Driving Votes: Leighton's Blog - Archived Entry

Aren't conservatives supposed to be distrustful of the discretionary authority of government "experts"? The Bush administration, which can't even trust local school boards and teachers to know how best to educate their pupils, has absolutely no qualms delegating authority for the exercise of the most profound use of government power -- the detention of U.S. citizens -- to anonymous government "screeners."

At Wednesday's hearing before the Supreme Court, where the government squared off against lawyers for two American terrorist suspects who have spent the last two years incarcerated by the military with no formal charges brought against them, the administration's attorney, Paul D. Clement, arguing that the courts have no business overseeing the legality of extrajudicial detentions of alleged terrorists, characterized the military's screening process of terrorist suspects as "for all intents and purposes....a neutral decision maker." In response to a question from Justice Ginsburg about the suspects' inability to contest the allegations brought against them, Clement explained that "the interrogation process itself provides an opportunity for the individual to explain that this has all been a mistake," rendering a trial superfluous.

The timing of the argument could not have been worse. Within days of the hearing, images from army prisons in Iraq have surfaced that portray army reservists, allegedly following the directions of civilian and military intelligence officers and contractors, "set(ting) physical and mental conditions for favorable interrogation of witnesses," in the euphemistic words of an internal army report. The photographs show the use of methods such as forcing detainees to simulate sexual acts with one another. Reports have since emerged of American soldiers sexually abusing an Iraqi prisoner with a broomstick, forcing detainees to masturbate in the presence of others, coercing them to have sex with each other, stacking them naked in a human pyramid, and mauling them with dogs, and of British soldiers beating a hooded prisoner with rifle butts, urinating on him, and putting the barrel of a gun in his mouth through the hood. Are the interrogators who ordered these actions what the government's attorney refers to as "neutral decision makers" to whom the individual can explain that "this has all been a mistake"? Are we expected simply to assume that the fact of U.S. citizenship will protect American detainees from such atrocities? Exactly how much does the interrogation process differ in a South Carolina brig from Cellblock 1A of the Abu Ghraib prison in Iraq?

To anyone who has ever been questioned by the police -- or, for that matter, to anyone who has ever seen an episode of NYPD Blue -- the idea that a government interrogator might be able or willing to serve as a neutral judge of a suspect's culpability is as preposterous as it is disingenuous. As with agents of law enforcement, military interrogators proceed from an assumption of guilt by suspicion. Their job is not to balance the scales of justice, it's to extract useful intelligence. If a suspect is implicated in illicit activity, it doesn't really matter whether they actually committed the acts they're accused of committing. Whether or not they pulled a trigger, or conspired to pull it, they probably have information that might lead to those who plan to do so in the future. Once the detective/military interrogator is done extracting that information, it's up to a judge and jury to decide whether the accused is guilty of actually violating the letter of the law. If we allowed detectives to make that determination, we wouldn't be living in a democratic society, we'd be living in a police state. Exactly how does this differ in the case of the military?

The government's answer to this question was unimaginative and predictable: In times of war, extraordinary measures become necessary, and we must suspend our judgment as citizens and have faith in the capacity of the government and the military to make all the right decisions. "Where the government is on a war footing," argued Clement, "you have to trust the executive to make the kinds of quintessential military judgments that are involved in things like that."

As has been noted by many, the same argument was made in defense of the round-up and internment of Japanese-Americans during World War II. "We must credit the military with as much good faith as we would any other public official," wrote Justice William O. Douglas in 1943 in his concurring opinion in Hirabayashi v. U.S. "We cannot sit in judgment of the military requirements of that hour." In what few, in retrospect, deny was a complete failure of Constitutional justice, the Supreme Court refused at that time to block the executive order and compel the government to put an end to the incarceration. The Court's decision has yet to be reversed, because, happily, as noted by a Presidential Commission in 1980, "the country has not been so unfortunate that a repetition of the facts has occurred to give the Court that opportunity."

