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.

Monday, July 10, 2006

Real dangers face Bush officials post-Hamdan, and they know it

(updated below)

One of the most deceitful though commonly used tactics of Bush followers is to characterize positions which they dislike as something that is espoused only by the fringe Left, even though the position is held by people across the ideological spectrum. Thus, only the Far Left opposes the war in Iraq, even though scores of retired generals, life-long conservatives, and a majority of Americans have long been against it. And only the Far Left opposes the President's warrantless eavesdropping on American citizens, even though some of the most eloquent and forceful opponents of warrantless eavesdropping are long-time conservatives who believe in the rule of law and a restrained federal government. And only the Far Left dislikes President Bush, even though his approval ratings are at near historic lows.

The latest application of this tiresome tactic is the claim that only terrorist-loving Leftists (like John Paul Stevens and Anthony Kennedy) believe that all detainees in United States custody are entitled to the most basic standards of humane treatment guaranteed by the Geneva Conventions. In fact, that principle has been accepted and tacitly assumed to be true for decades by foreign policy experts of both parties, and the idea that there was a group of prisoners whom the U.S. could subject to any treatment it wanted without any limitations of any kind was considered a fringe, crackpot idea -- as dangerous as it is deranged.

That's why, as this new Newsweek article from Michael Isikoff and Stuart Taylor reports, senior Bush administration officials were horrified by the demands from Dick Cheney and associates that administration lawyers find a way to create a zone of lawlessness -- an "outer space" -- where the U.S. could subject detainees to even the most barbaric treatment without any restraints:

White House hard-liners, led by Vice President Dick Cheney and his uncompromising lawyer, David Addington, made it clear that there was only one acceptable answer. One day, Bowker recalls, a colleague explained the goal: to "find the legal equivalent of outer space"—a "lawless" universe. As Bowker understood it, the idea was to create a system where detainees would have no legal rights and U.S courts would have no power to intervene.

After seeing a Justice Department memo arguing that Qaeda and Taliban prisoners did not even deserve basic protections under the Geneva Conventions, they warned that the administration was inviting an enormous backlash, both from U.S. courts and foreign allies. It would also, they feared, jeopardize President George W. Bush's plans to try such prisoners in specially created military courts.

"Even those terrorists captured in Afghanistan ... are entitled to the fundamental humane treatment standards of ... the Geneva Conventions," William Howard Taft IV, the State Department legal counselor and Bowker's boss, wrote in a Jan. 23, 2002, memo obtained by NEWSWEEK. In particular, Taft argued, the United States has always followed one provision of the Geneva Conventions—known as Common Article 3—which "provides the minimal standards" of treatment that even "terrorists captured in Afghanistan" deserve.

The principle that the Geneva Conventions set a minimum standard of treatment for all human beings in the custody of civilized countries is not some new pacifist theory cooked up last year by Ward Churchill. Instead, that principle is the consensus understanding that has long existed in this country, as understood by Democrats and Republicans alike. The fringe, radical theory is the insistence that the U.S. can and should operate beyond the law, and that nothing, and certainly no effete human rights treaty, can restrict the omnipotent will of the President when it comes to defending the nation.

As the Newsweek article notes, even senior Bush officials now fear that the Hamdan decision -- exactly as I argued yesterday -- will not only have far-reaching implications for limiting presidential power in all areas (far beyond just military commissions), but will also doom the administration's legal defenses to accusations that it has broken the law with its warrantless surveillance activities, among other extremist and lawless programs:

Administration officials and Washington lawyers are still digesting the text of the ruling, but it is already becoming clear that it could have ripple effects that extend far beyond the trial of Hamdan and other Guantánamo prisoners. . . . .

Some legal scholars and current and former administration officials believe the case could undermine the secret foreign detention centers and the NSA eavesdropping program, two cornerstones of the terror war. "This is an extremely damaging decision for presidential power," says a former senior administration lawyer, who asked for anonymity owing to his intimate involvement in the legal wrangling over prisoner treatment. "And it was largely a self-inflicted wound." The bitter irony: an administration determined to expand executive power may have caused a serious contraction.

