Casting Aside Justice
By claiming the power to imprison terrorist suspects without trial, or to send them abroad to be tortured by foreign secret police, President Bush is creating precedents that imperil the rights of U.S. citizens.
We know that no one ever seizes power with the intention of relinquishing it. Power is not a means; it is an end. One does not establish a dictatorship in order to safeguard a revolution; one makes the revolution in order to establish the dictatorship. The object of persecution is persecution. The object of torture is torture. The object of power is power.
‘ O’Brien, torture specialist in George Orwell’s 1984
Roughly a century and a half before Orwell published 1984, his cautionary tale of endless dictatorship through perpetual war, British statesman Edmund Burke warned that “criminal means, once tolerated, are soon preferred.” That which we authorize our government to do to anyone, it can do to everyone. If we permit the government supposedly protecting us to ignore the constitutional limits on its powers, it will quickly become the single greatest threat to our own lives and liberties.
The Bush administration, and those who dutifully echo its rhetoric, insist that everything changed on 9/11. “There was a before-9/11 and an after-9/11,” Cofer Black, the onetime director of the CIA’s counterterrorist unit, insisted in congressional testimony in 2002. “After 9/11 the gloves came off.”
As Burke observed, once a government removes those “gloves,” it will only put them on again when it is forced to do so. And once a state ‘ any state ‘ gets the scent of blood in its nostrils, it tends to become less than discriminating in its targets.
Many conservatives consider it something akin to sedition or treason to criticize the Bush administration for claiming that the president has unlimited power to deal as he sees fit with anyone he designates as an enemy in the “war on terror.” This perspective rests on two completely unjustified assumptions. The first is that George W. Bush, being a better man than Bill Clinton (hardly the highest hurdle to surmount), can be entrusted with extraordinary powers. The second is that the powers in question would always be used against “them” ‘ that is, the “worst of the worst” ‘ rather than against “us.”
Mr. Bush’s trustworthiness, or lack thereof, aside, he is constitutionally required to step down in January 2009. His successor could very well be a second president Clinton (or a first president Rodham), or someone of similar ideological inclinations who might look on “right-wing extremists” as the domestic equivalent of al-Qaeda. Once again, that which we authorize the government to do to anyone, it can do to everyone.
In defiance of centuries of Anglo-Saxon common law, the Bush administration claims that the president has the power to render any individual an “un-person” with respect to the protection of the law by designating him an “enemy combatant.” Those thus designated may be imprisoned, without legal recourse of any kind, for as long as the president sees fit, and be treated in any manner the president deems suitable. This could include the delivery of such hapless people into the hands of foreign governments ‘ such as those ruling Egypt, Syria, Morocco, or Uzbekistan ‘ that employ torture as a means of interrogation.
None of this is theoretical. Our government is doing these things today, and anticipates making use of these criminal means for the foreseeable future. And, once again, under the doctrines being devised by the administration, U.S. citizens could be subject to such treatment at the president’s discretion.
The Padilla Case
For three years, Jose Padilla, an American citizen, has been detained in military custody, without trial, at the Naval Consolidated Brig in Charleston, South Carolina. Padilla was arrested by federal agents on May 15, 2002, after he arrived from Pakistan at Chicago’s O’Hare International Airport. Then-Attorney General John Ashcroft claimed that Padilla, an ex-convict whose unsavory background includes participation in ethnic street gangs and other suspicious associations, had been involved in a plot to smuggle a radioactive “dirty bomb” into the country.
There is ample reason to believe that Padilla was involved in criminal activity, and some circumstantial evidence that he may have had contacts of some sort with Muslim radicals. He’s poorly cast in the role of martyr for the cause of civil liberties ‘ which is probably why he was chosen as the first test of the president’s supposed power to incarcerate U.S. citizens at whim.
President Bush designated Padilla an “enemy combatant” by executive order on June 9, 2002. This was done on the basis of evidence compiled, after the fact, by Michael H. Mobbs, Special Adviser to the undersecretary of defense for policy. The administration insists that the so-called “Mobbs Declaration” satisfies the requirements of Due Process in Padilla’s case.
