Nemesis: The Last Days of the American Republic (43 page)

The FOIA now depends almost totally on the courts for its viability, as Bush administration officials have done their best to envelop the act in a
new web of secrecy and nondisclosure. The
San Francisco Chronicle’s
Ruth Rosen, in one of her columns, caught the crucial moment when this occurred, itself obscured by official secrecy, “The president didn’t ask the networks for television time. The attorney general didn’t hold a press conference. The media didn’t report any dramatic change in governmental policy. As a result, most Americans had no idea that one of their most precious freedoms disappeared on October 12 [2001].”
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On that day Attorney General John Ashcroft sent a memo to all federal agencies urging them to bring every excuse they could think of to bear in turning down Freedom of Information requests. He offered agency heads backing on this stance: “When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis.” In marked contrast, his predecessor, Janet Reno, had advised all departments and agencies that they should honor FOIA requests so long as doing so caused “no foreseeable harm.”
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The Bush administration subverted the FOIA in ways large and small. For instance, charges were raised to excessive levels for fulfilling FOIA requests even though the law stipulates that service fees should be minimal. In January 2005, the Justice Department typically informed People for the American Way, a watchdog organization critical of the government’s record on civil rights and other issues, that it would be charged $372,999 for a search of the department’s files and disclosure of 1,200 cases in which court proceedings against immigrants arrested and confined after 9/11 were conducted in secret.
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Needless to say, small grassroots organizations cannot afford such expenses.

Three weeks after Ashcroft tried to shut down FOIA, President Bush made a tone-setting decision when it came to closing off the people’s right to know. Back in 1974, at the height of the Watergate scandal, Congress seized President Nixon’s records and tape recordings because it feared that the former president planned to destroy them. (On May 2, 1972, following the death of the longtime director of the FBI, J. Edgar Hoover, his personal secretary and lover, Clyde A. Tolson, had indeed destroyed decades of official and unofficial FBI records to keep Hoover’s many illegal acts secret.) In light of these developments, in 1978, Congress passed the Presidential Records Act, making the papers of a former president federal property upon his leaving office. It required that such records be transferred to the
Archivist of the United States, who was ordered to open them to the public after no more than twelve years. The intent of the law was to lessen abuses of power under the veil of secrecy, or at least to disclose them in history books.

On November 1, 2001, just as a small portion of the Reagan administration’s presidential papers was about to be opened to the public, President Bush issued Executive Order 13233 countermanding the Presidential Records Act.
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It gave him (as well as former presidents) the right to veto requests to see his presidential records. Even if a former president wants his records released—as is the case with Bill Clinton—the order states that access will be granted only at the discretion of the sitting president in consultation with the former president, if still living. It has been widely speculated that Bush’s intent was to protect his father, a former director of the CIA and Reagan’s vice president, from being implicated in the crimes committed during the Iran-Contra affair by Reagan administration officials. Throughout the Iran-Contra investigation, George H. W. Bush argued that he had been “out of the loop” and therefore not involved in the complex illegal fund-raising for and support of the Nicaraguan Contras, who were trying to overthrow the Sandinista government. Reagan’s records might have revealed just how far out of the loop he actually was.

As Thomas Blanton, executive director of the National Security Archive at George Washington University, observes, “The Presidential Records Act was designed to shift power over presidential records to the government and ultimately to the citizens. This [Executive Order] shifts the power back.”
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Historian Richard Reeves, author of
President Nixon: Alone in the White House
and
President Kennedy: Profile of Power,
comments, “Post-Nixon, presidential papers were no longer personal property. They belonged to the American people. So, now we live in a new historical reality.”
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The American Historical Association contends that Executive Order 13233 not only violated the 1978 act but functionally canceled the law by executive fiat and so “potentially threatens to undermine one of the very foundations of our nation.” We still await a Supreme Court decision on whether the president can, through an executive order, or what is called a “signing statement,” suspend or modify a law passed by Congress. So far, Bush has gotten away with it many times, and his two 2006 appointees to the court, John Roberts and Samuel Alito, are both believers in the “theory” of “unitary executive power.”

Perhaps the most serious failure of the Supreme Court in this period was its refusal even to consider whether the Bush administration had the legal standing to round up well over a thousand foreigners in the United States in the wake of 9/11 and keep all details of their cases secret, including their names and the charges, if any, against them. We do not know whether these people were illegal aliens, visitors with tourist visas, permanent residents with Green Cards, or naturalized Americans. They were simply seized, incarcerated mostly in New York prisons, beaten by guards, and, after a lengthy time in jail, deported, usually for the most minor of offenses. Kate Martin of the Center for National Security Studies, comments, “We have a situation where the government arrested more than a thousand people in secret, and the courts let them get away with it. There is no accountability for the abuses, and secrecy allowed the abuses.”
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Not one of those arrested turned out to have the slightest connection to the 9/11 attacks.

The costs of such executive megalomania are high. As federal appellate judge Damon Keith wrote in his 2003 ruling against the Bush policy of holding hundreds of deportation hearings in secret, “Democracies die behind closed doors.... A government operating in the shadow of secrecy stands in complete opposition to the society envisioned by the Framers of the Constitution. When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation.”
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The failure of the Supreme Court—and ultimately the public—to take notice of such outrages encouraged the Bush administration to assert ever more grandiose claims for its imperial presidency. According to New York University law professor Noah Feldman, “These claims add up to what is easily the most aggressive formulation of presidential power in our history.”
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For some thirty years, a few Republican politicians from the Ford, Reagan, and Bush pere administrations—including former president George H. W. Bush himself (and through him his son George W.), his secretary of defense, Dick Cheney, and Ford’s secretary of defense, Donald Rumsfeld—have nursed grievances about the way Congress exposed illegal activities in the wake of Watergate, Vietnam, and Iran-Contra. They have never gotten over the public’s demand that presidents should no longer go to war based on lies to Congress, such as the Vietnam-era Tonkin Gulf Resolution; that the CIA and the American military should be stopped
from assassinating foreign leaders, such as President Ngo Dinh Diem of South Vietnam in 1963, and overthrowing governments that have done nothing to the United States, as they did in Chile in 1973; and that congressional oversight of our often incompetent and always deceitful intelligence agencies was long overdue.

