End Presidential Secrecy

By Bruce Fein
Tuesday, March 10, 2009
Courtesy Of The Washington Times

Congress should swiftly enact a statute prohibiting secret presidential government.

The urgency was demonstrated last week when nine ill-conceived legal memoranda to justify despotism cobbled together by the pliable Jay Bybee and John Yoo in the Justice Department under President George W. Bush were belatedly released.

Their shelf-life would have been nanoseconds if they had been immediately exposed. Their counterconstitutional reasoning would have been instantly discredited. Instead, the memoranda remained intact until the twilight hours of the Bush presidency when their secrecy could no longer be guaranteed under a successor administration.

Like a death bed conversion, all nine were recanted by then- Principal Deputy Assistant Attorney General Steven Bradbury in twin disclaimers on Oct. 6, 2008, and Jan. 15, 2009. Similarly, the department backed down from its post-Sept. 11, 2001, claims of presidential authority to torture or to spy on Americans in contravention of the Foreign Intelligence Surveillance Act (FISA) after published leaks to the media. As Supreme Court Justice Louis D. Brandeis lectured, sunshine is the best disinfectant.

The common but chilling theme of the memoranda was that only the commander-in-chief clause of the Constitution remained standing after Sept. 11, 2001. The Fourth Amendment's prohibition of unreasonable searches and seizures could be disregarded in pursuit of suspected terrorists. The First Amendment's protection of free speech could be subordinated whenever the president thought it helpful to defeating international terrorism.

John Yoo, then deputy assistant attorney general for the Office of Legal Counsel, advised: "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully." Moreover, "The current campaign against terrorism may require even broader exercises of federal power domestically." Laws or treaties prohibiting torture, warrantless electronic surveillance, mail openings, or even burglary could be defied under the banner of counterterrorism.

The commander-in-chief power was inflated manifold. Alexander Hamilton, the strongest proponent of a muscular chief executive, in Federalist 69 accepted the modesty of the president's war powers under a Republican form of government. He elaborated that the commander-in-chief authority "would be nominally the same with that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy; while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which by the Constitution under consideration would appertain to the Legislature."

The department's legal memoranda insist that the president's commander-in-chief authorities exceeds that of the British monarch to include the power to suspend the Great Writ of habeas corpus and to hold American citizens as "enemy combatants" indefinitely without accusation or trial.

Indeed, no limiting principle is articulated that would prevent the president from doing anything he believes might assist in waging war against international terrorism. In other words, to borrow from Cicero, Sept. 11, 2001, silenced all laws but one: the commander-in-chief power.

If the executive branch were infallible, then these constitutional abuses would be less troublesome. The victims of the violations would all have been genuine terrorists, "the worst of the worst" in the words of the Bush administration. But the vast majority of Guantanamo Bay detainees held as "enemy combatants" have been exonerated in habeas corpus proceedings mandated by the United States Supreme Court last year because the government had no evidence.

Exemplary are 17 Uighur adversaries of the Chinese communist government who have been detained for more than seven years without a crumb of evidence of hostility to the United States. The Bush administration's constitutional transgressions justified by the nine legal memoranda made the United States less safe by serving as recruiting agents for al Qaeda and discouraging anti-terrorism cooperation from foreign countries like Great Britain, Germany or Italy.

There were no offsetting counterterrorism benefits. Torture yields false information. Thus, Abu Zubaydah, an al Qaeda cipher according to the FBI's leading expert, confessed to everything to relieve the pain of torture. Every authentic enemy combatant or Sept. 11, 2001, conspirator can be criminally prosecuted in civilian courts with the trappings of due process.

Jose Padilla was initially erroneously detained as an enemy combatant. He was later prosecuted for conspiring to provide material assistance to a foreign terrorist organization. Zacarias Moussaoui, the so-called "20th hijacker," was criminally prosecuted and convicted in a civilian court for complicity in the 2001 attacks on America. Every scrap of useful intelligence gathered illegally in violation of FISA could also have been obtained in compliance with the law.

The government also revealed last week that the CIA had destroyed 92 interrogation videotapes of Mr. Zubaydah and Abd al-Rahim al-Nashiri. Of that number, 12 involved so-called "enhanced interrogation techniques," a euphemism for torture or cruel, inhumane, or degrading treatment.

Secret government is twice-cursed. Darkness invites lawlessness. And self-government requires public knowledge of what the government is doing. James Madison, father of the Constitution, warned: "A popular Government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps both."

Congress should enact a statute prohibiting the executive branch from withholding information requested by Congress or the public based on an asserted need for confidentiality. Any adviser whose candor to the president depends on a promise of secrecy should be fired. National security secrets like the Manhattan Project should be disclosed to Congress in executive session.

Sunshine on the presidency has never harmed the United States.

Bruce Fein is a constitutional lawyer at Bruce Fein & Associates Inc. and author of "Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy."