[NYTr] Bush's domestic Terror War: A war on American's rights

[All the News That Doesn't Fit]

Newsweek - Oct 8, 2007 issue
http://www.msnbc.msn.com/id/21047601/site/newsweek/?from=rss

America's Terror War on America

The War on Terror didn't start as an attack on Americans' rights, but
several new books argue that's exactly what happened. 

By Christopher Dickey

Oct. 8, 2007 issue - A slew of recent books about the Bush
administration's wars (at home as well as abroad) might leave you
wondering if President George W. Bush and Vice President Dick Cheney
are their own Axis of Evil. In excruciating detail, these tomes tell of
torture and warrantless wiretaps; they show a relentless arrogation of
power and abrogation of what were thought to be solid constitutional
principles. In these books, apocalyptic delusions got us into Iraq and
misjudgments have helped keep us there. The picture that emerges is so
bleak that even serious journalists and scholars sometimes veer toward
conspiracy theories.

Consider, for instance, the lurid title of an otherwise scrupulously
researched book by Pulitzer Prize-winning Boston Globe reporter Charlie
Savage: "Takeover: The Return of the Imperial Presidency and the
Subversion of American Democracy."

The administration's impassioned defenders, meanwhile, grow strident.
Norman Podhoretz, the dean of neoconservatives, writes in "World War
IV: The Long Struggle Against Islamofascism" that the Bush
administration is up against "a domestic insurgency" led by
"journalistic devotees of the Vietnam syndrome," isolationists,
"liberal internationalists" and (heaven forbid) "realists."

In fact, the situation is far from a "civil war," as Podhoretz (an
adviser to Republican presidential candidate Rudy Giuliani) would have
us believe. But this is a good moment to take stock of the more subtle
narrative in these books: stories of score-settling at home, a new kind
of enemy abroad, righteous intentions, grand visions and bad
information. And if there is a recurrent theme, it's that this
administration set out to create its own reality, whether approaching
the Bill of Rights like a classified document to be redacted or girding
itself for war in Iraq with a steady diet of dubious intelligence.

The Bush and Cheney who emerge from these pages cherish secrecy, they
deplore constraint and they sneer at dissent, so nothing and nobody can
dissuade them from their chosen course. Reality checks are not allowed.
"Democracies die behind closed doors," federal appeals court Judge
Damon Keith said in 2002. "The Framers of the First Amendment did not
trust any government to separate the true from the false for us. They
protected the people against secret government."

Jack Goldsmith, who served briefly in 2003 and 2004 as head of the
Office of Legal Counsel—a key position because it determines for the
government what is legal and what's not—suggests that the "strange and
unattractive views on presidential power" held by Bush and Cheney will
create a backlash compromising future presidents. That may be, but for
now, in many respects, the Bush-Cheney vision has triumphed. Savage
concludes that Cheney and Bush will leave presidential powers enhanced
at the expense of Congress and the courts, to the detriment of the
checks and balances essential to our constitutional system. (Savage
suggests there's already some nervousness among Republicans fearful
that Hillary Clinton will reap the benefits. No president will want to
see his or her imperial authority eroded.) "The expansive presidential
powers claimed and exercised by the Bush-Cheney White House are now an
immutable part of American history—not controversies, but facts," says
Savage. The worldwide war with terrorists that is so important to the
arguments for that presidential power, including the occupation of
Iraq, will go on as well. Last week all the leading Democratic
presidential candidates admitted as much. What might have seemed
farfetched political and military fantasies seven years ago are
inescapable realities today.

To tell the story of how this happened, it's useful to start, as Savage
does, by following Cheney's career. Cheney was chief of staff in the
Gerald Ford White House, fighting a rear-guard action to protect
presidential power from a vindictive and meddlesome Congress in the
aftermath of Vietnam, Watergate and public scandals about the CIA's
secret operations. Later, serving in Congress himself, Cheney remained
a passionate defender of the executive, arguing that the legislative
branch had no right to rein in the secret presidential activities that
led to the Iran-contra scandal. As secretary of Defense under President
George H.W. Bush in 1991, Cheney insisted that approval from Congress
wasn't needed for a war against Saddam Hussein. The elder Bush
overruled him. But when Cheney became vice president 10 years later,
the veteran Washington infighter was paired with the younger Bush,
George W., who was, as Savage puts it, "one of the least experienced
presidents ever to take the oath." Cheney and his staff, particularly
his longtime aide David Addington, soon came to dominate almost every
debate over constitutional issues that touched on national security and
executive authority. Goldsmith remembers how they addressed all laws
they didn't like: "They blew through them in secret based on flimsy
legal opinions that they guarded closely so no one could question the
legal basis for the operations."

