Takeover, page 36
Five justices said Bush had broken the law.46 Alito was not one of them.
9.
It was immediately clear that the impact of the 5–3 ruling could go far beyond the fate of Salim Hamdan and the handful of other Guantánamo detainees who were facing charges before the military commission. Broadly speaking, the Court had repudiated assertions by Bush’s legal team that, as commander in chief, the president is not bound to obey laws and treaties that restrict his ability to fight terrorism. More specifically, the majority had ruled that the United States was bound by Common Article Three of the Geneva Conventions, which guarantees fair trials to all people captured in an armed conflict. But the same provision also outlaws “cruel treatment, torture [and] outrages upon personal dignity, in particular, humiliating and degrading treatment.” If the United States was bound to obey that restriction as well, then some of the harsh interrogation techniques Bush had authorized might be war crimes.
“Focusing just on the commissions aspect of this misses the forest for the trees,” argued Martin Lederman, a Georgetown law professor and former Justice Department official, hours after the Court handed down the decision. “This ruling means that what the CIA and the Pentagon have been doing is, as of now, a war crime, which means that it should stop immediately.”
Critics of the administration’s legal theories rejoiced at the decision, calling it a victory for the rule of law against an executive power overreach. “I think that the language in here is really quite clear and unequivocal,” said Elisa Massimino of Human Rights First. “This is really a civics lesson. Here the court is playing the role the founding fathers intended it to play both checking executive power and also reminding the president of the role of Congress.” Yale Law School dean Harold Koh added: “Today’s opinion is a stunning rebuke to the extreme theory of executive power that has been put forward for the last five years. It is a reminder that checks and balances continue to be a necessary and vibrant principle, even in the war on terror.”47
But John Yoo, now back at Berkeley, was furious. He accused the Supreme Court of judicial activism and “micromanagement,” saying its “unprecedented” intrusion into the president’s “traditional national security prerogatives” would make the country less safe in all future emergencies. “What makes this war different is not that the president acted while Congress watched but that the Supreme Court interfered while fighting was ongoing,” Yoo wrote. “The court displays a lack of judicial restraint that would have shocked its predecessors…. Justices used to appreciate the inherent uncertainties and dire circumstances of war, and the limits of their own abilities. No longer.”48
10.
But such celebrations and lamentations proved overly simplistic. Press stories about the Hamdan v. Rumsfeld decision naturally focused on the five-member majority decision and tended to overlook hugely significant factors nestled in the dissenting opinion—two developments that potentially held the seeds of eventual triumphs for the cause of boundless presidential power.
First, the decision paved the way for increasing the legitimacy of presidential signing statements on occasions when courts have an opportunity to interpret a disputed statute. During Alito’s confirmation hearings, he had turned aside questions about his 1986 memo by saying he had simply been assigned to raise and explore “theoretical problems” about the mechanism as a Reagan administration attorney and was not personally invested in the topic. (“The role of signing statements in the interpretation of statutes is, I think, a territory that’s been unexplored by the Supreme Court, and it certainly is not something that I have dealt with as a judge,” Alito had testified.49) Now Alito joined a dissenting opinion in the Hamdan case that contained an explicit reference to a presidential signing statement.
One of the issues that had been before the Court was whether the whole case should be thrown out to begin with because Congress had passed a law in December 2005 curtailing the power of Guantánamo detainees to file lawsuits. Congress had not said whether it meant the lawsuit ban to apply retroactively to pending cases, such as Hamdan, or whether it should stop only future lawsuits from being filed.
When Bush had signed the law, he had attached a signing statement to this provision, saying that he interpreted it as terminating existing lawsuits by Guantánamo detainees. The five-justice majority on the Court ignored Bush’s signing statement. They read over the congressional history of the law and determined that it applied only to future lawsuits—so the Hamdan case could go forward.
But three justices disagreed, saying the case should have been thrown out. And in making their case, the dissent’s author, Antonin Scalia, gave Bush’s signing statement equal weight with statements by the bill’s authors in Congress, suggesting—as the Meese Justice Department team two decades earlier had hoped courts would start doing—that there was no legal difference between the views of Congress and the president about what a law meant.
Scalia, who has long been skeptical about looking at the congressional record for insight into what an ambiguous statute means, scolded the majority. He said his colleagues had selectively cited bits of the act’s legislative history to support its view and downplayed contrary evidence. “Of course in its discussion of legislative history the court wholly ignores the president’s signing statement, which explicitly set forth his understanding that the [new law] ousted jurisdiction over pending cases,” Scalia wrote, joined in dissent by Samuel Alito and Clarence Thomas.
The second seed of potential victory for the expansive executive power that was overlooked after the Court handed down its ruling in Hamdan lay in the vote count.
Although Roberts had recused himself from participation at the Supreme Court level, the new chief justice as an appeals court judge had already sided with the Bush-Cheney administration’s view of its own powers. With Alito and Roberts on the new-look Supreme Court, then, there were now four justices who had demonstrated that they were inclined to defer to a president’s claims to have sweeping powers to act beyond the will of laws passed by Congress, treaty obligations, and other checks and balances on executive power.
