Beyond the limits of the law
The legal basis for Bush’s anti-terrorist program was hatched by David Addington, chief of staff and long-time legal adviser to Vice-President Dick Cheney, and John Yoo, currently a Berkeley Law School professor, shortly after the World Trade Center and Pentagon attacks. They were among the chief architects of such executive-strengthening legal constructs as the “unitary executive” theory and presidential “signing statements” that asserted the president could ignore those statutes he did not approve of but was unwilling to put through the political strainer of a veto. The plan attempted to lend legal cover to CIA, NSA, FBI, and military officials and operatives who became involved in a clandestine and almost certainly extra-legal presidential response to the Al Qaeda attacks. Aspects of the response likely (and reasonably) would have passed legal muster as temporary measures in the frantic and frightening weeks following September 11. But years later Addington and Yoo’s legal theories continued to undergird the anti-terror program without any administration effort to enlist the approval, or often the knowledge, of its co-equal branches of government, as required by the Constitution.
The “unitary executive” theory developed by Addington, Yoo, and their cohorts holds that, despite the fact that the Constitution, as any school kid knows, demarcates a system of checks and balances among the executive, legislative, and judicial branches, the president may exercise virtually unfettered authority to defend the nation. Although overlaid with fancy faux-scholarly position papers, the theory amounts to the risible notion that, because the president is named by the Constitution as “Commander-in-Chief” of the armed forces, he has the power to act alone on any matter implicating “national security,” broadly construed. But it just ain’t so.
In fact, an overwhelming number of legal experts and commentators — “Freedom Watch” among them — have rejected the president’s power grab. And the administration has also navigated some choppy internal-review waters along the way. Administration lawyers often clashed with professional military lawyers and officers who feared danger to discipline and morale — not to mention the correspondingly grave threat of unlawful treatment of American captives — if long-established, laboriously constructed international war conventions were cast aside. Jane Mayer, for example, wrote a startling February 27 New Yorker account of then–general counsel of the Navy Alberto J. Mora’s heroic efforts to undermine the administration’s encouragement of torture of prisoners, which was advanced in the administration’s infamous “torture memos.” The military professionals, it seems, were far more concerned about the White House’s reckless shredding of the laws of war than were the president’s men — many of whom had avoided military service when younger and did not appreciate the need to retain military discipline. Any future legal showdown could ensnare more administration higher-ups than military officers.
Gradually, attempts to insulate administration operatives from laws prohibiting White House–authorized conduct have come undone. In June 2004, the Supreme Court ruled in Rasul v. Bush that prisoners at Guantánamo had to be allowed access to lawyers and to the courts, as well as to some hearing process to determine whether they were indeed “enemy combatants” who could be held, on order of the president, for the war on terror’s duration. As Justice Sandra Day O’Connor famously wrote, in words that surely gave some operatives reason for concern: “a state of war is not a blank check for the President.”
