The Duck of Minerva

The Duck Quacks at Twilight

States of exception (part vi)

January 7, 2006

Because I remain outraged, and because many of my smarter conservative blogfriends don’t see the problem yet.

1. The leftcoaster has a FAQ, of sorts, on Republican talking points concerning Bush’s FISA violations (va LGM).

2. Glenn Greenwald’s posts on FISA remain some of the clearest on the subject. In a recent entry, he eviscerates some of the key claims made by Bush administration defenders, the attacks against the New York Times, and other unpersuasive talking points. Ted Barlow explains why the Plame and NSA leaks aren’t really comparable.

3. Many people praise Jonathan Rauch’s “Bush’s Battle Endangers The War”. I agree with their assessment. Rauch nails a number of key points:

By comparison, Bush has been as restrained in the exercise of his claims to wartime authority as those same claims have been expansive. He says he can lock up anyone he pleases for as long as he pleases, and no court or lawyer can say boo about it. But in practice, he has detained only two U.S. citizens, one of them captured on a foreign battlefield. He has not threatened to defy the courts. As for the National Security Agency’s domestic surveillance, no one seems to be suggesting that it was used against war dissenters or political enemies. Civil law may have been violated, but not, from appearances so far, civil liberties.

All true and to Bush’s credit. Yet there is an important difference between Bush’s behavior and that of Lincoln, FDR, and Truman: time.

The Civil War, World War II, and, to a lesser extent, the Korean War were intense, acute conflicts. Lincoln, Roosevelt, and Truman believed they were taking emergency measures during a conflict that they expected to be short. When it became clear that the Civil War would drag on, Lincoln went to Congress for the 1863 Habeas Corpus Act, formally legalizing his detention policy. Lincoln understood that he could not run a long war on a fly-by-night basis.

Bush, in contrast, seems determined to treat the war on terror as a permanent emergency. The administration says the 2001 use-of-force resolution allowed the government to collect battlefield intelligence here at home, superseding FISA. Invoked immediately after an enemy attack, that argument makes legal and strategic sense. Warrantless domestic surveillance and legal improvisation seem fine for four days, four weeks, or even four months.

But four years — with no end in sight? Bush seems to have had no intention of regularizing his surveillance program by building a legal framework for it. Instead, his plan apparently was to run a secret domestic spying program outside the boundaries of conventional law for, well, how long? Decades? Forever?

The legal implications of Bush’s program will take months to parse, but the strategic implications are no less worrisome. Like the Cold War, the war on terror is a long war of attrition. Tim Naftali, an intelligence historian and the director of the presidential recordings program at the University of Virginia’s Miller Center of Public Affairs, notes that people get tired of wars and that skullduggery provokes public backlash. In the Cold War, secret domestic spying went on for years, only to eventually blow up in the face of the intelligence community.

“The administration is just saying, ‘Trust us,’ and you can’t go on doing that for 20 years,” Naftali says. “At some point, you’ve got to regularize this, because you can’t lose your soul fighting terrorism. And terrorism is a chronic problem.”

In a war of nerves, an unsustainable strategy is a losing strategy. But Bush appears to view Congress and the courts not as potential partners in the war effort, but as obstacles and adversaries; not as a source of legitimacy and sustainability, but as busybodies and pests. “It’s almost,” Naftali says, “as if this is a war to win a conflict over executive power.”

He concludes:

For a casebook demonstration of a better approach, Bush and Cheney need look no farther than their own USA PATRIOT Act, currently up for renewal. By asking Congress in 2001 for a new law, instead of claiming authority to do as he pleased, Bush opened a messy debate that shows no signs of ending. But the result is a law that works well (as Bush attests), that stands on legal terra firma, and that commands undoubted public legitimacy. The mystery is why Bush subsequently turned his back on an approach that succeeded.

The notable exception among wartime presidents was James Madison. Though the War of 1812 was a dire crisis (New York was invaded, New Orleans was attacked, Detroit fell, the White House itself was burned), Madison undertook no extra-legal maneuvers. Toward the end of his long life, he reflected that the American Framers were distinguished not by their understanding of rights but by their appreciation of institutions. “The rights of man as the foundations of just government had been long understood,” he said, “but the superstructures projected had been sadly defective.” Structure, Madison understood, was the key to sustainability.

Bush keeps a bust of Winston Churchill in his office. But after four years, World War II was ending and Churchill was soon to be thrown out of office. The war on terrorism is still just beginning, and Bush has three years left. If only someone would give him a bust of Madison.

4. One of the most important recent post is Marty Lederman’s discussion of the latest exercise in Schmittianism: Bush’s reservation, in his signing statement, of the right to ignore new laws – most notably the McCain amendment prohibiting torture:

with respect to several provisions of the bill, the President signaled his intention to reserve his authority, as Commander in Chief, to ignore statutory mandates. These include provisions that require advance notice of congressional committees before the use of funds to initiate a special access program, a new overseas installation, or a new start program; and a “report and wait” provision that requires the President to wait 15 days after notifying six congressional committees before using certain appropriations to transfer defense articles or services to another nation or an international organization for international peacekeeping, peace enforcement, or humanitarian assistance operations.

Most importantly, as to the McCain Amendment, which would categorically prohibit cruel, inhuman and degrading treatment of detainees by all U.S. personnel, anywhere in the world, the President wrote:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

Translation: I reserve the constitutional right to waterboard when it will “assist” in protecting the American people from terrorist attacks.

Lederman also discusses the Graham amendment, which strips habeas corpus rights – and hence judicial oversight – from detainees.

I can’t be the only who feels like we’re in some Kafka-esque drama, can I? We’re fighting a “War on Terror,” says Bush, and therefore his Commander-in-Chief powers allow him to circumvent the law and the basic architecture of our system of checks and balances. But when the question is one of applying the Geneva Convention, it turns out we’re not at war. Our enemies are “illegal combatants” and thus not entitled to international legal protections.

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Daniel H. Nexon is a Professor at Georgetown University, with a joint appointment in the Department of Government and the School of Foreign Service. His academic work focuses on international-relations theory, power politics, empires and hegemony, and international order. He has also written on the relationship between popular culture and world politics.