Today, Americans have rights only at George W.
Bush’s forbearance. Under new legal theories – propounded by Supreme
Court nominee Samuel Alito and other right-wing jurists – Bush
effectively holds all power over all Americans.
He can spy on anyone he wants without a court
order; he can throw anyone into jail without due process; he can order
torture or other degrading treatment regardless of a new law enacted a
month ago; he can launch wars without congressional approval; he can
assassinate people whom he deems to be the enemy even if he knows that
innocent people, including children, will die, too.
Under the new theories, Bush can act both
domestically and internationally. His powers know no bounds and no
Bush has made this radical change in the American
political system by combining what his legal advisers call the “plenary”
– or unlimited – powers of the Commander in Chief with the concept of a
executive” in control of all laws and regulations.
Yet, maybe because Bush’s assertion of power is so
extraordinary, almost no one dares connect the dots. After a 230-year
run, the “unalienable rights” – as enunciated by Thomas Jefferson, James
Madison and the Founding Fathers – are history.
The Justice Department spelled out Bush’s latest
rationale for his new powers on Jan. 19 in a 42-page legal analysis
defending Bush’s right to wiretap Americans without a warrant.
Bush’s lawyers said the congressional authorization
to use force against the perpetrators of the Sept. 11, 2001, terrorist
attacks “places the President at the zenith of his powers” and lets him
use that authority domestically as well as overseas. [NYT, Jan. 20,
According to the analysis, the “zenith of his
powers” allows Bush to override both the requirements of the Fourth
Amendment, which protects against searches and seizures without court
orders, and the 1978 Foreign Intelligence Surveillance Act, which
created a special secret court to approve spying warrants inside the
In its legal analysis, the Justice Department
added, “The president has made clear that he will exercise all authority
available to him, consistent with the Constitution, to protect the
people of the United States.”
While the phrase “consistent with the Constitution”
sounds reassuring to many Americans, what it means in this case is that
Bush believes he has unlimited powers as Commander in Chief to do
whatever he deems necessary in the War on Terror.
Since the War on Terror is a vague concept – unlike
other wars the United States has fought – there also is no expectation
that Bush’s usurpation of traditional American freedoms is just a
short-term necessity. Instead it is a framework for future governance.
For a time, some Americans also may have thought
that Bush’s commander-in-chief powers applied only to foreigners linked
to al-Qaeda and to the occasional American who collaborated with the
terrorist group. So they didn’t mind much when Jose Padilla was arrested
in Chicago and locked up without charge as an “enemy combatant.”
That indefinite detention might have violated the
constitutional principle of habeas corpus – the requirement that
every citizen has a right to due process and a fair trial – but many
Americans were swayed when Bush called Padilla a “bad guy” who was
getting what he deserved.
Now, Americans have learned that Bush considers his
powers to extend to a much broader category of citizens. That is the
significance of Bush’s warrantless wiretapping program directed against
hundreds of American targets at any one time.
In bypassing the Foreign Intelligence Surveillance
Act, Bush demonstrated his belief, too, that he has the power to ignore
specific laws as well as broader constitutional principles.
Lies and Lies
Another factor complicating the ability of
Americans to understand the emerging constitutional crisis is that Bush
has shown a readiness to lie about the cases.
For instance, though he secretly approved the
wiretap program in 2002, he kept telling the public that wiretaps could
only be done with court warrants. In
a speech in Buffalo, N.Y., on April
20, 2004, Bush went out of his way to state that he had not abrogated
the rights of American citizens under the Fourth Amendment.
“By the way, any time you hear the United States
government talking about wiretap, it requires – a wiretap requires a
court order,” Bush said. “Nothing has changed, by the way. When we’re
talking about chasing down terrorists, we’re talking about getting a
court order before we do so.”
After the warrantless wiretaps became public in
December 2005, Bush continued to misrepresent the program, calling it
“limited” to “taking known al-Qaeda numbers – numbers from known al-Qaeda
people – and just trying to find out why the phone calls are being
In his folksy style, he told an audience in
Louisville, Kentucky, on Jan. 11 that “it seems like to me that if
somebody is talking to al-Qaeda, we want to know why.”
