The Rights of the People (7 page)

It got worse. The Fourth Amendment’s promise of individual privacy was gravely compromised, both by the Patriot Act and by President Bush’s secret order to the National Security Agency to intercept huge volumes of communications by phone and the Internet, from Americans and non-Americans alike. Ignoring the Constitution’s separation of powers, Bush—driven by Cheney and his zealous counsel David Addington—authorized the sweeping surveillance without approval by the legislative branch or oversight by the judiciary.

Basing his decrees on tendentious legal reasoning in memos he tried to keep out of public scrutiny, the president signed secret executive orders authorizing commando raids, kidnappings, clandestine imprisonment, and the torture of suspected al-Qaeda members around the world. He unilaterally declared the Geneva conventions on the treatment of prisoners inapplicable to terrorism suspects, creating a lawless landscape without boundaries. The military and the CIA conducted missions in fifteen or twenty different countries, often without their governments’ knowledge.
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If the targets were not killed, they were captured, stripped, forcibly sedated with suppositories, and flown in executive jets to an American ship or secret CIA “black sites” overseas, or to a country the State Department listed as a premier human rights violator, usually Egypt, Syria, Jordan, Uzbekistan, Morocco, or Afghanistan, where questioning was not known for being gentle.
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In the government’s Orwellian lexicon of euphemisms, this kidnapping was called “extraordinary rendition.” Torture by Americans was termed “enhanced interrogation.” Prisoners locked up for years without charges or definite sentences at the American naval base in Guantánamo Bay, Cuba, were “detainees,” as if they had been merely delayed inconveniently for a while on their way somewhere. “Waterboarding,” named as if it were some fun sport, was a medieval technique deemed acceptable in the new era. The prisoner was strapped to a board and tipped with his head down. A cloth was held over his mouth and nose, and as water was poured onto it, he gasped and gagged and in seconds descended into utter panic that he was drowning. Two years after leaving office, Bush wrote that he had personally approved waterboarding, prompting the ACLU to call for a criminal investigation into the former president.

There seemed to be no moral brakes, or legal ones, either. As Mayer tells it in
The Dark Side
, even pragmatism fell away. Despite early success in getting information with soft methods, and strong evidence from experienced interrogators that torture produces false confessions and erroneous leads, al-Qaeda suspects were crammed and folded painfully into tiny boxes, deprived of sleep for days at a time, kept naked and doused with water in the cold, humiliated sexually by female questioners, and forced to stand for up to eight hours with wrists shackled so high that if they so much as bent their knees they would hang in excruciating positions. Wearing black goggles and earplugs or kept in pitch-dark cells, they were assaulted with complete sensory deprivation—or the opposite, with blaring music and unending bright lights. Their meals were served irregularly, with varying amounts of food, to disable their sense of routine or predictability. One said he had been told that a recording he heard of a woman’s scream was his wife’s. Some were slapped on painful wounds.

Despite the Bush administration’s go-it-alone tactics in foreign and military policy, its officials tapped the international community for torture methodology. Six of the fourteen highest-ranking al-Qaeda prisoners, including the supposed mastermind of 9/11, Khalid Sheikh Mohammed, told the International Committee of the Red Cross independently, without the opportunity to coordinate their stories, that towels wrapped around
their necks had been used to smash them into walls (while preventing whiplash, one of the Justice Department memos asserted)—a technique suggested by the Israelis, according to a CIA official Mayer interviewed. The Americans adopted stress positions and other approaches that the army had been teaching soldiers to resist, because they had been used by the Russians, Chinese, North Koreans, North Vietnamese, and other despotic regimes.
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A few died along the way, but nobody in the CIA was prosecuted. Neither would President Obama authorize criminal investigations after he took office, nor—more significantly—support a systematic study to find the facts and propose remedies to prevent recurrences.
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Wishing away history had bipartisan support.

