Article — From the June 2007 issue
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No one has captured George W. Bush’s understanding of constitutional law more precisely or presciently than Richard M. Nixon, who famously (and incorrectly) told David Frost in 1977, “When the president does it, that means that it is not illegal.” Many hoped this theory had seen its definitive demise with Nixon’s own fall, but Bush and his compatriots clearly have a different view—Dick Cheney in particular has long argued that his old boss’s forced resignation set the stage for an unwarranted evisceration of executive power. We should not be surprised, then, that Cheney and his new boss, with the help of a color-coded state of fear induced by the terrorist attacks of 9/11, have done much to restore the Nixonian tradition.
As a result, the Constitution at the end of Bush’s two terms is much the worse for wear. For a short parlor game, challenge your friends to name a constitutional right that Bush has not sought to undermine. After the right to bear arms and the guarantee against the quartering of soldiers, the game will be over. Those who prefer a longer game can reverse the exercise, but be prepared for an extended and dispiriting evening.
The First Amendment right of association, for starters, has been rendered virtually meaningless by the Bush Administration, which shortly after 9/11 issued an executive order authorizing the freezing of all assets of any person or entity the Treasury Department deemed “otherwise associated” with anyone the administration deemed a “terrorist”—regardless of whether the individual had engaged in terrorist activity of any kind. The administration also has argued that foreign nationals coerced at gunpoint to provide food to guerrilla groups abroad should be denied entry to the United States for providing “material support” to terrorists.
Similarly, our Fourth Amendment rights to privacy have been infringed by vastly expanded surveillance authorities under the USA Patriot Act, drafted by the administration and pushed through Congress in the weeks after 9/11. Most recently, the Justice Department’s own inspector general found pervasive misuse of “national security letters,” a form of administrative subpoena whose reach the Patriot Act dramatically expanded. The FBI used the letters to demand personal information on more than 143,000 occasions over a three-year period, used them in circumstances not authorized even by the Patriot Act, and systematically underreported that use.
The Fifth Amendment right to due process, meanwhile, has fallen victim to assertions that “enemy combatants” can be held indefinitely without trial, that suspicious organizations can have their assets frozen without notice or hearings, and that military tribunals can sentence defendants to death on the basis of hearsay and coerced testimony. For the administration, secrecy trumps all legal process; it has claimed that lawsuits challenging unconstitutional renditions to torture and warrantless wiretapping cannot even be adjudicated because the government’s allegedly unconstitutional conduct is itself a secret, even when the facts in question have already been emblazoned across the pages of the country’s newspapers.
The single constitutional principle most under attack, however, is the separation of powers. Time and again, administration officials have sought to elevate the president above the law, arguing that, as commander in chief, he may choose to “engage the enemy” however he pleases, without regard to what the other branches of government have said. This notion first surfaced in an August 2002 Justice Department memo written by Deputy Assistant Attorney General John Yoo for then White House Counsel Alberto Gonzales. Yoo argued that the president could not be precluded from ordering the torture of enemy combatants merely because the United States had ratified an international treaty prohibiting torture under all circumstances, or because Congress had made torture a federal crime. “The president enjoys complete discretion in the exercise of his Commander-in-Chief authority and in conducting operations against hostile forces,” Yoo wrote. “Congress can no more interfere with the president’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.” If the president decided to “engage the enemy” by ordering that the enemy be tortured, that was his prerogative, and literally nobody could stop him.
The administration made the same basic argument in 2004, this time in front of the Supreme Court. In Rasul v. Bush, the administration argued that the president’s power as commander in chief barred Congress and the courts from exercising any oversight over his decision to detain hundreds of foreign nationals at Guantánamo. In similar cases involving U.S. citizens Yaser Hamdi and Jose Padilla, the administration maintained that the courts could not question the president’s factual determination that they were “enemy combatants.”
The president advanced this “commander-in-chief-knows-best” argument still a third time in defending his decision to secretly authorize the National Security Agency to wiretap Americans without probable cause or judicial oversight, and in direct contravention of a federal statute that makes warrantless wiretapping a crime.
In a sign that Nixon’s theory of constitutional law still has limited appeal, the administration was rebuffed on each of these assertions. The Justice Department retracted the torture memo after its disclosure sparked widespread condemnation, and released a new memo—shortly before Gonzales’s confirmation hearings for attorney general—that omitted the section on the president’s power to ignore criminal and international law, although it did not formally repudiate it. In the Guantánamo case, the entire court rejected Bush’s claim that Congress and the courts could play no role in reviewing the legality of Guantánamo detentions. In the Hamdi case, Sandra Day O’Connor wrote for the majority that “whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” And in August 2006, a federal court declared the NSA spying program unconstitutional, rejecting the president’s assertion of uncheckable authority with the stern warning that “there are no hereditary Kings in America.”
While the courts have to some extent stood up to the president, Congress has generally caved, most notably in passing the USA Patriot Act and, in 2006, the Military Commissions Act, which insulated military tribunals from any challenge that they violate the Geneva Conventions, watered down the criminal prohibitions on cruel, inhuman, and degrading treatment, and revoked habeas corpus rights for “enemy combatants.”
Restoring the Constitution will be a monumental task, but doing so is critical to maintaining the character of our democracy. Terrorism does not pose an “existential threat” to the United States in the traditional meaning of that term—the nation’s sovereignty is not seriously threatened by Al Qaeda. But in a more subtle sense, terrorism poses precisely that threat. We cannot destroy the Constitution in order to save the country, because the Constitution is the country. The first and most important step toward restoration of constitutional principle, then, will be the next election. If the public does not demand fidelity to our founding principles, our representatives will not do so on their own.
The remaining steps are straightforward. The next administration could start by proclaiming—loudly—that in wartime, as in peacetime, the American system of government includes three branches, and the president’s first job is to take care that the law is faithfully executed. Second, Guantánamo must be shut down and the prisoners there brought within our borders. When Defense Secretary Robert Gates suggested just that, the administration’s lawyers objected that they would lose their argument that because the detainees are held offshore, they are unprotected by the Constitution. But the argument that Guantánamo is a “law-free zone” is precisely why that island has become a world symbol for U.S. arrogance and lawlessness—a “reverse Statue of Liberty,” as some have called it. Finally, if we are to avoid a repeat of the McCarthy era’s guilt-by-association tactics, Congress should amend the “material support” laws, by requiring proof that an individual’s support was intended to further terrorist activity and ensuring that blacklisted groups have a meaningful opportunity to defend themselves.
These measures would be important first steps in restoring not only the Constitution but the United States’ standing in the world. If we do so, we might have some chance of stemming the tide of anti-Americanism that is the single greatest threat to our security in the decades ahead.
David Cole is a professor at Georgetown University Law Center.