Proceedings from a Tertulia Hosted by American Voices in Spain

Delusions of the Son of Daedalus: The

Bush Presidency, the “War on Terror” and

the Downfall of American Democracy?

By Dario Navarro

Revision: 6 December 2006

On 24 November 2006, American Voices in Spain, an organization of concerned U.S. citizens in Spain, hosted a tertulia, the Spanish term for an informal gathering to discuss political or literary issues, at the Café Almendro at Calle Santa Engracia 41 in Madrid. The invited speaker was Dario Navarro, a U.S. law professor and international lawyer. He prepared this essay to share with the citizens of the United States and Spain who attended the discussion. The first draft of this essay was dated 24 November 2006. The first revision was dated 26 November 2006. This is the second revision, dated 6 December 2006, reflecting a few minor editorial changes and the addition of some new citations in the footnotes. Comments on this essay are welcome and may be directed to the author at his email address below.

The views expressed in this essay and the related oral presentation are those of the author alone and do not necessarily reflect the views of American Voices in Spain or any other institution or entity with which he is affiliated.

© 2006 Dario Navarro. All rights reserved. The author can be reached at navdar@gmail.com.

Delusions of the Son of Daedalus: The Bush Presidency, the “War on Terror” and the

Downfall of American Democracy?

DARIO NAVARRO*

I. DELUSIONS OF THE SON OF DAEDALUS: FATAL DOWNFALL? For the next two years, the United States and, sadly, the rest of the world must endure the final act of the unnecessary tragedy that the Bush presidency has made of American foreign policy and the rule of law. It is a tragedy characterized by such colossal failures of judgment, such astounding hubris, such audacious deceit, such dangerous delusions that had it not unfolded before our very eyes we might have thought such a tale could only have been found in the pages of myth. Yet the legacy of the war in Iraq and the human rights abuses of the Bush administration is all too real and demands our continuing attention and active engagement, despite the promising results of the midterm congressional elections earlier this month, if American democracy is to survive its latest crisis. The public policy calamities of the Bush White House call to mind the Greek myth of Daedalus and Icarus: a story about an inexperienced, prideful boy who met with disaster because his overweening ambition prevented him from following his venerable father’s advice. As you will recall, Daedalus and his son, Icarus, were imprisoned in a tower on the isle of Crete by King Minos. Daedalus, the famous architect and master craftsman, devised a plan for their escape. The pair would fly from the tower on wings fashioned from feathers and wax. Before their departure, the father admonished the son not to fly too high to avoid the heat of the sun that would certainly melt the wax that held his feathers together. But the reckless, undisciplined son of Daedalus did not heed his father’s advice. The young Icarus, exulting in his high position and

* Dario Navarro, a U.S. attorney, has over twenty years’ experience as an international lawyer, civil rights litigator and university professor. He has taught courses on international law, economics, finance, risk management and international relations at major university law and business schools in the United States, Japan, Spain and Australia. He holds an LL.M. from the Yale Law School, an M.P.A. from the Princeton University Woodrow Wilson School of Public and International Affairs, a J.D. from the Northwestern University School of Law, where he served on the Editorial Board of the Northwestern University Law Review, and a B.A., magna cum laude, Phi Beta Kappa from Marquette University. He has also studied at the Institute of International and Comparative Law at Oxford University. He is the recipient of numerous academic and professional awards for his published writing and legal work. He is admitted to the State Bar of California and the bar of the United States Supreme Court.

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feeling himself equal to the gods, decided to fly into the heavens, undaunted by the blazing sun above him. He quickly became spellbound by the fiery orb and, blind to every other consideration, flew higher into the searing sunlight. Tragically, the sun’s intense rays melted the wax wings of the presumptuous youth and he plummeted to his death in the sea below. Like the hapless, deluded son of Daedalus, President George W. Bush has flown too close to the sun, blinded by his own ambition, and met with disaster. But I would argue that the president’s impetuous flight is even more reprehensible than that of the son of Daedalus. Icarus, for example, did not fabricate an elaborate pretext for his mad adventure into the stratosphere. Icarus did not cause the death of countless others in deciding upon his reckless gambit. Icarus did not inflict needless abuse, pain and suffering on innocent spectators while desperately trying to keep himself aloft. Icarus did not threaten the peace and stability of the world below with his impudence. Unlike Icarus, I will argue that President Bush has done all of those things and that his misguided policies have actually made the United States and the world less safe and secure.1 II. A CONSTITUTIONAL CRISIS ROOTED IN EXECUTIVE LAWLESSNESS

The United States today confronts what I believe to be one of the most serious constitutional crises in the nation’s history.2 It is a crisis rooted in presidential lawlessness. It is a crisis born of a war in Iraq initially promoted on what we now know, as a matter of public record, to have been the false, deliberately fabricated pretext that Saddam Hussein had weapons of mass destruction (WMD) and bore

1. Mark Mazzetti, Spy Agencies Say Iraq War Worsens Terrorism Threat, N.Y. TIMES, 24 September 2006, available at http://travel2.nytimes.com/2006/09/24/world/ middleeast/24terror.html. Mazzetti reports that a “stark assessment of terrorism trends by American intelligence agencies has found that the American invasion and occupation of Iraq has helped spawn a new generation of Islamic radicalism and that the overall terrorist threat has grown since the Sept. 11 attacks.” Id.

2. The characterization of the excesses of the Bush administration as constituting a constitutional crisis is no exaggeration. Professor Jonathan Turley of the George Washington University Law School testified earlier this year on 20 January 2006 before the Democratic Members of the House Judiciary Committee that the “disclosure of the National Security Agency’s (NSA) domestic spying operation on December 16, 2005 has pushed this country deep into a constitutional crisis with few parallels in our nation’s history.” Written Testimony of Professor Jonathan Turley before the Democratic Members of the Judiciary Committee of the United States House of Representatives (Jan. 20, 2006): 2 (emphasis added) [hereinafter cited as “2006 Turley Testimony”]. See also OFFICE OF U.S. REPRESENTATIVE JOHN CONYERS, JR., THE CONSTITUTION IN CRISIS: THE DOWNING STREET MINUTES AND DECEPTION, MANIPULATION, TORTURE, RETRIBUTION, COVERUPS IN THE IRAQ WAR, AND ILLEGAL DOMESTIC SURVEILLANCE (AUGUST 2006) [hereinafter cited as “THE CONSTITUTION IN CRISIS”].

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responsibility for the tragic events of September 11, 2001.3 It is a crisis that began the moment the President of the United States decided to use force in violation of the United Nations Charter against a sovereign nation which had not, in fact, attacked the United States, for in that moment the President abandoned the rule of law and betrayed his constitutional duty to “take Care that the Laws be faithfully executed.”4 In that moment, he turned his back on the democratic values he claimed to be defending and embarked on a hypocritical crusade that has subverted the very same human rights and civil liberties whose protection he subsequently, so belatedly, so preposterously claimed to have been the real, previously unstated justification for rushing to war when it at last became undeniably apparent that no weapons of mass destruction existed in Iraq and Saddam Hussein had nothing whatsoever to do with al-Qa’ida and the atrocities of September 11, 2001. I offer for your consideration this evening a very simple, but, I believe, compelling thesis. I suggest to you that lawlessness begets lawlessness. When President Bush ordered the commencement of a war of aggression against Iraq, he violated one of the most fundamental, sacrosanct principles of international law: the prohibition against the use of force except in cases of self-defense against an armed attack or as otherwise authorized by the United Nations Security Council. This initial decision to unleash the horrors of war was so momentous, so flagrantly illegal, I will argue, that, once made, the subsequent actions of the administration that have resulted in such a long, disgraceful train of human rights abuse were seen as necessary corollaries to the initial decision to wage aggressive war, as trifling transgressions required on the endless road to victory against an amorphous, faceless foe whose name is “terror.”5 If the President and his advisers are bold enough to deceitfully launch a war of aggression that results in the death of tens of thousands of human beings at a rapidly escalating cost of hundreds of billions of dollars, what is warrantless domestic wiretapping by comparison? Once they have made the most fateful decision the leaders of a free society can make and made it in violation of international law in the shadow of official lies, are they likely to be concerned that detainees are denied habeas corpus, denied the right to counsel, held indefinitely without charge, denied due process or even tortured? What are these

3. Id. at 8-13 (providing a detailed chronology of false and misleading statements by Bush administration officials attempting to justify the war on Iraq); RAHUL MAHAJAN, FULL SPECTRUM DOMINANCE 108 (2003).

4. U.S. CONST. art. II, § 3. 5. Since the first crime committed was so audaciously, indefensibly dishonest and

unlawful, that is, the act of waging aggressive war under false pretenses, lesser offenses subsequently committed are simply seen by the perpetrators as trivial extensions of the means chosen to procure the desired end, an end that quickly comes to justify any means they might imagine to be useful.

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inconsequential issues, they will ask, in comparison to the immense scale and ambition of their “global war on terror” so brazenly initiated in open disregard of binding international legal norms? Would they not, do they not see such issues as trivial distractions in an ultimate battle of Good versus “the Axis of Evil”? Will not the rule of law itself inevitably become subordinated to the imperial imperatives of their cynical, self-serving rationalizations? The answers to these questions are only too painfully apparent. Lawlessness has begotten lawlessness to an extent previously unimaginable in a downward spiral of abuse that now threatens the constitutional system of checks and balances that comprises the very foundation upon which the effective functioning of American democratic institutions depend. American democracy is suffering the proverbial death by a thousand cuts administered by officials who insist with every thrust that the wounds they inflict are necessary to prevent a far more terrible fate. Until the knife can be wrested from their hands and the bleeding stopped, they will continue lacerating American democracy with the mad intent of destroying our civil liberties in order to save them. As an educator, lawyer and citizen of the United States myself, I believe that ending the madness begins with understanding, understanding why the war in Iraq clearly violates international law, why the so-called “war on terror” is illusory and serves primarily as a shallow pretext for the aggrandizement of presidential power, how ill-conceived, misguided laws reflexively enacted at Bush’s bidding by a complicit Congress threaten our most cherished, constitutionally protected freedoms and undermine respect for human rights and, finally, what we can do about this sad state of affairs through the robust exercise of the very civil rights the president’s reckless misconduct has imperiled.

III. GENESIS OF THE CRISIS: THE ILLEGAL WAR IN IRAQ

Turning to an examination of the legality of the war in Iraq, I will, first, briefly set forth the international law governing the use of force. Second, I will review some of the most startling public statements of key Bush administration officials concerning their view of international law and international institutions. Third, against this backdrop, I will outline the Bush administration’s radical new doctrine of preventive war. 6

6. I use the term “preventive war” in this essay to refer to the use of force as an anticipatory countermeasure to a future attack by another state in circumstances where there is no reason to believe that an attack is being planned or where no prior attack has occurred. Some scholars refer to this category of armed conflict as “preemptive” self-defense or “preemptive” war. In keeping with modern international legal usage, I prefer to use the term “preventive war.” For example, Mary Ellen O’Connell, fully aware of the technical distinction between the two terms, uses the phrase “preemptive self-defense” to refer to what I call here “preventive war” following the usage of the

DELUSIONS OF THE SON OF DAEDALUS 7

Fourth, I will explain how President Bush invoked that doctrine to justify the invasion of Iraq and why that invasion constituted an illegal act of aggression under international law.

