How has the Bush administration gotten away with such apparently illegal acts as hiding intelligence reports from Congress, creating secret prisons, establishing death squads, kidnapping people and spiriting them across national borders, and planning unprovoked wars? Part of the answer lies in the administration's deliberate effort, initiated even before September 11, 2001, to tear down any existing legal and institutional means for preventing, exposing, or punishing violations of national and international law by American officials.
Back in 2002, Adriel Bettleheim wrote in the Congressional Quarterly that Vice President Dick Cheney "considers it the responsibility of the current administration to reclaim those lost powers for the institution of the presidency." Indeed, the Bush administration has tried to remove all conceivable restrictions on the "imperial presidency," setting its sights in particular on dismantling the Freedom of Information Act, the Intelligence Oversight Act, and the War Powers Resolution. Restoring limits on the power of the executive branch to conceal information, tell (and hide) lies, make war at its own discretion, or kidnap, torture, and kill without interference from Congress, the courts, and the public will be crucial tasks, if future Abu Ghraibs are to be prevented.
The Freedom of Information Act provides a good example of the constraints Cheney aimed to remove. Essentially a sunshine law passed by Congress in 1966, the FOIA requires that government agencies disclose their records upon written request. The Act provides nine "exemptions" to the public's right of access, but in the Clinton years Attorney General Janet Reno advised agencies that information should be released as long as it did "no foreseeable harm."
Shortly after the 9/11 attacks, Attorney General John Ashcroft issued a sweeping memorandum which interpreted out of existence much of the FOIA, discouraging government agencies from releasing any information that could conceivably be withheld. ("Any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information.") Department and agency heads who decided to withhold records were "assured that the Department of Justice will defend your decisions" unless they lacked a sound legal basis -- as determined by the administration itself.
Ashcroft's memo advocated broad interpretation of the exemptions, particularly Exemption 5 which protected agency and interagency memos. Subsequent communications recommended that government agencies withholding requested information cite as well Exemption 2, regarding agency personnel rules and practices, and Exemption 4, regarding proprietary interests.
A recent study by the Coalition of Journalists for Open Government comparing the handling of FOIA requests in 2000 and 2004 found that Exemption 2 was cited three times more often in 2004; exemption 5, almost twice as frequently; and Exemption 4, 68% more often.
More important than the rising number of exemptions has been the kind of information restricted. By far the greatest part of what the public has so far learned about prisoner abuse, torture, and other criminal acts at Abu Ghraib, Guantanamo, and elsewhere by government and military officials resulted from FOIA requests that were first denied by government agencies, and only then ordered fulfilled by the courts. The same goes for evidence that such criminal actions were encouraged by high government officials -- witness the FBI emails from Guantanamo, released only by order of the courts, indicating that abusive interrogation techniques had been authorized by "an Executive order signed by President Bush."
Right now the Bush administration is trying to further restrict the use of the FOIA. The pending defense and intelligence authorization bills, for instance, include language that would empower the director of the Defense Intelligence Agency (DIA) to place its "operational files" completely outside the purview of the FOIA. This would stop the ACLU and other human rights organizations from continuing to use FOIA requests to extract crucial hidden documents from the administration and so expose abuses like those at Abu Ghraib and Guantanamo. The National Security Archive, a research institute at George Washington University that collects and publishes documents acquired through the FOIA, calls the legislation the "Abu Ghraib Protection Act."
What Should Congress Know and When Should It Know It?
A second example of the Bush administration's efforts to "reclaim" the "lost powers" of the presidency concerns congressional intelligence oversight. In the wake of the Vietnam War, a Senate Select Committee headed by Senator Frank Church conducted the most extensive investigation ever made of U.S. intelligence operations, revealing, among other things, a series of previously secret CIA plots to assassinate foreign leaders and overthrow foreign governments.
In response to these revelations, Congress passed the Intelligence Oversight Act of 1980. That Act concentrated the power of Congress to oversee American intelligence operations in the House and Senate intelligence committees. It also required intelligence agency heads to keep the oversight committees "fully and currently informed" not just of their ongoing activities but of "any significant anticipated intelligence activity." Initially, Congress succeeded in performing "serious and nonpartisan oversight," though partisan bickering later reduced its effectiveness, according to Kevin Whitelaw and David E. Kaplan in U.S. News and World Report. In the late 1990s, intelligence committee members and staffs were nonetheless receiving more than 1,200 briefings and reviewing more than 2,200 reports from the CIA annually.
Shortly after 9/11, George Bush officially informed the CIA and other agencies concerned with national security that "[t]he only Members of Congress whom you or your expressly designated officers may brief regarding classified or sensitive law enforcement information" are "the Speaker of the House, the House Minority Leader, the Senate Majority and Minority Leaders, and the Chairs and Ranking Members of the Intelligence Committees in the House and the Senate."
In practice, the Bush administration has failed -- or in certain cases simply refused -- to keep the intelligence committees informed on some of the most important aspects of the Iraq war and the war on terrorism. According to Douglas Jehl of the New York Times, "The restrictions that the White House has imposed on briefings about the C.I.A. detention program" for high-level terror suspects "were described by Republican and Democratic Congressional officials as particularly severe." This, in turn, appears "to have had the effect of limiting public discussion about the C.I.A.'s detention program."
Senate majority leader Harry Reid forced a dramatic closed session of the Senate this fall to demand that the Intelligence Committee investigate the cherry-picking and manipulation of intelligence used to promote the Iraq war. But the administration has refused to provide critical information such as presidential intelligence briefings. According to a recent article by Murray Waas in the National Journal, for example, President Bush was briefed by the CIA on September 21, 2001 -- less than two weeks after 9/11 -- that there was scant evidence of collaboration between Iraq and Al Qaeda. But the Intelligence Committee didn't learn about the briefing until the summer of 2004. The Bush administration is still refusing to provide the President's Daily Brief and dozens of related documents to the Committee.