From the administration’s perspective, a document written by a third-tier executive branch functionary justifying the president’s order to imprison a U.S. citizen nullifies the need for a trial ‘ or judicial review of any kind. The administration also claims that the presidential “enemy combatant” designation renders moot the habeas corpus guarantee, under which an incarcerated individual must be brought before a judge and either formally charged with a crime or released.
Then-Deputy Solicitor General Paul D. Clement argued in a July 2003 brief submitted to the U.S. Court of Appeals that Padilla’s imprisonment, as a “wartime” measure, falls entirely within the president’s discretion and cannot be subject to the scrutiny of the courts. Judicial review “of the Commander-in-Chief’s wartime judgements would raise serious separation-of-powers concerns,” insisted the administration’s brief. Such review “could extend no further than assessing whether there is some evidence supporting that [presidential] determination. To that end, the government submitted the Mobbs Declaration setting forth the evidentiary basis for the President’s determination.”
The administration’s reasoning, if that word applies, is perfectly circular: Padilla, as an enemy combatant, is not entitled to due process of law beyond the president’s determination that he is an enemy combatant.
In a December 13, 2003 decision, the Second Circuit Court of Appeals ruled against this sweeping claim of presidential power, since even in wartime “presidential authority does not exist in a vacuum.” While the Constitution does provide for the suspension of habeas corpus (which would permit emergency detention of suspects), that power is assigned exclusively to Congress. Rather than enacting legislation to permit such summary detentions, Congress in 2000 had passed a law called the “Non-Detention Act” expressly forbidding the summary imprisonment of American citizens. Since Padilla’s detention was not authorized by Congress, the court observed, “the president does not have the power ‘ to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat.”
The Bush administration appealed the Appeals Court’s ruling to the Supreme Court, which has declined thus far to rule on the substantive issues raised by the case. In a similar case involving Yaser Essam Hamdi, a U.S. citizen captured on the battlefield in Afghanistan, the High Court upheld the detainee’s right to mount a court challenge to his imprisonment. Writing on behalf of the majority, retiring justice Sandra Day O’Connor explained: “A state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”
The administration continues to hold Padilla in military custody and will likely have a second opportunity to challenge the lower court’s ruling in his case. Furthermore, the retirement of O’Connor may offer President Bush a chance to build what legal reporter Rick Montgomery calls “a wartime Supreme Court.”
Leader Principle
One essential principle of Anglo-Saxon Common Law since the Magna Carta is that the government, as represented by a king or a president, cannot imprison an individual without due process. Standing in direct opposition to that concept is the “leader principle,” under which the executive ‘ monarch, president, or dictator ‘ answers to no one.
In a section defining the leader principle (fuhrerprinzip), the Organization Book of the German National Socialist (Nazi) Party states that the power of the chief executive “is not limited by checks and controls, by special autonomous bodies or individual rights, but it is free and independent, all-inclusive and unlimited…. He is responsible only to his conscience and the people.” Soviet dictator Vladimir Lenin, who invented modern totalitarianism, summarized his version of the “leader principle” as follows: “The scientific concept of dictatorship is nothing else than this ‘ power without limit, resting directly on force, restrained by no laws, absolutely unrestricted by rules.”
Ritually invoking September 11, the Bush administration ‘ with the aid of its surrogates in talk radio and other conservative media outlets ‘ has made astonishing progress toward enacting an American version of fuhrerprinzip. The basis of that doctrine is the post 9/11 congressional resolution authorizing the use of force against terrorists. That resolution has been treated by the Bush administration as a wholesale transfer of authority, both legislative and judicial, to the president in his role as commander-in-chief. In a constitutional sense, this claim is tantamount to a blank check written against a non-existent account in a fictitious bank.
In December 2004, the Justice Department quietly released a legal memorandum entitled “The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them.” The document, composed by former Deputy Assistant Attorney General John C. Yoo, had been circulated within the administration on September 25, 2001, but hadn’t previously been made public.
