No Comment, Six Questions — January 5, 2009, 9:56 am

Six Questions for Louis Fisher, Author of The Constitution and 9/11

The Bush Administration has labored to convince the American public that the imperial powers it assumed in the wake of 9/11 are consistent with historical precedent, and in so doing they engaged in a re-writing of American constitutional history that would do George Orwell proud. Louis Fisher is a prolific scholar in the field of presidential power and its historical basis in the Constitution. In The Constitution and 9/11, he offers a tour de force reviewing and debunking many of the tenuous claims the Bush Administration has wielded to justify its constitutional excesses. I put six questions to Louis Fisher about his new book.

1. As we come now to the final days of the Bush Administration, the
question of accountability looms large. You make clear that the Bush
Administration broke with legal tradition and precedent in a number of
areas—in disregarding the laws of war and undertaking domestic
surveillance at odds with FISA, for instance. What advice would you give
President Obama about how to deal with this legacy? Should there be an
investigation? And if it suggests that criminal conduct occurred, how
should this be dealt with?


A large agenda for domestic and foreign policy already awaits President
Obama and he will want to put his time and energy into moving forward.
But it would be a mistake to sweep the illegalities and executive branch
corruption of the past seven years under the rug. It is important to
get the full story out on the removal of U.S. attorneys, the process
within the Office of Legal Counsel that produced such documents as the
torture memos, the continued withholding of legal memos from Congress
and the public, and other matters that cast a shadow over the Bush
Administration and will cast the same shadow over the Obama
Administration. Only a thorough and transparent airing of these issues
will bring accountability and provide lessons learned. It matters less
that there be criminal prosecution against the U.S. officials who
engaged in these actions than that the actions be fully investigated and
made public. Otherwise, the implied message is that U.S. officials can
engage in secret and illegal actions without any cost to themselves or
their agencies.

2. You review the history of the Palmer raids at the end of World War
I. What parallel do you see between this and policies of the Bush

In every national emergency, including the Palmer raids and the
post-9/11 period, there is a similar pattern of public officials
concentrating power and using it to inflict damage on disfavored groups,
whether they be “radicals,” “subversives,” Germans, Japanese, Arabs, or
Muslims. On each occasion public officials argue that procedural rights
and constitutional liberties must be subordinated to prompt action that
will defeat the “enemy.” Through illegal and arbitrary actions,
thousands of innocents suffer. The subtitle of my book is intended to
reflect this pattern. “Recurring Threats to America’s Freedoms” could
be read to mean threats from enemies. Readers will understand that the
threats generally come from ourselves.

I begin chapter 3 by pointing out that after 9/11, traditional rights
and procedural safeguards were withheld from individuals in certain
categories: Muslim, Arab, Arab-American, Middle Eastern, alien,
suspected terrorist, or “enemy combatant.” As we discovered, and should
have known in advance, large numbers of innocent people were punished
because of group hate. Fear, anger, and prejudice inflict personal,
institutional, and constitutional damage. Group hate seems easier and
more venomous than hatred of a single individual. “It is more
passionate, more irrational, less in need of informed personal judgment.
Ignorance helps rationalize injustice and inhuman treatment.”

In Federalist No. 4, John Jay warned that executives “will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans.” Executives, he said, engage in wars “not sanctified by justice or the voice and interests of his people.”

—From The Constitution and 9/11
Reprinted by permission of the publisher, University of Kansas Press. Copyright (c) 2008 University of Kansas Press

3. The Bush Administration repeatedly insisted that the president had
“inherent authority” to create military tribunals to enforce the
laws of war against enemy combatants. It suggested that there was
therefore no need for the President to obtain congressional
authorization for the commissions at Guantánamo. They cite the example
of the trial of Major André during the Revolutionary War. Are they right
about this?

Remarkably, the Justice Department argued in court that part of
President Bush’s inherent authority to create military tribunals can be
traced back to the 1780 trial of Major André. General George Washington
did indeed appoint a Board of General Officers to try André as a spy, but
anyone with a smattering of American history would know that you cannot
derive presidential power from precedents set in 1780. There was no President at the
time other than the presiding officer of the Continental Congress.
There was not even an executive branch. There was one branch of
government: the Continental Congress, exercising legislative, executive,
and judicial powers.

The Justice Department insisted “there was no provision in the American
Articles of War providing for the jurisdiction in a court-martial to try
an enemy for the offense of spying.” That is false. The Continental
Congress adopted a resolution in 1776 expressly providing that enemy
spies “shall suffer death… by sentence of a court martial, or such
other punishment as such court martial shall direct,” and ordered that
the resolution “be printed at the end of the rules and articles of war.”
The previous year, Congress had made it punishable by court-martial for
members of the Continental Army to “hold correspondence with” or “give
intelligence” to the enemy. General Washington acted on the basis of
legislative authority, not some sort of “inherent” executive authority cited so frequently by
the Bush Administration.

4. After the Supreme Court ruled against the administration in
Hamdan, an administration lawyer named Steven Bradbury, who purports to
act as head of OLC even though Congress refused to confirm him in that
office, testified that the Court did not address the president’s
constitutional authority nor did it reach any constitutional issue. Are
Bradbury’s claims correct?

