Book Review/Essay: How Would A Patriot Act
by Paul Rosenberg, Sat May 13, 2006 at 05:53:45 PM EDT
The NSA eavesdropping scandal, at its core, is not an eavesdropping scandal. It is a lawbreaking scandal, and it is unlike anything this country has confronted before.
--Glenn Greenwald, How Would A Patriot Act? Defending American Values From A President Run Amok
Monday is the publication date for How Would A Patriot Act? Defending American Values From A President Run Amok. I've written a review for Random Lengths News, due to run in our next issue. But here I offer something different, written with this particular audience in mind, an extended review, with lots of quotes to tantalize, and more opinions than I normally offer in a review. All you have to do is... JUMP!
Once again, this week, the NSA wiretapping scandal roared back into the headlines--this time with USA Today story that the NSA had been collecting information on the domestic calls of the vast majority of the American people. And once again, the Bush court press lashed back, with a Versailles Washington Post poll, put out in one day, purporting to show that the American people just love being spied on.
With this sort of programmed knee-jerk reaction, the Republicans who currently control Washington have almost managed to bury the NSA wiretapping scandal--even as Bush himself has continued dropping in popularity from the 40s to the 30s, and now a first poll at 29. In Versailles Washington, "Thou shalt not investigate the president" is the new First Commandment.
This is now a familiar phenomena. Just as it took a documentary film--Fahrenheit 9/11--to show the American people President Bush responding to the 9/11 terrorist attacks like a deer caught in the headlights, it now takes an instant book--How Would A Patriot Act--from a blogging First Amendment lawyer to tell the American people that President Bush is acting like a king, attempting to destroy the very core of American freedom.
Greenwald's thesis is essentially two-fold.
First: "The NSA eavesdropping scandal, at its core, is not an eavesdropping scandal. It is a lawbreaking scandal, and it is unlike anything this country has confronted before," he writes. More importantly, it "is not an isolated act of lawbreaking. It is an outgrowth of an ideology of lawlessness that has been adopted by the Bush administration as its governing doctrine."
Second: This fear-based ideology of lawlessness has no place in America, and must be vigorously opposed by the American people in order to preserve our constitutional order based on separation of powers and the Bill of Rights. This ideology is opposed by conservatives as well as moderates and liberals. It is wholly outside of and inimical to the American political tradition.
Greenwald introduces himself and the evolution of his view in the preface [available here in PDF], then presents his arguments in the book proper. In the course of his argument he goes back to explain the origins of the Foreign Intelligence Surveillance Act (FISA)--including the abuses that preceded it--as well as the post-9/11 revisions; he examines the Bush doctrine of virtually unlimited presidential power, including its role in the detentions of Jose Padilla and Yaser Esam Hamdi, the authorization of torture, and the use of presidential signing statements to negate laws passed by Congress; he digs deep into the Constitution, the Federalist Papers and Supreme Court rulings; and he attacks the fear-driven foundations of the Bush ideology of dictatorial powers.
In short, he touches all the bases in laying out the true framework of what's involved in Bush's illegal spying activities, showing why they are much more dangerous to our democratic republic than even most alarmists realize. For if Bush's rationale is accepted, then Congress and the Courts have no real power to restrain the president, and he has all the power in his hands that our Founding Fathers worked strenuously to disperse for fear of enabling a tyrant.
From Bush Supporter to Implacable Critic
As a Bush critic, the knee-jerk brigade has labeled Greenwald "a liberal"--a label he rejects. In his preface, he explains:
I never voted for George W. Bush--or for any of his political opponents. I believed that voting was not particularly important. Our country, it seemed to me, was essentially on the right track....In short, if Greenwald comes across as unyeilding in his criticism of Bush, it's not because he's a liberal--he's not. It's because--despite his legal sophistication, he was politically naive, an innocent. And his innocence has been lost.
My primary political belief was that both parties were plagued by extremists who were equally dangerous and destructive, but that as long as neither extreme acquired real political power, our system would function smoothly and more or less tolerably. For that reason, although I always paid attention to political debates, I was never sufficiently moved to become engaged in the electoral process.
Crushed would be more like it.
