News & Politics

The Offer Congress Can't Refuse

The Justice Department's most recent defense of Bush's illegal wiretap program makes clear that there is no room in the president's plans for Congress.
"The Godfather" is a pivotal film because it manages to characterize violence and illegal conduct as necessary, as honorable -- portraying it as an unsightly means to a peaceful end. Who doubted Michael Corleone's honest intentions to find the peace? He never wanted to be like his father -- he wanted to become legit.

But when his family was facing a threat, the gloves came off. A critical moment in the film is when you see this transformation. At the baptism of his nephew, he repeats the priest's litanies: "Do you renounce Satan and all his works?" And with all honesty, and seeming integrity, the young Corleone affirms this. "I do renounce him."

The camera cuts to scenes of the heads of the five other mafia families being slaughtered on his command. In this moment, the audience is led to believe that Michael Corleone had renounced evil, and that the violence that he was sanctioning was therefore something other -- a necessary act required to reach a plane of higher good. He was only trying to protect his family.

Throughout Bush's "war on terror," but especially since the New York Times finally revealed the National Security Agency's (NSA) illegal wiretap program, we have been treated to this justification. The Department of Justice last week released a 42-page defense [PDF] of the domestic spying program that reinforces this line of reasoning, even as it claims more powers for the executive Branch.

Letting the president define 'evil'

Ever since 9/11, there has been a distinct shift in what Americans seem to view as "evil" or "bad." Terrorists are evil, and finding them and murdering them, by whatever means necessary, are depicted as a necessary evil that will lead to a greater good.

Statements and actions that would have previously incited shock were allowed, general outrage was suspended in lieu of the solitary outrage the nation felt at the terrorist attacks of Sept. 11. Recall president Bush's 2003 State of the Union remark: "More than 3,000 suspected terrorists have been arrested in many countries. And many others have met a different fate. Let's just say they are no longer a problem for the United States and our friends and allies."

The latest revelation of outrageous activities done in the name of protecting Americans is the National Security Agency's (NSA) secret, warrantless wiretaps program. Rather than utilizing existing laws, the president has asserted his right to fight the war on terror exactly as illegally as he deems fit. The Department of Justice's January 19 legal defense of wiretaps makes clear that the administration, rather than providing a humbled justification of its spying on Americans, is instead focusing on broadening its campaign to normalize extralegal activities. This is all part of an ever-increasing body of evidence revealing that, even while facing heated public scrutiny, the administration continues to seek expansion of executive power.

The detainment of "enemy combatants," the sanctioning of interrogation techniques internationally deemed "torture," and the latest revelation that president Bush started a program of extralegal wiretaps have provoked outrage among those concerned about civil liberties, human rights and the rule of law.

Time and again, the president has cited the defense that he is protecting the nation's security, and though we may not be privy to how, or indeed, what exactly against, we are continually subjected to this paternal insistence. A pat on the head, equivalent to saying, "You don't understand what I have to do, so I'm not going to bother to explain it to you, but I'll protect you."

The vast cataloguing of executive abuses of power press by groups like Human Rights Watch, the American Civil Liberties Union (ACLU), Amnesty International and the Center for Constitutional Rights may lead you to wonder whether the administration has malicious intent in consistently skirting civil liberties. But perhaps more disturbing is the notion that, like Michael Corleone in "The Godfather," the president has disregarded the law time and time again because he trusts that God is on his side in this struggle -- that the rules must be suspended for the time being in order to achieve the higher goal of the eradication of all enemy forces. If the president truly believes that this is the case, he will stop at nothing to "protect" the American people by riding roughshod over hundreds of years of legal precedent. The categorically incorrect implication is that laws were designed for better times.

This vigilante attitude, a trademark of Hollywood depictions of the mafia, has trickled down from the president's rhetoric to the legal strategies that the administration has employed. The most recent Department of Justice release defending the legality of the NSA wiretaps repeatedly states that the president's prime responsibility is the safety of our country. Rather than focusing on the charges that the NSA program violates the constitution, the 42-page document repeatedly re-characterizes the president's alleged violation of civil liberties as a "chief responsibility under the Constitution to protect America from attack."

Remarkably, the document, touted as a "defense" of the program, seems to spend more time elaborating an even broader legal authority to the president. This may simply be because every argument justifying the president's actions are circular in nature, ending up right back where we started. Just like the old parental adage, "Because I said so," the DoJ repeatedly invokes the president's characterizations and opinions as the pinnacle of legal authority.

Want to know why the NSA program doesn't violate the 4th Amendment? Well, because the program has been deemed "reasonable." Why? Because, "as the president has explained, the NSA activities are 'carefully reviewed.'" Built into every one of the DoJ's arguments is a proviso. Even if the program did violate the 4th Amendment, it argues that "defending the Nation outweighs the individual privacies at stake."

