Six Questions for Louis Fisher, Author of The Constitution and 9/11

By Scott Horton

Louis Fisher

A large agenda for domestic and foreign policy already awaits President Obama and he will want to put his time and energy into moving forward. But it would be a mistake to sweep the illegalities and executive branch corruption of the past seven years under the rug. It is important to get the full story out on the removal of U.S. attorneys, the process within the Office of Legal Counsel that produced such documents as the torture memos, the continued withholding of legal memos from Congress and the public, and other matters that cast a shadow over the Bush Administration and will cast the same shadow over the Obama Administration. Only a thorough and transparent airing of these issues will bring accountability and provide lessons learned. It matters less that there be criminal prosecution against the U.S. officials who engaged in these actions than that the actions be fully investigated and made public. Otherwise, the implied message is that U.S. officials can engage in secret and illegal actions without any cost to themselves or their agencies.

2. You review the history of the Palmer raids at the end of World War I. What parallel do you see between this and policies of the Bush Administration?

In every national emergency, including the Palmer raids and the post-9/11 period, there is a similar pattern of public officials concentrating power and using it to inflict damage on disfavored groups, whether they be “radicals,” “subversives,” Germans, Japanese, Arabs, or Muslims. On each occasion public officials argue that procedural rights and constitutional liberties must be subordinated to prompt action that will defeat the “enemy.” Through illegal and arbitrary actions, thousands of innocents suffer. The subtitle of my book is intended to reflect this pattern. “Recurring Threats to America’s Freedoms” could be read to mean threats from enemies. Readers will understand that the threats generally come from ourselves.

I begin chapter 3 by pointing out that after 9/11, traditional rights and procedural safeguards were withheld from individuals in certain categories: Muslim, Arab, Arab-American, Middle Eastern, alien, suspected terrorist, or “enemy combatant.” As we discovered, and should have known in advance, large numbers of innocent people were punished because of group hate. Fear, anger, and prejudice inflict personal, institutional, and constitutional damage. Group hate seems easier and more venomous than hatred of a single individual. “It is more passionate, more irrational, less in need of informed personal judgment. Ignorance helps rationalize injustice and inhuman treatment.”

3. The Bush Administration repeatedly insisted that the president had “inherent authority” to create military tribunals to enforce the laws of war against enemy combatants. It suggested that there was therefore no need for the President to obtain congressional authorization for the commissions at Guantánamo. They cite the example of the trial of Major André during the Revolutionary War. Are they right about this?

Remarkably, the Justice Department argued in court that part of President Bush’s inherent authority to create military tribunals can be traced back to the 1780 trial of Major André. General George Washington did indeed appoint a Board of General Officers to try André as a spy, but anyone with a smattering of American history would know that you cannot derive presidential power from precedents set in 1780. There was no President at the time other than the presiding officer of the Continental Congress. There was not even an executive branch. There was one branch of government: the Continental Congress, exercising legislative, executive, and judicial powers.

The Justice Department insisted “there was no provision in the American Articles of War providing for the jurisdiction in a court-martial to try an enemy for the offense of spying.” That is false. The Continental Congress adopted a resolution in 1776 expressly providing that enemy spies “shall suffer death… by sentence of a court martial, or such other punishment as such court martial shall direct,” and ordered that the resolution “be printed at the end of the rules and articles of war.” The previous year, Congress had made it punishable by court-martial for members of the Continental Army to “hold correspondence with” or “give intelligence” to the enemy. General Washington acted on the basis of legislative authority, not some sort of “inherent” executive authority cited so frequently by the Bush Administration.

4. After the Supreme Court ruled against the administration in Hamdan, an administration lawyer named Steven Bradbury, who purports to act as head of OLC even though Congress refused to confirm him in that office, testified that the Court did not address the president’s constitutional authority nor did it reach any constitutional issue. Are Bradbury’s claims correct?

Several executive officials and a number of supporters outside the administration argued that the Court in Hamdan decided the case on statutory, not constitutional, grounds. There was some superficial appeal to this argument because the Court told the administration that it had to go to Congress and seek statutory authority for military commissions. However, in so deciding, the Court wholly rejected the claim that President Bush had inherent authority to create commissions. Moreover, the Court clearly recognized that the constitutional authority to create commissions lay with Congress and that it had exercised that authority through Articles 21 and 36 of the Uniform Code of Military Justice. The rules set forth in the Manual for Courts-Martial “must apply to military commissions unless impracticable.” The administration never complied with that statutory requirement, which Congress had enacted pursuant to its constitutional authority. Hamdan was thus constitutional on two fundamental grounds: rejecting the existence of any inherent authority for the President and recognizing that Congress possessed constitutional authority and had exercised it.