His preface sketches out his evolution from patriotic presidential supporter immediately after 9/11 to the uncompromising critic he has become. The doubts did not begin until May of 2002, when Jose Padilla, a U.S. citizen, was arrested on American soil and publicly labeled "the dirty bomber," as the Bush Adminsitration government claimed the right to hold him indefinitely without charge and without access to a lawyer.
I never imagined that such a thing could happen in modern America--that a president would claim the right to order American citizens imprisoned with no charges and without the right to a trial. In China, the former Soviet Union, Iran, and countless other countries, the government can literally abduct its citizens and imprison them without a trial. But that cannot happen in the United States--at least it never could before.... I developed an intense interest in the Padilla case. It represented a direct challenge to my foundational political views--that we can tolerate all sorts of political disputes on a range of issues, but we cannot tolerate attacks by the government on our constitutional framework and guaranteed liberties.The sharp bifrucation between "all sorts of political disputes on a range of issues" and "attacks by the government on our constitutional framework and guaranteed liberties" is typical of a sort of naive centrism such as Greenwald professes. Many on the left would say that the struggle for constitutional guarantees is central to "all sorts of political disputes on a range of issues." The fact that Greenwald accepts this sharp division so matter-of-factly reflects the sort of complacency, one might even say, that typifies political centrism in America. That complacency is also evident in how long it took him to shift from being troubled, but still loyal, to being fully opposed.
The invasion of Iraq was the next troubling event. Greenwald became "concerned" that invasion was being "driven by agendas and strategic objectives that had nothing to do with terrorism or the 9/11 attacks." The stated rationale "was exceedingly weak, particularly given that it would lead to an open-ended, incalculably costly, and intensely risky preemptive war."
Still, Greenwald continued to support--even, in his own words to place his "trust in the Bush administration." He explains:
Between the president's performance in the wake of the 9/11 attacks, the swift removal of the Taliban in Afghanistan, and the fact that I wanted the president to succeed, because my loyalty is to my country and he was the leader of my country, I still gave the administration the benefit of the doubt. I believed then that the president was entitled to have his national security judgment deferred to, and to the extent that I was able to develop a definitive view, I accepted his judgment that American security really would be enhanced by the invasion of this sovereign country.Clearly, the extent to which Greenwald gave Bush the benefit of the doubt is a major factor in the depth and passion of his views today. Greenwald feels personally betrayed in a way that someone like me--an 8-percenter who never trusted Bush--could never feel. Just as clearly, from looking at the polls, we know that tens of millions of other Americans lost their trust, as Greenwald did. Yet, most have not really come to grips with why and how their trust has been betrayed.
Above all, this book is for them--either to speak for them, or to draw them into dialogue, to find their own reasons and there own voice. As much as it is a treatise on what America stands for--and against--Greenwald's book is more a reckoning about himself, and others like him, who yearn to be simple, naive, trusting patriots--and yet, cannot. It is titled, after all, "How Would A Patriot Act?" not "How Should A President Act?" For all that it focuses on Bush's usurpation of power, it's true subject is not how Bush has sought to destroy America, but how America's citizens must save her. That is why people read his blog, and why they will read this book.
The aftermath of the Iraq invasion brought "a whole host of revelations that took on an increasingly extremist, sinister, and decidedly un-American tenor. The United States was using torture as an interrogation tool, in contravention of legal prohibitions. We were violating international treaties we had signed, sending suspects in our custody for interrogation to the countries most skilled in human rights abuses." And it brought the case of Yaser Esam Hamdi, another U.S. citizen detained without trial or access to counsel. Finally:
George W. Bush began expressly advocating theories of executive power that were so radical that they represented the polar opposite of America's founding principles.Trying to understand where all this was coming from:
What I discovered, to my genuine amazement and alarm, is that these actions had their roots in sweeping, extremist theories of presidential power that many administration officials had been advocating for years before George Bush was even elected. The 9/11 attacks provided them with the opportunity to officially embrace those theories.Beyond the preface, the book itself is devoted to exposing and utterly refuting those theories. To do so, Greenwald depends more heavily on conservative figures like Supreme Court Justice Antonin Scalia, former Congressmember Bob Barr, columnist George Will, and Heritage Foundation scholar Bruce Fein, employing liberals and Democrats in a decidedly secondary role.
Hamdi, an American citizen, was declared an "enemy combatant" by presidential decree and ordered imprisoned in a military prison, without charge and without access to counsel, family or friends. Furthermore, the administration claimed the courts had no power to review his case. He finally obtained a lawyer after his father filed a federal suit to force a ruling on whether his son's constitutional rights were being violated.
