The Bush administration genuinely appears to think that as long as it claims it needs the authority to do something in order to fight terrorism, there are no limits whatsoever on its power. This has reached the point where even the administration’s defenders are having a difficult time finding a rationale for their increasingly imperial behavior. Some of us saw this coming 3 years ago when they began to assert the authority to suspend habeas corpus in specific situations and hold US citizens indefinitely without charging them or giving them an opportunity to challenge their imprisonment, but the recent revelations of NSA wiretapping without even following the extremely lax procedures of the FISA statute have made even folks like David Keene, head of the American Conservative Union, say that he has gone too far.
It’s worth tracing some of the history of this. It began with the arrests of two American citizens, Jose Padilla and Yaser Hamdi. But rather than charging them with a crime, they tried to designate them as “enemy combatants” and therefore without any rights under the Constitutional. Naturally, suits against the government were filed on their behalf and the administration asserted that it had unbridled authority to hold anyone it deemed to be a sufficent threat without charging them with anything or given them any opportunity to contest their imprisonment.
The administration argued that Padilla and Hamdi were so dangerous that they could not be allowed even to have their day in court. When the courts disagreed in the Hamdi case and ruled that the administration either had to charge him with a crime and give him his day in court to defend himself or let him go, they let him go. They put him on a plane back home to Saudi Arabia (he was born in the US, but lived in Saudi Arabia) and released him. Steven Chapman fills in the details of this and the Padilla case:
Consider the case of Jose Padilla, a U.S. citizen arrested in 2002 on suspicion of plotting to set off a “dirty bomb.” For three years, the administration said he posed such a grave threat that it had the right to detain him without trial as an enemy combatant. In September, the U.S. Court of Appeals for the 4th Circuit agreed.
But then, rather than risk a review of its policy by the Supreme Court, the administration abandoned its hard-won victory and indicted Padilla on comparatively minor criminal charges. When it asked the 4th Circuit Court for permission to transfer him from military custody to jail, though, the once-cooperative court flatly refused.
In a decision last week, the judges expressed amazement that the administration suddenly would decide Padilla could be treated like a common purse snatcher–a reversal that, they said, comes “at substantial cost to the government’s credibility.” The court’s meaning was plain: Either you were lying to us then, or you are lying to us now.
If that’s not enough to embarrass the president, the opinion was written by conservative darling J. Michael Luttig–who just a couple of months ago was on Bush’s short list for the Supreme Court.
Luttig’s ruling is powerfully worded and to the point. After arguing that Padilla was so dangerous that they couldn’t even safely put him on trial, the administration suddenly shifted ground and sought to transfer him to a regular jail and charge him in a regular court (rather than before a military tribunal) with apparently mundane crimes. Luttig writes:
The government has held Padilla militarily for three and a half years, steadfastly maintaining that it was imperative in the interest of national security that he be so held. However, a short time after our decision issued on the government’s representation that Padilla’s military custody was indeed necessary in the interest of national security, the government determined that it was no longer necessary that Padilla be held militarily. Instead, it announced, Padilla would be transferred to the custody of federal civilian law enforcement authorities and criminally prosecuted in Florida for alleged offenses considerably different from, and less serious than, those acts for which the government had militarily detained Padilla. The indictment of Padilla in Florida, unsealed the same day as
announcement of that indictment, made no mention of the acts upon which the government purported to base its military detention of Padilla and upon which we had concluded only several weeks before that the President possessed the authority to detain Padilla, namely, that Padilla had taken up arms against United States forces in Afghanistan and had thereafter entered into this country for the purpose of blowing up buildings in American
cities, in continued prosecution of al Qaeda’s war of terrorism against the United States…
The same day as Padilla’s indictment was unsealed in Florida, the government filed with us a motion pursuant to Supreme Court Rule 36 for authorization to transfer Padilla to Florida, a motion that included no reference to, or explanation of, the difference in the facts asserted to justify Padilla’s military detention and those for which Padilla was indicted. In a plea that was notable given that the government had held Padilla militarily for three and a half years and that the Supreme Court was expected within only days either to deny certiorari or to assume jurisdiction over the case for eventual disposition on the merits, the government urged that we act as expeditiously as possible to authorize the transfer. The government styled its motion as an “emergency application,” but it provided no explanation as to what comprised the asserted exigency.
The court is certainly correct to wonder at the inconsistency between the administration’s claims in the case before and their claims in the case now. As Jacob Sollum wrote about Luttig’s ruling:
The rebuke is richly deserved. Even a court that was prepared to recognize the detention authority asserted by Bush is not prepared to let him submit his policies to judicial review only when he feels like it. And having been burned once, maybe the 4th Circuit will be a little more skeptical the next time the government says, “Don’t worry–you can trust us.”
Add to that the obvious inconsistency with which the administration has defended the revelations about NSA wiretapping without even a FISA court warrant authorizing them to do so and you can certainly see why we libertarian-minded folks are calling bullshit. Their story with regard to these warrantless searches is patently absurd. The attorney general held a press conference in which he simultaneously claimed that such authority was granted by Congress through the Authorization to Use Military Force and that they didn’t go to Congress to seek such authority because they knew Congress wouldn’t grant it. And no, I’m not making that up. He said that. With a straight face.
The whole story with regard to the NSA wiretaps positively reeks of government lying. The FISA law provides a very low level of protection as it is and they couldn’t even be bothered to comply with those few safeguards. Under FISA, the NSA can use such wiretaps and intercept such calls without getting a warrant and then go back within 72 hours and get a warrant retroactively. And all they have to do to get the warrant is document to the FISA judge that they were part of a terrorism investigation. But even that minimal level of legal safeguard was apparently too much for the administration. Why? That’s a very good question.
The option for retroactive warrants rules out the argument that they had to act so quickly that they didn’t have time to ask the court’s permission. The fact that the standards for probable cause for such warrants is significantly lower than a regular warrant request rules out the argument that the court would incorrectly refuse the request. The fact that the FISA courts operate in secret rules out the argument that the investigations were so top secret that they couldn’t reveal the details even to the FISA judge. There is only one possible answer – because they knew the FISA court would not approve the warrants even retroactively. And that strongly suggests that the wiretaps were not really part of a terrorism investigation. If there is another reasonable explanation, I’d sure like to hear it. Steven Chapman wraps it up eloquently:
The disclosure that the president authorized secret and probably illegal monitoring of communications between people in the United States and people overseas again raises the question: Why?
The government easily could have gotten search warrants to conduct electronic surveillance of anyone with the slightest possible connection to terrorists. The court that handles such requests hardly ever refuses. But Bush bridles at the notion that the president should ever have to ask permission of anyone.
He claims he can ignore the law because Congress granted permission when it authorized him to use force against Al Qaeda. But we know that can’t be true. Atty. Gen. Alberto Gonzales says the administration didn’t ask for a revision of the law to give the president explicit power to order such wiretaps because Congress–a Republican Congress, mind you–wouldn’t have agreed. So the administration decided: Who needs Congress?
What we have now is not a robust executive but a reckless one. At times like this, it’s apparent that Cheney and Bush want more power not because they need it to protect the nation, but because they want more power. Another paradox: In their conduct of the war on terror, they expect our trust, but they can’t be bothered to earn it.