>From the beginning Bush's staff, guided by Cheney's, "hoped to enlarge
the zone of secrecy around the executive branch, to reduce the power of
Congress to restrict presidential action, to undermine limits imposed
by international treaties, to nominate judges who favored a stronger
president and to impose greater White House control over the permanent
workings of the government," writes Savage. Then 9/11 happened and
suddenly "the war on terrorism's climate of perpetual emergency
provided a vehicle for turning [Cheney's] vision of an unfettered
commander in chief into a reality."

Goldsmith, a conservative academic and generally a supporter of a
strong executive, argues in his book "The Terror Presidency: Law and
Judgment Inside the Bush Administration" that much of what was done in
the early days after 9/11 is perfectly understandable. Threats seemed
to be everywhere. A second wave of attacks appeared imminent and all
but inevitable. "The President had to do what he had to do to protect
the country," writes Goldsmith. "And the lawyers had to find some way
to make what he did legal." But unlike previous war presidents—Lincoln,
FDR—who bent the Constitution in order to save it, and took
responsibility for doing so, the Bush administration stonewalled, as if
public ignorance were the best way, in many cases, to give the
president the powers he needed.

It was the administration's ignorance of the enemy that it now
confronted that led it, in part, to resort to extreme tactics. Al Qaeda
had emerged as a major threat in the late 1990s. Ever since the end of
the cold war, the Central Intelligence Agency, the Federal Bureau of
Investigation, the National Security Agency and more than a dozen other
intelligence organizations that answer to the president had been
struggling to adapt their sources and methods to the new menace. As Amy
B. Zegart argues in "Spying Blind: The CIA, the FBI, and the Origins of
9/11," they just weren't up to the job. "With FBI agents keeping case
files in shoe boxes rather than putting them into computers, with CIA
operatives clinging to old systems designed for recruiting Soviet
officials at cocktail parties rather than Jihadists in caves ... the
U.S. Intelligence Community did not have a fighting chance against Al
Qaeda," Zegart writes. The intelligence community was well aware of the
threat. It had given Bush a daily brief in August 2001 with the heading
"Bin Ladin Determined To Strike in US." But the paper was full of old
news, and the various agencies failed to act on the new information
that they actually had in hand about some of the 9/11 terrorists living
in the United States. Zegart, blaming institutional inertia more than
individuals, counts more than 20 specific instances where the CIA or
the FBI missed chances to stop the 9/11 attacks.

Problems that ran so deep were not going to be changed in time to meet
the clear and present danger that now faced the country. As the United
States launched a war in Afghanistan (and planned for one in Iraq), the
administration needed a lot more information about Al Qaeda than was
available. "Really, they did not have anything very useful," says Karen
Greenberg, head of New York University's Center on Law and Security.
"It was worse than you can imagine." One answer to the problem: the use
of extreme and painful methods to make captured members of Al Qaeda and
other suspects tell everything they knew—and sometimes more than they
knew. "The most advanced nation in the world was relying on
14th-century torture techniques," says Greenberg. (The same problem
arose in 2003, when U.S. forces in Iraq discovered they knew next to
nothing about the insurgents attacking them. The resulting abuses at
Abu Ghraib were partly born of desperation.) Suspected Qaeda prisoners
were taken to secret sites, or to Guantánamo, or grabbed by "rendition"
teams who took them to countries where interrogators had long
experience with torture, or simply held incommunicado in American
military prisons. Still another measure: dispensing with warrants when
tapping into phone conversations between the United States and
suspected terrorists or their contacts in the rest of the world.