As Greenwald puts it:
Put another way, the administration argued that once the president, in secret, deems a U.S. citizen to be an enemy combatant, that designation cannot be challenged by the imprisoned citizen.The Supreme Court disagreed, ruling against the Bush Administration, saying, in part:
Not only are the courts without any power to review the president's decrees to imprison U.S. citizens, the Bush administration insisted that Congress as well lacks the power to limit or regulate these imprisonments in any way, because the president possesses this power "inherently" under the Constitution.
[I]t would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge.Clarence Thomas alone dissented from the majority decision, written by Sandra Day O'Connor. But Antonin Scalia went even further, Greenwald notes:
Justice Antonin Scalia, who usually sides with the Bush administration and is a longtime advocate of broad presidential powers, objected that the court's decision did not go far enough in finding the president's conduct towards Hamdi unconstitutional. Justice Scalia wrote a long and impassioned opinion making clear that the United States was founded upon a rebellion against exactly the powers asserted by President Bush--the power to imprison citizens with no charges based solely on the decree of the ruler--and that there is no more basic American value than the prohibition on citizens being imprisoned by their government based on a secret, monarchlike decree.After the ruling, the Bush Administration chickened out, and refused to try to prove Hamdi actually was an enemy combatant. Greenwald notes:
Scalia explained that other than in times of national emergency, when the U.S. Constitution allows Congress to suspend the right to challenge one's imprisonment (something that has not occurred since the Nineteenth Century), no elected official has the right to unilaterally and secretly order the imprisonment of American citizens without charging them with a crime. Scalia added that no U.S. citizen can ever be held as an "enemy combatant," because a citizen who is truly fighting a war against America can be charged with treason and given all due process to defend himself. As Scalia put it: "The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive."
Instead--after keeping Hamdi incarcerated in solitary confinement for two years and claiming that he was so dangerous that no charges even needed to be brought--the Bush administration simply released Hamdi from its custody and allowed him to return to Saudi Arabia, where he had spent much of his childhood.The absurdity of letting such a "dangerous" person go like that is a fitting end to the two-year travesty of the Hamdi case. The attention to Scalia's argument underscores just how reactionary the Bush Administration is: one of his two "model" Supreme Court justices sees Bush as threatening "The very core of liberty secured by our Anglo-Saxon system of separated powers."
Hamdi was required as part of the release agreement to renounce his U.S. citizenship, a rather ironic action given that Hamdi had, over the prior two years, been denied his basic citizenship rights.
So much for equating Bush critics with liberals.
Greenwald also devotes attention to the case of Jose Padilla, where some of the same territory is covered again. But the new twist comes from the issue of torture. On December 24, 2005, The New York Times reported that the accusations against Padilla were based on torturing the two sources who provided the supporting "information."
The use of torture as an interrogation tool by the United States is yet another by-product of the president's belief, grounded in the infamous Yoo memorandum, that nothing can limit the president's decisions with regard to terrorism. The president is free to use torture, opined Yoo, regardless of whether it is illegal under the laws of the United States.Referring to a February 14, 2005, New Yorker article by Jane Mayer, he notes:
Consistent with his general view that there can be no limits on the president's conduct, Yoo made clear to Mayer that the president's unlimited power means that he is free to torture people, even if the law prohibits it. As Mayer recounted:Thus, Bush's "right to torture" and his "right to spy" are joined at the hip: both derive from the same argument of unlimited presidential power that stems directly from Yoo's argument.
Yoo also argued that the Constitution granted the President plenary powers to override the U.N. Convention Against Torture when he is acting in the nation's defense--a position that has drawn dissent from many scholars. As Yoo saw it, Congress doesn't have the power to "tie the President's hands in regard to torture as an interrogation technique."He continued, "It's the core of the Commander-in-Chief function. They can't prevent the President from ordering torture."