A. THE INTERNATIONAL LAW ON THE USE OF FORCE First, international law proscribes the resort to war as an instrument

of national policy. This has been clear since the Kellogg-Briand Pact went into force in 1929. Article I of the Kellogg-Briand Pact expressly states the parties “condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.”7 This general prohibition on resort to war as an instrument of national policy was given a more refined and even more significant expression in Article 2(4) of the United Nations Charter, which provides as follows:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.8

The U.N. Charter provides for only two express exceptions to this

general prohibition on the transnational use of force. First, the Security Council may legally authorize the use of force in connection with

Bush administration. Of course, what the Bush administration has called “preemptive self-defense” is technically “preventive war” under international law. Unlike preventive war, preemptive self-defense may be legal if initiated in response to an imminent armed attack when no other nonviolent countermeasures are reasonably available and the use of force is proportional to the threat encountered. The Bush administration’s incorrect usage of the term “preemptive self-defense” unfortunately helps to blur a critical distinction in the law, a consequence that cynical observers of the administration’s security policy might view as intentional. See YORAM DINSTEIN, WAR AGGRESSION, AND SELF-DEFENSE 168 (3d ed. 2001); IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 275 (1963).

7. Treaty Providing for the Renunciation of War (Kellogg-Briand Pact), Aug. 27, 1928, art. I, 46 Stat. 2343, T.S. No. 796, 94 I.N.T.S. 57 (entered into force July 24, 1929). That some signatory states have nonetheless committed acts of war since the Pact went into force in 1929 does no more to undermine its status as binding law than the mass recurrence of homicide does to undermine the binding force of domestic statutes prohibiting murder. The Kellogg-Briand Pact remains the supreme law of the land in the United States, one of the original architects and signatories of the Pact, and the President is legally bound to obey it. See Filartiga v. Peña-Irala, 630 F.2d 876, 884 n.15 (2d Cir. 1980) (noting that the “fact that the prohibition of torture is often honored in the breach does not diminish its binding effect as a norm of international law.”); Bruno Simma & Philip Alston, The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles, 12 AUSTL. Y.B. INT’L L. 82, 102 (1992) (observing that the “concept of a ‘recognized’ general principle seems to conform more closely than the concept of custom to the situation where a norm invested with strong inherent authority is widely accepted even though widely violated.”).

8. U.N. CHARTER art. 2, para. 4.

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peacekeeping operations as provided in Chapter VII of the Charter. Second, states retain the right to use force in self-defense as provided in Article 51, which states that “[n]othing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”9

Article 51 makes the lawful exercise of individual or collective self-defense dependent on the existence of an actual armed attack.10 Under this standard, however, international jurists and state practice are generally in agreement that a nation need not wait to suffer actual physical harm before defending itself if it is reasonably certain that an attack is being mounted. The classic articulation of the applicable legal standard in such a situation comes to us from the pen of U.S. Secretary of State Daniel Webster in 1842 as a result of an 1837 border skirmish on the Niagara River between Great Britain and the United States involving the loss of the American-flagged steamer Caroline over Niagara Falls.11 Webster wrote that the “necessity of self-defence” must be “instant, overwhelming, leaving no choice of means and no moment for deliberation” and the countermeasure chosen must involve “nothing unreasonable or excessive, since the act justified by the necessity of self-defence must be limited by that necessity and kept clearly within it.”12

The Caroline self-defense standard was endorsed as recently December 2004 by a special High-Level Panel of the United Nations General Assembly charged with the task of examining whether the

9. U.N. CHARTER art. 51 (emphasis added). 10. For opinions of the International Court of Justice interpreting Article 52, see,

e.g., Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J. 4 (Apr. 9); Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. U.S.), 1986 I.C.J. 14 (June 27). In Nicaragua v. U.S., the issue before the Court was the legality of the use of force by the United States against Nicaragua under customary international law, not the U.N. Charter, and found that customary international law embodied the same requirements of Article 51. See also Definition of Aggression, G.A. Res. 3314, U.N. GAOR, 29th Sess., Supp. No. 31, U.N. Doc. A/9631 (1974); Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 28, U.N. Doc. A/8028 (1970).

11. See, e.g., J.L. BRIERLY, THE LAW OF NATIONS 405-406. In the winter of 1837, British and Canadian authorities were attempting to quell a civil insurrection. An American flagged ship, The Caroline, was thought by British authorities to be ferrying arms, men, and supplies from the United States, across the Niagara River, to anti-British rebels on the Canadian side of the border. Late one evening, while most of the crew was asleep, British and Canadian troops boarded the steamer, attacked the crew and passengers, set the ship on fire, towed her into middle of the river and set her adrift where the current was strong enough to pull the vessel over the Niagara Falls. Two American citizens died in the incident. The Caroline (exchange of diplomatic notes between Great Britain and the United States, 1842), JOHN B. MOORE, 2 DIGEST OF INTERNATIONAL LAW 409, 412 (1906).

12. Id. The Nuremberg War Crimes Tribunal would later expressly endorse this statement of the doctrine of self-defense by Webster. BRIERLY, supra note 11, at 406.

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international rules governing the transnational use of force should be changed in light of the threat that a hostile power might obtain nuclear weapons-making capability. The panel found that “a threatened State, according to long established international law, can take military action as long as the threatened attack is imminent, no other means would deflect it and the action is proportionate.” 13 The panel then went onto address the situation the Bush administration has claimed justifies its new preventive war doctrine: the situation “where the threat in question is not imminent but still claimed to be real: for example the acquisition, with allegedly hostile intent, of nuclear weapons-making capability.”14

The U.N. High-Level Panel addressed explicitly the central issue posed by the Bush preventive war doctrine: “Can a State, without going to the Security Council, claim in these circumstances the right to act, in anticipatory self-defence, not just pre-emptively (against an imminent or proximate threat) but preventively (against a non-imminent or non-proximate one)?” Their response to this critical question is illuminating:

The short answer is that if there are good arguments for preventive military action, with good evidence to support them, they should be put to the Security Council, which can authorize such action if it chooses to. If it does not so choose, there will be, by definition, time to pursue other strategies, including persuasion, negotiation, deterrence and containment — and to visit again the military option. . . . For those impatient with such a response, the answer must be that, in a world full of perceived potential threats, the risk to the global order and the norm of non-intervention on which it continues to be based is simply too great for the legality of unilateral preventive action, as distinct from collectively endorsed action, to be accepted. Allowing one to so act is to allow all. . . . We do not favour the rewriting or reinterpretation of Article 51.15

As we shall see, however, President Bush and key administration officials have a radically different interpretation of their prerogatives to unleash the dogs of war.

B. BUSH ADMINISTRATION DISDAIN FOR INTERNATIONAL LAW We can find an early indication of the administration’s distaste for

the international legal order in the sobering words of then-foreign policy adviser to then-candidate Bush and now Secretary of State Condoleezza

13. Report of the High-level Panel on Threats, Challenges and Change: A More Secure World: Our Shared Responsibility, U.N. GAOR, 59th Sess., U.N. Doc. A/59/565, para. 188 (Dec. 2, 2004).

14. Id. 15. Id. at paras. 190-192.

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Rice written early in 2000 for Foreign Affairs. Rice argued that some of her fellow Americans had actually become so “uncomfortable” with “power politics” that their “discomfort” foolishly lead them “to a reflexive appeal . . . to notions of international law and norms, and the belief that the support of many states --- or even better, of institutions like the United Nations --- is essential to the legitimate exercise of power.” In her eyes, a major failing of the foreign policy of the outgoing Clinton administration was its indefensible “attachment to largely symbolic agreements and its pursuit of, at best, illusory ‘norms’ of international behavior . . . ,” a practice which she sadly recounted had “become an epidemic.” Just following international law, she concluded, “is not leadership.”16

Leadership in Secretary Rice’s view, it would seem, requires a determined willingness to violate international law in pursuit of the national interest, however President Bush might define it, despite the troublesome circumstance that, as the U.S Supreme Court declared in its seminal decision in The Paquette Habana, “[i]nternational law is part of our law . . . .”17 Secretary Rice seems not to have realized that under the Constitution of the United States and ample Supreme Court precedent treaties are “the supreme law of the land” which the President is bound to obey and customary international law is at least as binding on the Executive Branch as a validly enacted domestic statute for almost all international purposes. 18 Considerations of “power politics” do not exempt the president from his constitutional duties.

16. Rice believes, apparently, that the exercise of U.S. power may be legitimate even though it violates international law. Condoleezza Rice, Campaign 2000: Promoting the National Interest, FOR. AFFAIRS, Jan.-Feb. 2000, available at http://www.foreignaffairs.org/20000101faessay5/condoleezzarice/campaign-2000-promoting-the-national-interest.html (last visited Apr. 12, 2006).

17. The Paquette Habana, 175 U.S. 677, 700 (1900); see also, The Nereide, 13 U.S. (9 Cranch) 388, 418-21 (1815).

18. According to Professor Louis Henkin, “[a]s long as a treaty binds the United States, the President must take care that the treaty be faithfully executed.” Louis Henkin, A Century of Chinese Exclusion and its Progeny, 100 HARV. L. REV. 853, 880 (1987). Henkin has also argued that persuasive grounds exist to support the proposition that, unlike treaties, “customary international law supersedes any United States law and should be given effect even when it conflicts with a subsequent act of Congress.” Id. at 877. Under the U.S Constitution, treaties are “the supreme Law of the Land,” binding on the states, and federal courts have jurisdiction over cases arising under them. U.S. CONST. art. II, § 2, cl. 2 (the treaty clause); Boos v. Barry, 485 U.S. 312 (1988); Perry v. United States, 294 U.S. 330 (1935) (relying on international law to hold that the U.S. government could not disavow its debts); First Nat’l City Bank v. Banco Para el Comercio Exterior, 462 U.S. 611, 623 (1983); Banco Nacional v. Sabbatino, 376 U.S. 398, 423 (1964); Skiriotes v. Florida, 313 U.S. 69, 72-73 (1941); Berizzi Bros. Co. v. S.S. Pesaro, 271 U.S. 562 (1926); Brown v. United States, 12 U.S. (8 Cranch) 110 (1814) (relying on international law to limit executive war powers, at least where Congress has failed to grant express authorization). In Oyama, Justices Black and Douglas offered the following observation concerning the relevance of the United Nations Charter to the legality of a California state statute that barred aliens from owning land on the basis of their race: “[W]e have recently pledged ourselves to

