Takeover, page 41
Bush’s campaign worked. The initial bipartisan outrage in Congress at the warrantless wiretapping program was blunted as Republicans closed ranks behind the White House. On a party-line vote, the Senate Intelligence Committee decided not to investigate the program. Senate Judiciary Committee chairman Arlen Specter, initially the most outspoken GOP critic of the program, ended up drafting legislation that would exempt the program from the warrant law. Although his bill went nowhere, the issue faded away for the rest of the congressional session.
Meanwhile, Congress was rushing to hand even more powers to the president, sometimes through stealth legislation that was discovered only much later. At just past 10 p.m. on November 9, 2005, a thirty-six-year-old member of the Senate Judiciary Committee’s Republican staff, Brett Tolman, received an e-mail from the Justice Department’s congressional liaison, William Moschella, asking him to insert into the USA Patriot Act reauthorization bill a provision that would eliminate a 120-day limit for “interim” U.S. attorneys to serve without Senate confirmation. Tolman replied fifty-seven minutes later: “I will get the comprehensive fix done.”15 He kept the promise, slipping the section into a draft of the bill while it was in conference committee. The change, which went unnoticed by members of Congress when they passed the final bill in March 2006, handed a sweeping new power to the executive branch. The provision allowed the attorney general to install anyone he liked as a permanent replacement U.S. attorney without any vetting by the Senate, a wholesale consolidation of power over federal law enforcement in the hands of the presidency. Bush soon nominated Tolman to be the new U.S. attorney for Utah, and he was already confirmed by the time the Patriot Act change came to light in early 2007. It prompted bipartisan outrage, and both chambers voted overwhelmingly to repeal it.
The power to bypass Congress in picking replacement U.S. attorneys was just one of several instances in which the GOP-led Congress enacted “stealth” provisions, slipped without debate into large bills, to hand the president greater executive authority. One of the most potentially momentous examples ceded extraordinary new powers to the president to impose martial law inside the United States over the objections of state governors.
In a little-noticed amendment attached to a massive military spending bill passed on September 30, 2006, Congress rewrote a two-century-old prohibition against the president’s using federal troops (or state National Guard troops acting under federal command) to act as police on U.S. soil. This ban dated back to the Insurrection Act of 1807, when Congress said that there was only one circumstance in which a president could use troops to enforce the law against civilians: in the case of an armed revolt against the authority of the government. After the post–Civil War occupation of the South ended, Congress strengthened this taboo on martial law with the Posse Comitatus Act of 1878, which imposed criminal penalties—two years in prison—on anyone who tried to use the federal military as police without specific authorization from Congress.
These two laws were intended to keep as much day-to-day law-enforcement power out of the hands of the federal government as possible. The principle these laws defended was that the mission of the military is to subdue the nation’s enemies, while the mission of the police is, in the words of the Los Angeles Police Department’s famous motto, “to protect and to serve.” Military troops could still be used for non–law enforcement operations, such as rescue efforts. And on rare occasions presidents used federal troops to quell riots—such as in 1957, when President Eisenhower federalized the Arkansas National Guard to enforce a school desegregation order in the face of a white mob, and in 1992, when President George H. W. Bush used federal troops, with the support of California’s governor, to stop the “Rodney King” riots in Los Angeles. But beyond such narrowly limited circumstances, the Insurrection Act ensured for two centuries that even in major emergencies, local police or state National Guard units commanded by governors would handle any law-enforcement aspects of the situation—not federal troops commanded by the president.
But four days of chaos and lawlessness in New Orleans following the Hurricane Katrina floods of 2005 had generated widespread criticism that the response to the crisis by all levels of government was unsatisfactory. Amid the finger-pointing, the issue of presidential power emerged on Friday, September 2, four days after the storm. Bush asked the Democratic governor of Louisiana, Kathleen Blanco, to sign a legal document requesting a federal takeover of the New Orleans evacuation—a move that might have improved the effort by unifying a chain of command that was split among the mayor, the governor, and the president. But Blanco rejected the request to put city police and state National Guard units under the control of the Federal Emergency Management Agency. An unnamed state official told the Washington Post that she feared that the change would amount to martial law and would also allow the federal government to blame the locals for every problem that had happened until that point.16
Blanco’s refusal to allow a federal takeover of the local elements of the rescue caused just a blip in the press, but it continued to resonate in the White House. On September 25, 2005, after receiving a military briefing in Texas about the response to Hurricane Rita, which hit the Gulf Coast right after Katrina, Bush first floated the idea in public of allowing the president to impose martial law in situations other than insurrections, even if a state governor didn’t want to cede control. And, Bush made clear, he wasn’t just talking about civilians at FEMA running things—he was talking about full military control, martial law leading to the commander in chief himself.
