The Extra-Legal Executive

By Matthew Yglesias, The American Prospect. Posted December 26, 2005.

Friday's three big news stories -- the elections in Iraq, the president's flip-flop on John McCain's anti-torture amendment, and the revelation that the administration ordered the National Security Agency to conduct domestic surveillance without warrants -- brought home in an unusually poignant manner one of the paradoxes at the heart of the past several years: The same group of people who've decided they're on a historic mission to spread democracy and liberal values around the world seem, based on their conduct at home, to have a very weak grasp of what those values entail.

The surveillance matter is disturbing not only, or even especially, for the casual disregard for civil liberty and Anglo-American tradition it entails. Rather, the main point here is about the law. It was universally understood on Sept. 10, 2001, that, wisely or unwisely, intelligence agencies could not conduct this sort of operation without first gaining approval from the Foreign Intelligence Surveillance Court. Nothing happened the following day to change that reality.

To be sure, events occurred that caused many people to re-evaluate American policy in a number of regards, arguably including domestic surveillance policy, but the fact remains that the law is the law and there's a specified procedure for changing the law. As we recall from civics class, bills are supposed to be introduced in the two houses of Congress, voted on in committee and then before the full body, sent to the White House, and then either signed or vetoed.

Faced with the pesky need to get warrants, however, the Bush administration chose another path -- it simply issued a directive saying the old policy was out and a new policy was in. On hand to help rationalize things was John Yoo, the very same lawyer who provided the rationalizations required when the president wanted to start ignoring domestic and international law with regard to torture without getting any of the laws changed.

And if it was Yoo's work that made McCain's effort to close down Bush-created loopholes in torture law, then it's the continuation of the Yoo mentality that makes me pessimistic about how much good McCain will do. The president, quite clearly, didn't surrender to McCain's view at the end of last week because of a genuine change of heart. Instead, as in his previous surrender to the Arizona senator over campaign finance reform, he dropped what he had previously portrayed as a point of high principle for reasons of crass political expediency. Thus, we still have in office a president who believes in the utility and overriding moral necessity of torture, and a president who feels that -- at least in matters of national security -- he's not bound by the law.

The debate over the torture amendment has obscured this fact: Five years ago no serious person believed torture was permitted under American law. It happened not because it was legal, but because the president chose to believe the law was no constraint, or that, insofar as it was a constraint, it was a constraint to be waived off through such expedients as holding prisoners in the legal null zone of Guantanamo Bay, off-the-books facilities in Eastern Europe, or secretly shipping people off to Syria.

Matthew Yglesias is a Prospect writing fellow. This article is available on The American Prospect's website.

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