Fight Terror -- With Law
In the weeks after Sept. 11, 2001, the Bush administration secretly began constructing an emergency system to fight the war on terrorism. It asserted broad presidential power to conduct surveillance against American citizens, to harshly interrogate suspected terrorists in secret prisons, and to hold "enemy combatants" without charges or public trials.
The Supreme Court demolished a central pillar of that jury-rigged national security edifice yesterday. In rejecting the administration's plans to try a suspected al-Qaeda member named Salim Ahmed Hamdan before a military tribunal, the court majority was emphatic: The administration's arguments were "unpersuasive," "inapposite," "unsound." Even if Hamdan was as dangerous as the administration claimed, Justice John Paul Stevens wrote for the majority, "the executive nevertheless must comply with the prevailing rule of law."
Justice Stephen Breyer, in a concurring opinion, spoke to the arrogant claims of presidential power made under the rubric of fighting terrorism. The court's conclusion in Hamdan, he wrote, "ultimately rests upon a single ground: Congress has not issued the Executive a 'blank check.' "
The Hamdan ruling should be a cause for celebration, at home and abroad, because it demonstrates that the self-correcting mechanisms of American democracy remain healthy. Governments, as imperfect human institutions, make mistakes -- especially in the pressure cooker the Bush administration faced after Sept. 11. But thanks to checks and balances from the courts, Congress and, yes, the press, this administration's mistakes are being reversed.
We can now see that after Sept. 11 there was a grab for unlimited executive power, led by Vice President Cheney and his lawyer, David Addington. They intimidated or ignored critics within the White House and created a secret system unchecked by the other two branches of government. The best summary I've seen of this power grab is a profile of Addington by Jane Mayer that appears in the current issue of the New Yorker magazine. Cheney and Addington steamrolled dissenters within the executive branch, ridiculing and ostracizing those who dared to question their claims of an unlimited executive. But as career intelligence officials feared at the time, the system they were creating was inherently unstable.
An early breach in this wall was Sen. John McCain's challenge of the administration's insistence that the CIA could use harsh interrogation methods that amounted to torture. McCain at first beat his head against the stone wall of Cheney and Addington, but as public pressure grew, President Bush transferred the issue to his national security adviser, Stephen Hadley, and a compromise was reached.
Then came the New York Times' revelation of the National Security Agency's program for warrantless surveillance of communications. NSA officials had been anxious about the program from the start, and some had urged an effort to draft new legal rules that would place the program squarely under the Foreign Intelligence Surveillance Act. But that, too, was rejected by Cheney and Addington, who argued that the president's warmaking powers in this area were absolute. The Times disclosed the program last December, and though it has been blasted ever since by conservatives, the revelation triggered a necessary public debate. As a result, the administration in recent weeks has quietly taken steps to bring the program within a general legal authorization under FISA. That's another defeat for Cheney and Addington and a victory for the rule of law.
The administration is indignant that the Times this month disclosed another secret anti-terrorist program, this one to identify terrorist financial flows using data obtained from the SWIFT money transfer system. SWIFT transfers have long been a target of U.S. foreign intelligence collection; what the new program allowed, near as I can tell, was analysis of all SWIFT data, including that involving U.S. persons. This program may be a valuable and legal tool, but it needs public support. The Times' revelation may, paradoxically, have encouraged that process of legitimization, and in that sense it served a useful purpose.
Rep. Jane Harman (D-Calif.), who has been a leader in trying to balance aggressive intelligence with coherent legal rules, said yesterday that the Hamdan ruling helped clear away the "fog of law" in which the administration has been operating. In that sense, the case marked the end of the national security "state of emergency" that has prevailed for nearly five years.
America is still a country at war, and to protect itself and its allies it must conduct secret anti-terrorist programs. These past few months have shown that such programs will be sustainable only if they have a firm legal foundation. The Supreme Court reminded the world yesterday that America is a nation of laws that insists on following rules, even as it brings killers to justice. Over time, that will be our most effective anti-terrorist weapon of all.