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The All-Powerful Presidency

In waging the war on terror, the White House also has fought a not-so-secret battle for unchecked authority

By Chet Hardin

 

 

On Sept. 18, 2001, Congress passed the Authorization for Use of Military Force, granting President George W. Bush authority to employ the armed forces in retaliation against the alleged perpetrators of 9/11. In the months following, Bush and his administration busied themselves publicly with plans for the invasion of Afghanistan and the capture of Osama Bin Laden. But secretly, the administration was hard at work establishing a breathtaking scope of powers intended to circumvent traditional methods of conducting counterterrorism.

As these extraordinary measures became public knowledge, the administration vehemently argued the merits of “coercive interrogation,” warrantless wiretapping, data mining, extraordinary rendition, detention without due process, and the opaque classification of alleged terrorists and terrorist organizations. These methods, the administration would argue, were necessary to fight a new kind of warfare against autonomous agents, willing to wage war without state sponsorship, united by their desire to terrorize the United States.

As Vice President Dick Cheney told Tim Russert on Meet the Press only days after 9/11: “We have to work . . . the dark side, if you will. We’ve got to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly without any discussion, using sources and methods that are available to our intelligence agencies.”

Since Sept. 14, 2001, when President Bush declared the nation to be in a state of “national emergency,” critics say, the administration has fought tirelessly to expand the boundaries of executive power, waging pitched ideological battles with the judiciary, pushing legislation though a cowed Congress, and fanning the threat of terrorist attack to trump constitutional debate in its efforts to wage the war on terror however it wants, wherever it wants, and against whomever it chooses.

Shortly after 9/11, Bush issued a classified order authorizing the National Security Agency to intercept international phone and e-mail conversations originating or terminating inside the United States, according to The New York Times, which first broke the story in 2005. This expansion of NSA’s spying power, many have argued since, is illegal, as it authorizes activities outside the parameters established by the Foreign Intelligence Surveillance Act. Under FISA, government agents wishing to eavesdrop on conversations must first seek a warrant from the Foreign Intelligence Surveillance Court.

It was a stark realization that, at any time, agents of the government, at the order of the president, could be listening in on the phone calls or intercepting the e-mails of U.S. citizens without judicial oversight. And it made no sense to Michael German.

“We have moved into this realm where the intelligence agencies proved their inability to protect the national security, and in exchange they get more power, more money and less accountability,” says German, a former FBI agent. “And that anybody would think that we are more secure because of that is crazy. We are not more secure because the government knows more about me and you. That helps them solve terrorism absolutely zero percent.”

German spent 16 years working undercover for the FBI, infiltrating domestic terrorist organizations. He left in 2002, he says, because he was dismayed by the direction the intelligence agencies were headed. He now works as policy counsel on national security, immigration and privacy issues at the American Civil Liberties Union.

“In the two years before the 9/11 Commission’s report came out, the administration kept saying we didn’t have enough intelligence to prevent the terrorist attacks,” says German. “So it sort of sunk in that we needed more intelligence-gathering capabilities. But if you look at the 9/11 Commission’s report, you see it wasn’t a lack of capability, it wasn’t a lack of collection. The agents around the world were doing the right thing. It was poor management of that intelligence. And everything we have done is to increase our collection capability, and nothing has been done to correct our management problems.”

The government, he says, is operating on the flawed theory that by having all the data possible, you will then in turn be able to know everything possible. But that is not how it works.

“There is still a finite amount of needles. And if you make the hay stack bigger and bigger and bigger, those needles get harder to find,” he says. “This idea that data mining can be used to help predict the future and who is going to be a terrorist is folly, impeding on the rights of innocent people while doing nothing to catch the guilty people. It is completely counterintuitive.”

Yet Congress, unmoved by arguments such as German’s, before wrapping up its spring session, passed the Protect America Act. The act tacitly gives confirmation to the Bush administration’s tactics by charging the attorney general and the director of national intelligence with the authority to maintain the NSA spying program without the oversight of FISC for six months, a move that German chastises as “legislating from fear” and without the proper consideration for consequences.

