Monday, October 25, 2004

Bush's Legal Response to Terrorism: A Hot-House Policy

Tim Golden of the Lakeland Ledger has provided the long-sought answer to my quandary of just how indefinite detention, denial of access to counsel, and off-shore gulags with military kangaroo courts became major features of American anti-terrorism policy. It boils down, as do so many of this Administration’s failures, to Bush’ negligent management style. He allowed a small group of young ideologically passionate lawyers from his Justice Department’s Office of Legal Council to run roughshod over the various institutional players in the State Department, the National Security Agency, and the Defense Department, who would normally have had considerable input into the policy formation process. Instead, memos were secretly passed around within informal working groups and withheld from key players in the Administration, including Powell, and even Rice. What evolved was a legal doctrine for dealing with terrorism related detainees that was as draconian as it was unnecessary. This flawed policy process bore the evil fruits of Guantanamo, prisoner torture and homicide, the indefinite detainment of several classes of persons, some of them Americans, and an unworkable tribunal system lacking any international legitimacy; in sum, a monstrously self-righteous, fear-based policy which has made America appear petty, weak, and tyrannical.

The young Turks tasked with shaping a legal strategy for combating terror had radical ideas about what was needed to keep America safe. They barely considered adapting the civilian courts to deal with terrorism cases, as Europe has done, nor did they seriously consider the Nuremberg model; they wanted something as streamlined and controllable as possible. They found what they wanted in Ex Parte Quiren, an obscure and odd little piece of WWII legal ephemera. In Quiren, the Court acquiesced to Roosevelt’s creation of what clearly amounted to a kangaroo military tribunal lacking all assurances of basic civil rights, in order to try 8 specific uniformed German soldiers caught during a sabotage operation on American soil. The task group extrapolated out of this one, limited holding, an entirely novel, highly secret, and extremely repressive justice system to handle the cases of people accused of terrorist activities whose identities, nationalities, numbers, and crimes, were, as yet, entirely unknowable. Fortunately, their notions kept bumping up against the reservations of other institutional actors in the Executive branch - consulting with Congress was hardly even considered, as almost surely they would have ameliorated such zealous invention. So, instead of compromising and working out a consensus, their main strategy became isolation and secrecy. Working only with those who already agreed with them and headed by White House Counsel Alberto Gonzales, the effort to shape a legal response to 9/11 ran seriously off the rails because of a lack of any reality check from outside the small working group. Essentially, this small group of unelected lawyers, along with the VP and the President, decided to abrogate the Constitution in a head-spinning number of ways. When the President was presented with the Presidential directives that resulted, he just signed them at the urging of Cheney.

The hubris and sheer arrogance to think that you know how to deal with a historical moment better than anyone else is, I suppose, a requirement of high office such as the Presidency. But the President outsourced even that job. Instead of demanding a platform of reforms which most could agree were needed and warranted to deal with the threat, he allowed a bunch of hot-house ideologues to shred the Constitution behind closed doors, with no need to demonstrate efficacy, and signed off on the whole debacle as policy. Decisions are often slow and painstaking when they proceed through the normal process of proposal and critique, conference and reconcile, negotiate and compromise between the various interested branches of government, but they tend to not have giant holes in their logic, and not to depart too far from what is achievable, rational, represents the institutional values we cherish. Casting aside that process with secrecy, Gonzales’ group managed to hit all the marks: illogical, unrealistic, unattainable policy which embarrasses the American government to this very day and trashes our values in full view of the world.

Perhaps that most damning aspect of this whole sad tale of hubris, secrecy, fear, and retribution is that after all this, the tribunal system is still not functional, still unable to penetrate the operations and membership of terror cells, as its architects has hoped. What America has gained by birthing this travesty is far less than the worth of the self-respect, and prestige, we have lost as a result of it. Perhaps President Kerry, who was a prosecutor, will be able to forge a initiative to prosecute terror suspects which is fair, expeditious, and legitimate in the eyes of the world and, more importantly, consistent with our values as Americans.


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