The Church committee's revelations on such matters as CIA assassination attempts against President Fidel Castro of Cuba, Prime Minister Patrice Lumumba of the Congo, and others led President Gerald Ford to issue Executive Order 11905 in 1976. A section entitled "Prohibition on Assassination" states: "No employee of the United States government shall engage in, or conspire to engage in, political assassination." This order was reiterated by Presidents Carter and Reagan. But after 9/11, according to Washington Post reporter Bob Woodward, President Bush signed an intelligence "finding" directing the CIA to do "whatever is necessary" to destroy Osama bin Laden and his al Qaeda organization.
During his 2003 State of the Union address, President Bush bragged of such extrajudicial killings, claiming that more than three thousand suspected terrorists "have been arrested in many countries. And many others have met a different fate. Let's put it this way: They are no longer a problem for the United States."
Making America Safe for Preventive War
The Constitution gives Congress the power to declare war. Since World War II, however, the many armed conflicts in which the U.S. has been involved have been conducted without such a declaration. In 1973, at the height of opposition to the war in Vietnam, Congress tried to reassert some mild constraints on the authority of the President to initiate and conduct wars without Congressional authorization by passing the War Powers Resolution. This required the President to consult with Congress before the start of any hostilities and to remove U.S. armed forces from those hostilities if Congress had not declared war or passed a resolution authorizing the use of force within 60 days. The resolution was vetoed by President Nixon, but Congress overrode the veto.
The Bush administration, however, has asserted almost unlimited powers to make war. In its National Security Strategy of the United States, issued in 2002, it claimed the right to launch preventive wars simply on the basis of the belief in a threat of possible future danger. Condoleezza Rice, then National Security Advisor, put it this way: "As a matter of common sense, the United States must be prepared to take action, when necessary, before threats have fully materialized." As Senator Robert Byrd pointed out in a speech to Congress on January 25, 2005, this doctrine of preventive war "takes the checks and balances established in the Constitution that limit the President's ability to use our military at his pleasure, and throws them out the window… This doctrine of preemptive strikes places the sole decision of war and peace in the hand of the President and undermines the Constitutional power of Congress to declare war."
The War Powers Resolution mattered little in Afghanistan and Iraq, because Congress enthusiastically supported these ventures, passing what political scientist Nancy Kassop, writing in Presidential Studies Quarterly, termed "exceedingly permissive resolutions" that "leave critical decision making to the president's discretion." But it may matter very much in the future. In recent Congressional hearings, for instance, Senator Lincoln Chaffee posed the following question to Rice, now Secretary of State: "Under the Iraq war resolution, we restricted any military action to Iraq. So would you agree that if anything were to occur on Syrian or Iranian soil, you would have to return to Congress to get that authorization?"
She answered: "Senator, I don't want to try and circumscribe presidential war powers. And I think you'll understand fully that the president retains those powers in the war on terrorism and in the war on Iraq."
The Bush administration seems to assert that its powers are sufficient for it to initiate an illegal war of aggression without authorization from either the United Nations or Congress.
Underlying the specific changes in laws, regulations, and their interpretations designed to prevent Congress and the public from controlling or even knowing what the executive branch is doing lies a broader philosophy: That the executive branch is simply not subject to law if it is acting in pursuit of national security -- and that the executive branch is to be the only arbiter of whether it is doing so.
The various manipulations of the law help explain how the Bush administration has been able to engage in what might appear to be illegal activity with such impunity. More important, they help indicate the legal and institutional barriers that the American people need to restore and expand to prevent similar criminal activity by high officials in the future.
Discussion has already started on ways to restore the Bushwhacked constraints on executive power. Legislation co-sponsored by Democratic senator Patrick Leahy and Republican senator John Cornyn, for example, would strengthen the Freedom of Information Act by requiring quick agency response to information requests and an ombudsman to hear public complaints. Recently in the Atlantic Monthly magazine, Leslie H. Gelb and Anne-Marie Slaughter proposed legislation that would forbid military action without a Congressional declaration of war.
Until recently, such proposals might have seemed like pie in the sky, but the national catastrophe in Iraq that has resulted from unchecked presidential power may create a more favorable climate for them. According to John Mueller, a political scientist at Ohio State University who has studied the reactions to past U.S. wars, what you're going to get after the Iraq war is: "‘we don't want to do that again -- No more Iraqs' just as after Vietnam the syndrome was ‘No more Vietnams.'"
Preventing future Iraqs -- future aggressive wars, abuse of civilians, torture of prisoners, and other war crimes -- is not just a matter of changing administrations and foreign policies. It also involves restoring and elevating the legal barriers that once stood in the way of an out-of-control imperial presidency. "Lost powers," usurped by "the institution of the presidency," must be reclaimed by the people and their representatives.
Brendan Smith and Jeremy Brecher are the editors, with Jill Cutler, of In the Name of Democracy, American War Crimes in Iraq and Beyond (Metropolitan, 2005). Brecher, a historian who has authored more than a dozen books including Strike!, writes for the Nation magazine among other publications. For his documentary film work he has received five regional Emmy Awards. Legal scholar Brendan Smith (email@example.com), a former senior congressional aide specializing in defense and human rights policy, is coauthor of Globalization from Below, and has written for the Los Angeles Times, The Nation, and the Baltimore Sun.
© 2005 Tom Engelhardt