Sunday, July 09, 2006
. . . although the doctrine of the unitary executive, while down, is still far from out. Still, kudos to Isikoff and Taylor of Newsweek for setting forth, in bald terms, the hitherto unmentionable proposition that if laws do in fact exist, then those who defy them may well be lawbreakers:
A lawyer in the State Department, [David] Bowker was part of a Bush administration "working group" assembled in the panicked aftermath of the September 11 attacks. Its task: figuring out what rights captured foreign fighters and terror suspects were entitled to while in U.S. custody. White House hard-liners, led by Vice President Dick Cheney and his uncompromising lawyer, David Addington, made it clear that there was only one acceptable answer. One day, Bowker recalls, a colleague explained the goal: to "find the legal equivalent of outer space"—a "lawless" universe. As Bowker understood it, the idea was to create a system where detainees would have no legal rights and U.S courts would have no power to intervene.(A big What Ho! to Zemblan patriot J.D. for the link.)
The "outer space" line became something of a joke around the office, but Bowker and a handful of his colleagues didn't find it all that funny. The White House was already planning to fly terror suspects to Guantánamo Bay, Cuba, or other secret U.S. prisons overseas, where they would have no way to challenge their detention. In January 2002, Bowker and other State Department lawyers pushed back. After seeing a Justice Department memo arguing that Qaeda and Taliban prisoners did not even deserve basic protections under the Geneva Conventions, they warned that the administration was inviting an enormous backlash, both from U.S. courts and foreign allies . . . .
But the complaints went unheeded. The hard-liners forcefully argued that in wartime, the president had virtually unlimited powers to defend the nation. They may come to wish they'd listened a little more closely to the warnings. In [the Hamdan] ruling late last month, the Supreme Court came down squarely on the side of the dissenters . . . . The court's reasoning was complex, but the majority opinion, written by Justice John Paul Stevens, concluded that the military commissions, with their limited protections for the rights of the accused, violated the Uniform Code of Military Justice and the basic provisions of Common Article 3 of the Geneva Conventions—precisely the argument that Taft, Bowker and other State Department lawyers had tried to make four years ago.
Now other antiterror programs that the president has justified by invoking the same congressional resolution might be vulnerable to serious legal challenge. Some legal scholars and current and former administration officials believe the case could undermine the secret foreign detention centers and the NSA eavesdropping program, two cornerstones of the terror war. "This is an extremely damaging decision for presidential power," says a former senior administration lawyer, who asked for anonymity owing to his intimate involvement in the legal wrangling over prisoner treatment. "And it was largely a self-inflicted wound." The bitter irony: an administration determined to expand executive power may have caused a serious contraction.
Another possible side effect is that other countries, emboldened by the ruling, could use the case to justify efforts to bring war-crimes charges against CIA officers, U.S. service members and traveling government officials who had a hand in authorizing or carrying out harsh treatment of prisoners. Conceivably, those who violate provisions of Article 3—which mandate humane treatment for all captured prisoners—could also be criminally prosecuted by future administrations under a U.S. law known as the War Crimes Act . . . . Bowker says he and other State Department lawyers specifically warned about just such a scenario during the early debates. "The implications of this—for potentially being arrested and tried in other countries—is certainly a little scary," says Ted Olson, the former solicitor general.