To a layman's eyes, all these measures would seem to violate the Bill
of Rights (and in some cases the Geneva Conventions). The pervasive
secrecy threatened the First Amendment's guarantee of free speech. The
wiretaps flew in the face of Fourth Amendment guarantees that no
warrants for searches (or, by extension, surveillance) would be issued
without probable cause and specific details. The detentions, especially
of American citizens designated "enemy combatants," defied the Sixth
Amendment rights to a speedy trial, to be confronted with witnesses and
to have legal counsel. And the interrogation techniques certainly were
cruel and unusual punishments of a kind you'd think is prohibited by
the Eighth Amendment. Indeed, these issues continue to be fought
ferociously in the courts and debated in Congress. But the president's
positions have been hard to roll back.

The reading of the Constitution, the Geneva Conventions, international
treaties and congressional laws on torture by the administration's
smart and highly ideological lawyers was quite different from a
layman's. In a series of opinions from the Office of Legal Counsel that
were written by conservative zealot John Yoo but signed by his
superiors, conventional understandings about the meaning of the
Constitution were turned on their heads. In an August 2002 opinion, Yoo
defined torture as "only extreme acts" of the kind that might "cause
death or organ failure." This was to be part of the guidance used by
American interrogators, who wanted to make sure they couldn't be
prosecuted later for what the administration approved today. It told
them a whole world of pain and suffering could be inflicted so long as
the subject didn't expire. For example, such techniques as
"waterboarding" might make a suspect fear he was on the brink of
drowning.

"The message," says Goldsmith, "was indeed clear: violent acts aren't
necessarily torture; if you do torture, you probably have a defense;
and even if you don't have a defense, the torture law doesn't apply if
you act under color of presidential authority." Goldsmith revised some
of the legal reasoning of the August 2002 opinion in late 2004. But by
then most of the key leaders of Al Qaeda responsible for September 11
had been captured (apart from bin Laden and his colleague Ayman
Al-Zawahiri), and they had already been squeezed for months or years to
extract whatever tales they might tell to stop the pain. (There was
some measure of vengeance, in fact. According to a CIA officer privy to
high-level discussions at the agency who did not want to be named
because he is not authorized to speak to the press, there was internal
opposition to having the CIA hold these suspects at secret sites after
they'd told what they could about imminent attacks. But others argued
that "these people were just scum and they wanted to waterboard them
every day forever," the officer told NEWSWEEK. The waterboarders won
until 14 of the prisoners held at secret sites were finally transferred
to Guantánamo last year.)

Meanwhile, as we now know, the Bush administration had begun preparing
for an attack on Iraq to oust Saddam Hussein even before the war in
Afghanistan was over. The potential dangers to the United States posed
by Saddam's erratic behavior and longstanding desire to have weapons of
mass destruction were a major preoccupation for many in the
administration, especially those around Cheney. Containment wouldn't be
enough. A new war was needed that would "shock and awe" America's
enemies, and possibly even open the way for new democratic regimes
throughout the region. It would also continue the sense of emergency
that helped shore up presidential power in Washington.

But, again, the intelligence community was disappointing the Bush
administration. Leads in the supposedly slam-dunk case against Saddam
kept losing their bounce. So the administration and the top CIA
leadership put increasing faith in an Iraqi defector code-named
Curveball, who supposedly had worked as a chemical engineer in Saddam's
biological-weapons program, and claimed to have seen what could be
mobile bioweapons factories mounted on trucks. Los Angeles Times
correspondent Bob Drogin lays out the whole sorry tale in his
forthcoming book, "Curveball: Spies, Lies, and the Con Man Who Caused a
War." The defector was in German hands, and was never interviewed by
the Americans before the invasion. The Germans had warned that
Curveball might be making up all or most of his story—and he was. He
had never worked in the biological program; he'd been a taxi driver
before heading to Germany to seek asylum. There were no mobile labs.
The Bush administration had believed what it wanted to believe.

"President Bush launched the wrong war," writes Philip H. Gordon in a
book titled, as it happens, "Winning the Right War: The Path to
Security for America and the World," an argument for combating
terrorism with more than military might. Bush "hyped the terrorist
threat as a means of winning political support," says Gordon, a fellow
at the Brookings Institution. "And while he talked of a war that
challenged the nation's very existence, he fought it on the cheap, as
if he knew that Americans would not have been onboard had they been
told what the war would entail."

Today, of course, those costs are no secret. And the Bush
administration's very special vision of a powerful president waging
endless war, which once would have seemed fantastical, has become the
painful reality that Americans may be living for generations to come.