On September 18, 2001, when Congress passed a joint resolution authorizing President Bush to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001," it thought it was approving a military attack on Al Qaeda and the Taliban. It should have known better.
Congress should have understood that presidents, given war-making authority, take it and run. According to Bush, what Congress was in fact giving him was the power to pursue the enemy on the battlefield as he sees fit. And it was giving him the power to decide, unilaterally, who the enemy is. And to define the battlefield—again, unilaterally.
Define it he did. In a July hearing before the U.S. Court of Appeals for the 4th Circuit, a federal judge asked if the administration was "prepared to boldly say the United States is a battlefield in the war on terror." Replied Paul D. Clement, the solicitor general: "I can say that, and I can say it boldly."
In other words, says Tim Lynch, the director of the libertarian Cato Institute's project on criminal justice, "From Anchorage to Dallas to Honolulu, it doesn't matter—it's all a battlefield."
And so Bush has claimed power, as commander-in-chief, to redefine limits on the detention and interrogation of prisoners. He claims the power to seize U.S. citizens on U.S. soil and to hold them without formal charge in a military brig for as long as he wants, without meaningful access to courts or lawyers. And now it emerges that he also claims the power to eavesdrop without warrants on Americans in the United States, in seeming violation of the 1978 Foreign Intelligence Surveillance Act, known as FISA.
In peacetime, these breathtaking claims to unilateral executive authority would be shocking. But America is at war. By the standards of wartime presidents—with an important exception, about which more later—Bush is a pussycat.
During the Civil War, President Lincoln suspended the right of habeas corpus, a prerogative that the Constitution grants to Congress alone. When a federal court declared his order unconstitutional, Lincoln ignored the ruling. His administration locked up 10,000 to 15,000 people, including some whose only offense was to denounce the war. Hardly apologetic, Lincoln predicted that history would blame him for making too few arrests, not too many.
In World War II, President Roosevelt detained thousands of loyal Japanese-Americans, many of whom lost their homes and livelihoods. Less widely known is that, when the government captured a band of German infiltrators in the United States, FDR declared he would execute them no matter what any court said.
During the Korean War, President Truman tried to use his authority as commander-in-chief to seize and nationalize the American steel industry. (He backed down when the Supreme Court rebuffed him.) Throughout the Cold War, under Democratic and Republican administrations alike, government spying on Americans was endemic.
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."
And so, with a fierce consistency, the administration has battled to keep Congress and the courts out of the war on terror. It has sought no new legal framework for the detention of suspected terrorists and unlawful enemy combatants, even though a new framework is sorely needed. It resisted legislation to draw clearer lines between legal and illegal interrogation practices. In the past several weeks, it has played what appears to be a legal shell game intended to forestall Supreme Court review of its handling of Jose Padilla, a U.S. citizen who was clapped incommunicado into a military brig.
And even now, with the secret out, the administration has offered no hints that it will try to regularize its domestic surveillance program. The program, Bush asserts, is vital and it saves American lives. If so, one might think Congress would be pretty likely to approve it. At some point, even an observer who sympathizes with Bush's goal begins to wonder if he remembers just what the goal is: fighting terrorism, not avoiding oversight. One begins to wonder, indeed, if his administration has lost sight of the distinction, especially when Vice President Cheney defends warrantless surveillance by saying, "Either we're serious about fighting the war on terror, or we're not."
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.
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