George W. Bush will end his presidency in retreat, forced to compromise on several fronts. Free-market economics have given way to massive government bailouts, and an assertive, unilateral foreign policy has yielded to one more attuned to world opinion. But in his defense of the war on terrorism, Bush has succeeded in beating back nearly all legal challenges -- including those to some of his most controversial policies.I say good for the administration!
Among them are a domestic surveillance program to intercept international phone calls, the rounding up of Muslim men for questioning after the Sept. 11 attacks, the holding of suspects in military custody in this country without filing charges, harsh interrogations -- some have called it torture -- of suspects arrested abroad, and the detention of foreign captives at a military prison at Guantanamo Bay, Cuba.
Because of the administration's successful defense of such policies, they not only will be a part of Bush's legacy but will be around for his successors. Even if Barack Obama rejects or sharply modifies Bush's positions, the precedents will remain for future chief executives.
Soon after Sept. 11, Bush said that as commander in chief he had the "inherent" power to act boldly in the nation's defense, regardless of whether Congress or the courts agreed.
His claim has been much criticized. It also has not been accepted by Congress or endorsed by the Supreme Court. The justices have said the president must act according to the law, not in spite of it.
Nonetheless, Bush's anti-terrorism policies have not been blocked by the courts or Congress. When the Supreme Court struck down Bush's use of special military trials at Guantanamo on grounds that he had no legal basis for creating them, Congress passed the Military Commissions Act to authorize the trials.
When critics claimed the National Security Agency was violating the Foreign Intelligence Surveillance Act by intercepting calls without a warrant, Congress passed a law to authorize such wiretapping. The same measure also granted legal immunity to telephone companies that had cooperated with the administration.
Bush's tenure has been particularly frustrating for civil libertarians. They had believed that when the government violated the Constitution, someone could go to court and challenge it. But it's not clear that truism is still true.
Bush's lawyers have succeeded not by proving the constitutionality of the policies but by using procedural barriers to prevent lawsuits from going forward.
When the American Civil Liberties Union sued over the warrantless wiretapping, Bush's lawyers said the plaintiffs had no standing because they could not prove that their phones had been tapped. The government also refused to answer questions about whether the plaintiffs had been tapped, pleading national security.
When civil libertarians sued on behalf of men who said they had been wrongly abducted and tortured by the CIA, Bush's lawyers argued that the cases involved "state secrets." The courts agreed and dismissed the lawsuits.
"It has been a sad story," said Melissa Goodman, an ACLU lawyer. "The government has thrown up roadblocks. . . . We have never gotten judges to rule whether their acts have violated the Constitution or whether torture is unconstitutional."
See also my recent essays on the administration's counterterror policies, "Enhanced Interrogation's in the Charts Again," and "Lawfare" and Bush Administration War Crimes Trials."
Photo Credit: "The military prison at Guantanamo may be the exception to Bush’s string of legal successes. The Supreme Court struck down his policies regarding the holding and trying of prisoners there. But the administration has resisted changes," Los Angeles Times.
4 comments:
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Congratulations.
So when the incoming administration follows these same paths to avoid the 'rule of law.' When the government uses all the powers (Among them are a domestic warrant-less surveillance program to intercept USA citizens' phone calls, the rounding up of Muslim men for questioning after the Sept. 11 attacks, the holding of US CITIZEN suspects in military custody in this country without filing charges, torture of suspects and the detention of captives at a military prison at Guantanamo Bay, Cuba.) you have happily given to them, what then?
Where will the people go for redress?
Cheer on.
Honest citizens of USA had believed that when the government violated the Constitution, someone could go to court and challenge it. But it's not clear that truism is still true. Your blind supportive actions in the recent past leave you with no voice in the future.
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We've had this debate before, Ema, yesterday, in fact. The Times piece notes how some of the laws that have been sustained will influence the Obama administration. Beyond that, we may very well see a retrenchment in the legal fight against terrorism, whether that's what the voters wanted in November is unclear, but you should be happy in any case.
Donald,
I believe in sound and true principles - to the best of my ability. What if, in the future, it is not Muslims who are targeted?? What if what was used against others is used against conservatives, Christians and Jews?? What if speaking against a Marxist engenders the attention of the Civilian National Security Force Obama suggests (Secret Police), wiretaps, being named an "enemy combatant" and sent to the gulag, etc., etc., with no constitutional liberties??
What if these discussions are not "academic" in the future. What if we get in Judges who will not strike down the suspension of our civil rights as unconstitutional??
Grace
Grace: I firmly believe the administration's wholly on the right side of the good.
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