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Tortured Logic

Etzioni's central premise, given on the first page of his book, is that "the starting point of any reasonable deliberation about our national security is the recognition that we face two profound commitments: protecting our homeland and safeguarding our rights." If you put the book down and went to listen to either ACLU lawyers or federal prosecutors, you'd hear this trope with equal frequency. Few serious individuals disagree with it; the interesting question is how to structure a system that accommodates those commitments.

Etzioni surveys a wide variety of practices, from electronic searches to national ID cards, in an often well-developed exegesis of the panoply of post-Sept. 11 issues. But virtually no one can master the variety of subjects in Etzioni's book -- including, I fear, the author himself.

Consider just one example. Etzioni writes that in June 2004 the Supreme Court limited "the powers wielded by President Bush by ruling that all enemy combatants -- not just American citizens -- detained by the U.S. government have a right to contest their detention in a court of law." The issue before the court was the status of detainees being held at the now-famous Guantanamo Bay naval base in Cuba. Etzioni then cites Justice Sandra Day O'Connor as having written that "a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens," and reports that Justice Antonin Scalia concurred: "The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the executive." Etzioni concludes that the "notion that a person, any person -- not just an American -- can be held by the U.S. government indefinitely without charge and without access to a lawyer or a day in court has been ruled unacceptable. Thus one of the most troubling elements of the PATRIOT Act and its related security measures has been greatly scaled back."

But the Supreme Court nowhere said that "all enemy combatants" have the right to walk into court; it spoke narrowly about those being held at Guantanamo. O'Connor, moreover, did not pen these words in the Guantanamo case; her "blank check" line came from another case involving an American citizen. And Scalia's words also come from that other decision, from his dissent. To these technical obfuscations must be added a big mistake: The Patriot Act nowhere authorized the detention of enemy combatants. You hear it on TV, but it is simply wrong. It is striking that, in a book dedicated to that controversial law, Etzioni accepts one of the most fundamental errors about it.

In fact, many Patriot Act critics have not bothered to read it. Most of its provisions are rather mundane and worth renewal. And for all of its problems, the act is at least an instance of something going right: approval by Congress. Critics shouldn't undermine the importance of congressional action in their zeal to attack the act. Congress often ducks the hard legal questions posed by the war on terror and lets the executive branch handle everything -- in part because legislators catch so much flak whenever they regulate anything. The complicity of Congress in the evisceration of its own duties can be staggering.

For this reason, the sunset clause in the Patriot Act -- whereby various controversial portions expire later this year and require an affirmative vote in Congress for renewal -- was a brilliant piece of engineering. We should be thinking about ways to expand the sunset principle into other areas and, indeed, even into other branches of government, such as the courts. Many of the most pressing legal issues today revolve around metaphysical questions about what the Supreme Court meant in 1942 or 1866. This is hardly an effective way to run a government. Our justices should signal that their reasoning may change over time and invite testing of their logic, just as Congress did in "sunsetting" the Patriot Act.

If the excesses at Abu Ghraib prison in Iraq taught us anything, it was that vast damage can be wrought when the U.S. government lurches too far in one direction. This point is taken up by Mark Danner in his new Torture and Truth, which contains a short batch of previously written essays from the New York Review of Books, followed by hundreds of pages of declassified government memoranda. The Abu Ghraib Investigations is even less original: It consists of a short introduction, followed by reprints of the reports produced by the Pentagon investigation led by Maj. Gen. Antonio M. Taguba and the independent panel led by former defense secretary James R. Schlesinger. The Torture Papers, which weighs about as much as a small infant, contains by far the most exhaustive collection of documents, encompassing both government reports and outside criticism.

Specialists may clear room on their shelves for The Torture Papers, but generalists will probably be looking for no more than a good but not overly unwieldy collection of the relevant sources. Danner's book does a fine job assembling them, from the Taguba report to the Justice Department's memoranda and opinions -- one of which became so notorious for giving the president the power to use coercive force that it is now often simply known as the "Torture Memo." But no one should spend money on these three books to get commentary or criticism. (The only place where that comes in is with Danner's repackaged essays, which reveal a keen mind at work and warn us to expect little serious congressional investigation into one of the great foreign policy disasters in our lives.)

Rather, the stunning parts of these books lie in their collected government memoranda. They reveal government lawyering at its worst: It's hard to believe that the shabby reasoning behind the "Torture Memo" was taken seriously -- until we learn from other documents that it was. (The memo itself, but not all of its reasoning, was disavowed in time for the confirmation hearings for Attorney General Alberto Gonzales.)

Taken together, these memos, from the highest levels of the U.S. government, created an untethered view of the presidency, of a chief executive floating above the laws of Congress and ratified treaties -- and all on the basis of three words in the Constitution noting that the president shall be the "Commander in Chief." Perhaps this argument has some merit, but by completely failing to consider the other side, the government memos, which are supposed to be analytic, become shrill advocacy documents.

The compiled documents paint a stark picture of a president unchecked by Congress, law, international accords and the Constitution. But neither Danner's essays nor the other books do what is necessary: offer ways to restore the rooted presidency. The president, after all, is a creature of the Constitution. The fact that he is commander in chief does not permit him to fundamentally reshape domestic law and supplant Congress's role as the font of legislation. Rather, it permits him, in times of war, to protect U.S. citizens through the use of congressionally sanctioned force and -- yes -- detention. That's it.

White House overreaching here threatens the lives of U.S. troops, who depend on treaties such as the Geneva Conventions to protect them. Just as judicial activism can sap Congress's will to legislate on major issues of the day, presidential activism can cow the legislature into meekness. Minds like Danner's should be thinking about ways to restrain both.

That's not to say that a weak presidency would be good for the country, the Constitution or the war on terror. Many scholars, including myself, favor robust presidential power because of the president's unique degree of popular accountability. If we don't like what a president is doing, we can vote him out. But when decisions are made in secret, hidden from the light of day, this structural pillar of stable, sturdy presidential power crumbles.

None of these books promises to reshape the debate or to restore the rooted presidency, so it's not fair to blame them for today's stunted debate. Each offers a set of documents and research that can prove helpful, and all of them help push for a more transparent presidency. But the real solutions -- the ones that bridge the post-Sept. 11 slogans of the Bush administration and the post-Abu Ghraib slogans of its critics -- remain elusive. Until we develop the tools to reclaim the traditional constitutional view of a presidency with roots, they will stay that way. •

Neal Katyal is a law professor at Georgetown University. He served from 1998-99 as national security adviser at the Department of Justice and represents, pro bono, a detainee held at Guantanamo Bay.


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