5. Under the Bush Administration, invocation of the “state secrets privilege” has increased, including for a great number of doubtful cases. The administration points back to the treason trial of Aaron Burr for a suggestion that the executive has an absolute privilege. Is this claim historically accurate?

The references to the Aaron Burr trial of 1807 are another misguided effort by the Bush administration to reach far back into American history to justify inherent presidential power. As with the John André trial, the administration fundamentally misread history and practice. Under the state secrets privilege, the administration will argue when a case is filed that it cannot move forward without jeopardizing national security. That argument has been heard most recently with the NSA surveillance cases and the extraordinary rendition cases of Maher Arar and Khaled El-Masri. Judges have a choice between deferring to these executive claims or insisting that they examine contested documents, generally by reading the materials in their chambers.

The Burr trial has nothing to do with this process. First, the cases mentioned are civil: private citizens bringing charges against the executive branch. Burr was a criminal case. The Jefferson administration prosecuted him for treason. Had he been found guilty the penalty would have been death.

No one can seriously argue that an individual can be tried for a crime without seeing the evidence against him, having an opportunity for cross-examination, bringing witnesses on one’s behalf, having access to counsel, and other safeguards that accompany the criminal process. In Burr’s case, President Jefferson claimed that he had letters from General James Wilkinson proving that Burr was involved in a conspiracy that amounted to treason against the United States. Burr had every right to see those letters. Chief Justice John Marshall, handling the case on circuit, knew that Burr had that right, as would any defendant. Marshall was concerned that the judiciary would lose respect if it failed to give an accused access to information needed for his defense. Were Marshall a party to such withholding of evidence he would “look back on any part of my official conduct with so much self-reproach as I should feel.”

The matter was politically delicate because Marshall understood the risks of a confrontation with Jefferson. For his part, Jefferson knew that Burr and his attorneys were entitled to see the letters. He ordered government attorneys to find the letters and submit them to the court. The trial was delayed over such questions as whether copies of the letters would suffice over the originals. Meanwhile, Marshall continued day by day to cut the ground out from under the administration’s case. At one point he asked the government whether the weakness of its case was not “wasting the time and money of the United States.” When the jury returned with a judgment that Burr was not guilty there was no further need to have access to documents. If the administration believed that release of the Wilkinson letters would do damage to the United States, it had only one option: drop the charges against Burr. Nothing in the trial has anything to do with civil cases and the state secrets privilege.

6. Apologists for the Bush Administration’s program of extraordinary renditions regularly claim that the program existed and was developed under the Clinton administration. How was the program different under Bush?

Beginning with the George Washington Administration, it was always understood that the transfer of an individual from this country to another could not be done unilaterally by the President. Authority was needed either by an extradition treaty or by statute. There are cases of the United States going to another country and forcibly abducting someone and bringing them here, but the purpose was always bringing the individual for trial with all the procedural safeguards available. As late as 1979, the Office of Legal Counsel stated: “The President cannot order any person extradited unless a treaty or statute authorizes him to do so.”

During the Clinton administration, FBI Director Louis Freeh and other executive officials testified about the use of force to abduct terrorist suspects for the purpose of bringing them to trial. Rendition was used to return suspected international terrorists to stand trial in the United States. Other officials, including CIA Director George Tenet, spoke of rendition as bringing suspects “to justice.” It was unclear whether that meant return to the United States or to other countries for trial. Michael Scheuer, who supervised the abduction of suspected terrorists, testified that the purpose was to take men off the street and seize evidence. The men were not brought to the United States. They were transferred to other countries only if charges had been brought against them.

The purpose of extraordinary rendition under the Bush Administration was quite different. It was not to bring someone to trial. It was to interrogate them first under CIA custody and then transfer them to another country for interrogation and torture. The Bush Administration said it would seek “assurances” from the countries that torture would not be used but conceded that it could not control what other countries did. In lawsuits challenging extraordinary rendition, the administration regularly invokes the state secrets privilege.