As it turned out, Greenwald underscores, torture was also involved in conning America into the Iraq war. An ABC News report on November 18, 2005 addressed the use of torture in both cases, he notes. Regarding phony "evidence" of an Iraq-al Qaeda connection, ABC reported:
According to CIA sources, Ibn al Shaykh al Libbi, after two weeks of enhanced interrogation, made statements that were designed to tell the interrogators what they wanted to hear. Sources say al Libbi had been subjected to each of the progressively harsher techniques in turn and finally broke after being waterboarded and then left to stand naked in his cold cell overnight, where he was doused with cold water at regular intervals.This is yet another way in which unlimited presidential power corrupts the democratic process. But it is the pattern of corruption, rather than any single act, that Greenwald's principle focus and concern.
His statements became part of the basis for the Bush administration claims that Iraq trained al Qaeda members to use biochemical weapons. Sources tell ABC that it was later established that al Libbi had no knowledge of such training or weapons and fabricated the statements because he was terrified of further harsh treatment.
"This is the problem with using the waterboard. They get so desperate that they begin telling you what they think you want to hear," one source said.
The meat of the book, however, has to be the NSA spying scandal. Here, Greenwald performs three exemplary functions: First, building on the other material presented, he situates it clearly as a lawbreaking scandal, and a separation-of-powers constitutional crisis, rather than merely an evesdropping scandal. Second, by reviewing the historical record--particularly the legislative history of FISA--he eviscerates several smokescreen defenses that cloud the issue. Third, by continuing his reliance on conservative sources, he undercuts the canard that this is merely a political or ideological witch-hunt.
Getting the second one out of the way, Greenwald notes, for example, the frivolous nature of complaints that FISA is cumbersome:
Indeed, the FISA court operates like no other in the United States, preciselyOr that FISA is inadequate:
in order to ensure that immediate eavesdropping approval is always
available. An article by James Bamford in the April 2006 Atlantic Monthly described some of the operational agility of the FISA court, with a focus on its longtime presiding judge, Reagan appointee Roffice C. Lamberth:
As the presiding justice of the Foreign Intelligence Surveillance Court, known as the FISA court, Lamberth had become accustomed to holding the secret hearings in his living room. . . . FBI agents will even knock on the judge's door in the middle of the night.
The complaints voiced by the administration about the supposed inadequacies of FISA--complaints it never voiced until the president was caught violating the law--are extremely difficult to understand, given how permissive and broad are the eavesdropping powers which the president has under the law.
It defies credibility to claim that the president, in October 2001, ordered eavesdropping in violation of FISA because he perceived that the law imposed too many barriers to necessary eavesdropping. After all, he ordered this illegal eavesdropping at exactly the time, in October 2001, when Congress was amending FISA in accordance with the president's requests, and the president was telling the nation that, as a result of those amendments, he had all the tools he needed to monitor the communications of terrorists.Or that FISA's supposed inadequacies justify lawbreaking:
The president plainly broke the law, which is why the only defense available to him and his supporters is to claim that he has the right to do so.
But this is the critical and often overlooked point: Even if the administration's complaints about the supposed inadequacies in the law were true, that could not possibly justify the president's lawbreaking.Or that FISA is in any sense controversial:
In a country under the rule of law, the solution to a bad or inadequate law is to change or amend the law--something that, in the case of FISA, could have been easily accomplished.
All Americans are equal under the law, and in America nobody, including the president, is above the law or exempt from its mandates. Governmental power in America always emanates from the people, such that Americans have the right to enact laws through their representatives in Congress, and nobody--including the president--has the right to violate those laws.By confronting, and stripping away the excuses, Greenwald further intensifies the focus on the main point--that this is a lawbreaking scandal (as already indicated) and a separation-of-powers crisis. The fact that Versailles official Washington continues to ignore and deny this becomes harder and harder to fathom as one reads page after page of Greenwald's book.
These are the principles that led Americans in 1978 to enact a law, in response to decades of eavesdropping abuses by administrations of both parties, that made it a criminal offense for our government to eavesdrop on Americans without judicial oversight and approval. It was neither a conservative nor a liberal belief--as evidenced by the fact that the United States Senate approved FISA in 1978 by a vote of 95 to 1. Those representatives voted as one because a consensus had been reached democratically that reflected the will of the people.
