How Should a Patriot Act?
[How Would a Patriot Act? Defending American Values from a President Run Amok. By Glenn Greenwald. Working Assets Publishing, 2006. 128 pages.]
In this remarkable book, Glenn Greenwald solves a difficult problem. President Bush has for several years authorized the National Security Agency to wiretap telephones within the United States without a judicial warrant. Doing so is illegal, but Bush claims that security against terrorism requires it. Here our puzzle arises. The administration thinks that certain wiretaps are necessary. But under existing law, it can readily obtain a warrant from a special court. When warrants have been requested from this court, they have never been denied. Why, then, do the minions of the Bush administration decline to seek a warrant? The answer cannot be that sudden emergency leaves no time to go to court, since the law allows for an immediate wiretap so long as judicial approval is secured a short time later.
Greenwald cogently sketches the situation:
[P]rior to the December 2005 disclosure that President Bush had violated the law, no one ever suggested that the FISA [Foreign Intelligence Surveillance Act] framework impeded necessary eavesdropping. If anything, the FISA court had long been criticized … for being too permissive, for allowing the government whatever eavesdropping powers it requested. Indeed, its reputation for granting every eavesdropping request made by the government is so widespread that it has long been ridiculed as the "Rubber Stamp Court." … The FISA court approved every single request [out of 13,102 submitted between 1978 and 2001] and only modified the requested warrant on a grand total of two occasions. (p. 28)
Why then did the Administration bypass the court? Greenwald responds:
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 … 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 [National Security Agency] and abolishing the approval and warrant process entirely. (p. 37)
Bush ignored the court, in sum, because he thinks that he possesses plenary powers in all matters that concern security. But how can he think this? Does not the Constitution grant the president strictly limited powers? No one can reasonably question this; but, as Greenwald notes, some legal theorists have not scrupled to do so. Notoriously, John Yoo, a Berkeley law professor who served as deputy assistant attorney general, wrote an extraordinary memorandum on September 25, 2001:
Yoo contended that the president's powers were not confined only to battlefields or wars; he emphatically argued that the president has the power to make any decisions with regard to all matters relating to defense and that neither the Congress, nor the courts, nor any longstanding laws can restrict or limit those decisions in any way. (pp. 40–41)
Is there anything to be said in favor of this view? Greenwald calls attention to an important article by Harvey Mansfield, a professor of government at Harvard. Mansfield contends that the president sometimes faces the need to act in an emergency. He cannot, in a dire situation, always follow the law. He must violate the law to save the country. Mansfield appeals to Machiavelli for support:
To confirm the extra-legal character of the presidency, the Constitution has him take an oath not to execute the laws but to execute the office of president, which is larger … the rule of law is not enough to run a government…. In Machiavelli's terms, ordinary power needs to be supplemented or corrected by the extraordinary power of a prince, using wise discretion. (p. 70, quoting Mansfield)
Has not Mansfield confused two very different things? To say that the president, faced with an emergency, may have to act swiftly, is one thing; to say that, in so acting, he may violate the law, is quite another. Mansfield forgets that Machiavelli was not one of the Founding Fathers. Where in the Constitution is the president given the power to abrogate the law? The Constitution does not incorporate Article 48 of the Weimar Constitution, granting the president the power to suspend constitutional guarantees of rights; and given the sorry outcome of that document, it is a fortunate omission. Elsewhere, Mansfield has appealed to John Locke's "prerogative power" to support his claims; but one suspects that their real source is Carl Schmitt, the enigmatic legal theorist who famously said, "Sovereign is he who has the power to declare the exception [i.e., an emergency suspending the laws]."
Greenwald easily shows that this bizarre contention directly contradicts the principles of the American Revolution. Exactly the grievance of the colonists was that the king had acted in an arbitrary way, in disregard of law and precedent. Is it to be believed, then, that the Founding Fathers wrote into the Constitution just the executive tyranny against which they had rebelled? "To the founders, the defining characteristic of the tyrannical British king was that he possessed precisely those powers that the Constitution prohibits but the Bush administration is now claiming it can exercise" (p. 82).
But what if the Constitution and the Founding Fathers are wrong? Should we not address, independent of precedent, the arguments of those who claim that the power to suspend the law is essential for national survival? However anxious we may be to do so, we face a difficulty. No plausible circumstance has ever been adduced by Yoo, Mansfield, or others with like views in which such extreme action is necessary. Instead, we are offered a threatening situation, e.g., a terrorist group attempting to secure atomic weapons. It is then taken for granted that the laws must be violated to combat this danger, but we are never told why.
As Greenwald makes clear, Bush has applied his claim to be above the law far beyond the issue of wiretaps. Bush has acted on the belief that he may seize anyone, even an American citizen living within the United States, and hold him as he deems fit in a military prison, there to be subject to harsh treatment that does not fall short of torture. Yaser Hamdi, an American citizen, was seized by the American Army in Afghanistan in 2001.
In secret, President Bush signed a decree accusing Hamdi of being an "enemy combatant" and ordered his administration to keep Hamdi in a military prison. Hamdi was not charged with any crime and was not allowed access to a lawyer. He was simply locked away and allowed no contact with anyone, and the administration asserted the right to detain Hamdi under these circumstances indefinitely. (p. 43)
When the Supreme Court rejected the administration's claim, Hamdi was deported to Saudi Arabia.
Even worse, José Padilla, also an American citizen, was arrested on American soil and cast into a military prison.
On June 9, 2002, President Bush signed yet another secret order, this one decreeing Padilla to be an enemy combatant, and as a result, he was transferred to a military prison in South Carolina and subjected to the same "black hole" treatment that Hamdi received — placed in solitary confinement, not formally charged with any crime, denied access to a lawyer. (p. 47)
Once more, the administration claimed that it was free to do anything it wanted to an American citizen in the name of defense. When it appeared that the Supreme Court was about to rule on the constitutionality of this claim to dictatorial power, the administration transferred Padilla to the civilian authorities; he was then tried in court and convicted. The treatment he received in military prison had meanwhile rendered him mentally ill.
Even if Congress passes a law that forbids the use of torture, Yoo and his associates contend that the president is not bound by its terms: once more, he possesses plenary powers in matters of defense. The president has brazenly issued "signing statements" when he approves new legislation that declare that he will interpret laws in accord with his own dictatorial conception of his powers, i.e., he will disregard the law when it suits him.
Greenwald has rendered an inestimable service by his clear and cogent analysis of gross presidential usurpation of power.
Faced with a constitutional crisis of this magnitude, what are we to do? Most of the candidates for the 2008 presidential nomination offer little or no improvement on Bush's malodorous security policies. One candidate stands out, though, as a clear defender of the Constitution and our civil liberties. As Ron Paul noted in speech to Congress on November 29, 2001,
The target of our [congressional] efforts has sadly been the liberties all Americans enjoy. With all the new powers we have given the administration, none has truly improved the chances of catching the terrorists who were responsible for the 9/11 attacks. All Americans will soon feel the consequences of this new legislation…. Laws recently passed by Congress apply to all Americans, not just terrorists. (Ron Paul, A Foreign Policy of Freedom, Foundation for Rational Economics and Education Inc., pp. 168–69)
David Gordon covers new books in economics, politics, philosophy, and law for The Mises Review, the quarterly review of literature in the social sciences, published since 1995 by the Mises Institute. He is author of The Essential Rothbard, available in the Mises Store. See his archive. Send him mail. Comment on the blog.
This review originally appeared in The Mises Review, Winter 2007.