It is now demonstrably clear that the president of the United States has subverted the rule of law in this country. The final confirmation came in April, when George W. Bush at last revealed the extent of his own involvement in approving the torture of our nation’s enemies. In an interview with ABC News, the president confirmed that in 2003, his top advisors, including Vice President Dick Cheney, met in the White House to discuss the specific procedures to be used for the interrogation of suspected terrorists. Mr. Bush indicated for the first time that he personally approved the interrogation procedures, which included the now infamous technique known as waterboarding. The president added that he did not think that these “enhanced interrogation techniques” were illegal and that he was “not sure what was so startling about” his admission.
Indeed, there is little that is startling about it. For over seven years, the administration has single-mindedly and with strident resolve sought to expand the power of the presidency beyond its constitutional limits. This administration’s modus operandi has been the unitary executive theory, a constitutional fiction repeatedly invoked to prohibit almost any judicial or legislative check on the powers of the president as commander in chief.
The U.S. Constitution limits the powers of the federal government as much as, if not more than, it specifies them. Changes in the balance of power among the various constitutional actors, therefore, constitute a zero-sum game; in order for someone to win, someone else must lose. As Mr. Bush plays the game, there are many losers and one big winner. The president’s power gains have come at great cost to the constitutional prerogatives of the legislative and judicial branches, which have frequently acquiesced in Mr. Bush’s consolidation of power, as well as at the expense of the civil liberties of American citizens and the human rights of our designated enemies.
Torture. Euphemisms are handy tools for dehumanizing people and for avoiding the appearance of illegality. The Bush administration deploys them with aplomb. “Enhanced interrogation techniques,” “rough interrogation” and “stress positions” are just a few of the code words the White House uses to describe its illegal and immoral torture of our fellow human beings, including, according to one published report, “a combination of painful physical and psychological interrogation tactics, including head slapping, frigid temperatures and simulated drowning.”
No one denies that these are unusually dangerous times, which call for unconventional approaches to our national security and a vigilant prosecution of international terrorism. In its pursuit of the “evil-doers,” however, as Mr. Bush has described the terrorists, the United States has itself done evil. Through the intentional infliction of “severe pain or suffering, whether physical or mental” in the process of intelligence gathering, the United States has violated the U.N. Convention Against Torture, the Geneva Conventions, at least four federal statutes and the spirit of the U.S. constitutional prohibition on “cruel and unusual punishment.”
Senator John McCain, who as a former prisoner of war has spoken in the past with unique credibility on the issue, has also denounced the use of torture as both immoral and impractical: information obtained through torture is famously unreliable and invites retaliation against captured U.S. personnel. The use of torture also displaces the United States from the moral high ground. Americans are told that the so-called war on terror is a defense of human freedom and liberal democracy. But liberal democracy rests on the twin pillars of human rights and the rule of law. That other human beings have made themselves our adversaries does not justify the theft of their human rights, however odious their actions.
We know a great deal now about what this administration has done in the name of American citizens, including its system of extrajudicial interrogations in foreign lands, known by the euphemism “rendition,” as well as its willful imprisonment of known innocents. What we do not know is what the administration is currently doing. Congress has been too reluctant to assert its constitutional rights for fear of being called soft on terror. The House of Representatives in March failed to override Mr. Bush’s veto of legislation that would have codified into U.S. law the interrogation procedures outlined in the U.S. Army Field Manual. This is still the most reasonable and just solution. Congress should continue to pursue restrictions on interrogations and must now, at a minimum, demand a full accounting of current U.S. interrogation practices for suspected terrorists.
Habeas corpus. The procedure that allows detainees to protest unlawful, indeterminate imprisonment before an impartial judge, known as habeas corpus, is a constitutive element of the rule of law. In late 2006, the outgoing Republican Congress passed the Military Commissions Act, which provided, among other troubling provisions, that “no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States,” when he or she had been properly detained. This extraordinary provision created military commissions as a parallel judicial system, in which the executive branch is both judge and jury, resulting in a grave violation of the constitutional principle of separation of powers.
The progress of these commissions has also been uneven. Even now, more than two months after military officials announced war crimes charges against six detainees at Guantánamo, the prisoners have yet to meet with their military lawyers. This makes it increasingly likely that none of these cases will come to trial before the end of Mr. Bush’s presidency. In response to the charge that “justice delayed is justice denied,” a Pentagon spokesman recently said the military has “gone to great lengths to provide a system that is full, fair and just.” If so, why is the administration afraid to try these people in U.S. courts? Is not our legal system the envy of the world?
Domestic spying. Mr. Bush has repeatedly used the threat of terrorist attacks to strong-arm his way to a more robust use of presidential power. These fear tactics were again employed in the recent debate over the Foreign Intelligence Surveillance Act (FISA), the 1978 law that regulates domestic spying by federal agencies. Mr. Bush argued that allowing the law to expire would endanger the national security of the United States. Yet, tellingly, he preferred to let it expire rather than negotiate with Congress, indignantly insisting on his version of the bill, which would have allowed surveillance of American citizens without a court warrant. Mr. Bush was also seeking immunity from prosecution for the telecommunications companies that participated in his illegal spying program after the terrorist attacks of Sept. 11, 2001, seeking this immunity without revealing to Congress and the American people exactly what the companies had done.
If domestic surveillance is necessary, U.S. citizens deserve the full protection of the law and the assurance that such actions will be approved and monitored by competent judges independent of the executive branch. If Congress is to authorize this activity, it should demand a full accounting of every surveillance program and should continue to insist on the constitutional rights of the legislative and judicial branches. This is of paramount importance, given the abuses that have occurred. An internal Justice Department report in March 2007, for example, identified over 100 violations of federal wiretapping laws by the Federal Bureau of Investigation. Published reports indicate that the violations continued through 2006, after the F.B.I. instituted new internal procedures designed to prevent further violations of privacy.
Signing statements. To facilitate his consolidation of power, President Bush has relied heavily on an obscure and, until 2001, largely benign instrument of presidential communication known as a signing statement. This is a letter attached to a law when the president signs it that conveys the president’s reasons for approving the law or states his view of its constitutionality in the event of a challenge to the law in court. Every president since James Monroe has used signing statements. Yet Mr. Bush has used them to subvert basic constitutional procedures by declaring in the statements which provisions of a law he will enforce and which he will not. His constitutional obligation to ensure that “the laws be faithfully executed,” meanwhile remains unfulfilled, while he implicitly ignores the U.S. Supreme Court’s exclusive right to judge the constitutionality of a law.
Mr. Bush has indicated in various signing statements his unwillingness to enforce nearly 1,000 provisions of federal laws that he believes infringe upon his rights and powers as president. The presidential candidates have weighed in on the issue. Senators Obama and Clinton have both indicated that they would return to the traditional, narrower use of signing statements. Senator John McCain has a better idea. He has vowed that as president he would not use signing statements at all, but give every bill a straight-up signature or veto. This would do much to restore accountability and proper constitutional procedures to federal lawmaking.
Still, too little has been said by the presidential candidates about Mr. Bush’s abuses of power. That is unfortunate, for the first priority of the next chief executive must be to restore the rule of law envisioned by America’s founders by dismantling Mr. Bush’s neo-imperial presidency. “The aim of the patriots,” John Stuart Mill once remarked, “was to set limits to the power which the ruler should be suffered to exercise over the community; and this limitation was what they meant by liberty.”