“The other question, of course, I asked, was, is there a circumstance in which the Department of Defense becomes the lead agency?” Bush mused to reporters. “Clearly, in the case of a terrorist attack, that would be the case, but is there a natural disaster which—of a certain size that would then enable the Defense Department to become the lead agency in coordinating and leading the response effort? That’s going to be a very important consideration for Congress to think about.”17
Bush’s suggestion provoked a brief flurry of commentary. Some critics said that easing the standards for imposing martial law would be a threat to civil liberties. Meanwhile, former Bush-Cheney attorney John Yoo penned an op-ed arguing that “Congress doesn’t need to pass new laws because Bush already had the power to send federal troops to New Orleans,” in defiance of the Insurrection Act and the Posse Comitatus Act, based on the president’s inherent constitutional powers as commander in chief.18 That was essentially the last the public heard about the question for a year.
Then, in September 2006, the GOP-led Congress slipped into the coming year’s military budget bill a wholesale change to the two-hundred-year-old rules surrounding martial law. With virtually no debate, Congress granted wide new powers for the president to use federal troops as police, over the objections of state governors and at the president’s sole discretion. The conditions that can trigger such powers for the presidency now include not only major riots, but any emergency situation in which, “as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order.”19
Bush made no mention of this truly historic expansion of the president’s power to impose martial law when he signed the military budget bill into law on October 17, 2006. Nor had the White House or Congress drawn attention to the change in the weeks leading up to the bill signing. Instead, most of the public debate in Washington that month had centered on another bill that Bush also signed on October 17, one in which the Republican Congress delivered even more sweeping powers to the president than the martial law changes.
This second bill was the Military Commissions Act—and its enactment into law represented the apotheosis of the Bush-Cheney politics of presidential power.
4.
Members of the public who watched news coverage of the debate in Congress over the Military Commissions Act received a very misleading portrait of the bill’s impact. Most of the attention placed on the legislation concerned a dispute between factions of Republicans about trials for foreign terrorism suspects at Guantánamo. But other provisions in the bill that had nothing to do with military commissions and went virtually undiscussed were far more sweeping. The Republican-led Congress used the Military Commissions Act to virtually eliminate the possibility that the Supreme Court could ever again act as a check on a president’s power in the war on terrorism. The bill also granted a congressional blessing, in statute, for many of the hugely expanded executive powers that the Bush-Cheney administration had previously seized on its own, ensuring that they would be even more difficult to roll back.
As Congress rushed to hand these powers to the White House in September 2006, neither lawmakers nor most observers spent much time discussing them. Instead, the spotlight stayed on a high-profile dispute between the White House and several leading Republican senators—including John McCain of Arizona, John Warner of Virginia, and Lindsey Graham of South Carolina, the same trio who had pushed for the torture ban in 2005—over the kinds of evidence that prosecutors should be able to introduce. The White House insisted that prosecutors needed to be able to use classified evidence, which would be kept secret from defendants for national security reasons. The administration also wanted prosecutors to be able to use evidence that had been obtained through coercive interrogations. McCain and his allies, endorsing the view of the military Judge Advocate General lawyers, questioned whether a trial that relied upon such evidence would be fair. In the end, the skeptics won on secret evidence, which was banned, but lost on evidence obtained from coercive interrogations, which was allowed as long as a military judge decided that the evidence was reliable. The compromise brought to an end a debate that had raged for several weeks, and Congress quickly passed the bill.
Other provisions of the Military Commissions Act received far less attention but were arguably much more important. For example, one of the things Congress did in the Military Commissions Act was help undermine the Geneva Conventions as a check on the power of the commander in chief. The act allowed the executive branch to go back to what it had been doing before the Supreme Court’s Hamdan decision declared that the Geneva Conventions applied to the war on terrorism. Instead of following the treaty’s all-encompassing prohibitions against detainee abuse, the United States instead would pledge not to inflict only a specific list of extreme acts on detainees, such as murder, rape, biological experiments, and “serious” pain and suffering. Crucially, Congress delegated to the president alone the power to decide whether any particular coercive interrogation technique was prohibited by the list, and it stripped the courts of the power to hear lawsuits based on the Geneva Conventions, meaning the president’s word was final.