The heart of the matter is how Bush simultaneously defied both Congress and the Court:
As Congress devised the law, the FISA court plays two critical, independent functions--not just warrant approval but also, more critically, judicial oversight. FISA's truly meaningful check on abuse in the eavesdropping process is that the president is prevented from engaging in improper eavesdropping because he knows that every instance of eavesdropping he orders will be known to a federal judge--a high-level judicial officer who is not subject to the president's authority and whose constitutional duties are separate from the president's.To buttress this point--which should need no support for anyone who has taken high school civics--Greenwald quotes repeatedly from the Federalist Papers and various court decisions. One single example serves to show far removed Bush's views are from the American mainstream, where Greenwald quotes Scalia's opinion, which in turn notes that "No fewer than 10 issues of the Federalist were devoted in whole or part to allaying fears of oppression from the proposed Constitution's authorization of standing armies in peacetime."
It is precisely that safeguard which President Bush simply abolished by fiat. In effect, President Bush changed the law all by himself, replacing the federal judges with his own employees at the NSA and abolishing the approval and warrant process entirely.
To describe that conduct is to illustrate its jaw-dropping lawlessness and corruption. It ought to go without saying that, at least in America, the president does not have the right to unilaterally change laws that he does not like. He cannot simply abolish his least favorite provisions and replace them with ones he likes better.
Hamdi v. Rumsfeld: Scalia v. Bush
At one particular point, Greenwald quotes extensively from Scalia's concurring opinion in the Hamdi case. If we actually had a functioning (rather than dysfunctional) public sphere, this opinion would have the political establishment to its foundations, and forced a confrontation between Congress and the Bush Administration, regardless of party ties. For Scalia makes clear, in no uncertain terms, that the Bush Administration's arguments amount to nothing short of an argument that can lead to tyranny. Pretty amazing stuff coming from Scalia. If anyone outside the Supreme Court were to say such things--a mere senator, say--they would quickly be dismissed as a far left kook.
An extremely potent demonstration that the Bush administration's claim to unchecked executive power is fundamentally inconsistent with the most basic constitutional safeguards comes from one of the unlikeliest corners--Justice Antonin Scalia's opinion in Hamdi v. Rumsfeld in 2004, where Scalia explained that in the area of national security, even in times of war, the president's power as commander in chief is limited to tactical decisions about how the country's armies will fight:This, then, is the final irony: We have here, in the real world, in America, a centrist blogger quoting an arch-conservative Supreme Court Justice to counter the tyrannical ambitions of a supremely unpopular president. And in the unreal world of Washington and the corporate media--in our own present-day Versailles--the blogger is labeled a liberal, and anyone in the Congress--such as Russ Feingold--who tries to follow his argument by holding the president accountable, is treated like a deranged radical whose views represent only an extreme fringe.
The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders' general mistrust of military power permanently at the Executive's disposal.
In the Founders' view, the "blessings of liberty" were threatened by "those military establishments which must gradually poison its very fountain." The Federalist No. 45, p. 238 (J.Madison). No fewer than 10 issues of the Federalist were devoted in whole or part to allaying fears of oppression from the proposed Constitution's authorization of standing armies in peacetime.
Many safeguards in the Constitution reflect these concerns. Congress's authority "[t]o raise and support Armies" was hedged with the proviso that "no Appropriation of Money to that Use shall be for a longer Term than two Years." U. S. Const., Art. 1, §8, cl. 12.
Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II.
As Hamilton explained, the president's military authority would be "much inferior" to that of the British King: "It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature." The Federalist No. 69, p. 357.
A view of the Constitution that gives the executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions. [Emphasis added.]
It is difficult to overstate the importance of these observations from Justice Scalia, the favorite Supreme Court justice of conservatives, the man whom President Bush himself identified during his reelection campaign as an ideal justice. The United States Constitution applies in both peacetime and war, and even in war the power of the president is subject to checks and balances by Congress and the courts, and his power is limited to command of the armed forces. There is no time in America--whether in peace or at war--when the president has the powers that the Bush administration has attempted to seize.
Page after page of How Would A Patriot Act has a similar, if not always quite so powerful effect. One reads words, phrases and arguments that seem to come from a magical, distant, yet familiar land. A land whose political traditions are defined by Madison, Jefferson, and Lincoln, rather than Limbaugh, Rove and O'Reilly. You pinch yourself, asking, can this be real? Can it be possible to escape from what America has become?
I am reminded of the words of Langston Hughes:
- Let America be America again.
Let it be the dream it used to be.
Let it be the pioneer on the plain
Seeking a home where he himself is free.
(America never was America to me.)