Imperial presidency declared null and void

Bush may ignore the 4th Circuit's stinging rebuke of his war paradigm. But his policies are losing the cloak of legality.

By Sidney Blumenthal

Read more: George W. Bush, Abraham Lincoln, Terrorism, Politics, Sidney Blumenthal, Opinion, Dick Cheney, David Petraeus

Photo: Kelsey McNeal/Fox

Jack Bauer of "24" questions Fayed in the episode "Day 6: 10:00 P.M. - 11:00 P.M."

June 21, 2007 | In private, Bush administration sub-Cabinet officials who have been instrumental in formulating and sustaining the legal "war paradigm" acknowledge that their efforts to create a system for detainees separate from due process, criminal justice and law enforcement have failed. One of the key framers of the war paradigm (in which the president in his wartime capacity as commander in chief makes and enforces laws as he sees fit, overriding the constitutional system of checks and balances), who a year ago was arguing vehemently for pushing its boundaries, confesses that he has abandoned his belief in the whole doctrine, though he refuses to say so publicly. If he were to speak up, given his seminal role in formulating the policy and his stature among the Federalist Society cadres that run it, his rejection would have a shattering impact, far more than political philosopher Francis Fukuyama's denunciation of the neoconservatism he formerly embraced. But this figure remains careful to disclose his disillusionment with his own handiwork only in off-the-record conversations. Yet another Bush legal official, even now at the commanding heights of power, admits that the administration's policies are largely discredited. In its defense, he says without a hint of irony or sarcasm, "Not everything we've done has been illegal." He adds, "Not everything has been ultra vires" -- a legal term referring to actions beyond the law.

The resistance within the administration to Bush's torture policy, the ultimate expression of the war paradigm, has come to an end through attrition and exhaustion. More than two years ago, Vice President Dick Cheney's then chief of staff I. Lewis "Scooter" Libby and then general counsel David Addington physically cornered one of the few internal opponents, subjecting him to threats, intimidation and isolation. About that time, the tiny band of opponents within approached Karen Hughes, newly named undersecretary of state for public diplomacy, hoping that the longtime confidante of President Bush, now assigned responsibility for the U.S. image in the world, might be willing to hear them out on the damage done by continuation of the torture policy. But she rebuffed them.

Two weeks ago, Hughes unveiled her major report, extolling "our commitment to freedom, human rights and the dignity and equality of every human being," but making no mention of detainee policy. The action part consists of another of her campaign-oriented rapid-response schemes, this one a Counterterrorism Communications Center, staffed by military and intelligence officers, to rebut the false claims of terrorists. Asked whether the administration's policies might be a factor contributing to the problem, Sean McCormack, the State Department spokesman, replied, "You're always going to get people criticizing policy."

Gen. David Petraeus' declaration on May 10 against torture reflected less the ringing authority of an order than the impotence of a personal credo. "Beyond the basic fact that such actions are illegal, history shows that they also are frequently neither useful nor necessary," he said. But his moral sentiment had been dismissed long before he had uttered it. The commander's strongly worded statement, putting him by implication in the category of "people criticizing policy," had no effect on the elaborate system of "enhanced interrogation techniques," black site prisons, maintenance of Guantánamo, or the 20,000 Iraqi prisoners incarcerated on U.S. military bases without due process. Petraeus has no more influence over the president who says he listens to his military commanders than the commanders who have opposed the policy since its inception.

In the year since the Supreme Court ruled (on June 29, 2006) in Hamdan v. Rumsfeld that the Bush administration's military commissions for detainees violated the Uniform Code of Military Justice and the Geneva Conventions -- and Bush promptly got the Republican-led Congress to legislate approval of the illegal commissions as well as suspend habeas corpus -- further court decisions have thrown his "war paradigm" into a legal twilight zone.

In February, a Cheney protégé, Susan J. Crawford, was appointed as the convening authority for military commissions. An armed forces appeals court judge, she had been Cheney's special counsel when he was secretary of defense under the elder Bush and had become a family friend. She has long been close to Libby and Addington. She facilitated the unusual transfer of David Hicks, a former kangaroo skinner from Australia, captured in Afghanistan as a fighter with the Taliban and held at Guantánamo. Charged with a host of crimes, including murder, Hicks filed an affidavit alleging torture. When the Hamdan decision was handed down, the charges against him were dropped, but after passage of the Military Commissions Act he was newly charged with providing material aid to terrorism. His five-year detention in Guantánamo provoked a public outcry in Australia. Cheney flew there to confer with Prime Minister John Howard, who wanted to defuse the issue. Soon afterward, a deal was worked out: Hicks pleaded guilty to the lesser charge of providing material aid, he was released to Australian authorities, and he is serving a reduced nine-month sentence.

Crawford's appointment, however, did not prevent military commission judges at Guantánamo from ruling on June 4 that the commissions had no jurisdiction over enemy combatants who were not designated as "unlawful." In effect, this decision threw the commissions into a void. According to the judges' decision two prisoners, Omar Kadhr, captured as a 15-year-old child soldier and accused of killing a U.S. Special Forces medic on the battlefield, and Salim Hamdan, one of Osama bin Laden's former drivers, did not fall under the category that would enable them to be tried by the commissions.

Next page: Al-Marri, a decision striking at the heart of Bush's conception of the presidency