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Another former administration official who recently resigned from the position of U.N. Ambassador, John Bolton, shares Secretary Rice’s contempt for international institutions. 19 As revealed in his contro-versial confirmation hearings in 2005, Bolton is on the record as having stated in 1994, “there is no being out there called the United Nations. There’s simply a group of member governments who, if they have the political will, every once in a while [act] to protect international peace and security, [if] they’re able to do it. And I think it would be a real mistake to count on the United Nations as if it’s some disembodied entity out there that can function on its own. When the United States leads, the United Nations will follow. When it suits our interest to do so, we will lead. When it does not suit our interest to do so, we will not.”20

These perspectives have in common the belief that somehow international law and the U.S. national interest are almost always inherently and diametrically opposed. They mistake short-term political expediency for long-term national interest. They abandon the principle of universality, the basis of all legal and moral systems worthy of serious consideration, for a hypocritical exceptionalism that would allow the U.S. to do whatever it pleases whenever it pleases regardless of the legal consequences as long as it declares itself acting pursuant to some cooperate with the United Nations to ‘promote . . . universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.’ How can this nation be faithful to this international pledge if state laws which bar land ownership and occupancy by aliens on account of race are permitted to be enforced?” Oyama v. State of California, 332 U.S. 633, 649-50 n.4 (1948) (Black & Douglas, JJ., concurring) (citation omitted). Justices Murphy and Rutledge similarly argued that “[i]ts inconsistency with the Charter, which has been duly ratified and adopted by the United States, is but one more reason why the statute must be condemned.” 332 U.S. at 673 (Murphy & Rutledge, JJ., concurring); Sarah H. Cleveland, Our International Constitution, 31 YALE J. INT’L L. 1, 92-93 (2006).

19. Tim Reid, Bush’s Man at UN Goes, THE TIMES, DECEMBER 5, 2006, at 1, 3. As Tim Reid reported on December 5, 2006 in a front page article in The Times, “John Bolton, the controversial US ambassador to the United Nations, resigned yesterday [December 4, 2006] after it became clear that President Bush was unable to muster support for his reappointment.” Id. at 1. Bolton held his position as U.N. ambassador under a temporary presidential recess appointment made August 1, 2005 without formal congressional confirmation. Jim VandeHei, Bush Names Bolton U.N. Ambassador in Recess Appointment, WASH. POST, August 2, 2005, at A01, available at http://www.washingtonpost.com/wp-dyn/content/article/2005/08/01/AR2005080100 436.html. See also Julian Borger, Bush Loses Another Ally as UN Ambassador Bolton Resigns in Face of Senate Hostility, GUARDIAN, December 5, 2006, at 4.

20 . This statement by former U.N. Ambassador John Bolton was taken from a videotape of his remarks as a private citizen while participating in a 1994 conference of the World Federalists. After playing this videotape at Bolton’s confirmation hearings in 2005, U.S. Senator Barbara Boxer (D-Cal.) commented, “I have spent the last month extensively reviewing your writings, your public statements about the United Nations. And my overall assessment, Mr. Bolton, is that you have nothing but disdain for the United Nations. You said it doesn’t even exist. And you want to work there.” Transcript of Interview with John Bolton on the PBS Jim Lehrer NewsHour: Tough Question for Bolton, April 11, 2005, available at http://www.pbs.org/newshour/bb/ international/jan-june05/senate_4-11.html.

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president’s view of the national interest.21 It should be obvious that such feckless unilateral behavior would not only undermine the ability of the U.S. to insist that other states abide by established international rules, but the very integrity of the post-war international security system itself.

Contrary to these dangerously shortsighted views, it is almost always in the U.S. national interest to observe the very rules of the international legal order that it has, during the last half-century, devoted such monumental diplomatic energies to help create. The United States has joined with other nations to create international law through a consensual system of treaty negotiation, execution and ratification and the interactive process of state action and reaction that gives rise to customary international law. The rules of international law were created for the express purpose of furthering the national interests of the states that have participated in their creation. Otherwise they would not have been created. No country has any incentive to help create or consent to international rules that are futile, vacuous, unworkable, destabilizing, dangerous or otherwise inimical to its national interest. Thus, despite the self-serving pronouncements of the Bush administration unilateralists, we should expect the international rules now in force to coincide with a realistic conception of American vital national interests. This is as likely to be true in times of extreme international crisis as in times of peace.22

As the late Professor Lon Fuller of the Harvard Law School has emphasized, any system of law, including the law of nations, is best understood as creating a facilitative framework of rules that makes possible effective interaction among its participants while enhancing the quality of their ongoing transactions. Thus, almost any universally followed system of rules, however imperfect, proves more advantageous to each participant than arbitrary unilateral action in the absence of legal rules.23

C. THE ILLEGAL BUSH DOCTRINE OF PREVENTIVE WAR Given the wildly irresponsible views of the Secretary of State Rice

and former U.N. Ambassador Bolton on the importance of international institutions and the international rule of law, we should not be surprised

21. The elementary principal of universality simply requires that every person hold himself or herself to the same moral or legal standard that he or she applies to others. NOAM CHOMSKY, FAILED STATES: THE ABUSE OF POWER AND THE ASSAULT ON DEMOCRACY 81-88 (2006) [hereinafter cited as “FAILED STATES”]; Harold Hongju Koh, On American Exceptionalism, 55 STAN. L. REV. 1479 (2003).

22. FRANCIS A. BOYLE, WORLD POLITICS AND INTERNATIONAL LAW 80 (1985). 23. LON FULLER, THE MORALITY OF LAW (rev. ed. 1969); Lon Fuller, The Forms

and Limits of Adjudication, 92 HARV. L. REV. 353 (1978); Lon Fuller, Law as an Instrument of Social Control and Law as Facilitation of Human Interaction, 1975 B.Y.U.L. REV. 89; Lon Fuller, Mediation --- Its Form and Function, 44 S. Cal. L. Rev. 305 (1971).

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to learn that the Bush administration’s new doctrine of preventive warfare contravenes the most fundamental tenets of the United Nations Charter.

In a series of five post-9-11 public addresses delivered in 2001 and 2002 that culminated in a highly publicized commencement speech at the U.S. Military Academy at West Point on June 1, 2002, President Bush outlined a new doctrine of preventive warfare under which he declared the willingness of the United States to use force in response to perceived terrorist threats regardless of whether an armed attack had occurred, regardless of whether an armed attack could be deemed reasonably imminent and regardless of whether the U.N. Security Council had authorized the use of force. 24 In his West Point commencement speech, the President defiantly declared “that not only will the United States impose preemptive, unilateral military force when and where it chooses, but the nation will also punish those who engage in terror and aggression and will work to impose a universal moral clarity between good and evil.”25 He emphasized, “If we wait for threats to materialize, we will have waited too long.”

The president’s new approach to the transnational use of force, quickly labeled the “Bush Doctrine,” was given final official expression in the September 2002 publication by the White House of the National Security Strategy of the United States.26

24. President George W. Bush, Graduation Speech at West Point (June 1, 2002), available at http://www.whitehouse.gov/news/re1eases/2002/06/20020601-3.htm1. The other four public addresses in which President Bush developed this radical new strategic doctrine were: (1) his speech before a Joint Session of Congress on 20 September 2001, (2) his speech before the Warsaw Conference on Combating Terrorism on 6 November 2001 and (3) his State of the Union Address on 29 January 2002 and (4) his presentation before the student body of the Virginia Military Institute on 17 April 2002. Mike Allen and Karen DeYoung, Bush: U.S. Will Strike First at Enemies: In West Point Speech, President Lays Out Broader U.S. Policy, WASH. POST, June 2, 2002, at A01.

25. Id. 26. THE WHITE HOUSE, THE NATIONAL SECURITY STRATEGY OF THE UNITED

STATES OF AMERICA 15 (September 2002). The new doctrine of preventive war, misleadingly described as a preemptive doctrine, is outlined in the following paragraphs:

For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat—most often a visible mobilization of armies, navies, and air forces preparing to attack. We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction—weapons that can be easily concealed, delivered covertly, and used without warning. . . .

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The Bush Doctrine is currently the official national security policy of the United States and is manifestly in violation of the U.N. Charter prohibition on the use of force to the extent that it claims the U.S. may use force against other nations or their citizens without warning, in the absence of an actual or imminent attack and lacking any Security Council authorization.27

D. THE ILLEGAL WAR OF AGGRESSION IN IRAQ The Bush Doctrine of preventive war was plainly devised with the

intent of trying to concoct a justification for the otherwise conspicuously unjustifiable invasion of Iraq. In the months preceding the invasion, Bush administration officials, including the President himself, Vice President Richard Cheney, Secretary of State Condoleezza Rice and Secretary of Defense Donald Rumsfeld repeatedly made public statements claiming that Saddam Hussein had weapons of mass destruction and that the United States was at risk of falling victim to an Iraqi nuclear strike at some unspecified time in the future. The documentary record is now clear that these statements were part of a deliberate campaign to mislead the public.

Perhaps the strongest evidence in a voluminous literature of leaked documents and insider accounts remains the infamous 2002 Downing Street Minutes, first published in The Sunday Times of London on May 1, 2005, in the final days of the general election campaign in the United Kingdom. Spanning the period from early March 2002 to July 2002, the Downing Street Minutes persuasively establish that the Bush administration had not only decided to go to war long before it sought congressional authorization, but that it had already reached an agreement with U.K. government to invade Iraq. Meanwhile, in public, Bush administration officials were falsely claiming that they did not believe war was a foregone conclusion and that they were actively pursuing a diplomatic solution.28

The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction—and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively.

Id. In the last sentence of the quotation, the United States declares it will “act preemptively,” but this is highly misleading. Authentic preemptive action in response to an exigent imminent threat might be legal. The new doctrine clearly envisions preventive not preemptive use of force when no imminent threat is present. Thus, the strategy statement confusingly conflates the two terms in a transparent attempt to give the new doctrine the patina of legitimacy associated with traditional concept of preemptive self-defense.

27. Robert Jervis, Why the Bush Doctrine Cannot be Sustained, 120 POL. SCI. Q. 351, 351-77 (2005); Robert Jervis, Understanding the Bush Doctrine, 118 POL. SCI. Q. 365, 365–88 (2003).

28. THE CONSTITUTION IN CRISIS, supra note 2, at 22-32.

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Eight months before the March 2003 invasion of Iraq, the July 23, 2002 Downing Street Minutes summarized a report by Sir Richard Dearlove, head of Britain’s MI-6, describing the Bush administration’s plans for war and the contrived intelligence that it would use as a pretext to initiate hostilities. Dearlove reported, “There was a perceptible shift in attitude. Military action was now seen as inevitable. Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy.”29

On April 23, 2006, the highest ranking CIA official in Europe, Tyler Drumheller, revealed on the CBS News program 60 Minutes that the CIA had given the White House compelling evidence that Saddam Hussein had no weapons of mass destruction and no active nuclear weapons program six months before the March 2003 US-led invasion of Iraq. Drumheller said that the White House “ignored crucial information” from Iraq’s foreign minister, Naji Sabri, because it was intent on ousting Saddam Hussein and was only interested in intelligence that fit its policy of regime change.30

A fair assessment of the public record leads ineluctably to the conclusion that the Bush administration lied to the American people and the world when it repeatedly made the false and misleading claim that Iraq possessed weapons of mass destruction.