Wendell Belew says he knows a thing or two about NSA warrantless wiretapping. A Washington D.C.-based lawyer, he is a plaintiff in Haramain v. Bush, a lawsuit against the president and other senior officials for illegally intercepting his telephone conversations with a client in Saudi Arabia.

“The government inadvertently disclosed a document to us that provides proof of that interception,” he says. “It was argued in the 9th Circuit earlier this month, so we’ll see.”

Belew represents charities and foreign nationals, and as such, makes frequent overseas calls. Now, due to the Protect America Act, his calls could be intercepted, listened in on, and scrutinized without allowing him any legal capability to protest. In that way, he has something in common with his clients.

In July of this year, Bush signed the order, “Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq.” Two weeks later, he signed the order, “Blocking Property of Persons Undermining the Sovereignty of Lebanon or Its Democratic Processes and Institutions.” These orders charge the Secretary of the Treasury with the authority to freeze the assets of anyone the Treasury Department, along with the secretary of state and secretary of defense, designate as threatening the peace of Iraq or Lebanon, or threatening the stability of either government.

The orders give the executive branch extraordinarily broad powers to basically create blacklists without any due process, Belew argues. And once an organization has been designated, there is no official process to get themselves removed from the list.

“The orders are directed to people who are promoting ‘instability,’ and of course, one could argue that the major forces of instability includes the United States and its policies,” Belew says. “That is the element of the absurd.”

Even more daunting for Belew, the courts have held that the act of designating an agency or individual as a supporter of terrorism does not constitute a criminal proceeding. Neither the organization nor the individual have been deemed criminal, just supporters of terrorists.

“That means the entity doesn’t have the rights it would in a criminal proceeding,” he says. Furthermore, Belew says, the courts have ruled that freezing one’s assets does not constitute a legal “taking,” which triggers other constitutional rights, because the entity still has title to the assets, they just can’t use them.

“So you have this very odd process,” he says, “where you are designated as a terrorist organization but you are not a criminal, your assets are frozen and you cannot use them, but they are still yours.”

Both orders, critics such as Belew claim, stand out as something unusual in the history of the International Emergency Economic Powers Act, which grants the executive the authority to freeze assets, because, as would be typical with such orders, they do not exempt humanitarian aid, including food and medical supplies. Domestic groups that raise money to help fund relief work in Iraq or Lebanon, feeding the hungry or clothing the poor, under the rule of these orders, could be construed as providing support to groups aiming to cause violence or undermine stability.

“The order on Lebanon,” German says, “is broadly and vaguely worded; it doesn’t include any requirement for the participation in violence, which is extraordinary. At least in the Iraq order, there was language specifying a significant risk of committing violence, again it is vaguely worded, but at least it is in there. That is not even in the Lebanon order.”

“Arguably you could say that an opposition candidate, who is espousing a different form of government completely legally through the process,” German proffers, “could be . . . violating this provision of the executive order. It is outrageous. It is as though we are writing off an entire country, and saying we don’t want anybody going in and helping these people.”

According to the Lebanon order, not only is the person deemed to a threat to stability barred from receiving aid, but so would be the person’s spouse or dependent children.

“Talk about un-American,” German says, “that the acknowledged innocent spouse and children are also going to be designated.”

“So giving a blanket to somebody can get your assets blocked,” he says. “Giving medicine to somebody can get your assets blocked. If you were a foreign-aid charity that wanted to help orphans around the world, after reading these executive orders, would you be willing to help children in Lebanon or Iraq? Knowing that your assets could be seized? Even though you have no way to know whether the people you are giving money to might end up on this list?”

If there were a formal process, that would be one thing, German says, “but this is a completely black process how you get on these lists. Somebody could find themselves on a list and have no idea why or how to get off the list.”

“It is Kafkaesque,” he says.

On Oct. 17, 2006, President Bush signed into law the John Warner Defense Authorization Act of 2007. Essentially a spending bill authorizing $532.8 billion for defense and military use, the act also contained language in Section 1076 granting the president the ability to mobilize U.S. military forces “to restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition,” state government is deemed “incapable of maintaining public order.”