So let's work backwards. The reason the NSA program was started was because the Foreign Intelligence Surveillance Act (FISA) was not enough of a defense. How do we know that? Because the "president has determined" that the program does things that "could not be achieved under FISA." Well, we knew that. It allows the president to conduct wiretaps without any warrant or oversight. But, how do we know it works? You guessed it: because the president has stated that the NSA activities "have been effective in disrupting the enemy."

In an incredible bit of legal wrangling, the DoJ makes the argument that Congress' Authorization to Use Military Force (AUMF), passed in the week after the Sept. 11 terrorist attacks, serves as a statute amending the FISA to allow for the NSA's wiretaps. But just in case you don't buy this shoddy argument, they remind the reader that FISA cannot limit the president, because if it did, it would be unconstitutional as it would prevent the president from protecting the country.

The AUMF has been used by the administration to justify nearly every questionable activity in the "war on terror." But it is worth tracing how the administration came to this open interpretation, if only to illustrate the leaps in logic necessary to keep up with it. In the detainee case of Yaser Hamdi v. Rumsfeld, the Supreme Court ruled that the administration could not, as it claimed it could, hold a U.S. citizen indefinitely without charge. But it did allow that the AUMF authorized the detainment of those caught in an active combat zone, because the action was determined to be "necessary and appropriate force," as it is worded in the AUMF. (It is interesting to note here that Hamdi has since been released, and no charges were filed against him.)

Based on this court opinion, the DoJ argues that "this understanding of the AUMF demonstrates Congress's support for the president's authority to protect the nation," and that "the conclusion in Hamdi makes clear that the absence of any specific reference to signals intelligence activities in the resolution is immaterial."

The DoJ uses its 42-page "defense" of wiretaps to explain exactly what they think Congress intended by the 2001 AUMF. And the gist is this: When Congress passed this piece of legislation, it handed over their say-so in this country's defense.
The AUMF authorization transforms the struggle against al Qaeda from a zone in which the president and the Congress may have concurrent powers into a situation in which the president's authority is at its maximum because it "includes all that he possesses in his own right plus all that Congress can delegate."
The DoJ report has an inherently schizophrenic nature. The first half focuses on the supreme knowledge they seem to have about Congress's intent in passing the AUMF -- namely Congress's alleged pre-emptive support of whatever action the president might take. And yet, it spends the other half declaring war on the very branch it claims granted it such power.

Reaching into the annals of history, the DoJ writes that "President Washington established the executive's authority to maintain secrecy even against congressional efforts to secure information." Further noting that "there are certainly constitutional limits on Congress's ability to interfere with the president's power to conduct foreign intelligence searches." And finally, bluntly stating that "although Congress has the authority to legislate to support the prosecution of a war, Congress may not 'interfere with the command of the forces and the conduct of campaigns. That power and duty belong to the president as commander-in-chief."

Essentially, the administration is saying, "Thanks for the limitless power I interpreted from your legislation, now get lost." While the AUMF strictly applied to the events of Sept. 11, 2001, and al Qaida, it has now been stretched into a justification for an over four-year-long "do whatever you want" card.

This past Sunday on Fox News, Sen. John McCain was asked whether he thought the NSA program was legal. He remarked, "I don't think so, but why not come to Congress? We can sort this all out." But going to Congress might establish limitations on the administration's use of the AUMF and therefore makes it distinctly not within the president's interests.

Particularly disturbing among the DoJ's interpretations is the amount of power it claims lies solely with the president: "[The AUMF's] expansive language authorizes the president 'to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001" (DoJ's added emphasis).

In case you didn't capture the significance the first time around, the DoJ repeats, "The terms of the AUMF not only authorized the president to 'use all necessary and appropriate force' against those responsible for the September 11th attacks; it also authorized the president to 'determine' the persons or groups responsible for those attacks."

An odd emphasis considering we know that it was specifically al Qaida who was responsible for the 9/11 attacks. But apparently, the president will decide who was responsible, in ways that he deems legitimate, and will then detain them, with or without charge, and finally will mete out a punishment that he deems fit. Who needs three branches of government when you can efficiently roll them into one? All the president asks is that you put your full trust in him -- that he will determine the threat to our country and protect us, if we would just stop asking questions and let him do his job.

Towards the end of "The Godfather," Michael Corleone's wife Kay, with great trepidation, asks whether it is true that he had his brother-in-law killed. "Don't ask me about my business," he tells her. "Alright, this one time, I'll let you ask me about my affairs." There is a moment of great tension after he is asked again if it's true. "No," he lies. "No." And so his family is appeased, and he can go on with his job, which is -- to protect his family in whatever way and by whatever means he deems necessary.
Onnesha Roychoudhuri is an editorial fellow at AlterNet.
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