Ironically, even if Iraq had possessed weapons of mass destruction, the Bush administration would not have been relieved of its obligation to obtain the authorization of the U.N. Security Council prior to using force against Iraq under the international law of self-defense absent a showing of imminent threat, no alternative means and proportionality. That the Bush administration lied about the existence of weapons of mass destruction as a pretext for war only compounds the illegality of the invasion.

When Congress passed the resolution authorizing the President to use military force against Iraq, it expressly relied on the representations of the White House that (1) Iraq was giving “ongoing support for international terrorist groups” and (2) Iraq had developed “weapons of mass destruction” that jeopardized the national security interests of the United States. 31 Both representations proved to be false. In other words, the domestic public law authorizing the President to use force

29. Memorandum from Matthew Rycroft to David Manning, U.K. Foreign Policy Advisor (July 23, 2002), at 1 (emphasis added), available at http://www.timesonline. co.uk/article/0,,2087-1593607,00.html.

30. CNN, Ex-CIA Official: WMD Evidence Ignored, 23 April 2006, available at http://www.cnn.com/2006/US/04/23/cia.iraq/ (on file with author); see also Joby Warrick, Warnings on WMD “Fabricator” Were Ignored, Ex-CIA Aide Says, WASH. POST, 25 June 2006, available at http://www.truthout.org/docs_2006/062606Z.shtml (on file with author).

31. Authorization for Use of Military Force Against Iraq, Pub. L. No. 107–243, 116 Stat. 1498 (Oct. 16, 2002), available at http://www.c-span.org/resources/pdf/ hjres114.pdf.

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against Iraq is predicated on a fraud against the Congress. Thus, the domestic legal authority for the President’s use of force against Iraq must ultimately be deemed as vacuous as its claims under international law. The war in Iraq constitutes an illegal act of aggression and, as such, those responsible for that act may be guilty of war crimes.

As the Nuremberg Tribunal observed in 1946, “[w]ar is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world. To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”32 If President Bush and members of his Cabinet did, indeed, plan and execute a war of aggression in Iraq, they are chargeable with having committed not just any war crime, but, in the words of the Nuremberg Tribunal, “the supreme international crime,” a crime that certainly constitutes a sufficient basis to initiate impeachment proceedings against the President.

IV. WHY THE GLOBAL “WAR ON TERROR” IS ILLUSORY

The presidential “war on terror,” however, is not confined to Iraq or

even Afghanistan. As the President has repeatedly reminded the public since his September 11, 2001 address to the nation,33 he claims to be fighting a global war on terror that will last “until every terrorist group of global reach has been found, stopped and defeated.”34 He intends to fight a global war of indeterminate duration. The President is not just using the phrase “global war on terror” metaphorically. He means it literally and legally, as the unprecedented claims in the court papers filed by the Bush Justice Department substantiate. The Bush administration has incoherently conflated on a truly colossal scale the metaphorical rhetoric of a “global war on terror” and the battlefield reality of worldwide combat in multiple theaters of action.

The distinction is crucial to the legality of many Bush administration policies, such as its continuing attempt to brand American citizens accused of terrorist affiliations as “enemy combatants” or target them for extra-judicial killing because of their suspected ties to terrorist organizations. While the metaphor of a “war on terror” may be rhetorically useful in trying to garner public support for the administration’s chauvinist policies, it does not survive even cursory examination as a viable legal basis for the invasive presidential powers

32. Judgment of the International Military Tribunal, 1 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL 171, 186 (Oct. 1, 1946).

33. George W. Bush, President’s Address to the Nation on the Terrorist Attacks, 37 Weekly Comp. Pres. Doc. 1301 (Sept. 11, 2001).

34. George W. Bush, President’s Address to a Joint Session of Congress on the United States Response to the Terrorist Attacks of September 11, 37 Weekly Comp. Pres. Doc. 1432, 1438 (Sept. 20, 2001).

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claimed in its name. In fact, the global war on terror is illusory and symptomatic of one of the most dangerous delusions that afflict our hapless son of Daedalus as he struggles to keep himself and his misguided polices aloft in the bright sunshine of democratic debate.

The proof is easily discovered. Look around you. Search the globe. Do you see the U.S. military engaged in active combat in multiple theaters of action? Do you see open conflict on battlefields scattered around the world or pitched naval battles on the high seas between U.S. forces and those of the “Evildoers”? If you do not see a global war on terror, you are not alone for, like you, the law does not take cognizance of a phantom war of words.

Under contemporary standards of international law, a formal declaration of war has long ceased to be required for a state of war to exist. What matters is the reality of actual combat operations. War exists whenever there is an eruption of hostilities between states, regardless of whether war has been formally declared. War exists whenever there is fighting between organized armed groups and the conflict has reached a certain minimum threshold of intensity for a substantial period of time.35 Under that standard, as Professor Mary Ellen O’Connell has recently pointed out, “there is no global war. And because there is no global war, the US has no global right to invoke wartime legal privileges.”36 What we find instead of an actual global war are widespread diplomatic efforts and international law enforcement activities to prevent future terrorist acts.

In the absence of a global war, Bush administration claims of special wartime powers to violate fundamental civil liberties lose all credibility. For example, in the absence of global warfare, the administration’s claim that Chicago’s O’Hare Airport is a war zone for purposes of detaining a U.S. citizen as an “enemy combatant,” as was made in the case of defendant José Padilla, would be laughably ridiculous if it did not also entail the most serious violations of protected constitutional rights. According to Justice John Paul Stevens, at stake in the Padilla case is “nothing less than the essence of a free society.” 37

35. Prosecutor v. Tadic, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, International Criminal Tribunal for the Former Yugoslavia, No. IT-94-1, para. 70 (Oct. 2, 1995) (defining “armed conflict” as existing “whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state.”); YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 9 (3d ed. 2001); LESLIE C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 70 (2d ed. 1999).

36. Mary Ellen O’Connell, “What is War?” Jurist, 17 March 2004, available at http://www.jurist.law.pitt.edu/forum/oconnell1.php.

37. States. Rumsfeld v. Padilla, 124 S. Ct. 2711, 2735 (2004) (Stevens, J., dissenting). José Padilla, a U.S. citizen, was arrested at Chicago’s O’Hare airport on May 8, 2002. President Bush designated Padilla an “enemy combatant” on June 9, 2002. Padilla was held in military custody without being charged or given a trial for three years and five months. Finally, the government charged Padilla in November 2005 and transferred him to the civilian custody of the U.S. Department of Justice custody in January 2006. The indictment of Padilla omitted any reference to the alleged bomb plot for which Padilla had originally been arrested. In 2004, the Supreme Court dismissed his habeas corpus petition on the technical grounds that it

DELUSIONS OF THE SON OF DAEDALUS 18

The phrase “global war on terror” is not only misleading because it suggests the existence of a war that does not have any material or legal reality, it identifies the adversary in this chimerical conflict as being an abstract concept “terror” or “terrorism” that is devoid of any precise meaning. 38 One 1988 survey identified 109 different definitions of terrorism in the relevant literature and the total would undoubtedly be even higher today.39 As a rough working definition, we can think of terrorism as the unlawful calculated use of violence or threat of violence, often directed at civilians, to attain goals that are political, religious, or ideological in nature through intimidation, coercion, or instilling fear. If taken seriously, such a term could just as readily describe many past acts of U.S. intervention as it could the violent operations of any radical substate organization dedicated to the use of violence to inspire fear for political purposes. For example, the illegal arms sales to Iran orchestrated by the Reagan administration that funded the indiscriminately violent mercenary activities of the Contras in Nicaragua during the 1980s could easily qualify as support for “terrorism” under many common definitions of that term.40

In light of this continuing semantic confusion, the prescient words of Judge Richard Baxter, formerly of the International Court of Justice, made over 30 years ago, are as relevant today as when they were first written: “We have cause to regret that a legal concept of terrorism was ever inflicted upon us. The term is imprecise; it is ambiguous; and, above all, it serves no operative legal purpose.” 41 Judge Rosalyn Higgins, the first female judge elected to the International Court of Justice, concurred when she wrote more recently in 1997 that “[t]errorism is a term without any legal significance. It is merely a convenient way of alluding to activities, whether of States or of

lacked jurisdiction because Padilla had incorrectly identified his custodian, leading some scholars to suggest that the Court had rested its holding on “procedural issues to avoid reaching the merits of a first-order constitutional question . . . .” Lee Epstein, Daniel E. Ho, Gary King & Jeffrey A. Segal, The Supreme Court During Crisis: How War Affects Only Non-War Cases, 80 N.Y. U. L. REV. 1, 107 (2005). After a new habeas corpus petition was filed correctly naming the custodian, Padilla’s case is again making its way through the federal court system. AMNESTY INTERNATIONAL, UNITED STATES OF AMERICA: JUSTICE AT LAST OR MORE OF THE SAME? DETENTIONS AND TRIALS AFTER HAMDAN V. RUMSFELD 29-30 (Sept. 18, 2006); Tung Yin, Coercion and Terrorism Prosecutions in the Shadow of Military Detention, University of Iowa Legal Studies Research Paper No. 05-47, at 7-10, available at http://ssrn.com/abstract= 896155. Erwin Chemerinsky, Enemy Combatants and Separation of Powers, 1 J. NAT’L SEC. L. & POL’Y 73, 85-86 (2005) (arguing that under the doctrine of separation of powers the President may not detain citizens as enemy combatants).

38. Ben Golder and George Williams, What is Terrorism: Problems of Legal Definition, 27 U.N.S.W. L. J. 270 (2004).

39. ALEX P. SCHMID AND ALBERT J. JONGMAN, POLITICAL TERRORISM: A NEW GUIDE TO ACTORS, AUTHORS, CONCEPTS, DATABASES, THEORIES, AND LITERATURE 5 (1988).

40. FAILED STATES, supra note 20, at 5 (2006); Noam Chomsky, Amnesty International Annual Lecture Hosted by Trinity College: War on Terror, 18 January 2006, Dublin, Ireland, available at http://www.chomsky.info/talks/20060118.pdf (on file with author).

