Tuesday, December 30, 2008
By Steven L. Taylor

Yesterday I noted a piece about the small v. big government debate (such as it is). I noted then that a lot of “small government conservatives” often ignore one of the biggest expansions of government power in the last eight-years, i.e., the power of the executive, especially in terms of the war on terror.

Along those lines is an excellent piece in the LAT which is part of a series on Bush’s legacy: Bush has successfully defended anti-terrorism policies

in his defense of the war on terrorism, Bush has succeeded in beating back nearly all legal challenges — including those to some of his most controversial policies.

Among them are a domestic surveillance program to intercept international phone calls, the rounding up of Muslim men for questioning after the Sept. 11 attacks, the holding of suspects in military custody in this country without filing charges, harsh interrogations — some have called it torture — of suspects arrested abroad, and the detention of foreign captives at a military prison at Guantanamo Bay, Cuba.

Because of the administration’s successful defense of such policies, they not only will be a part of Bush’s legacy but will be around for his successors. Even if Barack Obama rejects or sharply modifies Bush’s positions, the precedents will remain for future chief executives.

I know many will consider all of this a necessary part of the war on terror, but I find it all to be a chilling increase in the power of the presidency and will be an unfortunate legacy of this administration that is likely to return to cause serious trouble in the future.

There is a reason that most of the Bill of Rights deals with crime and punishment (the 4th, 5th, 6th, 7th and 8th) and it is because the Founders understood that one of the most significant and dangerous powers that the state holds is the power to arrest and punish. It is a profound capacity that can take away the very humanity of those targeted–and the issues are far more complex than simply guilt or innocence. We have seen what over-zealous investigation in the name of “keeping us all safe” looks like, and it is in the drug war, where it is a regular occurrence for the wrong home to be targeted by police with no-knock warrants and paramilitary tactics. Families are regularly terrorized in the United States of America by uniformed (and non-uninformed) officers who believe that they are doing to right thing to protect society from illicit drugs and other threats.1 It is hardly a stretch to see how such zeal applied to the larger threat of terrorism could be deployed in a very abusive fashion (and, indeed, has already been abused). We have very much set ourselves up for the worst of the drug war seeping into anti-terror policy (indeed, much of the basis of domestic anti-terrorism policy derives from anti-drug policy, and we all know how successful the war on drugs has been…).

Back to Bush specifically, the way in which the administration has achieved its goals is especially vexing, and speaks ill of the other branches of government as well, specifically the Congress, which has not taken its oversight responsibilities as seriously is it ought to have done:

Soon after Sept. 11, Bush said that as commander in chief he had the “inherent” power to act boldly in the nation’s defense, regardless of whether Congress or the courts agreed.

His claim has been much criticized. It also has not been accepted by Congress or endorsed by the Supreme Court. The justices have said the president must act according to the law, not in spite of it.

Nonetheless, Bush’s anti-terrorism policies have not been blocked by the courts or Congress. When the Supreme Court struck down Bush’s use of special military trials at Guantanamo on grounds that he had no legal basis for creating them, Congress passed the Military Commissions Act to authorize the trials.

When critics claimed the National Security Agency was violating the Foreign Intelligence Surveillance Act by intercepting calls without a warrant, Congress passed a law to authorize such wiretapping. The same measure also granted legal immunity to telephone companies that had cooperated with the administration.

Bush’s tenure has been particularly frustrating for civil libertarians. They had believed that when the government violated the Constitution, someone could go to court and challenge it. But it’s not clear that truism is still true.

Bush’s lawyers have succeeded not by proving the constitutionality of the policies but by using procedural barriers to prevent lawsuits from going forward.

That last sentence is key. On the one hand it shows how the system has failed to provide proper oversight. On the other, I suppose it does leave a glimmer of hope that at some point in the future adequate review could take place. Nevertheless, it is all part of a maddening process to date in which the administration has never actually had to fully defend its actions:

When the American Civil Liberties Union sued over the warrantless wiretapping, Bush’s lawyers said the plaintiffs had no standing because they could not prove that their phones had been tapped. The government also refused to answer questions about whether the plaintiffs had been tapped, pleading national security.

When civil libertarians sued on behalf of men who said they had been wrongly abducted and tortured by the CIA, Bush’s lawyers argued that the cases involved “state secrets.” The courts agreed and dismissed the lawsuits.

“It has been a sad story,” said Melissa Goodman, an ACLU lawyer. “The government has thrown up roadblocks. . . . We have never gotten judges to rule whether their acts have violated the Constitution or whether torture is unconstitutional.”


When the government is sued, its lawyers can throw up an array of barriers. They can say the officials who carried out the policy have immunity from being sued. They can say the plaintiffs do not have standing to sue or lack enough evidence to show the policy is unconstitutional.