Bush also arrogated to himself the power to designate anyone—whether inside the United States or not, whether citizen or not—as an “enemy combatant” eligible for indefinite imprisonment without charge or trial. Three “U.S. persons” were so classified—an American who had been captured during the war in Afghanistan, and two arrested in the United States, one a citizen, the other a legal immigrant. Two of the cases were transferred to criminal court just before the Supreme Court could step in; the third man, who won his habeas corpus appeal in the Supreme Court, was released to Saudi Arabia after he relinquished his American citizenship.

Bush tried to suspend habeas corpus for such prisoners to deny them access to federal courts. He took it upon himself, ignoring the legislative branch, to establish military tribunals to process Guantánamo “detainees” and others, dodging and weaving in and out of a series of adverse Supreme Court rulings, finally enlisting Congress in the sordid business of denying habeas rights and creating military commissions. These commissions could admit coerced confessions, hearsay evidence, and the fruits of illegal searches. The Supreme Court struck down the habeas denial and left the rest of the law in doubt—but on the books.

The Military Commissions Act of 2006 was potentially one of the most repressive statutes in American history and remains a grave legacy of the country’s sixth major deviation from constitutional values. While public attention centered on how it applied to the suspected terrorists in Guantánamo, the law recognized no geographical limits, in fact; it could be used inside the boundaries of the United States as well as outside. Obama refused to call for its repeal, just its revision, which was effected in 2009 to restore significant rights to defendants. Still, if a president were to employ its full powers, America would become a very different place.

From 1798 on, these episodes of history had several notable characteristics. First, the abuses derived from lawmakers and laws or had the blessings of lawyers; most were not the product of some rogue vigilantism. Second, they were not the rule but the exception: aberrations against a background of liberty and justice. Finally, every one of the steps, justified at the time by threats to the nation’s security, is now viewed as a disgrace. Looking back into history through the smoke from the World Trade Center and the Pentagon, to take the latest example, many Americans feared a massive roundup of Arabs and made urgent calls to avoid repeating the crime of the Japanese internment.

It remains to be seen how history will judge the violations after September 11, and how lasting the legal corruptions in constitutional protections will be. In general, George Bush based his actions on a sweeping interpretation of his constitutional powers, under Article II, as commander in chief of the military. An astonishingly small coterie of lawyers—mobilized by Cheney’s Addington with the collusion of Jay S. Bybee, head of the Justice Department’s powerful Office of Legal Counsel; his assistant John Yoo; and the Defense Department’s general counsel, William J. Haynes II—was able to invent rationales in memos and opinions giving the president virtually unfettered authority to arrest, imprison, torture, and murder. A few other lawyers in the Justice Department, the military, and the CIA who tried to resist this juggernaut of legal aggression were ridiculed, marginalized, dismissed, or subjected to threatening investigations. They were quiet heroes who risked their careers out of public view.

One infamous legal opinion was the so-called torture memo of August 1, 2002, written mainly by Yoo and endorsed by Bybee for then White House Counsel Alberto R. Gonzales. It interpreted so narrowly the federal law enacted to implement the international Convention Against Torture that nothing illegal was found in the CIA’s methods. Even that limited prohibition, they argued, would be unconstitutional if used to restrict a president in wartime. They advised that anyone prosecuted for torture could defend himself with the opening sentence of Article II of the Constitution: “The executive Power shall be vested in a President of the United States of America.” In an attempt to expand Bush’s latitude, the lawyers read this as a “sweeping grant” of “unenumerated ‘executive power.’ ” They saw no limits, no checks, no balances. “In wartime,” the Bush lawyers declared ominously, “it is for the President alone to decide what methods to use to best prevail against the enemy.… One of the
core functions of the Commander in Chief is that of capturing, detaining, and interrogating members of the enemy.”
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In another official opinion, Yoo and a colleague determined that the Constitution permits the president “to deploy the military against international or foreign terrorists operating within the United States,” superseding law enforcement agencies. On that basis, Cheney proposed (and Bush rejected) using the military to arrest a group of suspected terrorists in upstate New York. “The Fourth Amendment would
not
apply in these circumstances,” Yoo’s finding declared. “Thus, for example, we do not think that a military commander carrying out a raid on a terrorist cell would be required to demonstrate probable cause or to obtain a warrant.”
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Under these authoritative interpretations, practically everything that a Soviet leader in the 1970s had ordered the KGB to do in the name of “national security” would have been legal under the United States Constitution.