41. Richard R Baxter, A Skeptical Look at the Concept of Terrorism, 7 AKRON L. REV. 380, 380 (1974).

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individuals, widely disapproved of and in which either the methods used are unlawful, or the targets protected, or both.”42

The time has long passed when the phrase “war on terror” has served any defensible political or legal purpose and its current usage by the Bush administration only obscures the actual means and ends of official policy. It is a misleading rubric invoked by the Executive Branch in a vain effort to justify unethical and illegal methods employed in the pursuit of illicit objectives. In an essay entitled, “Drop the ‘War on Terrorism’ Metaphor,” published on August 17, 2006, Richard N. Haass, a former director of policy planning in the U.S. State Department who is currently president of the Council on Foreign Relations, urges U.S. officials to abandon the phrase because real “[w]ars are mostly fought with arms on battlefields between soldiers of opposing countries. Wars have beginnings and ends. None of these characteristics apply here.” 43 He adds, “[t]here is another reason to jettison the martial vocabulary. Terrorism cannot be defeated by arms alone. Other instruments of policy, including intelligence, police work and diplomacy, are likely to play a larger part in any effective policy.”44

V. THE CHRONICLE OF ABUSE: DEMOCRACY AT RISK

President Bush, however, is not only still clinging to this vacuous metaphor, he continues to invoke the phrase with defiant, even histrionic fervor in defense of every new abuse of power as if reciting some holy incantation that could protect himself and the architects of his political misfortunes from the approaching day of reckoning. The so-called “war on terror” has been summoned into service to justify virtually every excess of the President’s self-declared “unitary executive,” including illegal torture, extra-judicial killing, domestic surveillance, wiretapping and a disgracefully long list of other violations of constitutionally protected civil rights. But this tired phrase is no talisman; it cannot offer the President and his supporters any protection from the judgment of the people. As the results of the midterm elections earlier this month demonstrate, trite slogans and empty rhetoric cannot disguise the disaster in Iraq nor the danger that a never-ending, all-consuming “global war on terror” poses for the survival of American democracy. The people have spoken and they have given the incoming Democratic majority in Congress a mandate for change. Whether the new Democratic majority will heed the call of the electorate to undo the disastrous decisions of the Bush administration remains to be seen, but there are now at least grounds to hope for a major policy reversal in the near future.

42. Rosalyn Higgins, The General International Law of Terrorism, in TERRORISM AND INTERNATIONAL LAW 14, 28 (Rosalyn Higgins and Maurice Flory, eds., 1997).

43. Richard N. Haass, Drop the ‘War on Terrorism’ Metaphor, DAILY STAR, 17 August 2006, available at http://www.dailystar.com.lb and at the YaleGlobal Online website at http://yaleglobal.yale.edu/display.article?id=8011 (on file with author).

44. Id.

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Let there be no doubt that such a major policy reversal is required to repair the almost incalculable damage the President has already done to respect for constitutionally protected civil rights and the effective functioning of the system of checks and balances that lies at the foundation of the American democratic system of shared power. To understand what needs to be done to restore American democracy, we must first assess the damage.

Time does not permit me to take a complete inventory of the massive record of the President’s unconstitutional misconduct, let alone an in-depth legal analysis, so I must confine myself to outlining only the most outrageous abuses and their ominous implications for the fate of American democratic institutions. For a more exhaustive analysis of the President’s misdeeds, I refer those interested to the detailed study entitled, The Constitution in Crisis, prepared by the staff of U.S. Representative John Conyers, Jr. (D-Mich.), which is current through August 2006, and available on the internet at the congressman’s website.

In surveying the damage wrought by the overzealous son of Daedalus to U.S. democratic institutions, I will begin with a brief overview of the President’s mistaken theory that he presides over a so-called “unitary executive” that is itself essentially above the law and largely free from any obligation to comply with judicial decisions the President might independently deem unconstitutional. I will argue that the same misguided hubris that led the President to claim that he is free to openly disobey international law animates his distain for constitutional checks and balances and fundamental rights. Second, I will try to shed some light on the dark path that has led the President to assume the unprecedented powers of “Torturer-in-Chief.” Third, I will briefly evaluate selected laws and policies that pose a unique risk of permanently damaging U.S. democracy, including the Military Commissions Act of 2006, the President’s illegal domestic surveillance program and the USA PATRIOT Act.

A. THE RULE OF LAW AND THE “UNITARY EXECUTIVE”

The United States Constitution established a federal government based on the doctrine of the separation of powers between three co-equal branches for the purpose of creating a system checks and balances that was intended to prevent any one branch from dominating the others to the detriment of the civil liberties of the people. Under this system of checks and balances, no single branch has the authority to govern alone. The Constitution grants the legislature the power to make the laws, the judiciary the power to interpret the laws and the executive the power to enforce the laws.

In the Federalist Papers, James Madison wrote of the doctrine of separation of powers that “[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty . . . .” for he knew full well from the colonial experience that the “accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be

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pronounced the very definition of tyranny.” 45 As U.S. Supreme Court Justice Louis Brandeis so eloquently explained in 1926, “The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.”46

Under the President’s novel theory of the “unitary executive,” the doctrine of the separation of powers has no such central position, especially when the President purports to act as commander-in-chief overseeing a “global war on terror.” 47 President Bush’s “unitary executive” is not a part of the Madisonian system of checks and balances, but rather a supreme extraconstitutional governmental authority with virtually limitless power. 48 Any doubt the Bush

45. The Federalist No. 47, at 301, (James Madison) in THE FEDERALIST PAPERS (1788) (Clinton Rossiter ed. 1961), available at http://www.constitution.org/fed/ federa47.htm. U.S. constitution does not grant the powers to conduct war and foreign affairs exclusively the Executive, but rather requires that all three branches of government share such powers. See LOUIS HENKIN, FOREIGN AFFAIRS AND THE US CONSTITUTION 25-29 (2d ed. 2002); HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION 69-72 (1990). As John Adams wrote in 1779 when he drafted Article 30 of the Declaration of Rights of the Constitution of Massachusetts, “[i]n the government of the commonwealth . . . the executive shall never exercise the legislative and judicial powers, or either of them . . . to the end that it may be a government of laws, and not of men.” CONST. MASS. art. XXX.

46. Myers v. United States, 272 U.S. 52 (1926) (Brandeis, J., dissenting). 47. Former Democratic presidential candidate Al Gore, recently described the

Bush administrations fixation with its novel theory of the “unitary executive” as follows:

This Administration has come to power in the thrall of a legal theory that aims to convince us that . . . excessive concentration of presidential authority is exactly what our Constitution intended. This legal theory, which its proponents call the theory of the unitary executive but which is more accurately described as the unilateral executive, threatens to expand the president’s powers until the contours of the constitution that the Framers actually gave us become obliterated beyond all recognition. Under this theory, the President’s authority when acting as Commander-in-Chief or when making foreign policy cannot be reviewed by the judiciary or checked by Congress. President Bush has pushed the implications of this idea to its maximum by continually stressing his role as Commander-in-Chief, invoking it has frequently as he can, conflating it with his other roles, domestic and foreign. When added to the idea that we have entered a perpetual state of war, the implications of this theory stretch quite literally as far into the future as we can imagine.

Al Gore, Restoring the Rule of Law, at 8, 16 January 2006 (Martin Luther King Day Speech), available at http://www.epic.org/privacy/terrorism/fisa/gorespeech0106.pdf (on file with author).

48. For a more in-depth discussion of current scholarly thinking on the theory of a “unitary executive,” see , e.g., Joel K. Goldstein, The Presidency and the Rule of Law: Some Preliminary Explorations, 43 ST. LOUIS U. L. J. 791, 809 (1999); Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23 (1995); A. Michael Froomkin, The Imperial Presidency’s New Vestments, 88 NW. U. L. REV. 1346 (1994); Michael Stokes Paulsen, The Most Dangerous Branch: The Executive Power to Say What the Law Is, 83 GEORGETOWN L. REV. 217 (1994); Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous

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administration actually believes it possesses such sweeping power was put to rest by the remarkable statement of one of the Justice Department’s own witnesses in testimony before the Senate Judiciary Committee on July 11, 2006. This witness, Steven Bradbury, took the astounding position that “the president is always right” and derided as “surprising and disappointing” the June 2006 Supreme Court decision in Hamdan v. Rumsfeld which held that the Bush administration’s military commissions were unlawful.49 If the president is “always right,” then under that fatuous standard the President may break the law with impunity. Not surprisingly, the President has tried to do just that.

As Professor Jonathan Turley has recently observed, “President George W. Bush has claimed the authority to violate federal statutes when he believes it is necessary for the nation’s security. Such a claim of authority would upset the delicate balance of power in our tripartite system of government and convert the Chief Executive into a type of maximum leader; the very scourge that led our Framers to form this Republic.”50 Former Democratic presidential candidate Al Gore added earlier this year, “A president who breaks the law is a threat to the very structure of our government. Our Founding Fathers were adamant that they had established a government of laws and not men. Indeed, they recognized that the structure of government they had enshrined in our Constitution – our system of checks and balances – was designed with a central purpose of ensuring that it would govern through the rule of law.”51

The same hubris that allows the President to feel himself free of the strictures prohibiting the transnational use of force in Iraq animates his domestic actions under his novel theory of the “unitary executive.” In both cases, the President believes himself essentially above the law and beyond the reach of judicial or congressional constraints when acting as commander-in-chief while prosecuting a global “war on terror.” Neither the President nor his legal advisers seem troubled by the fact that such a sweeping, unprincipled interpretation of presidential power has been repeatedly rejected by the Supreme Court. They are not troubled by contrary Supreme Court decisions, one supposes, because a unitary Chief Executive has ex hypothesis the power to decide for himself what is constitutional and what is not, unencumbered by the annoyance of adverse rulings even in cases to which he is a party.52 Executive Branch Interpretation, 15 CARDOZO L. REV. 90 (1993); David B. Rivkin, Jr. The Unitary Executive and Presidential Control of Executive Branch Rulemaking, 7 ADMIN. L. J. 321 (1993); Stephen Breyer, Symposium: Agency, Autonomy and the Unitary Executive, 68 WASH. U. L. Q. 512 (1990); Paul L. Colby, Two Views on the Legitimacy of Nonacquiescence in Judicial Opinions, 61 TULANE L. REV. 1041, 1053-56 (1987).