This push was strongly opposed by the military community. They argued that by relaxing the taboo against abusing wartime prisoners, the chances would increase that enemies in future conflicts would feel free to mistreat American prisoners of war. More than fifty retired admirals and generals, including five former chairmen of the Joint Chiefs of Staff, sent Congress letters urging them not to alter the nation’s understanding of the Geneva Conventions. Among the most prominent was Colin Powell. “The world is beginning to doubt the moral basis of our fight against terrorism,” he wrote. “To redefine [the Geneva Conventions protections] would add to those doubts. Furthermore, it would put our own troops at risk.”20 But Congress made the changes anyway.
Lawmakers took other steps, too, to keep the courts from interfering in how the president decides to treat detainees. The Military Commissions Act stripped federal courts of jurisdiction to hear all existing and future habeas corpus lawsuits filed by noncitizen enemy combatants, eliminating their ability to challenge the basis for their detention in court. This restriction extended even to noncitizens who might be arrested on U.S. soil—including permanent legal residents, the millions of green-card holders who, until the Military Commissions Act, had long enjoyed the same legal rights as citizens.
By eliminating habeas corpus, the Military Commissions Act essentially reversed Rasul v. Bush, the landmark 2004 Supreme Court decision holding that courts had jurisdiction to hear lawsuits by Guantánamo detainees. There were hundreds of prisoners in Cuba who were unlikely to be prosecuted by a military commission, because the government lacked specific evidence that they had committed any war crimes. But the new legislation meant that declaring such detainees “enemy combatants” was final, and they now faced the prospect of life imprisonment at the discretion of the executive alone. Based on the change, a federal appeals court in February 2007 threw out dozens of suits filed by individual detainees who wanted a judge to review the evidence on which they were being imprisoned without trial.21 Four months later, the Supreme Court announced that it would review that decision—and the section of the Military Commissions Act upon which it was based—in its 2007–08 term, setting up a weighty test of presidential power before the new Roberts court.
But perhaps the most important provision of all in the Military Commissions Act concerned the president’s power to seize American citizens as enemy combatants. In the Hamdi case, the Supreme Court voted 5–4 that the president had the power to imprison without trial a citizen seized on a foreign battlefield, allegedly fighting U.S. troops and U.S. allies alongside the Taliban and Al Qaeda. In the Padilla case, a federal appeals court extended that presidential power to a U.S. citizen arrested on U.S. soil while allegedly planning terrorist attacks. But the Supreme Court had never decided whether the Padilla ruling was correct. Now it wouldn’t have to. Pouring reinforced cement around the Hamdi and Padilla precedents, Congress locked down the president’s power to arrest U.S. citizens on U.S. soil and imprison them in a military brig without a trial if he or she thinks they pose a terror threat. In fact, Congress went even further than the Bush-Cheney administration had: Under the Military Commissions Act, the president can seize citizens as enemy combatants even if they have nothing to do with Al Qaeda. Instead, an enemy combatant can be anyone who “has engaged in hostilities or who has purposefully and materially supported hostilities against the United States.”
Under this broad definition, the president can potentially imprison without trial any citizen who is accused of donating money to a Middle East charity that the government decides is linked to a terrorist group. The president can potentially imprison without trial citizens who are associated with militant fringe groups, such as the left-wing Black Panthers and the right-wing militia movement. The president could even imprison without trial citizens accused of helping domestic terrorists, such as the rural mountain dwellers of North Carolina who are suspected of helping Eric Rudolph, the abortion-clinic bomber, survive as a fugitive for five years. Yale’s Bruce Ackerman wrote that the election-year bill amounted to a “massive congressional expansion of the class of enemy combatants.” And the Military Commissions Act, he warned, could “haunt all of us on the morning after the next terrorist attack” by paving the way for a new round of heavy-handed mass detentions, such as the military imprisonment of Japanese-Americans during World War II.22
The Military Commissions Act, in short, was revolutionary. And when placed alongside all the other powers that the Bush-Cheney administration had seized for the presidency during the preceding six years, it became the crowning achievement of the project to expand executive power—embracing and entrenching many of the new presidential powers in statute.
The few observers who were paying close attention to the guts of the bill agreed that it was momentous. In an op-ed published two days after Bush signed the Military Commissions Act into law, Yoo celebrated. “Congress… told the courts, in effect, to get out of the war on terror,” he wrote. “It is the first time since the New Deal that Congress had so completely divested the courts of power over a category of cases. It is also the first time since the Civil War that Congress saw fit to narrow the court’s habeas powers in wartime because it disagreed with its decisions. The law goes farther. It restores to the president command over the management of the war on terror. It directly reverses Hamdan by making clear that the courts cannot take up the Geneva Conventions. Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions.”23