The tough guys in the administration who scoffed at legal limits were warned that, by ignoring the long-standing mandates of the Geneva Conventions, they could be subjecting U.S. personnel to prosecution for war crimes, a threat which they apparently failed to take seriously. They're taking it seriously now:

"This has opened up a can of worms," says Sen. Lindsay Graham, a South Carolina Republican. "You could have a situation if we don't bring some restraint where anybody who has done anything to an Al Qaeda suspect that's harsh could be prosecuted." Bowker says he and other State Department lawyers specifically warned about just such a scenario during the early debates. "The implications of this—for potentially being arrested and tried in other countries—is certainly a little scary," says Ted Olson, the former solicitor general.

There seems to be a common perception among many Bush critics -- one which is a not-very-distant relative of all-out defeatism -- that something as weak and unmuscular as a lofty Supreme Court ruling isn't going to have any effect on the Bush administration, and that they are just laughing at the idea that what the Supreme Court says matters. But that is simply not what senior Justice Department lawyers and senior administration officials are doing in the wake of Hamdan.

The Supreme Court unquestionably rejected the very theories which the Bush administration has been using to defend themselves from accusations of criminal conduct. The ruling in Hamdan stripped those defenses away and the lawbreakers in the administration are left standing exposed. There is simply no question that the five-Justice majority in Hamdan would reject with equal vigor, at least, the administration's claim that the AUMF authorized them to eavesdrop in violation of FISA and/or that the President has the inherent authority to violate Congressional law in the area of national security.

That means that the administration has no defenses to fend off charges that they deliberately violated the criminal law -- and continue to do so -- by eavesdropping on Americans without warrants, or torturing people in violation of the Geneva Conventions and/or the McCain Amendment, or violating the National Security Act of 1947 by concealing major intelligence activities from Congress. Those are criminal offenses. And the Supreme Court just expressed unbridled hostility towards their only defenses they have to those crimes. Anyone who suggests that that is a meaningless development and that Bush officials are unaffected by them has embraced a cartoon super-villain version of the administration which is just not real.

Beyond that, the Supreme Court in Hamdan deliberately laid at least the theoretical foundation for high officials in the Bush administration to be charged with war crimes. They expressly ruled that the military commissions violate those Conventions, and if any prisoners were to be executed by virtue of commissions which violated Common Article 3, or if detainees are deliberately and systematically mistreated in violation of that provision, that would be a war crime, by definition. I simply don't believe that there are government officials who are subjected to those sorts of suggestions from the U.S. Supreme Court who are not taking them seriously.

No government is invulnerable. Far greater and more powerful political leaders than George Bush have met very ignominious ends after flying very high and appearing invulnerable for a long time. For every extremist action undertaken by the radicals in the administration, there were high-level conservative political appointees telling them that what they were doing was illegal, that it was dangerous and radical, and that it could have serious consequences for them. But they opted to believe that might makes right, and that their superior might entitled them to act without limits of any kind, including those imposed by the law, because nobody was powerful enough to hold them accountable. That was true then, but it likely will not always be true.

They long ago lost the shield of popularity. The Supreme Court just ruled against them, and in the process, strongly insinuated that they may be war criminals and without any valid defenses to accusations of repeated criminal acts. Even their Congressional allies smell blood and are making threats and demanding concessions. And behind their unprecedentedly fortified walls of secrecy undoubtedly lurk the most incriminating, still-concealed revelations yet, and it is only a matter of time before we learn of those. Bush critics seems to assume that Bush officials are almost divinely protected from any meaningful consequences from their behavior, but it's a very good bet, at this point, that that comforting assumption is not shared by Bush officials.

UPDATE: This Digby post from today analyzes political strategies based upon polling data, and it bolsters the point that the positions which are most frequently demonized as being part of the "fringe Left" are, in fact, mainstream views which Democrats ought to be embracing much more enthusiastically. Many Democrats have internalized the false Republican accusation that their views are seen as radical and rejected by most Americans, and they consequently run away from aggressively espousing any view -- and particularly run away from any criticism of the administration's abuses of power. Just ask Russ Feingold about that.

But as Digby persuasively argues based on this data, it is precisely that fear of articulating a clear and principled position, and the related fear of standing up aggressively to the administration's abuses, that is the Democrats' greatest problem. That's because most Americans know this that administration has gone terribly awry. But quite sensibly, before they put in Democrats in power, they want to know what Democrats are going to do about it, what they will do differently. Holding Republicans accountable for their corruption and excesses is, Digby documents, something which most Americans want.

My Ecosystem Details