49. THE CONSTITUTION IN CRISIS, supra note 2, at 175-76. 50. 2006 Turley Testimony, supra note 2, at p. 2. 51. Gore, supra note 46, at 2. 52. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case), 343

U.S. 579, 586 (1952) (invalidating the President Truman’s seizure of the U.S. steel mills where Congress had previously “rejected an amendment which would have authorized such governmental seizures in cases of emergency.”); Rasul v. Bush, 542 U.S. 466, 535–36 (2004) (O’Connor, J., for the plurality); Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Hamdan v. Rumsfeld, 568 U.S. ___, 126 S. Ct. 2749, 165 L. Ed. 2d

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The Bush administration has lost three recent cases in the U.S. Supreme Court in which it had invoked its theory of a unitary executive to justify presidential conduct in violation of the constitution, federal statutes and international law.53 Writing for the majority in Hamdan v. Rumsfeld only a few months ago, Justice John Paul Stevens emphatically declared that “the Executive is bound to comply with the Rule of Law,” almost as if he were trying to remind an errant president of his most sacred constitutional duty.54

B. HOW THE PRESIDENT BECAME “TORTURER-IN-CHIEF”

That the rule of law is a luxury this “wartime president” cannot afford in his worldwide battle with “Evildoers” is perhaps most conspicuously apparent in his callous and continuing violations of U.S. statutory and international treaty prohibitions against the use of torture. On August 1, 2002, the Justice Department issued a formal opinion at the request of then-Counsel to the President Alberto R. Gonzales, the infamous “Torture Memo,”55 in which then-Assistant Attorney General Jay S. Bybee of the Office of Legal Counsel (OLC) concluded that U.S. officials may lawfully employ interrogation tactics tantamount to torture without incurring liability under the federal War Crimes Act that criminalizes torture.56 Two years later in December 2004, in response to the intense public criticism that occurred after it was leaked to the press, the Torture Memo was officially withdrawn by the Justice Department, although its erroneous reasoning was never explicitly repudiated.57

Professor Harold Koh, Dean of the Yale Law School and former Assistant Secretary of State for Democracy, Human Rights and Labor in the Clinton Administration, had this to say about the Torture Memo:

723, 2006 U.S. LEXIS 5185 (2006), available at http://www.supremecourtus.gov/ opinions/05pdf/05-184.pdf.

53. Rasul v. Bush, 542 U.S. 466, 535–36 (2004) (O’Connor, J., for the plurality); Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Hamdan v. Rumsfeld, 568 U.S. ___ (2006).

54. Hamdan v. Rumsfeld, 568 U.S. ___ (2006) (Stevens, J., for the majority), available at http://www.supremecourtus.gov/opinions/05pdf/05-184.pdf .

55. Memorandum of August 1, 2002 from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President, Regarding Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340–2340A (Aug. 1, 2004) [hereinafter cited as the “Torture Memo”], available at http://news.findlaw.com/nytimes/docs/doj/bybee80102mem.pdf.

56. 18 U.S.C. §§ 2340–2340A, 2441(c)(3) (2000) (any person who commits torture may be subject to fine or imprisonment for up to twenty years, or both, and if a victim dies from the torture, the torturer may be sentenced to life imprisonment or death). In addition, the USA PATRIOT Act criminalizes any conspiracy to commit torture. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2001, Pub. L. No. 107-56, 115 Stat. 272 (amending generally 18 U.S.C. §§ 3121–3127).

57. Memorandum from Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel, to James B. Comey, Deputy Attorney General, Regarding Legal Standards Applicable Under 18 U.S.C. §§ 2340–2340A (Dec. 30, 2004) [hereinafter Levin Opinion], available at http://www.justice.gov/olc/dagmemo.pdf. For a thought-provoking essay on the appropriate role of the Office of Legal Counsel, see Harold Hongju Koh, Protecting the Office of Legal Counsel from Itself, 15 CARDOZO L. REV. 513 (1993).

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[I]n my professional opinion, the [Torture Memo] is perhaps the

most clearly erroneous legal opinion I have ever read. . . . [It] is a stain upon our law and our national reputation. A legal opinion that is so lacking in historical context, that offers a definition of torture so narrow that it would have exculpated Saddam Hussein, that reads the Commander-in-Chief power so as to remove Congress as a check against torture, that turns Nuremberg on its head, and that gives government officials a license for cruelty can only be described . . . as a disaster.58

The Torture Memo essentially takes the position that President Bush’s declaration of a war on terror renders moot federal and international law barring torture. Indeed, the Torture Memo argued, and the Justice Department continues to maintain, that the enforcement of a statute in any manner that would limit the President’s use of torture as he sees fit as commander-in-chief “would represent an unconstitutional infringement of the president’s authority to conduct war.”59

The assertion of such an abhorrent power to torture has, tragically, not been merely an academic exercise. As the American Civil Liberties Union (ACLU) reported in April 2006, “Evidence from a range of sources, including government investigations, as well as over 100,000 government documents produced to the ACLU through Freedom of Information Act . . . litigation, show a systemic pattern of torture and abuse of detainees in U.S. custody in Afghanistan, the U.S. Naval Base at Guantánamo Bay, Cuba, Iraq, and other locations outside the United States.”60 At least one hundred detainees have died in U.S. custody in Afghanistan and Iraq. The Bush administration has admitted that 27

58. Statement of Harold Hongju Koh before the Senate Judiciary Committee regarding the Nomination of the Honorable Alberto R. Gonzales as Attorney General of the United States, January 7, 2005, at 4-5 (quotation marks omitted), available at http://www.law.yale.edu/documents/pdf/KohTestimony.pdf (on file with author); see also Harold Hongju Koh, Can the President Be Torturer in Chief? 81 IND. L. J. 1145, 1147-55 (2006) [hereinafter cited as “Torturer in Chief”]; Harold Hongju Koh, A World Without Torture, 43 COLUM. J. TRANSNAT’L L. 641 (2005); Neil Kinkopf, The Statutory Commander in Chief, 81 IND. L. J. 1169, 1170 (2006).

59. Torture Memo, supra note 54, at 2. 60. AMERICAN CIVIL LIBERTIES UNION, ENDURING ABUSE: TORTURE AND CRUEL

TREATMENT BY THE UNITED STATES AT HOME AND ABROAD, A SHADOW REPORT BY THE AMERICAN CIVIL LIBERTIES UNION PREPARED FOR THE UNITED NATIONS COMMITTEE AGAINST TORTURE ON THE OCCASION OF ITS REVIEW OF THE UNITED STATES OF AMERICA’S SECOND PERIODIC REPORT TO THE COMMITTEE AGAINST TORTURE 4 (APRIL 2006). The report documents that the “methods of torture and abuse used against detainees include prolonged incommunicado detention; disappearances; beatings; death threats; painful stress positions; sexual humiliation; forced nudity; exposure to extreme heat and cold; denial of food and water; sensory deprivation such as hooding and blindfolding; sleep deprivation; water-boarding; use of dogs to inspire fear; and racial and religious insults.” Id.

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deaths in U.S. custody were homicides, some caused by “strangulation,” “hypothermia,” “asphyxiation” and “blunt force injuries.”61

President Bush has also claimed that he possesses the constitutional authority as commander-in-chief to kidnap individuals in foreign countries and, under a procedure euphemistically called “extraordinary rendition,” transfer them without legal process to the custody of abusive foreign governments where they will be, in effect, tortured on behalf of the United States for the supposed purposed of extracting intelligence.62

As might be expected, this unjustifiable procedure almost never yields useful information. According to a leaked memorandum authored by Craig Murray, the former British Ambassador to Uzbekistan, a favorite U.S. depository for torture-by-proxy, the information obtained from torture victims by agents of the ruthlessly oppressive Karimov regime is “useless.” Murray, who has subsequently become an outspoken critic of British complicity in extraordinary rendition, reported in that leaked memorandum, “[t]ortured dupes are forced to sign confessions showing what the Uzbek government wants the US and UK to believe - that they and we are fighting the same war against terror. This is morally, legally and practically wrong. We are selling our souls for dross.”63

Yale Law School Dean Harold Koh recently asked in a public address, “Can the President be Torturer in Chief?”64 His answer was an emphatic no. As Koh explained, “[c]ompeting schools of constitutional interpretation all accept that the Constitution does not authorize the President to be Torturer-in-Chief.” 65 If President Bush and the proponents of a “unitary executive” were correct and Congress may not constitutionally prohibit the President from engaging in torture when he

61. Id. See also Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (mandating due process safeguards in determining the enemy combatant status of U.S. citizens); Robert M. Chesney, Leaving Guantánamo: The Law of International Detainee Transfers, 40 U. RICH. L. REV. 657 (2006); Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 HARV. L. REV. 2047 (2005); Stephen I. Vladeck, The Detention Power, 22 YALE L. & POL’Y REV. 153 (2004); Ingrid Brunk Wuerth, Authorizations for the Use of Force, International Law, and the Charming Betsy Canon, 46 B.C. L. REV. 293 (2005).

62. For a comprehensive exposé of the federal government’s shocking rendition program by a distinguished British journalist, see STEPHEN GREY, GHOST PLANE: THE TRUE STORY OF THE CIA TORTURE PROGRAM (2006). As Stephen Grey explained last month during a radio interview, extraordinary rendition has been “used to take people off the streets that were considered a threat and were sent to countries where they had no connection at all. . . . . Maher Arar, . . . a Canadian citizen, was sent to Syria. . . . [A]n Egyptian citizen [was] sent to Libya. We’ve got Ethiopian citizens sent to Morocco, really showing how it was used as a method of outsourcing of interrogation, not simply just to imprison people somewhere else.” Radio Interview of Stephen Grey by Amy Goodman, Democracy Now, a Pacifica radio news program, 19 October 2006, transcript available at http://www.democracynow.org/print.pl?sid=06/10/19/1347246.

63. Cali Ruchala, Selling Our Souls for Dross, 15 November 2004, available at http://www.craigmurray.co.uk/archives/2004/11/irin_news_uzbek.html. See also CRAIG MURRAY, MURDER IN SAMARKAND (2006); Jane Mayer, Outsourcing Torture, THE NEW YORKER, Feb. 14 & 21, 2005, at 106.

64. Torturer in Chief, supra note 57, at 1. 65. Id. at 1156.

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acts in his capacity as commander-in-chief while prosecuting a global war on terror, then does the President’s power as commander-in-chief have any limit? Under such specious reasoning, could he not, free from congressional interference, also commit genocide, enslave enemy combatants in forced labor camps, institute a system of apartheid, and order summary execution and extra-judicial killings at will? The answer must be that, if President Bush is right, he may lawfully commit all of those unspeakable acts in his capacity as commander-in-chief.

As the President recently learned from the US. Supreme Court, however, he is not right. In Hamdan v. Rumsfeld, the majority held that the extraordinary military commissions established in November 2001 by President Bush pursuant to a special military order promulgated in his capacity as commander-in-chief and without congressional authorization violated both federal military law and international law as reflected in Common Article 3 of the Geneva Conventions. 66 By holding that the United States government was bound by Common Article 3, so-called because it is a treaty provision common to the all four 1949 Geneva Conventions on the Laws of War,67 the Hamdan Court flatly rejected the Bush administration’s long held position that Common Article 3, which guarantees minimum standards of humane treatment and a fair trial for prisoners of war, did not apply to al-Qa’ida or Taleban detainees.

This was extremely bad news for the Bush administration. Why? This holding was especially devastating to the President because the federal War Crimes Act that makes torturing detainees a federal crime, by its own terms, is violated whenever the relevant standards of Common Article 3 of the Geneva Conventions are violated. Thus, the Hamdan holding that Common Article 3 applied to detainees in U.S. custody exposed President Bush and all lower ranking federal officials responsible for torturing detainees to possible criminal liability under the federal War Crimes Act.

