The release two weeks ago of the memos written by John Yoo and other officials of the Office of Legal Counsel allow us to revisit some of the issues of presidential power that occupied so many of my posts last year. They also raise the question of what, if anything, can be done about abuses of power now, and what new steps the new Administration, which is moving slowly, may take. I am going to focus on the first, chronologically, of these memos, dated October 23, 2001, which dealt with the President's power to respond to an attack on the United States and the use of American military forces on American soil. It makes for a most interesting read.
Both the decision to enter a war and the design of its objectives and strategies have traditionally taken the United States years, or at the very least, quite a few months. I am now researching the Roosevelt Administration's 18 months of response to the fall of France in June 1940, during which officials struggled to find appropriate responses to a new situation, and to prepare to implement them. The Vietnam War, as I showed in American Tragedy, was debated for more than four years before LBJ finally took the plunge, and Woodrow Wilson took two years from the sinking of the Lusitania to get us into the First World War. This memo was produced only six weeks after September 11 but foresees a long struggle in some detail. Not surprisingly under the circumstances, its assumptions turn out to have been wrong--and not, surely, because of countermeasures which the Bush Administration took. But its authors were clearly less concerned with figuring out how to fight Al Queda than with embracing the extreme views of Presidential power that had been embraced by President Nixon during Watergate and (implicitly) by President Reagan at the time of Iran-Contra--and endorsed by Dick Cheney and David Addington in the minority report of the Iran-Contra Congressional committee.
The essential logical device employed by the memo is to begin with some rather commonplace and obvious observations, but follow them with an extraordinary leap for which the authors provided no real foundation at all. They begin by noting that the Founders created a national Army and Navy, although they do not mention that the framers, wary of a standing army, forbade any appropriation for an army that would last more than two years. The Army was designed, of course, for the protection of the new nation's frontiers against European nations and Indian tribes--more serious threats then than anything we face near to home today. And, they cite various precedents recognizing an executive power to use those troops autonomously in an emergency. And therein lies the rub.
No one, to my knowledge, has ever suggested that by granting the Congress the power "to declare war," the framers intended to deny the President or local commanders the right to respond at once to a surprise attack. And that seems very clearly to be the kind of situation the precedents quoted on pp. 7-10 of the opinion refer to: they relate, as the authors acknowledge, to the President's emergency powers. The President clearly had the right, for instance, to order the shooting down of a hijacked airliner on 9/11, if readiness and communications channels had given him the time to do so. But that is not the kind of situation the memo aimed at: it is designed instead to give the President complete authority to use the armed forces in any way that he sees fit for all time-including the power to anticipate threats and act pre-emptively. Although the authors, of course, do not bother to say so, their views would reduce the grant to Congress of the power to declare war to a nullity--and that was undoubtedly their intention. It is equally striking that the claim of such powers was not necessary, in the wake of 9/11, for the President to do anything that he wanted to do. The Congress, in an unfortunate moment of panic, had given him the power to employ military force literally anywhere in the world where he thought it necessary for the sake of the war on terror. If the President in late 2001 had identified a terrorist cell in some part of London which in his opinon could only be reliably eliminated with a nuclear weapon, he had the power to set it off. The Congressional resolution authorized him "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
The history of the origins of the Bush Administration's policies will not be written for many years, but the memo indicates that some of its leading figures had in fact been focused on these questions for years before 9/11. Thus writings cited in support of these positions include legal articles (as opposed to actual opinions by the federal courts) by John C. Yoo, "The Continuation of Politics by Other Means: The Original Understanding of War Powers," 84 Cal. L. Rev. 167,196-241(1996), and the even more influential Lewis ("Scooter") Libby, "Legal Authority for a Domestic Military Role in Homeland Defense," in Sidney D. Drell, Abraham D. Sofaer, & George D. Wilson (eds.), The New Terror: Facing the Threat of Biological and Chemical Weapons 305, 305(1999).
The bulk of the memo deals with the question of using the military at home--and here, only six weeks into the war on terror, the authors seemed to have very extensive plans in mind. This passage tells us what kind of operations they envisioned.
"Because the scale of the violence involved in this conflict removes it from the sphere of operations designed to enforce the criminal laws, legal and constitutional rules regulating law enforcement activity are not applicable, or at least not mechanically so. As a result, the uses of force contemplated in this conflict are unlike those that have occurred in America's other recent wars. Such uses might include, for example, targeting and destroying a hijacked civil aircraft in circumstances indicating that hijackers intended to crash the aircraft into a populated area; deploying troops and military equipment to monitor and control the flow of traffic into a city; attacking civilian targets, such as apartment buildings, offices, or ships where suspected terrorists were thought to be; and employing electronic surveillance methods more powerful and sophisticated than those available to law enforcement agencies. These military operations, taken as they may be on United States soil, and involving as they might American citizens, raise novel and difficult questions of constitutional law."