Over the years, Dick Cheney has inveighed against President Ford’s Executive Order 11905 of February 18, 1976, which stipulated that “No employee of the United States Government shall engage in, or conspire to engage in, political assassination”; the War Powers Act of 1973, which requires that the president obtain congressional approval within ninety days of ordering troops into combat; the congressional Budget Control and Impoundment Act of 1974, which was designed to stop Nixon and any other president from impounding congressionally mandated funds for programs they do not like; the Freedom of Information Act of 1966, which Congress strengthened in 1974; and the Intelligence Oversight Act of 1980, which set up the House and Senate select committees on intelligence. Similarly, in March 2005, former president George H. W. Bush, who headed the CIA from 1975 to 1977, spluttered at a conference on counterintelligence: “It burns me up to see the agency under fire.” He was even more incensed that Congress had “unleashed a bunch of untutored little jerks” to investigate the CIA’s involvement in domestic spying, assassinations, and other illegal activities and subsequently passed laws to prevent their recurrence.
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Those “untutored little jerks” were the members of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, chaired by Senator Frank Church, Democrat from Idaho, which issued its final report in 1976.

In January 2002, in an interview with
ABC News,
Cheney argued, “In thirty-four years, I have repeatedly seen an erosion of the powers and the ability of the president of the United States to do his job. One of the things that I feel an obligation on—and I know the president does too—is to pass on our offices in better shape than we found them.”
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But all of the legislation passed in the 1970s represented attempts to deal with crimes committed by government officials. Nonetheless, no president after Nixon has ever acknowledged the legitimacy of the War Powers Act, and most of these “limitations” on presidential power had been gutted, ignored, or violated long before Cheney became vice president. Bruce Fein, a constitutional scholar and former Reagan administration lawyer, calls them
“museum pieces.”
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There is simply no evidence that, since the 1970s, there has been any real reduction in the powers of the presidency or that the Bush-Cheney government ever behaved as if it thought there were. “The vice president,” noted Republican senator John E. Sununu, “may be the only person I know of who believes the executive has somehow lost power over the last thirty years.”
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In pursuit of yet more power, Bush and Cheney have unilaterally authorized preventive war against nations they designate as needing “regime change,” directed American soldiers to torture persons seized and imprisoned in various countries, ordered the National Security Agency to carry out illegal “data mining” surveillance of the American people, and done everything they could to prevent Congress from outlawing “cruel, inhumane, or degrading” treatment of people detained by the United States (acts that were, in any case, already illegal under both U.S. law and international agreements the United States had long ago signed and ratified). They have done these things in accordance with something they call the “unitary executive theory of the presidency.”

This “theory” is, in fact, simply a bald-faced assertion of presidential supremacy in all matters relating to foreign affairs dressed up in legalistic mumbo jumbo. Its classic expression is contained in the August 1, 2002, “torture memo” conceived and written by a group of ultraconservative lawyers in the White House, Justice Department, and Vice President’s office. Among them are John Yoo, a young, right-wing Korean-American scholar and a former law clerk for Supreme Court Justice Clarence Thomas, who served as a lawyer in the Justice Department’s Office of Legal Counsel; Alberto Gonzales, then the White House’s legal counsel; and David S. Addington, a former lawyer for the CIA, the Pentagon’s general counsel when Cheney was secretary of defense, and then chief of staff in Cheney’s office.
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The torture memo justified its extreme views by claiming that the commander-in-chief power even overrides U.S. laws: “In light of the president’s complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the president’s ultimate authority in these areas.” Ratified treaties, congressionally enacted statutes, and military orders prohibiting torture “must be construed as inapplicable to interrogations undertaken pursuant to his commander-in-chief authority.... Congress may no more regulate the
president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” The same principle holds for “federal officials acting pursuant to the president’s constitutional authority... . The Framers understood the [commander-in-chief] clause as investing the president with the fullest range of power,” including “the conduct of warfare and the defense of the nation unless expressly assigned in the Constitution to Congress.” That “sweeping grant” of power, the memo continued, is given because “national security decisions require the unity in purpose and energy in action that characterize the presidency rather than Congress.”
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Yoo and company have concocted something that looks very much like an American version of the Chinese Communists’ “Two Whatevers.” These were the basic principles that prevailed during the years when the cult of Mao Zedong was ascendant: “We will resolutely uphold whatever policy decisions Chairman Mao makes; and we will unswervingly follow whatever instructions Chairman Mao gives.” Substitute Bush for Mao and you get the idea.
Time
magazine contends that, according to the White House and the Justice Department, “The Commander in Chief’s pursuit of national security cannot be constrained by any laws passed by Congress, even when he is acting against U.S. citizens.”
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Bruce Schneier, author of
Beyond Fear: Thinking Sensibly About Security in an Uncertain World,
sees an even more ominous development: “The president can define war however he chooses, and remain ‘at war’ for as long as he chooses. This is indefinite dictatorial power. And I don’t use that term lightly; the very definition of a dictatorship is a system that puts a ruler above the law.”
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The implications for the constitutional separation of powers are thus grave, particularly since the unitary executive theory flies in the face of the Constitution itself.