How did the President respond to the risk that he might be subject to criminal prosecution for the illegal death and torture of untold numbers of detainees in U.S. custody? He promptly asked the Republican Congress to pass a law that purported to immunize all federal officials

66. Hamdan v. Rumsfeld, 568 U.S. ___ (2006), available at http://www. supremecourtus.gov/opinions/05pdf/05-184.pdf (on file with author).

67. Geneva Convention Relative to the Treatment of Prisoners of War, art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art. 3, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, at. 3, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art. 3, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287. See also Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51 (1984) (ratified by the U.S. in 1994) CAT Article 2(2) explicitly provides that “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Id. at art. 2(2).

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from prosecution under the War Crimes Act for the period from September 11, 2001 to December 31, 2005. Congress was only too happy to oblige and the President signed the act into law on October 17, 2006.68 The new law, known as the Military Commissions Act of 2006, grants retroactive immunity to U.S military and intelligence officials for all the illegal abuses that occurred at detention sites such as Abu Ghraib, Guantánamo, Bagram and secret CIA facilities scattered around the world.

C. THREE CASE STUDIES IN THE PRESIDENTIAL ABUSE OF POWER

1. THE UNCONSTITUTIONAL MILITARY COMMISSIONS ACT

In addition to purporting to immunize federal officials from criminal prosecution for torturing detainees, the Military Commissions Act adopts an array of measures so abusive the New York Times decried the new law as “tyrannical” and predicted that its passage will be “ranked with the low points in American democracy, our generation’s version of the Alien and Sedition Acts.”69 Michael Ratner, President of the Center for Constitutional Rights, called the new law “Constitution-shattering”

68. Military Commissions Act of 2006 (MCA), Pub. L. No. 109-366, 120 Stat. 2600 (Oct. 17, 2006) (enacting Chapter 47A of title 10 of the United States Code), available at http://www.govtrack.us/data/us/bills.text/109/s/s3930.pdf. This law passed the Senate by a vote of 65 to 34 with 1 abstention on September 28, 2006. 12 Democrats voted in favor of the legislation with the Republican majority. It passed the House of Representatives by a vote of 250 to 170 with 12 abstentions on September 29, 2006. 32 Democrats joined the Republican majority.

69. Editorial, Rushing Off a Cliff, N.Y. TIMES, 18 September 2006, available at http://www.nytimes.com/2006/09/28/opinion/28thu1.html. The “Virtual Services Digital Reference Team” of the Library of Congress describes the Alien and Sedition Acts as follows:

Signed into law by President John Adams in 1798, the Alien and Sedition Acts consisted of four laws passed by the Federalist controlled Congress as America prepared for war with France. These acts increased the residency requirement for American citizenship from five to fourteen years, authorized the president to imprison or deport aliens considered “dangerous to the peace and safety of the United States” and restricted speech critical of the government. These laws were designed to silence and weaken the Democratic-Republican Party. Negative reaction to the Alien and Sedition Acts helped contribute to the Democratic-Republican victory in the 1800 elections. Congress repealed the Naturalization Act in 1802, while the other acts were allowed to expire.

Virtual Services Digital Reference Team of the Library of Congress, Alien and Sedition Acts, accessed at http://www.loc.gov/rr/program/bib/ourdocs/Alien.html. See also STANLEY M. ELKINS & ERIC MCKITRICK, THE AGE OF FEDERALISM (1993); JAMES MORTON SMITH, FREEDOM’S FETTERS: THE ALIEN AND SEDITION LAWS AND AMERICAN CIVIL LIBERTIES (1956); JOHN CHESTER MILLER, CRISIS IN FREEDOM: THE ALIEN AND SEDITION ACTS (1951). The four laws may be found in United States Statutes at Large. An Act to Establish an Uniform Rule of Naturalization (Naturalization Act), June 18, 1798 ch. 54, 1 Stat. 566; An Act Concerning Aliens, June 25, 1798 ch. 58, 1 Stat. 570; An Act Respecting Alien Enemies, July 6, 1798 ch. 66, 1 Stat. 577; An Act for the Punishment of Certain Crimes against the United States (Sedition Act), July 14, 1798 ch. 74, 1 Stat. 596.

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and predicted that it “will be struck down” by the courts.70 Democratic Senator Patrick Leahy of Vermont criticized the statute as a “a total rollback of everything this country has stood for.” 71 Amnesty International believes that it “contravenes human rights principles.”72 Professor Jonathan Turley characterized passage of the act as “a huge sea change for our democracy. The framers created a system [in which] we did not have to rely on the good graces . . . of the president. In fact, Madison said that he created a system essentially to be run by devils, where they could not do harm, because we didn’t rely on their good motivations. Now we must.”73

Given the sorry record of official deceit and abuse of power of the Bush administration, should the American people and citizens of the world trust in the “good motivations” of the President to implement in a fair and even-handed manner a law granting him unprecedented autocratic powers? Should you ever find yourself tempted to join the minority of Americans who still trust in the “good motivations” of this President, you might ask yourself, “Whatever happened to those weapons of mass destruction?”

The Military Commissions Act is an abomination. Among its many deplorable provisions are the following particularly odious examples of sections that warrant immediate repeal:

First, the Military Commissions Act unconstitutionally eliminates the jurisdiction of federal courts to hear habeas corpus petitions challenging the imprisonment of any foreign national held in U.S. custody as an “enemy combatant.”74 Since the law purports to strip federal courts of habeas corpus jurisdiction retroactively, more than 200 pending appeals of Guantánamo detainees are at risk of being arbitrarily dismissed.75 Denial of habeas corpus relief, one of the hallmarks of

70. Radio Interview of Michael Ratner, President of the Center for Constitutional Rights, by Amy Goodman, Democracy Now, a Pacifica radio news program, (Sept. 29, 2006), transcript available at http://www.democracynow.org/print.pl?sid=06/09/29/ 150254.

71. Radio Interview of Patrick Leahy, U.S. Senator (D-Ver.), by Amy Goodman, Democracy Now, a Pacifica radio news program, (Sept. 29, 2006), transcript available at http://www.democracynow.org/print.pl?sid=06/09/29/150254.

72. Amnesty International, U.S. Congress Gives Green Light to Human Rights Violations in the “War on Terror,” September 29, 2006, available at http://web. amnesty. org/ pages/stoptorture-060930-features-eng.

73. Television interview of Jonathan Turley, Professor of Law at the George Washington University School of Law, by Keith Obermann, Countdown, an MSNBC television news program, (Oct. 17, 2006) transcript available at http://www.msnbc. msn.com/id/15318240/.

74. MCA Section 7 provides in pertinent part: “No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” MCA, supra note 67, at 37, 28 U.S.C. § 2241(e)(1) (2006) (emphasis added).

75. Amnesty International, United States of America: The Military Commissions Act of 2006 – Turning Bad Policy into Bad Law, at 8 (Sept. 29, 2006) (AI Index Number AMR 51/154/2006), available at http://news.amnesty.org/library/pdf/ AMR511542006ENGLISH/$File/AMR5115406.pdf.

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Western justice since the Magna Carta was signed in 1215, would deprive wrongly imprisoned individuals, even people imprisoned by mistake, of a meaningful opportunity to challenge the legality of their detention before a disinterested judge.76

Second, the Military Commissions Act authorizes the President to detain anyone, including U.S. citizens, without charge by designating them “enemy combatants” or “unlawful enemy combatants.” 77 The definition of the term “alien unlawful enemy combatant” in the Military Commissions Act suffers from such unconstitutional overbreadth it could subject completely innocent legal foreign residents of the United States, as well as foreign citizens living in other countries, to arbitrary arrest and indefinite imprisonment.78 Further, the new law effectively gives the President the power to designate arbitrarily any foreign

76. The arbitrary denial of habeas corpus relief violates the suspension clause of the Section 9 of Article I of the U.S. Constitution, which provides that the “privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

77. MCA Section 7 provides in pertinent part: “Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” MCA, supra note 67, at 37, 28 U.S.C. § 2241(e)(2) (2006) (emphasis added).

78. MCA Section 3 provides in pertinent part:

In this chapter (A) The term ‘unlawful enemy combatant’ means—(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense. . . . (B) CO-BELLIGERENT.—In this paragraph, the term ‘cobelligerent’, with respect to the United States, means any State or armed force joining and directly engaged with the United States in hostilities or directly supporting hostilities against a common enemy.

MCA, supra note 67, at 2, 10 U.S.C. § 948a(1) (2006) (emphasis added). MCA Section 3 next defines the term “lawful enemy combatant as follows: “a person who is—(A) a member of the regular forces of a State party engaged in hostilities against the United States; (B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or (C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.” MCA, supra note 67, at 2, 10 U.S.C. § 948(a)(2) (2006). The term “alien” simply means “a person who is not a citizen of the United States. MCA, supra note 67, at 2, 10 U.S.C. § 948a(3) (2006).

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national he chooses as an “alien unlawful enemy combatant” with or without demonstrable cause.79

Third, abandoning a half-century of official U.S. support for the Geneva Conventions, the Military Commissions Act expressly prohibits any “alien unlawful enemy combatant” from invoking “the Geneva Conventions as a source of rights” in any U.S. court.80 In place of the time-honored standards of the Geneva Conventions, the new law authorizes the President to decide what constitutes torture.81

Fourth, federal courts have no power to review the legality of any aspect of the operations or conduct of the new military commissions with the exception of the final verdicts of military tribunals. 82 No appeals will be allowed based on the Geneva Conventions. All the President has to do to lock up a foreign national forever under the new law is arrest him, have him declared an “alien unlawful enemy combatant,” throw him in jail and never give him a trial.

79. MCA Section 3 describes the dispositive authority of the President to determine unlawful enemy combatant status as follows: “A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.” MCA, supra note 67, at 4, 10 U.S.C. § 948d(c) (2006).

80. MCA Section 5(a) provides: “No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.” MCA, supra note 67, at 32.

81. MCA Section 6(a)(3)(A) provides in pertinent part as follows: “As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.” MCA, supra note 67, at 33, amending 18 U.S.C. § 2241. Note that this section asserts that “the Constitution” gives the President the “authority” to “interpret the meaning and application of the Geneva Conventions,” thereby undoubtedly attempting to lay the foundation for subsequent claims in court that Congress has endorsed President Bush’ extra-constitutional doctrine of a “unitary executive” with independent authority to construe the Constitution. Any such sweeping claim of constitutionally derived interpretive powers, especially if asserted to override contrary judicial decisions, would egregiously violate the Madisonian doctrine of separation of powers on which the effective functioning of U.S. democratic institutions depend.

82. Section 3 of the MCA provides as follows: “Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.” MCA, supra note 67, at 24-25, 10 U.S.C. § 950j (2006) (emphasis added). MCA Section 3 grants “the United States Court of Appeals for the District of Columbia Circuit . . . exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission . . . .” MCA, supra note 67, at 23, 10 U.S.C. § 950g(a) (2006).

