We know now what we didn't know then, back in the dark days of the autumn of 2001, and we still cannot get it right. After five years we now have a long track record of seeing what can, will and usually does go wrong when the administration acts unilaterally in the legal war on terror. It has been written into the record of one Supreme Court case after another, one lower court ruling following the next, and still we accept the premise that the rule of law as we knew it could and should be twisted unrecognizably, now and forever more, until this ill-defined, ever-evolving, undeclared war is over.
The detainee legislation that the Congress has just passed, with the advice and consent of White House officials hungering for more legal latitude upon their conduct, represents a complete abdication of the legislative branch's vital duty to act as a brake upon the executive branch. Worse, Congress has now officially become an explicit co-conspirator along with the Bush administration in its five-year-long effort to freeze out of the equation the federal courts, the last bulwark against tyranny. The less-than-do-nothing Congress finally did something and in doing so made a bad situation an order of magnitude worse.
Generations from now, historians and scholars and lawyers and judges will look back upon the past five years, and last month's formal legislative reaction to it, and marvel at the vast gulf between cause and effect. It is of course inapt to compare this atrocious law to the decrees that caused the internment of Japanese-Americans during World War II. But it is not too early to predict that our heirs will look back upon this law, and the dark effort behind it, with the same mixture of astonishment and disgust which our generation feels over what our government did in our name following Pearl Harbor. A Sept. 28 New York Times editorial compared this law with the notorious Alien and Sedition Act of the late 18th Century and, indeed, it is that bad and maybe even worse given what we know of the current war on terrorism.
But back to the grand disconnect that exists between what this law does -- gives the President new broad power -- and what preceded it -- the White House's often bungled use of its already-existing broad power. Long after both President Bush and Osama Bin Laden are gone from the scene, our successors-in-interest will look at this wretched law in particular, and the events upon which it is based, and wonder why Congress dramatically loosened the Bush Administration's legal leash at this time rather than severely restricting it.
Reasoned voices will then ask: What did the White House do between 9/11/01 and 9/11/06 to earn the trust and added authority that the Congress now has given it? What did President Bush do along the terror law front since the Twin Towers fell to cause Congress to place so much faith in him and his Administration when it comes to tiptoeing the tightrope between security and freedom?
The answer to these questions is nothing. So far, some legal experts say, the Bush Administration's track record when it comes to exercising unbridled power has been lame. To put it less mildly, as some legal experts have, it is actionable. Over and over again, they say, the executive branch has deceived Congress and the courts. Over and over again, the Administration has oversold its terror cases. Over and over again it has tried to hide its errors under the veil of "national security."
And after this foreboding pattern and practice by the executive branch what does the Congress do? Does it increase its oversight until it is satisfied that its partners in the White House are doing a better job of fighting the war on terror? Does it give the White House clear and unequivocal limits for its authority? Does it point to the abuses and excesses of the past five years and say, "no more"? No. It does none of these things. Instead, it rewards the White House's behavior with more discretion, authority, and power. And then, to ensure that the White House can safely use its new freedom, the Congress also tries to ensure that the federal courts cannot subsequently come in and put a stop to it all.
Enormous and unchecked new power now has been given to a White House whose officials at first called Zacarias Moussaoui the "20th hijacker" but were wrong; who at first called Jose Padilla the "dirty bomber" but were wrong; who at first called Yaser Hamdi such a threat to national security that he could not even be allowed to talk to his attorney -- until they decided to set him free. Freedom from judicial review now has been given to the same administration officials who allowed Maher Arar, a Canadian citizen whom we now know that they knew was not a terrorist, to be transferred to Syria for torture. Vague or narrow definitions of torture now have been given to the executive branch operatives who are responsible for Abu Ghraib. New powers have been given to the people who brought us the National Security Agency's domestic spying program, the one that some legal experts say violates both federal law and the Constitution.
The list goes on and on. The draconian USA Patriot Act, enacted just weeks after September 11, 2001 without any meaningful review or discussion on Capitol Hill, seems like the Bill of Rights compared with this effort. And yet despite the breadth and weight of this evidence, Congress, our national fact-finding body, has just reached its verdict: The culpable party doesn't just get acquitted -- it goes free with permission to operate under a brand new set of laws made especially for it, laws that will make it even more difficult to ever find it guilty again. This isn't Orwell. It's the Marx Brothers. Only there is absolutely nothing funny about it. Our elected officials have just traded the promise of more security for the actual loss of our liberty.
Thanks to this new law, fewer judges will be willing or able to look behind the curtain and help tell us all what is really happening to those individuals who, under the new law, can be rounded up and denied fundamental rights (like the right to face charges or the right to a trial). Remember the old Reagan saw? Trust but verify? Here, Congress has given the President its trust and ours without verifying whether the White House truly deserved either. The record establishes that it doesn't.
Andrew Cohen