By publicly releasing its contents when it did, the Bush administration ensured that there would be no discussion of its plainly totalitarian concept of presidential power during the 2004 campaign. Significantly, once securely reelected, George W. Bush referred to the election as an “accountability moment” that bestowed the electorate’s blessing on everything his administration had done in its first term. Presumably that “accountability moment” ratified the expansive claims of presidential power in the Yoo Memorandum, which had been kept from the public.
“We conclude that the Constitution vests the President with the plenary authority, as Commander in Chief and the sole organ of the Nation in its foreign relations, to use military force abroad,” proclaims the Yoo Memorandum. The document specifically claimed that Congress cannot “place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.”
One wonders which “Constitution” Yoo refers to, since nothing in the charter created at Philadelphia in 1787, and ratified by the original states, invested powers of that variety in the president. In our constitutional system, no branch of the federal government has “plenary,” or absolute, authority; this is particularly true of the president, whose powers as commander-in-chief are contingent and limited. Congress controls all power to appropriate funds, including those for the military, and it has the sole authority to establish regulations governing the armed forces. Additionally, only Congress can declare war.
The Yoo Memorandum claims: “During the period leading up the Constitution’s ratification, the power to initiate hostilities and to control the escalation of conflict had long been understood to rest in the hands of the executive branch.”
This is a bit like an adulterer justifying his infidelity by pointing out that “during the period leading up to” his marriage, he had been free to indulge his carnal whims. Prior to adoption of the U.S. Constitution, the power to conduct war had been exercised by the British monarch. As Hamilton pointed out in The , No. 69, the war power delegated to the president through the Constitution was “in substance much inferior” to that of the British monarch, with the power to declare war and raise armies given exclusively to the legislature.
Rather than being rooted in the U.S. Constitution, the Bush administration’s doctrine of executive power has more in common with the “Enabling Act” passed by the German Reichstag in 1933, which gave the German chief executive ‘ Adolf Hitler ‘ the legal basis for building the National Socialist dictatorship and conducting aggressive war against Germany’s neighbors.
In December 2001, another secret Justice Department memorandum (not disclosed to the public until it was leaked in mid-2004) instructed the Defense Department that no federal court could “properly entertain” appeals from “enemy aliens” held in detention at the U.S. Naval Base in Guantanamo Bay, Cuba. Asserting that Cuba has “ultimate sovereignty” over Guantanamo (which would mean, if this claim were said in earnest, that U.S. military personnel at that facility are under Fidel Castro’s authority), foreign nationals held there are beyond the jurisdiction of U.S. courts.
That memorandum essentially consigned foreign nationals detained at Gitmo to legal limbo: They were to be treated neither as prisoners of war nor as criminal suspects. The designation of Jose Padilla as an enemy combatant opened the gates of that legal limbo to U.S. citizens. An August 1, 2002 memorandum written by former assistant Attorney General Jay S. Bybee (now Judge Bybee of the Ninth Circuit Court of Appeals) made the explicit claim that the president can order the torture of detainees as he sees fit.
The Bybee memo was written on behalf of Alberto Gonzalez ‘ at the time, chief Legal Counsel to the president, currently the incumbent attorney general. In it Bybee professed to discover a “sweeping grant” of authority to the president in the form of an unenumerated “Commander-in-Chief Power.” Acting as an agent of the commander-in-chief, interrogators enjoy immunity from prosecution under laws against torture, since (according to Bybee) “enforcement of [an anti-torture] statute would represent an unconstitutional infringement of the President’s authority to conduct war.” Thus “the Department of Justice could not bring a criminal prosecution [against someone] who had acted pursuant to an exercise of the President’s constitutional power…. If Congress could do so, it could control the President’s authority through the manipulation of federal criminal law.”
It bears repeating that even (or perhaps especially) in wartime, the president’s powers are contingent, not absolute. And the president is required to see that all constitutionally sound laws ‘ including those prohibiting torture ‘ are “faithfully executed.” The Bush administration, however, is wedded to a doctrine of executive power alien to our Constitution and unmistakably akin to the doctrines devised by Lenin, Hitler, and their totalitarian heirs.