The language in the act appears to nullify the 1878 Posse Comitatus Act, which made it a crime, punishable by two years in prison, for anyone, including the president, to use military force “as a posse comitatus or [to] otherwise to execute the laws” in instances of domestic police work.

Days after the bill was signed, Sen. Patrick Leahy (D-Vt.) voiced serious concern that the new law would subvert “solid, long-standing Posse Comitatus statutes that limit the military’s involvement in law enforcement, thereby making it easier for the president to declare martial law. . . . Using the military for law enforcement goes against one of the founding tenets of our democracy. We fail our Constitution, neglecting the rights of the states, when we make it easier for the president to declare martial law and trample on local and state sovereignty.”

The New York Times did editorialize about the act, referring to “a disturbing recent phenomenon in Washington . . . that laws that strike to the heart of American democracy have been passed in the dead of night.”

Frank Morales, a Brooklyn-based activist, in his article “Bush Moves Toward Martial Law” (posted on towardfreedom.com), tied the new powers afforded by the John Warner act to a little-reported article in Journal of Counterterrorism and Homeland Security International, which boasted a contract awarded to Kellogg, Brown, and Root by the U.S. Immigration and Customs Enforcement in January 2006. KBR, a subsidiary of Halliburton, won the $385 million contract to develop “temporary detention and processing capabilities to augment existing ICE Detention and Removal Operations . . . to support the rapid development of new programs.”

“Under the cover of a trumped-up ‘immigration emergency,’ ” Morales wrote, “detention camps are being constructed right under our noses, camps designed for anyone who resists the foreign and domestic agenda of the Bush administration.”

But, for the most part, Sen. Leahy’s outrage and Morales’ draconian prophesies went largely unnoticed by the mainstream press. Even critics of the administration took only cursory notice of these developments, for on the same day that the president signed the otherwise typical bill, he also signed into law the Military Commissions Act of 2006.

The Military Commissions Act was a mighty legislative blow in a years-long battle between the White House and the Supreme Court over which branch would claim jurisdiction over the detainees at Guantanamo Bay. Congress decided: The executive won.

The controversial act allows for the indefinite detention of anyone the president deems an enemy combatant, denies due process and the ability of enemy combatants to contest their detentions, allows for the president to dictate what is and is not considered torture, and will accept evidence derived from “coercive” tactics.

The history of the Military Commissions Act begins on Nov. 13, 2001, when President Bush signed the executive military order “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.” In this sweeping order, the president called upon the authority granted him by the AUMF to identify any foreign national whom the government suspects of being “a member of the organization known as Al Qaeda” or who has “engaged in, aided or abetted, or conspired to commit, acts of international terrorism” or who has “knowingly harbored” a suspected terrorist and to hold that person indefinitely.

Further, the order asserted that these individuals, under the jurisdiction the secretary of defense, when tried, are to “be tried by military commission . . . and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death.”

Beginning in January 2002, detainees, men and boys, many of whom were captured in Afghanistan, were transported to Camp X-Ray, in Guantanamo Bay, Cuba, outside the reach of U.S. federal judicial review. Over the next few years, nearly 800 detainees, later known as “enemy combatants,” would be processed through Guantanamo. Currently, 355 men are still being held there.

In February of the same year, the Center for Constitutional Rights filed its first in a string of lawsuits pertaining to the treatment of detainees held at Guantanamo. The suit, Rasul v. Bush, on behalf of Britons Shafiq Rasul and Asif Iqbal, and Australian David Hicks, challenged their “indefinite detention without due process of law, as unconstitutional and a violation of international law.”

In 2004, the Supreme Court ruled in Rasul v. Bush that Guantanamo detainees had the right to bring habeas petitions, challenging the legitimacy of their detention, before federal courts, says Emi MacLean, a fellow with CCR, a significant loss for the administration. But the high court left it to the district courts to decide how this right would be applied in each individual case.