And the odds that those four would someday become the majority were strong. The Court’s three youngest members—Roberts, fifty-one, Alito, fifty-six, and Thomas, fifty-eight—were all among the four “presidentialists.” When the seventy-year-old Scalia was factored in, the average age of the four was less than fifty-nine. By contrast, the two oldest members of the court—John Paul Stevens, eighty-six, and Ruth Bader Ginsburg, seventy-three—were both members of the narrow majority that declared that even a commander in chief “is bound to obey the rule of law.” The average age of the five exceeded seventy-two.
Given the realities of the human life span and the ebbs and flows of American politics, President Bush or one of his successors would have ample opportunity to gain that fifth vote.50 And in the American legal system, five votes for a proposition on the Supreme Court makes that proposition the truth. Rather than being the final word on the Bush-Cheney legal team’s sweeping theories of presidential power, Hamdan may turn out to have been one of the last hurrahs for those who believe in preserving the traditional checks and balances on White House power.
12
Centralize and Control: The Executive Branch
1.
Just before 9 a.m. on Friday, July 28, 2006, a month after the Supreme Court declared that President Bush’s military commission trials were illegal, a dozen professional military attorneys arrived at the Department of Justice headquarters for a meeting with the Bush-Cheney legal team. As members of the Judge Advocate General corps, these visitors were highly specialized servicemen and women. JAGs are law school graduates, members of the bar, and have received extensive training in the laws of war. Members of the JAG corps run court-martial trials for American troops accused of crimes, and during wartime they advise military commanders about how to avoid becoming war criminals. At the core of the JAG training and ethos is a profound reverence for the Geneva Conventions.
The JAGs had vehemently resisted Bush’s legal conclusions that it was lawful to bypass the Geneva Conventions, arguing that the policy was both illegal and unwise, because undermining the treaties would increase the risk that American soldiers taken prisoner in future wars might be abused. But the administration’s politically appointed attorneys, most of whom had never served in the military and were bent on making aggressive assertions of executive power, had discounted the uniformed lawyers’ views as closed minded, parochial, and simplistic.
The JAGs had seen the Hamdan ruling as vindication. And now, as the administration scrambled to draft a bill for Congress that would resurrect some form of military commission trials for terrorists, the Justice Department was bending over backwards to consult with the JAGs about what the legislation should look like, in marked contrast to how things had played out before.
Or that, at least, was the official message the administration was trying to send, in response to pressure from several key Republican senators who said they wanted the JAGs’ advice to guide the new bill. On August 2, 2006, a week after the Justice Department meeting with the JAGs, Attorney General Alberto Gonzales would assure the Senate that the administration had complied with the Senate’s wishes, testifying that “our deliberations have included detailed discussion with members of the JAG corps,” whose “multiple rounds of comments… will be reflected in the legislative package.”1
The JAGs had one overriding concern when they walked into the July 28 meeting for their opportunity to have detailed discussion about the legislative package: that there be no secret evidence. For the trials to be fair and to comply with the Geneva Conventions, they believed, defendants had to see all the evidence that prosecutors introduced against them so that they would have an opportunity to rebut it—an essential right in the Anglo-Saxon system of law that predates the existence of the United States by centuries. Bush’s original military commissions, now struck down by the Supreme Court, allowed the removal of defendants from the courtroom when prosecutors wanted to introduce classified evidence. The political appointees said this was necessary in order to protect intelligence methods and sources, but the military lawyers believed that such a move violated basic principles of justice. If the government didn’t want to show a particular piece of evidence to a defendant, then it shouldn’t get to show it to the court, either.
But as soon as the JAGs sat down around a long conference table in room 5710—on the fifth floor of main Justice, just down the hall from the Office of Legal Counsel warren and the room in which eight Nazi saboteurs had been tried before a military commission during World War II—the administration lawyers announced that there was no point in debating the secret-evidence question, because a determination would be made by more senior officials. With the JAGs’ main issue ruled out-of-bounds, the subsequent discussions were limited to minor concerns—wording changes, typo corrections, and procedural matters. The meeting lasted a little more than five hours, ending at 2:30 p.m. without a break for lunch. It was followed by a few days of e-mail exchanges that stopped after the first week of August. Following the exchanges, the Bush-appointed attorneys completed the bill they would submit to Congress on their own.2
The preemptive move meant that the “detailed discussion” and “multiple rounds of comments” that Gonzales later cited to the Senate almost entirely avoided the core concern of the JAGs. Gonzales himself had discussed secret evidence with the most senior JAGs precisely once, in late July. The session ended in an impasse, and the JAGs never got an opportunity to raise the issue with Gonzales again.
