A War Like No Other (16 page)

Under Bush’s scheme, trials of Guantánamo prisoners were to be carried out by military officers subject to supervision by an official in the Department of Defense.
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The rules of evidence permitted the introduction of a wider range of hearsay evidence than would be allowed in federal court. Any evidence that had probative value was admissible. There were no protections against the use of confessions obtained by coercion or even torture. The accused could be convicted on the basis of evidence presented secretly to the tribunal—in other words, evidence which neither the accused nor his counsel had the chance to hear or rebut. The accused’s choice of counsel also was strictly circumscribed. In addition, Bush’s commissions compromised the accused’s right to a speedy and public trial by a jury of their peers.

In conducting his War on Terror, Bush also showed little respect for the protection of privacy guaranteed by the Fourth
Amendment. In the immediate wake of 9/11, he authorized the National Security Agency (NSA) to tap telephones without prior judicial authorization.
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These taps were aimed at international telephone calls between persons in America and individuals abroad suspected of having ties to al-Qaeda. In 1967, when the Supreme Court ruled that wiretapping was the functional equivalent of a search and thus subject to the warrant requirement of the Fourth Amendment, it reserved the question of whether such a rule would extend to cases of national security.
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The case before the Court involved telephone calls of a suspected gambler. In 1972, the Supreme Court extended the warrant requirement of the Fourth Amendment to a prosecution involving the bombing of a CIA office in Ann Arbor, Michigan.
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In that case, the Supreme Court reserved yet another question, specifically whether the warrant requirement should apply to wiretaps aimed at obtaining foreign intelligence.

Unprepared to wait for further clarification by the Supreme Court, in 1978 Congress passed a statute—the Foreign Intelligence Surveillance Act (FISA)—that required warrants for wiretaps seeking foreign intelligence and established a new tribunal with streamlined procedures for obtaining such warrants.
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These warrants were to be issued by a tribunal that operated in secret and whose judges were appointed by the chief justice. To obtain such a warrant, the government did not have to show probable cause that a crime was committed, but only that the target was an agent of a foreign power and that the purpose of the interceptions was to obtain foreign intelligence. Bush’s NSA wiretapping program violated the very terms of the 1978 statute and, even more fundamentally, the constitutional principles that the statute sought to further. A warrant requirement creates a check on arbitrary executive action and, to that end, protects the right of private communication so essential to the development of the human personality and political freedom.

The Complicity of the Other Branches

Some have depicted the five practices that I have identified—interrogation under torture, imprisonment without trial, denial of habeas corpus, unfettered use of military commissions, and warrantless wiretapping—as entirely the work of Bush and his close circle of advisers. So characterized, these practices have been denounced as excesses of Bush’s unilateralism and a violation of separation of powers, which at least from one reading should have required collaboration among the three branches of government. There is an element of truth to this charge—in conducting his War on Terror, Bush made extravagant claims about the power of the presidency—but such a charge should not obscure a deeper and more fundamental truth: although the president led the way, the other branches were complicit in this assault on the Constitution. At issue, therefore, was not simply separation of powers but the constitutional principles prohibiting torture, protecting personal freedom, ensuring fair procedures, and guaranteeing privacy.

In December 2005, Congress passed the Detainee Treatment Act.
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One part of that statute, spearheaded by Senator John McCain, prohibits American officials from inflicting torture wherever they might act and against whomever they act. Bush fiercely resisted this measure as it made its way through Congress, and when he eventually signed the bill he issued one of his most notorious signing statements.
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In it, Bush called attention to the fact that the McCain measure provided no remedy for the enforcement of the ban on torture. The president also said that he was signing the bill into law with the understanding that he would not allow it to compromise his duties as commander in chief, suggesting that he would engage in the prohibited action—torture—if, in his judgment, it were a military necessity.

This assertion of his power as commander in chief was an
affront to the constitutional allocation of power. The Constitution grants Congress authority to share in the regulation of the activities of the armed forces.
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Even more striking, Bush’s assertion of power gave no recognition to the fact that the McCain measure was only a codification of the ban on torture rooted in the Fifth and Eighth Amendments—in fact, the statute borrowed some of the language of the Eighth Amendment. These constitutional provisions unequivocally limited the president’s power as commander in chief. Bush’s signing statement disputed not only the power of Congress but the constitutional tradition that subordinates all executive action, even the exercise of an enumerated power, to the Bill of Rights.

The other provisions of the Detainee Treatment Act of 2005 posed no such confrontation with the president. Rather, the act affirmed Bush’s program of executive detention. The act specifically denied the writ of habeas corpus to all the prisoners at Guantánamo.
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It also acknowledged, and thus approved, the system of military tribunals—the so-called Combatant Status Review Tribunals—established on the island in July 2004, more than two years after the prison was opened, to hear claims of prisoners who denied any connection to al-Qaeda or the Taliban or any other terrorist organization. These tribunals were staffed by military officers operating under the most lax evidentiary rules, and there was no provision for legal representation of the prisoners. Under the 2005 statute, review of the decisions of the Combatant Status Review Tribunals was confined to the Court of Appeals for the District of Columbia Circuit, and the grounds available to it for review were restricted. The factual basis for a Combatant Status Review Tribunal’s decision could not be questioned in any way.