But Bush’s reassuring tale wasn’t true. The
program that Bush described could easily be accomplished under the
Foreign Intelligence Surveillance Act using a provision that lets the
government wiretap for 72 hours before going to the special court for a
The reality is that Bush has authorized the
National Security Agency to scoop up a vast number of calls and e-mails.
The operation is so large that it has generated thousands of tips each
month, which are passed on to the FBI.
“But virtually all of [the tips], current
and former officials say, led to dead ends or innocent Americans,” the
New York Times reported. “FBI officials repeatedly complained to the spy
agency that the unfiltered information was swamping investigators. …
Some FBI officials and prosecutors also thought the checks, which
sometimes involved interviews by agents, were pointless intrusions on
Americans’ privacy.” [NYT, Jan. 17, 2006]
Another example of Bush’s assertion of his
supremacy over laws enacted by Congress came in December 2005 when he
signed Sen. John McCain’s amendment barring cruel, inhuman and degrading
treatment of detainees in U.S. custody.
Bush then issued a so-called “signing statement”
that reserved his right to ignore the law.
“The Executive Branch shall construe [the torture
ban] in a manner consistent with the constitutional authority of the
President to supervise the unitary Executive Branch and as Commander in
Chief and consistent with the constitutional limitations on the judicial
power,” the signing statement read.
In other words, since Bush considers his
commander-in-chief authority boundless, he can waive the torture ban
whenever he wants, making it virtually meaningless.
The Bush/Laden Symbiosis
But just as public skepticism about Bush’s exercise
of authority was approaching critical mass, Osama bin-Laden resurfaced
on Jan. 19 in a new audiotape sent to al-Jazeera TV, ending more than a
year of silence.
The voice on the tape – identified as that of
bin-Laden both by al-Jazeera and the CIA – predicted America’s defeats
in Afghanistan and Iraq while warning of new attacks inside the United
“Operations are under preparation, and you will see
them on your own ground once they are finished,” said bin-Laden,
a transcript of the tape.
So, Bush can now cite this new threat from al-Qaeda
as well as the bloody conflict in Iraq as justifications for continuing
to consolidate his powers as the “unitary executive.”
The latest bin-Laden audiotape also continues a
long – and curious – symbiotic relationship between the Bush family and
the bin-Ladens, dating back to Bush’s days as a young businessman.
In 1979, Bush’s friend
James Bath was the sole U.S. business representative for Salem
bin-Laden, scion of the wealthy Saudi bin-Laden family and Osama’s
half-brother. While fronting for Salem bin-Laden, Bath helped bankroll
Bush’s first company, Arbusto Energy, by investing $50,000 for a five
In the 1980s, Osama
bin-Laden established himself as an Islamic fighter by battling
side-by-side with Afghan rebels whose guerrilla war against the Soviet
Army and its surrogates was staunchly supported by George H.W. Bush,
first as vice president and then as president.
By the late 1990s,
bin-Laden had become recognized as a major terrorist threat against the
United States. Still, when the CIA warned George W. Bush on Aug. 6,
2001, that bin-Laden was determined “to strike in U.S.,” Bush went
fishing and continued a month-long vacation, failing to rally the
government to examine available clues and tighten security.
A little more than a
month later, on Sept. 11, 2001, when hijacked planes crashed into the
Twin Towers and the Pentagon, the senior George Bush and members of the
bin-Laden family were participating in a Carlyle Group investment
meeting in Washington.
In the days that
followed, as George W. Bush’s Justice Department rounded up hundreds of
Arab cab drivers and other Muslims on minor visa violations, the bin-Ladens
were spirited out of the United States after only cursory questioning.
[For details, see Craig Unger’s House of Bush, House of Saud.]
Ironically, too, Bush’s accumulation of power since
the Sept. 11 attacks has gone hand-in-hand with his failures connected
to Osama bin-Laden. For instance, if Bush had finished off al-Qaeda’s
leaders in Afghanistan in late 2001 and early 2002, he would have a
weaker foundation for his new authority now.
By letting bin-Laden and other al-Qaeda leaders
escape when they apparently were cornered in the mountains of Tora Bora,
Bush kept alive a plausible scenario for additional al-Qaeda attacks
inside the United States and thus the justification for his unrestrained
powers as Commander in Chief.
