BASED ON his constitutional powers and the authorization for the use of military force granted by congressional resolution after the events of Sept. 11, 2001, President Bush has declared himself free to ignore any law that he thinks limits his ability to fight terrorism. This is an extraordinary claim for any president in a country that prides itself on a rule of law binding government officials as well as ordinary citizens.
In signing the McCain amendment outlawing cruel, inhuman, and degrading treatment of detainees this month, Bush announced that he might ignore the amendment in order to fight terrorism, the very field that the amendment, adopted by overwhelming majorities in both Houses, had specifically addressed. The statute forbids the president only to do anything that, in the circumstances, “shocks the conscience,” thus violating the due process clause of the Fifth Amendment. This leaves him broad discretion and little reason to claim powers Congress has specifically denied him. But that is what he has done.
This is at least the fourth occasion Bush has announced that he is not bound by statutes or treaties. He has said he is also free to ignore statutes prohibiting torture, detention of Americans without legislative authority, and electronic surveillance for intelligence purposes without compliance with laws set up to regulate that activity. These claims could be consistent with obedience to statutory law only if either the Constitution had given him exclusive powers (a contention that few accept), or the situations in which he claims authority were so unusual as not to have ever been contemplated by Congress. Certainly the general words of the congressional authorization to use force to deal with Al Qaeda were not meant to overrule every statute the president felt was a hindrance in fighting terrorism.
In each of these cases, Congress plainly addressed the very situations in which Bush now claims an exemption from law. The statute regulating electronic surveillance for intelligence purposes includes emergency and wartime exceptions. Congress had in mind the wartime detention of Japanese-Americans when it forbade detention of an American seized far from a war zone without a specific statute. The McCain amendment was intended to leave the president with discretion to apply the vague constitutional standard of “shocking the conscience,” but only that much discretion. Only the prohibition of torture is absolute and without exception, and Congress wanted it that way.
Indeed, the president's defiance of statutory law is even bolder than this suggests. Each of these executive actions, taken in violation of specific statutory prohibitions, has been treated as a matter of national security secrecy, and therefore anyone who reveals the fact that the president is violating statutes passed by Congress is subject to the immediate threat of prosecution under the espionage statutes. The result in the recent case of wiretaps of Americans without judicial warrants is particularly bizarre. There was nothing secret about our technical capacity to monitor phone calls coming to or from the United States. Nor was there anything secret about our desire to do so to prevent terrorism. No one has, finally, revealed whose calls or e-mail messages were the subject of surveillance. All that could have been secret about the activities described in the New York Times was that the president was defying a law that most thought he had to obey.
It is a fundamental mistake to think that the central domestic conflict about fighting terrorism is only between supporters of national security and supporters of civil liberties of Americans. The prior question is about the effect of law in the form of duly enacted statutes, negotiated between Congress and the president, reconciling these competing claims. The president is claiming that his powers to deal with terrorism as commander-in-chief override a negotiated compromise with the Congress, embodied in a statute signed by the president. He is saying, simply and flatly, that no law can stand in his way. We should not accept that claim.
If the threat of terrorism is to be with us for decades, will our children and grandchildren remember a time when our president's actions were ruled by law?
Philip B. Heymann, former US deputy attorney general, is a professor at Harvard Law School and a faculty associate of the Weatherhead Center for International Affairs.