The Military Commissions Act of 2006 also reaffirmed Bush administration policies. It expanded the 2005 ban on the writ of habeas corpus by extending the ban to all unlawful enemy
combatants, regardless of where they might be held, and by making it clear that the ban was applicable to all pending cases.
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In addition, the 2006 act authorized the president to use military commissions to try so-called unlawful enemy combatants, and thus endorsed the position Bush had taken in his November 2001 executive order. Admittedly, Congress rejected some of the procedures originally contemplated by Bush when he issued his executive order. Congress gave the accused the right to hear the evidence against him and placed limitations on the use of confessions obtained through torture. Congress also required that the accused had to be notified in advance that hearsay was to be used. Still, the essential due process defects of military commissions remained: trial by military officers, supervision by a political appointee, permissive evidentiary rules, no right to a jury trial, and no right to a speedy or public trial. Moreover, like Bush’s initial executive order, the 2006 act attempted to punish offenses, such as giving material support to a belligerent, that were not proscribed by the laws of war.
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And, as was true of the executive order, the 2006 act confined the use of military commissions to the trial of foreign nationals, which not only raised questions of equal protection but testified to the second-class character of the justice the commissions were likely to render—it was not good enough for Americans.

Not long after passing the Military Commissions Act, Congress also gave the president the authority to conduct wiretaps without court authorization. Although the NSA warrantless wiretap program was authorized by Bush immediately following the 9/11 attacks, it was not publicly disclosed until December 2005. In the period immediately following that disclosure, many complained that the NSA program violated the warrant requirement established in 1978 under the Foreign Intelligence Surveillance Act. The attorney general insisted otherwise but, even more audaciously, claimed that the president’s action was
within his powers as commander in chief and thus could not be limited by Congress.
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In January 2007, the attorney general announced that the president was voluntarily, as a matter of policy, abandoning the NSA program.
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In April, the administration turned to Congress for authorization of the surveillance conducted under that program. In August 2007, Congress passed legislation—the Protect America Act—that allowed the executive to wiretap, without warrants, telephone calls abroad to persons suspected of al-Qaeda ties.
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In July 2008, another statute—known as the FISA Amendments Act of 2008—was enacted that extended the authorization of the 2007 act for warrantless wiretaps.
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The FISA Amendments Act also protected the telephone carriers who had participated in the NSA program from any liability for their wrongdoing.

In each of these measures—the Detainee Treatment Act of 2005, the Military Commissions Act of 2006, and the authorization for warrantless wiretaps of the 2007 and 2008 acts—Congress endorsed a number of Bush’s counterterrorism policies that offended the Constitution. The Supreme Court’s endorsement was more oblique and harder to discern, but nevertheless important—and deeply disturbing. Even where the Court rebuffed the government, its defense of the Constitution was weak and compromised.

In June 2004, the Supreme Court ruled in
Hamdi v. Rumsfeld
that an American citizen who had allegedly fought for the Taliban was entitled, as a matter of due process, to an evidentiary hearing on his claim that he had not taken up arms against the United States.
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This victory was compromised, however, when Justice O’Connor, writing for the Court, fashioned the particular procedural rules to govern these hearings.
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She further compromised her commitment to due process when she declared—now for only four justices—that the required evidentiary hearing need
not be held before a federal court sitting in habeas, but instead could be conducted by a properly constituted military tribunal. Indeed, it was this pronouncement that guided the Department of Defense, anxious to defeat any claims to habeas, to establish the Combatant Status Review Tribunals on Guantánamo in July 2004, only a month after the Court’s ruling. The secretary of defense must have reasoned that if a military tribunal was good enough to determine whether an American had taken up arms against the United States, it was certainly good enough for foreign nationals.

In
Rumsfeld v. Padilla,
a companion case also involving an American citizen—who was seized in Chicago, transferred to New York, and then held in a naval brig in South Carolina as an enemy combatant—the Supreme Court refused to pass on the merits of his habeas petition.
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The opinion was written by Chief Justice Rehnquist. Clinging to the most arcane technicality, Rehnquist ruled that the prisoner should have filed his petition in the South Carolina, rather than the New York, federal district court.

This ruling was handed down in June 2004, almost three years after the War on Terror had begun and after the prisoner had been held incommunicado for more than two years. Subsequently, the prisoner filed a habeas petition in the South Carolina district court, and that court granted it.
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However, that decision was reversed by the United States Court of Appeals for the Fourth Circuit.
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The prisoner then sought review by the Supreme Court, but when the moment came to respond to the prisoner’s application for certiorari—and in an obvious attempt to avoid Supreme Court review of its policy of imprisonment without trial—the Bush administration reversed course and charged the prisoner with a crime in a Florida district court. On April 3, 2006, the Supreme Court failed to confront this
transparently evasive strategy and denied the prisoner’s application for certiorari.
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The Court’s policy of avoidance also governed its treatment of the Guantánamo prisoners’ attempts to obtain habeas corpus. The U.S. Court of Appeals for the District of Columbia had embraced the administration’s position and denied the Guantánamo prisoners the writ on the ground that they had no constitutional rights. However, rather than address this ruling in any direct way, the Supreme Court, in a June 2004 ruling, held that under the very terms of the governing statute, habeas was available to Guantánamo prisoners as long as the jailor (in this instance the secretary of defense) was within the jurisdiction of the habeas court.
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Congress responded to this interpretation of the habeas statute in the Detainee Treatment Act of 2005, in which it amended the habeas statute to deny the writ to the Guantánamo prisoners and make the Combatant Status Review Tribunals their exclusive remedy.
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In June 2006, the Court once again avoided deciding whether the Guantánamo prisoners had a right to habeas corpus that was protected from legislative encroachment by the Constitution. Rather, the Court held, through a strained interpretation, that the ban on habeas of the 2005 statute did not apply to a case such as the one then before it, which had been pending at the time of enactment.
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