In his August 2002 “torture memorandum,” Bybee asserted that interrogation techniques “may be cruel, inhuman, or degrading, but still not produce pain and suffering or the requisite intensity” to meet the legal definition of torture. Only acts that inflict pain “equivalent in intensity to ‘ serious physical injury, such as organ failure, impairment of bodily function, or even death” could be considered torture. And as Bybee concluded elsewhere, acts of unambiguous torture are “legal” when committed by those acting on behalf of the president.
Not everyone within the Bush administration agreed with the Bybee memo’s assertions. FBI Director Robert Mueller has stated that interrogation methods used by CIA interrogators in Cuba, Afghanistan, and Iraq “violate all American anti-torture laws and would be prohibited in criminal cases of the most serious kind.” Mueller has actually instructed FBI agents in Guantanamo Bay to leave the room when CIA or military intelligence interrogators begin their work, in order to avoid implicating the Bureau in acts the director regards as clearly criminal.
Outsourcing Torture
Many of those detained and interrogated by the Bush administration are removed from U.S. jurisdiction entirely and flown ‘ via a fleet of Gulfstream V executive jets ‘ to countries such as Egypt, Saudi Arabia, Syria, or Uzbekistan. This process, known as “extraordinary rendition,” has been labeled “outsourcing torture” by its critics. That description is entirely reasonable, given that its chief selling point is the fact that the recipient regimes are all notorious for the use of torture.
In a March 12 Boston Globe op-ed column, Representative Edward J. Markey (D-Mass.) offered a capsule description of the “rendition” process at work:
An unmarked plane arrives in the middle of the night carrying men who aren’t wearing uniforms but have on black hoods. The men grab prisoners out of the hands of government officials, cut off their clothes, drug them on the spot, shackle them, force the prisoners onto the plane and take off into the night. When the “torture” plane disappears, no one knows where and when the captives will appear and what will happen to them: electrocution, beatings, sexual abuse?
At first guess, you might imagine that this terrible operation is the work of a drug cartel or a rogue member of the “axis of evil,” but the scene described involves U.S. officials as a routine part of the Bush administration’s practice of “outsourcing torture.”
In fact, the practice of “extraordinary rendition,” like many other constitutionally impermissible counter-terrorism policies followed by the Bush administration, actually began under Bill Clinton. Former CIA Director George Tenet testified before Congress in 2002 that over 70 people had been subject to rendition prior to September 11, 2001. Another official cited by Rep. Markey estimated that “over 150 renditions have been conducted since 9/11.”
The Bush administration and its supporters insist that rendition is an unsavory but necessary method to extract information from the “worst of the worst.” But the problem, once again, is that it amounts to summary imprisonment and torture of individuals by presidential decree. As the case of Canadian citizen Mahar Arar illustrates, innocent people can suffer tremendous harm by being swept up in the net of “extraordinary rendition.”
Snatched to Syria
Arar, a Syrian-born Canadian, was returning from a family vacation abroad in September 2002 when he was detained at JFK Airport by agents of the Immigration and Naturalization Service. For several hours, Arar was kept in a semi-secure area by officials who insisted that he was undergoing a “regular procedure.” Arar (who had gone home alone ahead of the rest of his family) was denied access to a telephone and required to surrender his Canadian passport. Eventually he was joined by an interrogation team, including an FBI agent and a New York police officer.
“I told them I wanted a lawyer,” recalled Arar more than a year later. “They told me I had no right to a lawyer, because I wasn’t an American citizen…. They swore at me, and insulted me. It was very humiliating. They wanted me to answer every question quickly. They were consulting a report while they were questioning me, and the information they had was [very] private…. I told them everything I knew.”
The questioning focused on Arar’s relationship with a man named Abdullah Almalki, whose brother worked with Arar at a hi-tech consulting firm in Ottawa. The Almalki family had emigrated to Canada from Syria at roughly the same time as Arar’s, and he told his interrogators that he had a “casual” relationship with Abdullah.