The American system is structured to restrict and restrain. Yet the small group of lawyers who wielded momentous power to overcome those restrictions and restraints came from the mainstream legal establishment, remained there, and even advanced within it. Addington had gone to law school at Duke and worked in the CIA’s general counsel’s office; Bybee, from Brigham Young, was nominated by Bush and confirmed by the Senate to a lifetime appointment as a federal appeals court judge (before his torture memo was publicized); Haynes, a graduate of Harvard Law, was nominated four times by Bush to the federal bench but was blocked by Democratic senators; and Yoo, who had graduated summa cum laude from Harvard and then from Yale Law School, had clerked for Supreme Court Justice Clarence Thomas. After leaving the Justice Department following his permissive memos on torture, Yoo returned to teach constitutional law at Berkeley, where he survived demands for his ouster. The Obama Justice Department refused to recommend his or Bybee’s disbarment.
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It is not the lawyers or the law that protects us, then, but rather the “rule of law,” a habit derived from the most intricate impulses of political culture and history, enforced by the mechanisms of adjudicating disputes and dividing power, and driven by the incessant idealism of the nation. Countries that lack those attributes can use laws and courts and constitutions of convenience to imprison political opponents and persecute religious and ethnic minorities. That is not the rule of law but “the terror of law,” as former president Emil Constantinescu of Romania labeled it.
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The military governments of Brazil and Uruguay duly brought to court
prisoners who gave graphic testimony on how false confessions had been extracted by torture—and the courts sentenced them on the basis of their confessions. Every element of the U.S. Bill of Rights had its counterpart in the constitution of the communist Soviet Union, where no element of the Bill of Rights existed in practice. My favorite was Article 56: “The private life of the citizen, the secrecy of letters, telephone conversations, and telegraph communications are protected by law.” I once heard that a dissident who cited his rights under the Soviet constitution during a KGB interrogation was interrupted by the agent, who said with a patronizing smirk, “Please. We’re having a serious conversation.”

The rule of law is less easy to define than it might seem, but the World Justice Project, organized by the American Bar Association, has identified four “universal principles” applicable across an array of political and social structures: First, officials don’t make up rules as they go along to suit the purpose of the day; they and the government are accountable under the law. Second, the laws are not obscure or ambiguous, and they don’t change from moment to moment; they are “clear, publicized, stable, and fair,” and protect personal and property rights. Third, laws are enacted and enforced in a transparent, accessible process. Fourth, “ethical” police, lawyers, and judges exist in “sufficient number,” are independent, and “reflect the makeup of the communities they serve.”
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Clarity and stability are fostered by the courts’ reliance on precedent, known in legal parlance by the Latin phrase
stare decisis
(“let the decision stand”), in which judges look to established principles in previous rulings to guide them in current cases. The most assiduous judges observe precedent even when they disagree, applying the law as handed down over generations. This can be frustrating for them, but it provides predictability and encourages consistency. It doesn’t necessarily produce stagnation. While no reputable opinion fails to cite precedent extensively, the “case law,” as it’s called, is varied enough to offer openings for reinterpretation and incremental change. One slight shift leads to another and another until the earlier precedent dims. The Supreme Court has the authority to overturn precedent dramatically, albeit often with fancy legal footwork that seems to honor what has gone before.

The United States has wandered outside the rule of law during its six departures from constitutional principles, but not only then. Denying women the vote made the process of enacting laws inaccessible to them. De jure segregation hobbled an entire people in the South by using the law oppressively, without respecting the rule of law. Today, under the law but not the rule of law, immigrants are routinely jailed without due process,
the poor are often imprisoned without effective lawyers, and all of us are subject to search without probable cause. The Bill of Rights labors under burdens more lasting than the war on terror, whose violations of rights are nothing new, only new variations of old problems faced by the republic throughout its history.