I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Friday, January 06, 2006

An ideology of lawlessness

When Rudy Giuliani first became Mayor of New York in 1993, he famously ordered the Police Department to begin enforcing relatively minor "quality of life" laws -- long-ignored prohibitions on things like jumping turnstiles and panhandling. These actions were based on the "Broken Windows" theory of criminality long touted by conservative theorist James Q. Wilson, which held that allowing even small infractions of the law is to endorse criminality which, in turn, leads to more serious crimes and then all-out lawlessness. To this day, whenever it is their turn to pay tribute to the heroic greatness of Rudy Giuliani, conservatives heap lavish praise on his refusal to overlook law-breaking and his glorious re-instatement of the rule of law.

But like the Geneva Convention, precepts of due process and so much else, "rule of law" theories are now quaint relics being cast aside by the so-called conservatives running our Federal Government. In their place, we now have a governmental culture where violations of the law are literally the norm.

What we have in our Federal Government are not individual acts of law-breaking or isolated scandals of illegality, but instead, a culture and an ideology of lawlessness. It cannot be emphasized enough that since September 11, the Bush Administration has claimed the power to act without any constraints of law or checks from the Congress or the courts. Its view of its own power and governing philosophy is based upon, and perfectly encapsulated by, this single paragraph from the incomparably pernicious September 25, 2001 Memorandum, written by then-Deputy Assistant Attorney General John Yoo:

In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.

That decisions about what actions our country takes "are for the President alone to make" – without any interference from the Congress, the courts, or anything else – is not a fringe academic theory. It is a definitely authoritarian and lawless ideology that has truly -- expressly -- become the governing philosophy of George Bush and his Administration. And it is not something the Administration has merely embraced in theory. It has been aggressively exercising these limitless powers.

When the President and the Vice President assure us that all of their actions are in "full accordance with the law," what they mean by "the law" is what is described in the Yoo Memorandum. For everything broadly relating to the undeclared and eternal "war" on terror -- not just on international battlefields but domestically as well -- decisions are "for the President alone to make." Pursuant to this theory, even when the President acts in violation of what we used to understand as "the law" (i.e., acts of Congress which are signed into law by the President), he is still acting "in accordance with the law," because the power to make such decisions rests exclusively with him.

The NSA scandal has received the bulk of the media’s attention over the past month, and deservedly so. But it has drowned out other acts of wanton law-breaking by the Administration. We have learned recently that multiple federal agencies have been tracking the computer activities of American citizens in patent violation of the law. And it was disclosed in the last couple of days that the Administration some time ago unilaterally granted itself an exemption to the National Security Act of 1947, whereby it has refused to brief the Senate and House Intelligence Committees with regard to the NSA’s eavesdropping activities as required by that law. And in violation of the President’s (itself illegal) Executive Order directing the NSA to eavesdrop only on international calls in violation of FISA, the NSA has eavesdropped on domestic calls as well.

Such individual acts of law-breaking are always either excused as being inconsequential or defended as being necessary for our safety. But the dangers posed by this theory are self-evident and severe.

Just two weeks ago or so, I wrote a post asking Bush followers how any limits at all could be recognized on George Bush’s powers in light of the theories of the Yoo Memorandum, and specifically wondered why the debates we were having about things like renewal of the Patriot Act and prohibitions on torture even matter, if, as Bush claims, "such decisions alone are for the President to make." Both Matt Welch at Reason and Scott Lemieux asked the same question with regard to other powers that the Administration could assert. It did not take long for those questions to be answered, and the answer -- coming directly from the Administration -- is that there are no cognizable limits on the President’s law-breaking power.

This answer was delivered in the form of a woefully under-reported "signing statement" which was issued last Friday by the President when he signed into law a defense appropriations bill passed by Congress. That bill included the McCain Amendment, which bans the use of torture as an interrogation tool and which the Administration aggressively argued against. As Marty Lederman has detailed, Bush’s signing statement plainly amounts to a re-iteration – a reminder to all of us – of the theory of the Yoo Memorandum: that while the President was participating in the symbolic ritual of signing the McCain Amendment into "law," he has the power to violate it should he deem it in the national interest to do so. Here is what Bush said in his statement:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

So this new "law" will be interpreted "in a manner consistent" with the Administration’s view of "the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief." Of course, the Administration’s view regarding the President’s "constitutional authority" is that such decisions are not for Congress to make, but "are for the President alone to make," which is just another way of saying that the President can violate the law the minute he thinks he should.

Lest anyone think that this description of the President’s view of his right to break the law is exaggerated or unfair, we should listen to what the Administration itself is saying about this matter:

A senior administration official, who spoke to a Globe reporter about the statement on condition of anonymity because he is not an official spokesman, said the president intended to reserve the right to use harsher methods in special situations involving national security. . . .

But, the official said, a situation could arise in which Bush may have to waive the law's restrictions to carry out his responsibilities to protect national security. He cited as an example a ''ticking time bomb" scenario, in which a detainee is believed to have information that could prevent a planned terrorist attack.

''Of course the president has the obligation to follow this law, [but] he also has the obligation to defend and protect the country as the commander in chief, and he will have to square those two responsibilities in each case," the official added. ''We are not expecting that those two responsibilities will come into conflict, but it's possible that they will."

Isn’t it rather extraordinary to observe the Congress pass a much-debated bill which the Administration vigorously opposed, and watch the President sign it into law, only for the Administration, on the very same day, to actually come right out and say that the President "may have to waive the law’s restrictions"?

Since when do we have a system of Government where the President can simply "waive" away laws? This law was enacted specifically to prohibit acts of torture which the Administration has engaged in, and the President is openly telling us that he may have to unilaterally "waive" the law. Generously, we hear that he hopes not to have to break the law, "but it’s possible" that he will.

The NSA law-breaking scandal cannot be seen as some isolated act. It is merely the most flagrant symptom (thus far) of the fact that we have a President -- with three full years left in office -- who has claimed for himself the right to ignore Congressional law and who believes that virtually all decisions of any real significance in our country are his "alone to make." FISA. The National Security Act of 1947. The McCain Amendment. These are all federal laws -- laws -- which the Administration is openly claiming it has the right to violate.

Shouldn’t we be having much more of a discussion than we have had about the fact that we have a President who believes he has the power to ignore laws? We have had all sorts of vigorous and sweeping debates lately about things like torture, habeas corpus, surveillance powers under the Patriot Act. But those debates are all just gestures. Like George Bush’s signing a "law" which he simultaneously claims he has no obligation to obey, the oh-so-heated debates we’ve been having are all just some sort of illusory role-playing, where we pretend that we have a representative Congress which makes laws. But what we actually have is a President who says he can violate those laws at will because such decisions are "his alone to make."

Maybe Americans want to have a President who has these powers and can operate without much restraint. Other countries at other times have decided that they want that, usually as a means for protecting themselves against perceived external threats. But shouldn’t we be having this discussion much more explicitly and with much greater urgency than we have had it thus far?

The "war" which is said to justify these extraordinary powers isn't going anywhere any time soon. The Administration itself constantly reminds us that it's a long struggle which could last decades. That means that whatever law-breaking powers we permit to be vested in the President are ones that George Bush, and then subsequent presidents, are going to wield for a long time to come. At the very least, such a radical shift in how our government functions should not be effectuated in secret and without real debate.

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