NYT : The Real Agenda

The Real Agenda

NYT Editorial | July 16, 2006

It is only now, nearly five years after Sept. 11, that the full picture of the Bush administration’s response to the terror attacks is becoming clear. Much of it, we can see now, had far less to do with fighting Osama bin Laden than with expanding presidential power.

Over and over again, the same pattern emerges: Given a choice between following the rules or carving out some unprecedented executive power, the White House always shrugged off the legal constraints. Even when the only challenge was to get required approval from an ever-cooperative Congress, the president and his staff preferred to go it alone. While no one questions the determination of the White House to fight terrorism, the methods this administration has used to do it have been shaped by another, perverse determination: never to consult, never to ask and always to fight against any constraint on the executive branch.

One result has been a frayed democratic fabric in a country founded on a constitutional system of checks and balances. Another has been a less effective war on terror.

The Guantánamo Bay Prison

This whole sorry story has been on vivid display since the Supreme Court ruled that the Geneva Conventions and United States law both applied to the Guantánamo Bay detention camp. For one brief, shining moment, it appeared that the administration realized it had met a check that it could not simply ignore. The White House sent out signals that the president was ready to work with Congress in creating a proper procedure for trying the hundreds of men who have spent years now locked up as suspected terrorists without any hope of due process.

But by week’s end it was clear that the president’s idea of cooperation was purely cosmetic. At hearings last week, the administration made it clear that it merely wanted Congress to legalize President Bush’s illegal actions — to amend the law to negate the court’s ruling instead of creating a system of justice within the law. As for the Geneva Conventions, administration witnesses and some of their more ideologically blinkered supporters in Congress want to scrap the international consensus that no prisoner may be robbed of basic human dignity.

The hearings were a bizarre spectacle in which the top military lawyers — who had been elbowed aside when the procedures at Guantánamo were established — endorsed the idea that the prisoners were covered by the Geneva Convention protections. Meanwhile, administration officials and obedient Republican lawmakers offered a lot of silly talk about not coddling the masterminds of terror.

The divide made it clear how little this all has to do with fighting terrorism. Undoing the Geneva Conventions would further endanger the life of every member of the American military who might ever be taken captive in the future. And if the prisoners scooped up in Afghanistan and sent to Guantánamo had been properly processed first — as military lawyers wanted to do — many would never have been kept in custody, a continuing reproach to the country that is holding them. Others would actually have been able to be tried under a fair system that would give the world a less perverse vision of American justice. The recent disbanding of the C.I.A. unit charged with finding Osama bin Laden is a reminder that the American people may never see anyone brought to trial for the terrible crimes of 9/11.

The hearings were supposed to produce a hopeful vision of a newly humbled and cooperative administration working with Congress to undo the mess it had created in stashing away hundreds of people, many with limited connections to terrorism at the most, without any plan for what to do with them over the long run. Instead, we saw an administration whose political core was still intent on hunkering down. The most embarrassing moment came when Bush loyalists argued that the United States could not follow the Geneva Conventions because Common Article Three, which has governed the treatment of wartime prisoners for more than half a century, was too vague. Which part of “civilized peoples,” “judicial guarantees” or “humiliating and degrading treatment” do they find confusing?

Eavesdropping on Americans

The administration’s intent to use the war on terror to buttress presidential power was never clearer than in the case of its wiretapping program. The president had legal means of listening in on the phone calls of suspected terrorists and checking their e-mail messages. A special court was established through a 1978 law to give the executive branch warrants for just this purpose, efficiently and in secrecy. And Republicans in Congress were all but begging for a chance to change the process in any way the president requested. Instead, of course, the administration did what it wanted without asking anyone. When the program became public, the administration ignored calls for it to comply with the rules. As usual, the president’s most loyal supporters simply urged that Congress pass a law allowing him to go on doing whatever he wanted to do.

Senator Arlen Specter, chairman of the Senate Judiciary Committee, announced on Thursday that he had obtained a concession from Mr. Bush on how to handle this problem. Once again, the early perception that the president was going to bend to the rules turned out to be premature.

The bill the president has agreed to accept would allow him to go on ignoring the eavesdropping law. It does not require the president to obtain warrants for the one domestic spying program we know about — or for any other program — from the special intelligence surveillance court. It makes that an option and sets the precedent of giving blanket approval to programs, rather than insisting on the individual warrants required by the Constitution. Once again, the president has refused to acknowledge that there are rules he is required to follow.

And while the bill would establish new rules that Mr. Bush could voluntarily follow, it strips the federal courts of the right to hear legal challenges to the president’s wiretapping authority. The Supreme Court made it clear in the Guantánamo Bay case that this sort of meddling is unconstitutional.

If Congress accepts this deal, Mr. Specter said, the president will promise to ask the surveillance court to assess the constitutionality of the domestic spying program he has acknowledged. Even if Mr. Bush had a record of keeping such bargains, that is not the right court to make the determination. In addition, Mr. Bush could appeal if the court ruled against him, but the measure provides no avenue of appeal if the surveillance court decides the spying program is constitutional.

The Cost of Executive Arrogance

The president’s constant efforts to assert his power to act without consent or consultation has warped the war on terror. The unity and sense of national purpose that followed 9/11 is gone, replaced by suspicion and divisiveness that never needed to emerge. The president had no need to go it alone — everyone wanted to go with him. Both parties in Congress were eager to show they were tough on terrorism. But the obsession with presidential prerogatives created fights where no fights needed to occur and made huge messes out of programs that could have functioned more efficiently within the rules.

Jane Mayer provided a close look at this effort to undermine the constitutional separation of powers in a chilling article in the July 3 issue of The New Yorker. She showed how it grew out of Vice President Dick Cheney’s long and deeply held conviction that the real lesson of Watergate and the later Iran-contra debacle was that the president needed more power and that Congress and the courts should get out of the way.

To a disturbing degree, the horror of 9/11 became an excuse to take up this cause behind the shield of Americans’ deep insecurity. The results have been devastating. Americans’ civil liberties have been trampled. The nation’s image as a champion of human rights has been gravely harmed. Prisoners have been abused, tortured and even killed at the prisons we know about, while other prisons operate in secret. American agents “disappear” people, some entirely innocent, and send them off to torture chambers in distant lands. Hundreds of innocent men have been jailed at Guantánamo Bay without charges or rudimentary rights. And Congress has shirked its duty to correct this out of fear of being painted as pro-terrorist at election time.

We still hope Congress will respond to the Supreme Court’s powerful and unequivocal ruling on Guantánamo Bay and also hold Mr. Bush to account for ignoring the law on wiretapping. Certainly, the president has made it clear that he is not giving an inch of ground.

Copyright 2006 by The New York Times. All rights reserved.