evidence, but who were still too dangerous to be released. Although the president insisted he would use “clear, defensible, and lawful standards” to justify prolonged detention, he did not hint at the content of those standards or the manner in which they would be applied.

To many, Owen Fiss included, the National Archives speech seemed less a clean break with the Bush era than a grudging prolongation of it. In this regard, this chapter, “Aberrations No More,” shared in the disappointment felt by many who had hoped that Obama’s election would usher in a restoration of constitutional values. Yet, unlike many of Obama’s critics, Fiss sought to look beyond the shortcomings of the current president to the complicity of the other branches of government, particularly the Supreme Court, which to a greater degree than either the executive or Congress has responsibility for balancing short-term exigencies with enduring values. In that sense, the essay, originally presented as a lecture at the University of Utah in October 2010, is a natural, if regrettable, sequel to “The Perils of Minimalism.” As “Aberrations No More” observes in acute detail, the Obama administration’s failure to fully turn the page on Bush-era counterterrorism policies undermines the case for minimalism even more forcefully than the Bush policies themselves did. Put otherwise, Obama’s record on national security offers a powerful example of how the heavy burden of protecting the
country from attack can lead even the best-intentioned president to curtail civil liberties.

Looking back from the vantage point of Obama’s second term, “Aberrations No More” was prescient. Guantanámo remains open, and only a handful of prisoners (none of whom could be classified as senior-level terrorist operators) have been tried in civilian courts. Khalid Sheikh Mohammed, regarded as one of the masterminds of the September 11 attacks, was slated for trial in the Southern District of New York, but the Obama administration transferred his trial to a military commission after Congress voted to block the use of federal funds to transfer detainees to the United States. The use of torture appears to have stopped, and indefinite detention without trial exists only in a legacy capacity, but, as the final chapter in this volume makes clear, the government has expanded the use of targeted killings (including of American citizens) to a degree well beyond that practiced during the Bush administration. Finally, recent disclosures have revealed that under Obama the National Security Agency has engaged in wiretapping and monitoring of electronic communications on at least as large a scale as under Bush—although unlike Bush, Obama can claim a clear statutory basis and the occasional blessing of a special intelligence court composed of federal judges. These policies were available to the Obama administration only because the judiciary failed to offer a robust and enduring defense of fundamental liberties when it reviewed similar policies under President Bush.

Somewhat unsurprisingly, a number of former Bush administration officials have recently taken to claiming that Obama’s national security agenda vindicates the actions taken by his predecessor. One such official, former White House press secretary Ari Fleischer, went so far as to proclaim that Obama was “carrying out Bush’s fourth term.” Although such comments have an
obvious political bias and fail to account for political constraints the Obama administration confronted after the 2010 midterm elections, they are not wholly without basis. Whether one sees Obama’s national security decisions as driven by conviction or by political expedience, the continuities with Bush’s War on Terror are plain.

Chapter 4

ABERRATIONS NO MORE

S
eptember 11, 2001, marked the beginning of a new era in American law. Combating terrorism became a matter of great public urgency, and as part of that endeavor, policies have been pursued that compromise once-sacred principles of the Constitution. These policies were initiated by President George W. Bush, but with some exceptions other branches of government soon endorsed them. Remarkably, they are now being continued by President Barack Obama.

Although terrorism did not begin on 9/11, the attacks on that day were distinguished by the magnitude of the death and destruction that they caused. Those attacks also had the threatening quality of a foreign invasion. Important sites in the United States—the World Trade Center and the Pentagon (and, if the terrorists had had their way, the Capitol or the White House)—were struck by foreign nationals acting on directions from abroad. Moreover, the events of 9/11 became a public spectacle. Scenes of airplanes crashing into the World Trade Center and the collapse of the towers were caught on video and frequently replayed in later years. The messages
conveyed and the fears aroused by these images were further reinforced in the decade that followed by bombings in London, Madrid, Amman, Mumbai, and Bali; attempts to blow up two airplanes on their way to the United States; and the failed plot to detonate a car full of explosives in Times Square. As a result, starting on September 11, 2001, and continuing to this day, terrorism acquired an immediacy and reality for Americans that it never had before.

The government’s response to the attacks of 9/11—Bush’s announcement of a “War on Terror”—also endowed the events that occurred on that day with special significance. This declaration of war was intended to mobilize the American people, and it had that effect. It prioritized the need to respond to the risk of terrorism and prepared the public for the sacrifices that such a response would entail. In that respect, Bush was following the practice of earlier presidents who had declared a “War on Poverty,” a “War on Drugs,” and even a “War on Cancer,” but there was one important difference—Bush soon employed the military to achieve his objectives.

Bush’s War

In the fall of 2001, Bush determined that al-Qaeda, a far-flung organization that operates in secret, was responsible for the 9/11 attacks. He then began what can properly be regarded as a war against al-Qaeda. He unleashed the military force of the United States and charged it with the task of capturing or targeting Osama bin Laden and other leaders of al-Qaeda. At the same time, Bush ordered the invasion of Afghanistan, then controlled by the Taliban, on the theory that a symbiotic relationship existed between the Taliban and al-Qaeda. In March 2003, the president broadened the United States military operations
in the Middle East and invaded Iraq, then controlled by Saddam Hussein and the Baath Party. Although the 9/11 terrorist attacks were not the basis of that military endeavor, terrorism, sometimes at the hands of al-Qaeda, was a consequence of the invasion of Iraq and the occupation that inevitably followed.