In times of emergency, government officials push boundaries to do what they think is necessary. Instead of pursuing a legislative strategy and working jointly with Congress, the Bush administration decided to act unilaterally and invoke inherent presidential power, a field of constitutional law filled with doubts, ambiguities, and open invitations to abuse. Exercising inherent power always comes at the cost of checks and balances, separation of powers, and the structural safeguards the framers adopted to assure that a concentration of power does not endanger individual liberties.

—From The Constitution and 9/11

Several executive officials and a number of supporters outside the
administration argued that the Court in Hamdan decided the case on
statutory, not constitutional, grounds. There was some superficial
appeal to this argument because the Court told the administration that
it had to go to Congress and seek statutory authority for military
commissions. However, in so deciding, the Court wholly rejected the
claim that President Bush had inherent authority to create commissions.
Moreover, the Court clearly recognized that the constitutional authority
to create commissions lay with Congress and that it had exercised that
authority through Articles 21 and 36 of the Uniform Code of Military
Justice. The rules set forth in the Manual for Courts-Martial “must
apply to military commissions unless impracticable.” The administration
never complied with that statutory requirement, which Congress had
enacted pursuant to its constitutional authority. Hamdan was thus
constitutional on two fundamental grounds: rejecting the existence of
any inherent authority for the President and recognizing that Congress
possessed constitutional authority and had exercised it.

5. Under the Bush Administration, invocation of the “state secrets
privilege” has increased, including for a great number of doubtful cases.
The administration points back to the treason trial of Aaron Burr
for a suggestion that the executive has an absolute privilege. Is this
claim historically accurate?

The references to the Aaron Burr trial of 1807 are another misguided effort by the Bush
administration to reach far back into American history to justify
inherent presidential power. As with the John André trial, the
administration fundamentally misread history and practice. Under the
state secrets privilege, the administration will argue when a case is
filed that it cannot move forward without jeopardizing national
security. That argument has been heard most recently with the NSA
surveillance cases and the extraordinary rendition cases of Maher Arar
and Khaled El-Masri. Judges have a choice between deferring to these
executive claims or insisting that they examine contested documents,
generally by reading the materials in their chambers.

The Burr trial has nothing to do with this process. First, the cases
mentioned are civil: private citizens bringing charges against the
executive branch. Burr was a criminal case. The Jefferson
administration prosecuted him for treason. Had he been found guilty the
penalty would have been death.

No one can seriously argue that an individual can be tried for a
crime without seeing the evidence against him, having an opportunity for
cross-examination, bringing witnesses on one’s behalf, having access to
counsel, and other safeguards that accompany the criminal process. In
Burr’s case, President Jefferson claimed that he had letters from
General James Wilkinson proving that Burr was involved in a conspiracy
that amounted to treason against the United States. Burr had every
right to see those letters. Chief Justice John Marshall, handling the
case on circuit, knew that Burr had that right, as would any defendant.
Marshall was concerned that the judiciary would lose respect if it
failed to give an accused access to information needed for his defense.
Were Marshall a party to such withholding of evidence he would “look
back on any part of my official conduct with so much self-reproach as I
should feel.”

The matter was politically delicate because Marshall understood the
risks of a confrontation with Jefferson. For his part, Jefferson knew
that Burr and his attorneys were entitled to see the letters. He
ordered government attorneys to find the letters and submit them to the
court. The trial was delayed over such questions as whether copies of
the letters would suffice over the originals. Meanwhile, Marshall
continued day by day to cut the ground out from under the
administration’s case. At one point he asked the government whether the
weakness of its case was not “wasting the time and money of the United
States.” When the jury returned with a judgment that Burr was not
guilty there was no further need to have access to documents. If the
administration believed that release of the Wilkinson letters would do
damage to the United States, it had only one option: drop the charges
against Burr. Nothing in the trial has anything to do with civil cases
and the state secrets privilege.

6. Apologists for the Bush Administration’s program of
extraordinary renditions regularly claim that the program existed and
was developed under the Clinton administration. How was the program
different under Bush?

Beginning with the George Washington Administration, it was always
understood that the transfer of an individual from this country to
another could not be done unilaterally by the President. Authority was
needed either by an extradition treaty or by statute. There are cases
of the United States going to another country and forcibly abducting
someone and bringing them here, but the purpose was always bringing the
individual for trial with all the procedural safeguards available. As
late as 1979, the Office of Legal Counsel stated: “The President cannot
order any person extradited unless a treaty or statute authorizes him to
do so.”


During the Clinton administration, FBI Director Louis Freeh and other
executive officials testified about the use of force to abduct terrorist
suspects for the purpose of bringing them to trial. Rendition was used
to return suspected international terrorists to stand trial in the
United States. Other officials, including CIA Director George Tenet,
spoke of rendition as bringing suspects “to justice.” It was unclear
whether that meant return to the United States or to other countries for
trial. Michael Scheuer, who supervised the abduction of suspected
terrorists, testified that the purpose was to take men off the street
and seize evidence. The men were not brought to the United States.
They were transferred to other countries only if charges had been
brought against them.

The purpose of extraordinary rendition under the Bush Administration
was quite different. It was not to bring someone to trial. It was to
interrogate them first under CIA custody and then transfer them to
another country for interrogation and torture. The Bush Administration
said it would seek “assurances” from the countries that torture would
not be used but conceded that it could not control what other countries
did. In lawsuits challenging extraordinary rendition, the administration
regularly invokes the state secrets privilege.

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