In the end, Congress decided to invite the top JAG from each service to testify about what they believed should be in the Military Commissions Act. Given an opportunity to bypass the filter of the Bush-Cheney legal team, the JAGs told lawmakers that to be fair and legal, the trials must give defendants the right to see any evidence used against them. The administration continued to argue against such a plan, but Congress ultimately decided that the uniformed lawyers were right; the final bill outlawed the use of secret evidence.
Although the JAGs won that round, the limits that the political appointees on the Bush-Cheney legal team had placed on its discussion with the career military lawyers left lingering bitterness. “The [Justice Department] should have learned that a failure to involve the JAG community can lead to problems,” said Major General Nolan Sklute, who retired as the air force’s top lawyer in 1996. “If they are talking to the JAGs only about superficial matters… that indicates that this is about form instead of substance, and nobody has learned any lessons out of this.”3
2.
The federal bureaucracy exploded in size and importance over the twentieth century as Congress set up many new executive branch agencies and gave them increasing power. As the head of the executive branch, the president can draw on this permanent machinery of the state as a massive resource for implementing his policies—a tremendous advantage, considering the very small staffs of Congress and the judiciary. Yet those very same career professionals sometimes throw up roadblocks to a president’s agenda.
Career civil servants and professional military officers are an entrenched force within the executive branch: Most are hired before a president takes office and will outlast his tenure, and they might not share his political agenda—especially if that agenda includes undermining the very mission Congress gave their agencies. Moreover, bureaucracies tend to develop arcane rules and procedures that can bog down or block the outcomes a president hopes to achieve. And most important, career bureaucrats are often specialists whose technical expertise gives them the authority to make judgments independently of the political appointees who are their temporary supervisors.4
The Bush-Cheney administration took vigorous steps to impose greater discipline and control on the permanent government, seeking to stamp out pockets of independence inside the executive branch. The administration tried systematically to subjugate and circumvent career officials who raised objections to their policies, and it tried to game the system to make sure that any expert advice the professionals provided would support the president’s preexisting policy preferences. This was the Unitary Executive Theory in action—enforcing the notion that every official inside the executive branch is nothing more than an appendage of the president and should take no action and offer no opinion opposed by the White House. And while the Bush-Cheney administration was not the first to look for ways to expand its control over the permanent government, some of its battles with the bureaucracy were marked by particular intensity and aggression.
The administration fought to impose greater White House control on bureaucrats who hand out federal grants, on civil rights attorneys at the Justice Department, on government scientists who research environmental and reproductive health issues, and on agencies that make regulations that affect corporations. Among the most revealing of such case studies were its repeated clashes with career military attorneys.
3.
The story of the fight to sideline the Judge Advocates General corps dates back to the early 1990s, when Dick Cheney was secretary of defense in the Bush-Quayle administration. With his aide David Addington, Cheney tried but failed to eliminate the JAG corps’ independence from political control.
For generations, the military has had two separate legal staffs: one uniformed and one civilian. The most important has long been the uniformed set, which is much larger and is charged with handling both courts-martial and legal issues that affect operational and war-fighting matters. Under statutes enacted by Congress, each military department—the army, air force, and navy—has a JAG corps of between roughly 650 and 1,700 uniformed lawyers. These uniformed lawyers are overseen by a two-star officer—“The” Judge Advocate General. Congress carved out specific responsibilities for the JAGs in statute, declaring in law for example that the top army JAG is to be “the legal adviser of the Secretary of the Army.” But each military department also has a general counsel, a civilian political appointee who works on legal policy matters and oversees an office of other civilian lawyers.
In 1986, Congress passed a major act reorganizing the Department of Defense. While working on the bill, Congress examined the dual systems of legal services inside the military. Some argued that the two should be consolidated, putting the JAG corps under the direct supervision of the general counsels. But lawmakers decided to leave the JAGs’ independence alone. Congress did make two changes: It recognized the existence of the general counsels in statute for the first time and required that presidential nominees for the positions undergo Senate confirmation before taking office. Though this seemed to elevate the status of the general counsels, they were in fact given no new authority.
After Cheney became secretary of defense in 1989, he and his top aides decided that Congress had made a mistake. They tried to change the system in order to subordinate the JAGs to greater control by the president’s political appointees.
Cheney’s project was initially sparked by a simple personality conflict between the army’s top JAG, Major General John Fugh, and the first-ever army general counsel to undergo Senate confirmation, William “Jim” Haynes II.
Fugh was born in Beijing in 1934. After Communists took over China, his family came under particular oppression because his father had worked with American dignitaries. The Fughs fled to the United States when Fugh was fifteen, adopting an unusual Westernized spelling for their last name. Fugh, who became a U.S. citizen in 1957, went to Georgetown University’s School of Foreign Service as an undergraduate and then to George Washington University Law School. After graduating from law school in 1960, Fugh joined the army as a JAG officer; twenty-four years later, he became the first Chinese American ever to attain the rank of general officer. In 1990, he became a two-star general and the top JAG for the army, overseeing a global network of several thousand army attorneys. During the Gulf War, Fugh published a report systematically documenting Iraqi war crimes. He also set up a human rights training program for developing countries.5