In his War on Terror, Bush instituted a number of practices that violated principles long viewed as hallmarks of our constitutional tradition. One such principle is the prohibition of torture. This prohibition is rooted not only in an international treaty and a federal statute implementing that treaty, but also in the Fifth and Eighth Amendments to the U.S. Constitution, part of the Bill of Rights. Soon after 9/11, however, the White House turned to lawyers within the executive branch for legal opinions that narrowed the definition of torture to allow the use of interrogation techniques such as waterboarding—to induce the fear of imminent death by drowning—that are almost universally condemned as torture.

During this same time, suspects were secretly sent to other countries, such as Syria and Egypt, that routinely torture their prisoners and subject them to abuses that would qualify as torture even under the Bush administration’s narrow definition. This practice, known as extraordinary rendition, and more properly seen as a form of outsourcing,
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is as much a violation of the rule against torture as when officials of the United States engage in torture themselves.

Bush also instituted a detention policy that threatened another principle of our constitutional order—what I have called the principle of freedom. This principle prohibits the executive from incarcerating anyone without charging that individual with a crime and swiftly bringing him to trial. There are exceptions to this principle, including one for war. Under this exception, the executive is allowed to detain enemy combatants captured on the
battlefield and to hold them for the duration of hostilities. Bush invoked this exception and then construed it in a way that threatened to undermine the very values that the principle of freedom seeks to protect.

Bush did not confine himself to imprisoning persons seized in Iraq, Afghanistan, or even the mountainous region between Afghanistan and Pakistan. Rather, he treated the entire world as if it were a battlefield, even to the point of seizing persons within the United States, including American citizens, and treating them as enemy combatants. Bush also refused to place any temporal limits on this policy of imprisonment without trial and was prepared to incarcerate persons for prolonged, indefinite periods of time—maybe for life. Although he said he would hold these individuals only until the end of the War on Terror or, more modestly, until the end of the war against al-Qaeda, the end of this war is not readily foreseeable. Extending the exception to the principle of freedom for wartime captures to a never-ending war of this sort threatens to undermine the principle itself.

All of the prisoners subject to Bush’s detention policy were held incommunicado, but sometimes a friend or relative, or even a volunteer lawyer, discovered a prisoner’s whereabouts and filed a petition of habeas corpus on his behalf. These petitions claimed that the prisoner was not in fact an enemy combatant, and thus there was no legal authority for the executive to detain him, even under the rule allowing wartime captures. Nevertheless, the Bush administration resisted any factual inquiry by the judiciary into the merits of these claims.

For prisoners who were American citizens and who were thus held in prisons within the United States, the government sought to limit the evidentiary inquiry by the federal judiciary.
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The government insisted that an affidavit filed by an official in the Department of Defense explaining the basis for the incarceration should be accepted at face value and treated as sufficient for
detaining the prisoners. The government maintained that there could be no judicial probe into the adequacy of the affidavit and no opportunity for the prisoner to offer evidence to substantiate his claim that he was not an enemy combatant.

For foreign nationals being held abroad, including those at Guantánamo, the government took the position that these prisoners had no right to habeas corpus whatsoever. According to the government, foreign nationals held abroad had no constitutional rights, including the right to personal freedom, and thus the writ of habeas corpus served no function.

Although the Bush administration claimed that it had the right to hold anyone it classified as unlawful enemy combatants for prolonged, indefinite periods, it also claimed the right to place some on trial for their actions on behalf of al-Qaeda or the Taliban. Some of these individuals were to be tried in ordinary civilian courts. One, an American citizen named John Walker Lindh, who had been captured in Afghanistan and acknowledged that he had fought for the Taliban, was charged in federal court and accused under federal criminal statutes of attempting to kill American personnel. The administration also used civilian courts to indict or try a number of persons accused of being agents of al-Qaeda who had been arrested and imprisoned in the United States. One was an American citizen seized at O’Hare Airport in Chicago; another was a citizen of Qatar who had been studying in the United States. Bush did not, however, limit himself to the use of civilian courts. In November 2001, he issued an executive order authorizing the use of military commissions to try terrorists.
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By 2005, the administration determined that twenty detainees being held in Guantánamo were to be tried by military commissions established pursuant to the president’s order.

In the midst of an ongoing conflict, military commissions have been convened on the battlefield to try enemy soldiers accused
of war crimes. Now and then, we departed from this tradition of using military commissions, but only in exigent circumstances. For example, in World War II, a military commission was used, with the reluctant approval of the Supreme Court, to try Nazi soldiers who had entered the country for purposes of sabotage.
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Bush’s decision to use military commissions in Guantánamo built on this precedent. However, the prescribed procedures for the military commissions he created ignored the intervening advances in our understanding of due process that occurred during the Warren Court era. Bush’s plan also vastly expanded the jurisdiction of military commissions by contemplating their use to try a group of prisoners that had been incarcerated for years at Guantánamo, far from any battlefield. Nor did Bush confine the commissions to trying offenses that were proscribed by the laws of war. In this way, Bush effectively transformed the military commission from a tribunal of necessity to one of convenience, giving the prosecution advantages that are anathema to the constitutional dictates of due process.