The questioners, accusing Arar of lying, produced a copy of Arar’s 1997 rental lease agreement, which Abdullah had signed as a witness. Arar, understandably, had forgotten that Abdullah had substituted in that role at the last minute when his brother hadn’t been available. “But they thought I was hiding this,” he related. “I told them the truth. I had nothing to hide. I had never had any problems with the United States before, and I could not believe what was happening to me.”
The interrogation lasted until midnight. Arar’s pleas to speak with an attorney were ignored. Eventually he was shackled in chains, stuffed in a van, and taken to “a place where many people were being held in another building by the airport.” There his questioning soon resumed, this time focusing on “what I think about bin Laden, Palestine, Iraq. They also asked me about the mosques I pray in, my bank accounts, my e-mail addresses, my relatives, about everything.”
An INS official demanded that Arar “volunteer to go to Syria.” Arar, a Canadian citizen by choice, asked to be sent to his adopted homeland. He was given a document and told to sign it without being allowed to read it. Weary and thoroughly intimidated, and still convinced that what he believed to be a misunderstanding would soon be straightened out, Arar signed the paper. He was shuttled to New York’s Metropolitan Detention Center, where he was finally afforded a few basic decencies, including an opportunity to call his family.
Roughly two weeks after Arar’s ordeal began, he was roused at 3:00 a.m. on Tuesday, October 8, by a prison guard who informed him that “based on classified information that they could not reveal to me, I would be deported to Syria.” Chained and shackled, Arar begged not to be delivered into the custody of a regime identified as a terrorist state by the U.S. government ‘ a regime his family had fled over a decade and a half earlier. Responding to Arar’s protests that he would be tortured at the hands of Syrian officials, his captors “read part of the document [he had earlier signed under duress] where it explained that INS was not the body that deals with Geneva Conventions regarding torture.”
Shoved into a car and taken to New Jersey, Arar was bundled into a small private jet. “I was the only person on the plane” apart from the flight crew, Arar recalled. “I was still chained and shackled.” The plane made stops in Washington, D.C.; Portland, Maine; Rome, Italy; and then Amman, Jordan. During the flight Arar overheard unnamed officials “talking on the phone, saying that Syria was refusing to take me directly, but Jordan would take me.”
On arrival in Amman, Arar was blindfolded, chained, and thrown into another van. His captors immediately began to beat him. In short order he was delivered into the custody of an even rougher crew that was identified as “the Palestine branch of the Syrian military intelligence.” Like the Americans who had originally seized Arar, the Syrians had a detailed dossier. But their methods of interrogation were much more severe.
“If I did not answer quickly enough, [the colonel and chief interrogator] would point to a metal chair in the corner and ask, ‘Do you want me to use this?'” recounted Arar. “I did not know then what the chair was for. I learned later it was used to torture people.” Taken to a basement, the hapless Canadian ‘ who to this day has never been charged with a crime by Canadian, American, or Syrian officials ‘ was thrust into a tiny earthen cell he came to call a “grave.”
“It was three feet wide,” he recalled. “It was six feet deep. It was seven feet high. It had a metal door, with a small opening in the floor, which did not let in light because there was a piece of metal on the outside for sliding things into the cell.” There were two blankets, two dishes, and two bottles ‘ one for water and one to use as a urinal.
For 10 months and 10 days, Arar shared his “grave” with a shifting population of cats and rodents. Denied any semblance of basic human comforts, Arar would be taken out of his cell every day and beaten with heavy rods and thick electrical cables. He was constantly threatened with electrocution. He constantly heard the anguished screams of others whose treatment was even worse.
After several weeks of torture, Arar received visits from Canadian consular officials, who seemed oddly indifferent to his treatment. Several months after the ordeal began, amid incessant torture and reiteration of the plausible threat that “tomorrow it will be worse,” Arar broke down and signed a document stating that he had attended “a training camp in Afghanistan.”
On October 5, 2003, after Arar made that confession, he was released without being charged. After serving a sentence of nearly a year in a Syrian gulag, suffering incessant torture at the hands of KGB-trained interrogators, Arar was sent back to Canada without explanation, without apology, without ever being permitted to confront the witnesses against him or examine the evidence.