Two of these individual cases, Al Odah v. United States and Boumediene v. Bush, both brought by CCR, petitioned in 2005 before the district courts to seek “appropriate due process of law under the Fifth Amendment,” she says. In Al Odah, the court found that the detainee was entitled to due process, yet in the case of Boumediene, U.S. District Judge Richard Leon found that the petitioner did not possess this right.

With one victory and one loss, CCR consolidated the two cases and appealed.

Soon after, MacLean says, Bush signed into law the Detainee Treatment Act, which contained language that attempted to strip habeas rights from the detainees held at Guantanamo, thus giving the executive unchecked power it sought over enemy combatants. But in 2006, the Supreme Court set down its most controversial and groundbreaking ruling in years in Hamdan v. Rumsfeld, holding that the way the act is written, it does not strip federal jurisdiction over the pending habeas cases of detainees in Guantanamo.

“So Congress drafted the Military Commissions Act and made the language much, much broader”; the language, she suspects, was drafted by the Bush administration. “The way the Detainee Treatment Act is written, it applies only to enemy combatants being held at Guantanamo and only to the removal of the right to habeas petitions. Whereas the Military Commissions Act applies to any noncitizen in U.S. custody anywhere in the world, who is classified as an enemy combatant or awaiting determination of whether they will be classified.”

In theory, an enemy combatant would be without the right to challenge their detention in front of federal courts, they would lose their right to challenge any aspect of their detention, including treatment, conditions of confinement, and, she says, they would be unable to challenge their transfer to anywhere in the world (including to countries that routinely practice torture). The act contains no language delineating the process of determination, MacLean points out, and gives no time frame for it to occur within.

“The great irony of the Military Commissions Act is that there has been only one been military commission, and that resulted in a nine-month sentence,” she adds, referring to Australian David Hicks, who pleaded guilty after spending years at Guantanamo in exchange for being released back to Australia.

In 2007, the court of appeals finally ruled in the consolidated cases of Al Odah and Boumediene. Citing the Military Commissions Act, it found that “detainees have no constitutional right to habeas corpus review of their detentions in federal court,” says MacLean, and dismissed the cases. CCR appealed to the Supreme Court. In April, the high court rejected hearing any cases of Guantanamo detainees, yet months later, in a dramatic turnabout, reversed its decision and agreed to hear the case in the next judicial term.

“If you can wrap your head around all that,” she says, “this is the position that the administration has forced us into, has forced our society and legal system into. It has tied everyone in knots, to no positive end certainly for our justice system, the future of our country and our international reputation.”

As a former investigator, German is evidence-oriented, and to prove the inefficiency of the Bush administration’s war on terror tactics, he merely points to the evidence provided by the Department of Justice.

According to DOJ data, the number of terrorism-related prosecutions between 2001 and 2006 is 342. The percentage of referrals declined, meaning prosecutors chose not to seek charges stemming from investigations, has steadily been increasing: In 2001, only 33 percent of investigations were declined; in 2006, 87 percent were declined.

Meanwhile, the prosecution of other crimes, including white-collar, drug, and organized crime, have seen a sharp decrease as well. In total, all prosecutions have slipped to shocking levels. This confirms for German that resources have been poorly allocated, and that the new, controversial methods such as data mining have done exactly the opposite of what was intended.

“It is frustrating to me; I knew it intuitively because of the work I did,” he says. “The general security of the nation is being sacrificed on this strange game that isn’t helping anyone.”

As for the draconian measures that the Bush administration has taken in the war on terror, German says: “I hear them throw around this word ‘radicalization.’ Having worked in counterterrorism, I know that what causes radicalization is the perception of injustice, and whether that perception is based in reality or based in conspiracy theories is dependent entirely on what the government is doing. If the government’s response is to become authoritarian and violate the law, then you are giving the terrorist groups the arguments they need to recruit more members.”

“What is the big rallying cry of the terrorists now?” he asks. “Guantanamo. And Guantanamo didn’t exist in 2000. That was something we gave them.”

chardin@metroland.net

 

 

 


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