Even Israel, the nation most consistently threatened by terrorist action, does not use its military to destroy buildings or neighborhoods within Israel itself because of suspicions that they might harbor terrorists. The section of the memo authorizing the use of the military to fight the war on terror at home, however, is only a prelude to another purpose: a claim of the power to suspend most of the Bill of Rights for the same purpose. Although that section purports to deal with the Fourth Amendment, it cites previous claims, sometimes put into practice, to seize property, detain citizens, and restrict free speech because of a wartime emergency. (These appear to include the detention of Japanese-Americans during the Second World War, entirely validating fears expressed by Arab Americans in the months after September 11 that something similar might happen to them.) The authors argue explicitly that the need to win the war trumps any constitutional protections, even when they bring themselves to mention Ex Parte Milligan, which assured citizens their constitutional rights, including habeas corpus and trial by jury, even in the midst of a civil war:
"This is not, of course, to say that war suspends constitutional civil liberties. See, e.g.. Ex parte Milligan, 71 U.S. (4 Wall.) 2, 124 (1866). But the Court has also found it '"obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Haig, 453 U.S. at 307 (citation omitted), and has interpreted and applied constitutional protections to accommodate that overriding need. Here, we believe that the Constitution, properly interpreted, allows the President as Commander in Chief, and the forces under his control to use military force against foreign enemies who operate on American soil, free from the constraints of the Fourth Amendment." They do not mention that Ex Parte Milligan, which I discussed at great length several years ago here, specifically addressed that very point, arguing effectively that the Civil War itself proved that the nation could indeed secure its existence without suspending constitutional guarantees. Going further, the authors made an end run around the Exclusionary Rule (now threatened by new Supreme Court decisions handed down with the help of Bush's appointees), by arguing that evidence secured by warrantless searches undertaken by military forces should also be available for criminal prosecutions.
As it turned out, none of this took place--in large part, I am coming to believe, because Osama Bin Laden's spectacular attack on the US served his purposes too well to require any attempt to repeat it. Bin Laden, I am now inclined to believe, never had any real intention of bringing down the United States. His real enemies from the beginning have been the American client regimes in his own region, led by the rulers of his own Saudi Arabia. To weaken those regimes he wanted to bring American military forces into the heart of the Middle East, and he did so. While he has not, apparently, had any substantial success in his home country, his allies have made a comeback in Afghanistan, they are now threatening nuclear-armed Pakistan, and Iraq remains an open sore, despite the decline in violence. While he might not have been able to perpetrate a new attack on the scale of 9/11, he surely could have done something, had that been his intention, in the eight years that followed. (The danger is probably increasing now, since the new Administration seems to want to reduce our overall military involvement in the Middle East.)
Yet this memo leaves no doubt, frankly, that the Bush Administration contemplated using 9/11 the way Nazi Germany used the Reichstag fire: effectively to suspend American liberties for an indefinite period of time. They did not do so for many reasons, including the lack of further provocation within the United States. That leaves the question of whether the authors of the memo, and Administration officials, deserve judicial punishment both for these assertions of power and for the extra-legal steps, including torture, that they authorized. After a good deal of reflection I am inclined to rise above some of my feelings and conclude that the answer is no.
One could argue that John Yoo, David Addington, Dick Cheney and many others were part of a conspiracy to subvert international law and the Constitution of the United States. However, a leading authority on criminal law assures me that such a case would be extremely difficult to win. Federal criminal law--in sharp contrast to the precedents which the U.S. helped establish at Nuremberg--lays great emphasis on the need to punish only crimes that were knowingly committed. Even though it is obvious that Yoo and his colleagues were determined to give their superiors just what they wanted, those superiors acted on advice from counsel, a defense which apparently is often effective in federal court. It seems to me highly questionable to propose prosecuting the lawyers who gave the advice, while leaving the actual perpetrators who acted on it alone. And in any case, the broad outlines of what the Bush Administration was doing were well known for several years. The Constitution prescribes the penalty of impeachment for serious executive misconduct--and the Congress declined even to try to implement it. Yes, future generations will shake their heads when they realize that while Bill Clinton was impeached (but not convicted) for refusing to acknowledge an act of oral sex, George W. Bush suffered no penalty for serious violations of international law. The reason is generational: the Boomer-dominated Republican House majority of 1999 would stop at nothing to get the President, while the Silent generation leadership of the Democrats in 2007-8 wanted to get on with the business of the country. Law can never be applied blindly. International courts may take a different view. I have been reliably informed that several years ago a German judge was only dissuaded from charging Donald Rumsfeld with war crimes by the intervention of the German government. But it seems we shall have to accept the events of the last eight years as proof of Jefferson and Madison's prediction in their correspondence over a Bill of Rights, that government in times of crisis would always find ways around whatever was written into the Constitution. Jefferson, however, noted that codifying restrictions upon the government would make it easier to restore liberty when the crisis was over, and we may once again hope that he was right.