Writ smaller, but with equal legal significance, it looks like misfortune is upon us now, and the Court has its opportunity. Once again, the government is arguing, in essence, that extraordinary executive discretionary authority in wartime is a sacred and inviolable right; that the entire system of checks and balances, of the separation of government powers, should be tossed aside like so many hanging chads whenever the President says "national security"; that military agents, whose deliberations are held in secret, whose livelihoods depend upon delivering intelligence, however it is acquired, to their superiors at the Department of Defense, and whose decisions are not subject to any form of appeal, can render decisions as fair and unbiased as those generated by the intricate system of trials subject to appellate review so carefully crafted by the Founding Fathers. For the umpteenth time since Bush took office, Thomas Jefferson is rolling over in his grave.

As Frank Dunham, arguing on behalf of one of the detained citizens, explained, "Mr. Clement is a worthy advocate and can stand up here and make the unreasonable sound reasonable. But when you take his argument at core, it is 'Trust us.' And who is saying trust us? The executive branch...."

Trust your government. Rather an odd case to be made by an administration that insists that the government cannot be trusted with even a penny of our tax dollars. And why in the world, Mr. President, should we trust your shadowy minions in Afghanistan, Iraq, Guantanamo Bay, Charleston, S.C. and Washington, D.C.? Wasn't the whole idea behind the separation of powers to set up a government that we wouldn't have to "trust," because we could rest assured that each branch was accountable to the others?

Even while blathering on and on about the evils of government bureaucracy, Bush has expanded the powers of the executive branch out of all proportion to what the drafters of the Constitution envisioned. With the Republicans in control of the legislature, the judiciary has been the primary target of his power grab. In exactly the same absolutist spirit in which his administration attempted to block the formation of the 9/11 Commission, and in which it continues to refuse to release records of Dick Cheney's consultations with energy industry executives while drafting the Bush Energy Bill, it refuses on principle to allow the Supreme Court, or any other court, to have a voice in the setting of rules around detaining American citizens in the name of the War on Terrorism. When Justice Kennedy remarked, "I'm taking away from the argument the impression, and please correct me if I'm wrong, that you think there is a continuing role for the courts to examine the reasonableness of the period of detention," Clement answered, "Well, I wouldn't take that away, Justice Kennedy." An easier case could be made for indefinite detention, such as that with these particular suspects, the danger is so great as to warrant the measure. But the government has chosen to make the case that the judiciary has no right during wartime to question the judgment of the executive and the basis for its detaining any suspect, regardless of the gravity of the particular threat at hand.

The tactic speaks volumes about Bush's autocratic conception of governance. To put it plainly, the Bush administration believes that the only legitimate opinions are those that square with its agenda, and that those who use the power of their office or bench to restrain, preclude or reverse the administration's prerogatives are by definition engaging in an abuse of power. Thus, when the Massachusetts Supreme Court reached a legally sound, politically moderate decision on gay marriage with which the administration happened to disagree, not only did the President express his opposition to the decision, but went on to question the very basis of the court's right to issue it, denouncing the justices in his State of the Union address as "activist judges" who "insist on forcing their arbitrary will upon the people." This from a president whose administration habitually refuses to release records of closed-door policy meetings to Congress, a president who denies the court to whom he owes his election "victory" the right to review the constitutionality of his suspension of habeus corpus, a president who publicly proclaimed his intention to place on the federal bench "common sense judges who understand that our rights are derived from God" (read: "who believe that their decisions are accountable not to the Constitution, but to the particular religious and political sensibilities of the Evangelical right-wing").

The first definition of the word "arbitrary" in Webster's Encyclopedic Unabridged Dictionary of the English Language is "subject to individual will or judgment without restriction; contingent solely upon one's discretion." Never mind pots and black kettles: "Arbitrary" is not merely an appropriate adjective to describe the way the Bush White House exercises power, it seems to be its guiding political aspiration.