War crimes made
easy By Jeremy Brecher and
Brendan Smith
How has the Bush
administration gotten away with such apparently
illegal acts as hiding intelligence reports from
Congress, creating secret prisons, establishing
death squads, kidnapping people and spiriting them
across national borders, and planning unprovoked
wars? Part of the answer lies in the
administration's deliberate effort, initiated even
before September 11, 2001, to tear down any
existing legal and institutional means for
preventing, exposing or punishing violations of
national and international law by American
officials.
In 2002, Adriel Bettleheim
wrote in the Congressional Quarterly
that
Vice President Dick Cheney "considers it the
responsibility of the current administration to
reclaim those lost powers for the institution of
the presidency". Indeed, the Bush administration
has tried to remove all conceivable restrictions
on the "imperial presidency", setting its sights
in particular on dismantling the Freedom of
Information Act, the Intelligence Oversight Act
and the War Powers Resolution.
Restoring
limits on the power of the executive branch to
conceal information, tell (and hide) lies, make
war at its own discretion, or kidnap, torture and
kill without interference from Congress, the
courts and the public, will be crucial tasks, if
future Abu Ghraibs are to be prevented.
The Freedom of Information Act (FOIA)
provides a good example of the constraints Cheney
aimed to remove. Essentially a sunshine law passed
by Congress in 1966, the FOIA requires that
government agencies disclose their records on
written request. The act provides nine
"exemptions" to the public's right of access, but
in the Bill Clinton years attorney general Janet
Reno advised agencies that information should be
released as long as it did "no foreseeable harm".
Shortly after September 11 attacks,
attorney general John Ashcroft issued a sweeping
memorandum that interpreted out of existence much
of the FOIA, discouraging government agencies from
releasing any information that could conceivably
be withheld. ("Any discretionary decision by your
agency to disclose information protected under the
FOIA should be made only after full and deliberate
consideration of the institutional, commercial and
personal privacy interests that could be
implicated by disclosure of the information.")
Department and agency heads who decided to
withhold records were "assured that the Department
of Justice will defend your decisions" unless they
lacked a sound legal basis - as determined by the
administration itself.
Ashcroft's memo
advocated broad interpretation of the exemptions,
particularly Exemption 5, which protected agency
and interagency memos. Subsequent communications
recommended that government agencies withholding
requested information cite as well Exemption 2,
regarding agency personnel rules and practices,
and Exemption 4, regarding proprietary interests.
A recent study by the Coalition of
Journalists for Open Government comparing the
handling of FOIA requests in 2000 and 2004 found
that Exemption 2 was cited three times more often
in 2004; exemption 5, almost twice as frequently;
and Exemption 4, 68% more often.
More
important than the rising number of exemptions has
been the kind of information restricted. By far
the greatest part of what the public has so far
learned about prisoner abuse, torture and other
criminal acts at Abu Ghraib, Guantanamo in Cuba
and elsewhere by government and military officials
resulted from FOIA requests that were first denied
by government agencies, and only then ordered
fulfilled by the courts.
The same goes for
evidence that such criminal actions were
encouraged by high government officials - witness
the Federal Bureau of Investigation e-mails from
Guantanamo, released only by order of the courts,
indicating that abusive interrogation techniques
had been authorized by "an executive order signed
by President [George W] Bush".
Right now
the Bush administration is trying to further
restrict the use of the FOIA. The pending defense
and intelligence authorization bills, for
instance, include language that would empower the
director of the Defense Intelligence Agency (DIA)
to place its "operational files" completely
outside the purview of the FOIA. This would stop
the ACLU (American Civil Liberties Union) and
other human-rights organizations from continuing
to use FOIA requests to extract crucial hidden
documents from the administration and so expose
abuses such as those at Abu Ghraib and Guantanamo.
The National Security Archive, a research
institute at George Washington University that
collects and publishes documents acquired through
the FOIA, calls the legislation the "Abu Ghraib
Protection Act".