The escape from the
Americans in Afghanistan helped bin-Laden, too. He emerged as a folk
hero to many Islamists.
By invading Iraq in 2003, Bush breathed more life
into his presidential powers. But another winner was bin-Laden, who
exploited Islamic resentment about the Iraq War to recruit new terrorist
cadre and train them in direct conflict with American soldiers.
Just as Bush’s boasts
about getting bin-Laden “dead or alive” boosted the Saudi’s standing
with radical jihadists, bin-Laden’s public hostility to Bush has helped
the president’s standing with the American people at key junctures.
In fall 2004, when Bush
was locked in a tight race with Democratic presidential nominee John
Kerry, bin-Laden released a videotape that conservative pundits billed
as Osama’s endorsement of Kerry, a development that predictably helped
Bush gain ground in the campaign’s closing days.
Now, as Bush faces
increased U.S. public skepticism about the Iraq War and his accretion of
powers, bin-Laden shows up again with a statement that calls on the
United States to admit defeat in Iraq and threatens new terror attacks
on U.S. soil.
Not surprisingly, the
reaction of many Americans to the bin-Laden tape is to harden their
commitment to keep U.S. troops in Iraq – the outcome that both bin-Laden
and Bush favor, albeit for different reasons.
Bin-Laden’s warning of a
new terrorist assault also stokes the fears of Americans who are likely
to react by giving Bush greater leeway in the War on Terror.
A day after bin-Laden’s
audiotape was aired, Bush’s chief political adviser Karl Rove signaled
that the Republicans would again try to ride the War on Terror to
another round of victories in November 2006.
“Republicans have a
post-9/11 worldview and many Democrats have a pre-9/11 worldview,” Rove
told a Republican National Committee meeting on Jan. 20. “That doesn’t
make them unpatriotic – not at all. But it does make them wrong – deeply
and profoundly and consistently wrong.” [Washington Post, Jan. 21, 2006]
Like the symbiotic
relationship that exists when birds feed off ticks burrowed into the
hides of rhinos, the Bush/Laden symbiosis may be entirely unspoken and
even unintentional. But there can be little doubt that Bush has raised
bin-Laden’s stature among radical Islamists while bin-Laden has helped
Bush consolidate his authoritarian powers inside the United States.
But the crucial question
now is whether the American political system will acquiesce to Bush’s
historic power grab – or resist it.
So far, the major U.S.
news media and leading Democrats have closed their eyes to the totality
of Bush’s claims to unprecedented Executive power. Senate Democrats have
shied away from threatening to filibuster Bush’s Supreme Court
nomination of Samuel Alito, one of the legal architects of the Imperial
One of the few political
leaders who has sounded the alarm is former Vice President Al Gore, who
addressed the issue in a
speech on Jan. 16, the holiday honoring Martin Luther King Jr.
“An Executive who arrogates to himself the power to
ignore the legitimate legislative directives of the Congress or to act
free of the check of the judiciary becomes the central threat that the
Founders sought to nullify in the Constitution – an all-powerful
Executive too reminiscent of the King from whom they had broken free,”
“As the Executive acts outside its constitutionally
prescribed role and is able to control access to information that would
expose its actions, it becomes increasingly difficult for the other
branches to police it. Once that ability is lost, democracy itself is
threatened and we become a government of men and not laws.”
Except for Gore,
however, few national leaders or news commentators have dared to draw
clear conclusions about Bush’s authoritarian tendencies.
No one, it seems, wants
to give up on the most memorable passage of the Declaration of
Independence, that “we hold these truths to be self-evident, that all
men are created equal, that they are endowed by their Creator with
certain unalienable rights, that among these are Life, Liberty and the
Pursuit of Happiness.”
Today, however, these
truths are no longer “self-evident,” nor are the rights “unalienable.”
They depend on the beneficence and generosity of George W. Bush.
Despite his assertion of
unlimited power, Bush surely will not interfere in the lives of most
Americans; just the small number who somehow get in his way. Most
Americans probably won’t even notice their altered status, from
citizens to subjects.