Here is an articulate statement of caution and skepticism. But a Republican administration calls for the same powers, and all these concerns go sailing out the window.
Other conservatives were just as wary of the surveillance powers requested by the Clinton administration, aware that they could easily be abused and employed for partisan or ideological purposes. For instance, “terrorism” could simply be defined as activism on behalf of a cause the current administration in Washington disapproved of. And as far back as the 1970s, the conservative scholar Robert Nisbet was cautioning:
The day is long past when this phrase [“national security”] was restricted to what is required in actual war. As everyone knows, it has been, since World War II under FDR, a constantly widening cloak or umbrella for governmental actions of every conceivable degree of power, stealth, and cunning by an ever-expanding corps of government officials. . . . As we now know in detail, the utilization of the FBI and other paramilitary agencies by Presidents and other high executive department officers for the purposes of eavesdropping, electronic bugging, and similarly intimate penetrations of individual privacy goes straight back to FDR, and the practice has only intensified and widened ever since. Naturally, all such royalist invasions have been justified, right down to Watergate, under the name of national security. The record is clear and detailed that national security cover-up has been a practice of each of the Presidents since FDR.
Judge Andrew Napolitano recently asked, “Why should government agents spy on us? They work for
us
. How about we spy on them? On cops when they arrest and interrogate people or contemplate suspending freedom; on prosecutors when they decide whom to prosecute and what evidence to use; on judges when they rationalize away our guaranteed rights; and on members of Congress whenever they meet with a lobbyist, mark up a piece of legislation, or conspire to assault or liberties or our pocketbooks.”
For a patriotic American, there is nothing radical about this attitude at all.
This is how the Founding Fathers thought.
If our critics want to repudiate the Founding Fathers, let them go ahead and do it. If they won’t be honest enough to do so, they should at least refrain from condemning those of us who still believe in the wisdom they left for posterity.
Much more is at stake here than privacy violations or unconstitutional searches, important and dangerous as those are. For example, the president has made clear, in one of his signing statements, that he retains the power to engage in torture regardless of congressional statutes to the contrary. Defense Department memoranda say the same thing.
First of all, legal issues aside, the American people and government should never abide the use of torture by our military or intelligence agencies. A decent society never accepts or justifies torture. It dehumanizes both torturer and victim, yet seldom produces reliable intelligence. Torture by rogue American troops or agents puts all Americans at risk, especially our rank-and-file soldiers stationed in dozens of dangerous places around the globe. It is not difficult to imagine American soldiers or travelers being taken hostage and tortured as some kind of sick retaliation for Abu Ghraib.
Beyond that is the threat posed by unchecked executive power. Executive branch lawyers claim that the president’s commander-in-chief powers override federal laws prohibiting torture. But the argument for extraordinary wartime executive powers has been made time and again, always with bad results and the loss of our liberties. War has been used by presidents to excuse the imprisonment of American citizens of Japanese descent, to silence speech, to suspend habeas corpus, and even to control entire private industries. That’s why it is precisely during times of relative crisis that we should adhere most closely to the Constitution, not abandon it. The Founders were especially concerned about the consolidation of power during times of war and national emergences. War does not justify the suspension of torture laws any more than it justifies the suspension of murder laws, the suspension of due process, or the suspension of the Second Amendment.
The hallowed right of habeas corpus has also been a casualty of the war on terror. The Military Commissions Act of 2006 gives the president the power to detain people indefinitely and to deny the accused any real opportunity to answer the charges against them. It is anti-American at its core. The name of the Act can give the misleading impression that anyone targeted under it can at least bring his case before a military commission. That is not so. If the president wants to punish an accused “enemy combatant,” he may bring him before such a commission. But he need not, and if he’d rather that the person remain in prison forever, he is free to adopt that course instead.
This legislation gave legal backing to practices in which the administration had already been engaged. Ali Saleh Kahlah al-Marri, a citizen of Qatar, married with five children, was living in America legally in 2001 when he was charged with making false statements in connection with the investigation of 9/11. He was slated to be tried in July 2003. Whatever the merits of the case against him, what happened next is an astonishing departure from American principles and tradition. Before the case could go to trial, the president suddenly declared al-Marri to be an “enemy combatant,” whereupon the charges against him were dismissed by the civilian court and he was sent to a military prison, indefinitely.
We need to come to our senses: it cannot be tolerable for the president to have the right to detain people indefinitely, even for life, and not even permit them to review the charges against them. The argument is not that criminals or terrorists should be let loose. Constitutionalists are merely saying that people are at least entitled to confront the charges against them.
The case of José Padilla is especially striking. We first heard that Padilla was planning to set off a radiological bomb (a “dirty bomb”) in an American city. The government never wound up charging him with that offense, which it had wrung from him by torture. The charges it did finally bring against him were rather more vague and less interesting.
But the federal government did not bring charges against him right away. Instead, Padilla was declared an “enemy combatant,” and therefore sent to prison indefinitely without any charges being brought against him. The only reason charges were finally brought against Padilla some three and a half years later is that the administration was afraid that the Supreme Court would rule against its treatment of him. By hearing his case, the administration could head off the Court by declaring that Padilla had received the trial he sought, and that his complaint was therefore moot.
During the three and a half years he was in custody, Padilla was made to endure various forms of torture. Kept in solitary confinement, Padilla was subjected to variations of sleep deprivation. Noxious fumes were introduced into his cell. His cell was made extremely cold for long periods of time. He was drugged, disoriented, and threatened with all manner of gruesome fates.