Bestial Methods
Though Arar was treated brutally at the hands of the Syrian secret police, it could have been much worse. According to an investigative report compiled by the New York Times, the Bush administration has used the former Soviet Central Asian Republic of Uzbekistan as a “surrogate jailer” and interrogator of terrorist suspects.
According to a 2001 State Department report, the Uzbek regime of “ex”-Communist Party thug Islam Karimov regularly employs torture in dealing with both political dissidents and common criminal suspects. Beatings, asphyxiation, electroshock, and boiling of various body parts are among the methods preferred by Karimov’s secret police, which is a direct outgrowth of the Soviet-era KGB. As described in a 2002 State Department report, two detainees killed by Uzbek prison authorities “had likely been suspended in boiling water.”
According to Craig Murray, Britain’s former ambassador to Uzbekistan, “CIA flights flew to Tashkent [the capital] often, usually twice a week.” In a July 2004 confidential memo to the British Foreign Office, Murray described evidence he had obtained of U.S.-sanctioned torture of suspects “rendered” to the Uzbek regime. “We should cease all cooperation with the Uzbek security forces ‘ they are beyond the pale,” Murray urged the Foreign Office. Murray’s superiors, the former ambassador told the Times, were “furious” over his objections, claiming that intelligence obtained through torture was of value to the counterterrorism effort. Rather than acting on Murray’s recommendations, the Foreign Office cashiered the whistle-blower.
For its part, the Bush administration has treated Karimov’s regime ‘ a throwback to Stalin-era Communist totalitarianism ‘ as a valued ally in the “war on terror.” Mr. Bush formalized the relationship during a March 2002 Oval Office meeting with Karimov, and the administration has lavished at least a half billion dollars on Tashkent for use in “security matters,” reported the Times.
On March 5, during Karimov’s visit to the U.S., White House press spokesman Scott McClellan was asked about the propriety of sending suspects to Uzbekistan, where they would almost certainly be tortured. McClellan breezily defended the practice by stating “it is important that we gather intelligence to protect the American people.”
During a White House press conference in April, Mr. Bush was asked about the methods used by Uzbek security forces in questioning suspected terrorists. Refusing a direct answer ‘ as is his wont ‘ the president offered the meaningless assurance that his administration seeks promises “that nobody will be tortured when we render a person back to their home country.” But as the case of Mahar Arar illustrates, “rendition” does not involve deportation to a suspect’s “home country” (in his case, Canada), but rather delivering him into the hands of hired torturers in a country outside of U.S. jurisdiction.
Chain the Beast
When criticized for abuses of power ‘ torture, summary detention, “rendition” of suspects to terror regimes ‘ the Bush administration and its defenders have typically employed a three-stage defense that runs as follows: “The government’s not doing things like that. You can’t prove they’re doing things like that. Well, all right, they are doing things like that ‘ but what’s the problem, as long as it’s only being done to ‘them’?”
At the foundation of every defense of the Bush administration’s abuses of power is the notion that George W. Bush can be trusted with the extraordinary powers he claims. Similar claims were made with respect to the powers the administration of John Adams had claimed through the Alien and Sedition Acts of 1798, which were enacted during a time of national crisis in some ways similar to the present one.
In a resolution published on November 10, 1798, Thomas Jefferson condemned the Alien and Sedition Acts as an assault on constitutional liberty and the foundation of an executive dictatorship. Under their provisions, he warned, the federal government “may place any act they think proper on the list of crimes, and punish it themselves”; the president, or any of his agents, could “himself be the accuser, counsel, judge and jury, whose suspicions may be the evidence, his order the sentence, his officer the executioner, and his breast the sole record of the transaction.” Under this doctrine of executive power, Jefferson continued, all American citizens would be “reduced, as outlaws, to the absolute dominion of one man, and the barrier of the Constitution [would be] swept away.”
While many esteemed President Adams as a model of piety and rectitude, Jefferson warned that “confidence is everywhere the parent of despotism ‘ free government is founded in jealousy, and not in confidence…. In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”
If we do not act soon to shackle our government in the metaphorical chains of the Constitution, we will in short order find ourselves bound by the very tangible chains of despotism.