“This is a Catch-22,” said Harold Hongju Koh, dean of Yale Law School. “They can say, ‘You don’t know we did it, so you can’t sue.’ Or, ‘If you know we did it, you can’t sue because it’s a state secret.’ The government makes these procedural arguments in every case, and it means you essentially never get a ruling on the merits.”

Most people will dismiss all of this likely on the basis that the only people being harmed are “bad guys.”

However, we know that this is not the case. Not only have numerous examples of mistakes made by the government in regards to detainees (one that I have blogged, that of 17 Uighurs wrongly detained for years at Guantánamo, springs to mind), the LAT piece has the following example:

Khaled Masri, a German citizen of Lebanese descent, was on vacation in the Balkans in 2003 when he was pulled from a tour bus at a border crossing. He was questioned and his passport was taken. After several days, he was turned over to the CIA, which chained him and flew him to Afghanistan. Masri said he was beaten and tortured for weeks.

About six months later, U.S. officials confirmed he was not the wanted terrorist Khalid Masri, who had been living in Germany.

Masri was flown to Albania and dropped off on a country road at night. He made his way back to Germany. With the help of the ACLU, he filed a suit against the CIA and then-Director George J. Tenet, contending that he had been wrongly abducted and tortured. Administration lawyers blocked the suit from being heard because it could expose state secrets.

This is appalling. Imagine you, your brother, father, uncle or friend being taken off of a bus while on vacation, taken to a foreign prison, tortured and then dumped in another foreign country when your captors revealed: “oops, sorry, not the guy we wanted.” This type of action should be an embarrassment to the United States and its citizens. Yet, oh well, mistakes happen. And, after all, he is a foreigner with a funny name. (And if one thinks that the mistaken identity/wrong name problem can only happen abroad, think again). 2

It is all very sad and damning aspect of the Bush legacy. It certainly isn’t “small government” and is, indeed, the worst kind of “big government” and yet many so-called “small government” conservatives will, at best, shrug it off and, as worst, consider it part of policies necessary to “keep us safe.”

  1. For some examples and information on the subject, see here, here, here and here. []
  2. Indeed, the notion that the best we can do is match up names, when we know that many, many people around the world have the same names, is a disturbing commentary on our capabilities. []
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5 Responses to “Bush’s Legacy and “Big Government””

  1. Gajo Jampa Says:

    Iraq is a catastrophe, Katrina a calamity, Afganistan is a tragedy, but public education is W’s biggest delusion of all. If you think the gutting of the Clinton surplus is the worst of sins, there’s yet another misguided set of deceits that is worse: No Child Left Behind is as devastating to America’s future as GWBush’s failures in the economy and the Middle East.It will take decades to undo the damage wrought on American public education. Gone are inspiration, innovation, creativity, and the joy of learning. In their place are teaching how to take tests, conformity, and the prosaic memorization of facts with little real world application. Furthermore, 8 years of neglect entailed denying schools the necessary funding for this travesty, leaving schools across the country in desperate financial condition. Even if W’s true education agenda turns out to have been the strengthening of parochial and private education by handcuffing public schools, NCLB has eroded our the foundational infrastructure of our democracy. Just add this to the list of egregious mistakes and malevolent disgraces of George W. Bush? No, put it at the top.

  2. Barry Says:

    “Bush’s lawyers have succeeded not by proving the constitutionality of the policies but by using procedural barriers to prevent lawsuits from going forward.”

    Professor Taylor: “That last sentence is key. On the one hand it shows how the system has failed to provide proper oversight. On the other, I suppose it does leave a glimmer of hope that at some point in the future adequate review could take place. Nevertheless, it is all part of a maddening process to date in which the administration has never actually had to fully defend its actions:”

    OTOH, preventing the lawsuits from going forward is highly repeatable, unless the Federalist Society scum are ever purged from the judiciary.

    One lesson that I’ve taken from this administration is that the Executive Branch has rather successfully used ‘checks and balances’ to check the other branches. And since the Executive Branch has the primary power of acting, every check that they do on the other two branches is very useful to them, and dangerous to us.

  3. mbailey Says:

    All I can say is thank you for this.

    I appreciate. Truly.

    The president has been bad for the Constitution.

  4. PoliBlog: A Rough Draft of my Thoughts » More Tales from the Drug War: Khat Says:

    [...] = ‘More+Tales+from+the+Drug+War%3A++Khat’; addthis_pub = ”; Sphere: Related ContentSee this post for the broader implications of the notion. [↩]A good article on this subject is Michael M. [...]

  5. jlover Says:

    the administration can use “it’s a state secret” only for so long….espeecially if bush pardons alot of his administration….americans will be intrigued…i believe that the people will back at the very least a truth commision so to speak….. because american people want heads to roll and they want to point fingers…..i’m telling you,this time it is different….BECAUSE ALOT OF AMERICAN LIVES AND TREASURE HAVE BEEN LOST ……and people are looking for THE TRUTH

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