It is time for us to wake up. We have allowed the president to abduct an American citizen on American soil, declare him an “enemy combatant” (a charge the accused has no power to contest, which is rendered by the president in secret and is unreviewable), detain him indefinitely, deny him legal counsel, and subject him to inhumane treatment. How can we not be concerned about such a thing? Have we been so blinded by propaganda that we have forgotten basic American principles, and legal guarantees that extend back to our British forbears eight centuries ago? This is an outrageous offense against America and her Constitution. Claims that these powers will be exercised only against the bad guys are not worth listening to.
In April 2006, Pulitzer Prize–winning Associated Press photographer Bilal Hussein was detained by the American military in Iraq, joining at least 14,000 others around the world who have been similarly detained by the U.S. government. He has not been charged with a crime, and demands for information from the Associated Press were met with stonewalling. The AP unsuccessfully demanded his release, or at least that formal charges be filed against him.
The AP was finally told that their photographer had been involved in the kidnapping of two journalists in Ramadi, but this story didn’t hold water: the journalists in question said that Hussein had actually been very helpful to them after their release, when they had no car and no money. That unpersuasive story did nothing to remove the widespread suspicion that the real reason for the AP photographer’s detention involved his photographs of the war zone, which were said to have displeased American officials.
What has happened to our country and its image around the world, and why are we allowing it?
In this book I have tried to make as few references to specific pieces of legislation as possible, because my preference is to focus on ideas rather than minutiae, and I have never had much interest in assembling a policy manual. I need to make an exception here, since a piece of legislation I introduced into Congress in late 2007 concisely reflects my views on civil liberties and executive power in light of the war on terror. I am referring to the American Freedom Agenda Act of 2007.
Among other things, the legislation
• repeals the Military Commissions Act of 2006;
• forbids the use of statements extracted by torture as evidence in any civilian of military tribunal;
• subordinates the executive’s surveillance activities to the requirements of the Foreign Intelligence Surveillance Act (FISA);
• gives the House of Representatives and the Senate legal standing to contest in court any presidential signing statement that indicates the executive’s intention to disregard any provision of a bill; and
• provides that nothing in the Espionage Act of 1917 prevents any journalist from publishing information received from the executive branch or Congress “unless the publication would cause direct, immediate, and irreparable harm to the national security of the United States.”
Additionally, the legislation authorizes the president to establish military commissions for the prosecution of war crimes “only in places of active hostilities against the United States where an immediate trial is necessary to preserve fresh evidence or to prevent local anarchy.” He is prohibited from “detaining any individual indefinitely as an unlawful enemy combatant absent proof by substantial evidence that the individual has directly engaged in active hostilities against the United States, provided that no United States citizen shall be detained as an unlawful enemy combatant.” Any individual detained as an enemy combatant by the United States “shall be entitled to petition for a writ of habeas corpus under section 2241 of title 28, United States Code.”
The Act also says, “No officer or agent of the United States shall kidnap, imprison, or torture any person abroad based solely on the President’s belief that the subject of the kidnapping, imprisonment, or torture is a criminal or enemy combatant; provided that kidnapping shall be permitted if undertaken with the intent of bringing the kidnapped person for prosecution or interrogation to gather intelligence before a tribunal that meets international standards of fairness and due process.” Knowing violations of this section are to be punished as felonies.
It amazes me that this kind of legislation should even be necessary in America. These are principles that Americans should insist their presidents not only observe, but actually believe in.
Those of us who still mention the Constitution, even now, and our obligation to observe it, are sometimes answered with the curt reply, “We’re at war.” We are indeed fighting undeclared wars in Iraq and Afghanistan, and an open-ended war against terrorism worldwide. But if the president claims extraordinary wartime powers, and we fight undeclared wars with no beginning and no end, when if ever will those extraordinary powers lapse? Since terrorism will never be eliminated completely, should all future presidents be able to act without regard to Congress or the Constitution simply by asserting “We’re at war”?
Toward the end of 2007, Senator Jeff Sessions declared, “Some people in this chamber love the Constitution more than they love the safety of this nation. We should all send President Bush a letter thanking him for protecting us.” What kind of sheep must politicians take Americans for if they expect us to fall for creepy propaganda like this?
The war on terror, therefore, has had dangerous and undesirable domestic consequences. So has the war on drugs. Saying so doesn’t win any popularity contests: people’s opinions on this issue are so deeply and fervently held that it can be very difficult to persuade them to revisit the evidence dispassionately.
But revisit it we must. We seriously mistake the function of government if we think its job is to regulate bad habits or supplant the role of all those subsidiary bodies in society that have responsibility for forming our moral character. Our misplaced confidence in government has once again had exceedingly unpleasant results. “A barrage of research and opinion,” writes economist Dan Klein, “has pounded [the drug war] for being the cause of increased street crime, gang activity, drug adulteration, police corruption, congested courts and overcrowded jails. Drug prohibition creates a black-market combat zone that society cannot control.”
The drug war has wrought particular devastation in minority neighborhoods, as decent parents find themselves consistently undermined when they try to teach good values to their children. When the lucrative profits from the black market in drugs make drug dealers the most ostentatiously prosperous sector of society, it is much more difficult for parents to persuade their children to shun those profits and pursue a much less remunerative, if more honorable, line of work. Putting an end to the federal drug war would immediately pull the rug out from under the drug lords who have unleashed a reign of terror over our cities. Finally, the good Americans who live there could make their homes livable once again.
Although many conservatives support the federal war on drugs, an increasing number, like William F. Buckley, are skeptical. The conservative economist Thomas Sowell finds the whole thing more utopian than conservative: “What would make still more sense [than the current policy] would be to admit that we are not God, that we cannot live other people’s lives or save people who don’t want to be saved, and to take the profits out of drugs by decriminalizing them. That is what destroyed the bootleggers’ gangs after Prohibition was repealed.”