What should Congress
know and when should it know? A second
example of the Bush administration's efforts to
"reclaim" the "lost powers" of the presidency
concerns congressional intelligence oversight. In
the wake of the Vietnam War, a Senate select
committee headed by Senator Frank Church conducted
the most extensive investigation ever made of US
intelligence operations, revealing, among other
things, a series of previously secret Central
Intelligence Agency (CIA) plots to assassinate
foreign leaders and overthrow foreign
governments.
In response to these
revelations, Congress passed the Intelligence
Oversight Act of 1980. That act concentrated the
power of Congress to oversee American intelligence
operations in the House and Senate intelligence
committees. It also required intelligence agency
heads to keep the oversight committees "fully and
currently informed" not just of their ongoing
activities but of "any significant anticipated
intelligence activity".
Initially,
Congress succeeded in performing "serious and
nonpartisan oversight", though partisan bickering
later reduced its effectiveness, according to
Kevin Whitelaw and David E Kaplan in US News and
World Report. In the late 1990s, intelligence
committee members and staffs were nonetheless
receiving more than 1,200 briefings and reviewing
more than 2,200 reports from the CIA annually.
Shortly after September 11, Bush
officially informed the CIA and other agencies
concerned with national security that "[t]he only
members of Congress whom you or your expressly
designated officers may brief regarding classified
or sensitive law enforcement information" are "the
speaker of the House, the House minority leader,
the Senate majority and minority leaders, and the
chairs and ranking members of the intelligence
committees in the House and the Senate".
In practice, the Bush administration has
failed - or in certain cases simply refused - to
keep the intelligence committees informed on some
of the most important aspects of the Iraq war and
the war on terrorism. According to Douglas Jehl of
the New York Times, "The restrictions that the
White House has imposed on briefings about the CIA
detention program" for high-level terror suspects
"were described by Republican and Democratic
Congressional officials as particularly severe".
This, in turn, appears "to have had the effect of
limiting public discussion about the CIA's
detention program".
Senate majority leader
Harry Reid forced a dramatic closed session of the
Senate this fall to demand that the intelligence
committee investigate the cherry-picking and
manipulation of intelligence used to promote the
Iraq war.
But the administration has
refused to provide critical information such as
presidential intelligence briefings. According to
a recent article by Murray Waas in the National
Journal, for example, Bush was briefed by the CIA
on September 21, 2001 - less than two weeks after
September 11 that there was scant evidence of
collaboration between Iraq and al-Qaeda. But the
intelligence committee didn't learn about the
briefing until the summer of 2004. The Bush
administration is still refusing to provide the
president's daily brief and dozens of related
documents to the committee.
The Church
committee's revelations on such matters as CIA
assassination attempts against President Fidel
Castro of Cuba, Patrice Lumumba of the Congo and
others led president Gerald Ford to issue
Executive Order 11905 in 1976. A section entitled
"Prohibition on Assassination" states, "No
employee of the United States government shall
engage in, or conspire to engage in, political
assassination."
This order was reiterated
by presidents Jimmy Carter and Ronald Reagan. But
after September 11, according to Washington Post
reporter Bob Woodward, Bush signed an intelligence
"finding" directing the CIA to do "whatever is
necessary" to destroy Osama bin Laden and his
al-Qaeda organization. During his 2003 state of
the union address, Bush bragged of such
extrajudicial killings, claiming that more than
3,000 suspected terrorists "have been arrested in
many countries. And many others have met a
different fate. Let's put it this way: They are no
longer a problem for the United States."
Making America safe for preventive war
The constitution gives Congress the power
to declare war. Since World War II, however, the
many armed conflicts in which the US has been
involved have been conducted without such a
declaration. In 1973, at the height of opposition
to the war in Vietnam, Congress tried to reassert
some mild constraints on the authority of the
president to initiate and conduct wars without
Congressional authorization by passing the War
Powers Resolution.
This required the
president to consult with Congress before the
start of any hostilities and to remove US armed
forces from those hostilities if Congress had not
declared war or passed a resolution authorizing
the use of force within 60 days. The resolution
was vetoed by Richard Nixon, but Congress overrode
the veto.
The Bush administration,
however, has asserted almost unlimited powers to
make war. In its National Security Strategy of the
United States, issued in 2002, it claimed the
right to launch preventive wars simply on the
basis of the belief in a threat of possible future
danger. Condoleezza Rice, then national security
advisor, put it this way, "As a matter of common
sense, the United States must be prepared to take
action, when necessary, before threats have fully
materialized."
As Senator Robert Byrd
pointed out in a speech to Congress on January 25,
this doctrine of preventive war "takes the checks
and balances established in the constitution that
limit the president's ability to use our military
at his pleasure, and throws them out the window
... This doctrine of preemptive strikes places the
sole decision of war and peace in the hand of the
president and undermines the constitutional power
of Congress to declare war".
The War
Powers Resolution mattered little in Afghanistan
and Iraq, because Congress enthusiastically
supported these ventures, passing what political
scientist Nancy Kassop, writing in Presidential
Studies Quarterly, termed "exceedingly permissive
resolutions" that "leave critical decision-making
to the president's discretion". But it may matter
very much in the future. In recent Congressional
hearings, for instance, Senator Lincoln Chaffee
posed the following question to Rice, now
secretary of state: "Under the Iraq war
resolution, we restricted any military action to
Iraq. So would you agree that if anything were to
occur on Syrian or Iranian soil, you would have to
return to Congress to get that authorization?"
She answered: "Senator, I don't want to
try and circumscribe presidential war powers. And
I think you'll understand fully that the president
retains those powers in the 'war on terrorism' and
in the war on Iraq."
The Bush
administration seems to assert that its powers are
sufficient for it to initiate an illegal war of
aggression without authorization from either the
United Nations or Congress.
Underlying the
specific changes in laws, regulations and their
interpretations designed to prevent Congress and
the public from controlling or even knowing what
the executive branch is doing lies a broader
philosophy: that the executive branch is simply
not subject to law if it is acting in pursuit of
national security - and that the executive branch
is to be the only arbiter of whether it is doing
so.
The various manipulations of the law
help explain how the Bush administration has been
able to engage in what might appear to be illegal
activity with such impunity. More important, they
help indicate the legal and institutional barriers
that the American people need to restore and
expand to prevent similar criminal activity by
high officials in the future.
Discussion
has already started on ways to restore the
Bushwhacked constraints on executive power.
Legislation co-sponsored by Democratic senator
Patrick Leahy and Republican senator John Cornyn,
for example, would strengthen the Freedom of
Information Act by requiring quick agency response
to information requests and an ombudsman to hear
public complaints. Recently in the Atlantic
Monthly magazine, Leslie H Gelb and Anne-Marie
Slaughter proposed legislation that would forbid
military action without a Congressional
declaration of war.
Until recently, such
proposals might have seemed like pie in the sky,
but the national catastrophe in Iraq that has
resulted from unchecked presidential power may
create a more favorable climate for them.
According to John Mueller, a political scientist
at Ohio State University who has studied the
reactions to past US wars, what you're going to
get after the Iraq war is, "We don't want to do
that again - 'No more Iraqs' - just as after
Vietnam the syndrome was 'No more Vietnams'."
Preventing future Iraqs - future
aggressive wars, abuse of civilians, torture of
prisoners and other war crimes - is not just a
matter of changing administrations and foreign
policies. It also involves restoring and elevating
the legal barriers that once stood in the way of
an out-of-control imperial presidency. "Lost
powers" usurped by "the institution of the
presidency" must be reclaimed by the people and
their representatives.
Brendan
Smith and Jeremy Brecher are the
editors, with Jill Cutler, of In the Name of
Democracy, American War Crimes in Iraq and Beyond
(Metropolitan, 2005). Brecher, a historian who
has authored more than a dozen books including
Strike!, writes for the Nation magazine
among other publications. For his documentary film
work he has received five regional Emmy Awards.
Legal scholar Brendan Smith
(blsmith28@gmail.com), a former senior
congressional aide specializing in defense and
human rights policy, is coauthor of
Globalization from Below, and has written for
the Los Angeles Times, The Nation, and the
Baltimore Sun.
(Copyright 2005 Jeremy
Brecher and Brendan Smith.)