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Fifth, the Military Commissions Act essentially permits the use of coerced evidence if the reviewing judge finds it reliable.83 This standard clearly violates the prohibition under international human rights law against the use of evidence extracted as a result of cruel, inhuman, humiliating or degrading treatment or punishment.84 The new law also allows the prosecution to use hearsay evidence, which is normally inadmissible.85

Sixth, the Military Commissions Act would allow the prosecution to use secret evidence against a defendant in many cases in which the defendant will, for alleged reasons of national security, be denied the right to challenge or even be informed of the “sources, methods or activities” by which the government acquired the evidence. 86 This restriction violates the sixth amendment guarantee of the right to confront witnesses and be informed of the nature and cause of the charges against the accused.87

Seventh, the Military Commissions Act conspicuously fails to guarantee that defendants accused of a crime will be afforded an opportunity to present their case at trial within a reasonable time. Following arrest, their detention may be indefinite.

Eighth, the Military Commissions Act empowers military tribunals to issue death sentences on the basis of proceedings lacking the most basic due process protections in violation of well-established international standards that only permit capital punishment after a fair trial that affords the accused all possible procedural safeguards.88

Anthony D. Romero, Executive Director of the American Civil Liberties Union, summarized the operation of the Military Commissions Act as follows: “The president can now, with the approval of Congress, indefinitely hold people without charge, take away protections against horrific abuse, put people on trial based on hearsay evidence, authorize trials that can sentence people to death based on testimony literally beaten out of witnesses, and slam shut the courthouse door for habeas petitions. . . . ” to test the legality of their imprisonment.89

Does anyone really believe that we encourage respect for the rule of law and the peaceful resolution of disputes by institutionalizing a tyrannical system of military justice that condones the use of coerced evidence and denies defendants the most fundamental procedural and

83. While the MCA does prohibit the use of evidence obtained by torture, as narrowly defined under the MCA, evidence obtained through the use of some degree of coercion may be introduced against the accused. In this context it is important to keep in mind that the narrow definition of torture under the MCA would permit interrogation tactics that constitute torture under international law. MCA, supra note 67, at 8, 10 U.S.C. § 948r(a) (2006).

84. Amnesty International, supra note 74, at 8. 85. MCA, supra note 67, at 13, 10 U.S.C. § 949d(f)(2)(B) (2006). 86. MCA, supra note 67, at 9, 10 U.S.C. § 949a(b)(2) (2006). 87. U.S. CONST., amend. VI. 88. MCA, supra note 67, at 17, 10 U.S.C. § 949m(b) (2006); Amnesty Interna-

tional, supra note 74, at 8. 89. Associated Press, Bush Signs Terror Interrogation Law, Oct. 17, 2006,

available at http://news.yahoo.com/s/ap/20061017/ap_on_go_pr_wh/bush_terrorism.

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substantive rights recognized by the U.S. constitution and international law? If we treat our detainees with such contempt, how should we expect those of our citizens whom our enemies capture will be treated? By torturing our detainees, we invite our enemies to torture our citizens. Our injustice only arouses the righteous indignation of our friends and foes alike, while fanning the flames of an incendiary hatred among our adversaries and stiffening their resolve to exact revenge for our own outrageous abuses and, yes, for our own terrorism.

2. THE ILLEGAL DOMESTIC SURVEILLANCE PROGRAM

Shortly following September 11, 2001, President Bush issued a secret executive order without judicial or congressional approval that authorized the National Security Agency (NSA) to conduct warrantless electronic surveillance of the telephone and email communications of any U.S. citizen who was suspected of having ties to a terrorist organization in an effort to gather intelligence about domestic terrorist operations. Sometime in late 2004, the New York Times received leaked reports about this classified warrantless electronic surveillance program, but delayed publication of the story for over a year at the President’s request, apparently taking seriously White House claims that disclosure would jeopardize ongoing investigations and might alert would-be terrorists that they were being monitored.

While the NSA’s domestic spying program was still secret, the President falsely assured the public that he would obtain judicial permission before allowing the federal government to subject American citizens to electronic surveillance and that he would certainly abide by all applicable constitutional requirements. Finally, on December 16, 2006, the New York Times ran the story and ignited a firestorm of controversy.90 On January 3, 2006, an NSA whistleblower revealed that the number of U.S. citizens subject to the full range of NSA domestic spying operations could run into the millions.91

At the center of the storm is the President’s apparent violation of (1) the Fourth Amendment right to privacy,92 (2) the First Amendment right

90. James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at 1, available at http://www.nytimes.com/2005/12/16/ politics/16program.html. The foregoing article reported that for the previous three years the NSA had been eavesdropping on “large volumes of telephone calls, e-mail messages, and other Internet traffic inside the United States” and that the President had launched this massive domestic spying program “without search warrants or any new laws that would permit such domestic intelligence collection.” Id. See also

91. NSA Whistleblower Alleges Illegal Spying, ABCNews, January 10, 2006, available at http://abcnews.go.com/WNT/Investigation/story?id=1491889.

92. U.S. CONST., amend. IV. In light of the “tendency of those who execute the criminal laws . . . to obtain conviction by means of unlawful seizures,” the Supreme Court has historically treated the interception of personal communications as an especially serious violation of the constitutionally protected rights of privacy and free speech. Berger v. New York, 388 U.S. 41, 50 (1967) (quotation and citation omitted). “By its very nature eavesdropping involves an intrusion on privacy that is broad in scope,” and its “indiscriminate use . . . in law enforcement raises grave constitutional

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to free speech and association 93 and (3) the section of the Foreign Intelligence Surveillance Act (FISA) 94 that makes electronic surveillance without statutory authorization a crime.95

FISA prohibits electronic surveillance of people within the U.S. without individual approval by a special eleven-member judicial body called the United States Foreign Intelligence Surveillance Court. FISA creates a comprehensive set of mandatory procedures for conducting electronic surveillance essential to protect the national security of the United States. Such electronic surveillance may be authorized by the FISA Court only upon an individualized showing that the suspect is an agent of a foreign power or foreign terrorist group. Congress has mandated that FISA is the “exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.”96

President Bush deliberately elected not to use the “exclusive means” mandated by Congress and, instead of following FISA procedures, unilaterally ordered the NSA to secretly conduct electronic surveillance on thousands, perhaps millions, of U.S. citizens without FISA Court approval or congressional authorization. When the New York Times finally disclosed the NSA’s massive domestic spying program, the President confirmed its existence, but brazenly vowed to continue the NSA’s surveillance operations, unconcerned about the unprecedented, wholesale invasion of privacy they necessarily entail. Far from showing any sign of shame or remorse for his illegal spying program, the President, instead, responded with a vigorous public relations campaign, in which he, Vice President Cheney, Attorney General Gonzalez and then-Deputy Director for National Intelligence General Michael Hayden championed the NSA’s domestic spying program as a home-front intelligence-gathering operation essential to ultimate military victory in the continuing “war on terror.”

The President’s warrantless electronic surveillance program was quickly challenged in federal court. The formal legal justification for the eavesdropping program offered by the Bush administration in court filings was essentially twofold. The President argued that his authority to authorize the electronic surveillance program was based on (1) the Authorization for Use of Military Force (AUMF)97 passed by Congress questions.” Id. at 56 (quotation and citation omitted). “Few threats to liberty exist which are greater than those posed by the use of eavesdropping devices.” Id. at 63.

93. U.S. CONST., amend. I. 94. Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1801-62 (2006). 95. 50 U.S.C. § 1809 (2006). The government may also obtain authorization for

emergency short-term surveillance under FISA while an application for a court order is being prepared and for warrantless surveillance during the first fifteen days of a war.

96. 18 U.S.C. § 2511(2)(f) (emphasis added). 97. Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, 115

Stat. 224 (Sept. 18, 2001), available at http://www.fas.org/sgp/crs/natsec/RS22357.pdf. The Senate passed AUMF as S. J. Res. 23 on Friday, September 14, 2001. The House passed it later that same day. The President signed it into law on Tuesday, September 18, 2001. Richard F. Grimmett, Authorization For Use Of Military Force in Response to the 9/11 Attacks (P.L. 107-40): Legislative History, Congressional Research Service (CRS) of the Library of Congress, at 6 (Jan. 4, 2006) (CRS Code RS22357). See also David Abramowitz, The President, the Congress, and Use of Force: Legal and

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on September 18, 2001 and, not surprisingly, (2) his constitutional authority as commander-in-chief.

Incredibly, the President’s lawyers argued in court that Congress had approved the nationwide electronic surveillance program when it authorized the President to use “all necessary and appropriate military force against those nations, organizations, or persons he determines planned, authorized, committed, or aided in the terrorist attacks that occurred on September 11, 2001.”98 Military force may take many forms, but the suggestion that it could manifest itself as domestic electronic surveillance defies common sense.

The President’s second justification for breaking the law, that he can do essentially whatever he deems necessary when acting as commander-in-chief while prosecuting his fabled “war on terror,” fares no better. As foretold by Justice Robert Jackson in his famous concurrence in the Steel Seizure Case, “the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and inhabitants.”99

Federal District Court Judge Anna Diggs Taylor agreed with Justice Jackson in her August 17, 2006 decision in ACLU v. NSA holding that the President’s domestic surveillance program violated the First and Fourth Amendments of the U.S. Constitution, FISA, the doctrine of separation of powers and other federal statutory law.100 Judge Taylor expressly rejected the President’s sweeping claims of preemptive powers as commander-in-chief with the following emphatic language:

The Government appears to argue . . . that . . . particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.

. . . [T]he Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all “inherent powers” must derive from that Constitution. . . .

. . . [S]ince Ex Parte Milligan, we have been taught that the “Constitution of the United States is a law for rulers and people, equally in war and in peace.”101 . . . [N]o emergency can create power.102

Political Considerations in Authorizing use of Force against International Terrorism, 43 HARV. INT’L L. J. 71 (2002).

98. AUMF, supra note 83, at § 2(a). 99. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case), 343 U.S. 579,

643–44 (1952) (Jackson, J., concurring). 100. American Civil Liberties Union v. National Security Agency, slip op. at 36,

40-41, No. 06-CV-10204 (D.C. Mich., Aug. 17, 2006). 101. Ex parte Milligan, 71 U.S. (4 Wall.) 2, 121 (1866). Judge Taylor mentions

only a portion of a highly relevant passage from Milligan, a landmark decision in the defense of liberty in time of war, that warrants a more extensive quotation:

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection

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The case has been appealed by the Bush administration and will likely be heard by the U.S. Supreme Court in the near future. Let us hope that the appellate courts will uphold Judge Taylor’s compelling reasoning for as the Supreme Court pointed out in 1967, “[f]ew threats to liberty exist which are greater than those posed by the use of eavesdropping devices.”103

3. THE UNPATRIOTIC USA PATRIOT ACT

The short time remaining does not permit us to explore all the civil

rights concerns raised by the USA PATRIOT Act, but a few of its most disturbing implications for American democracy warrant brief discussion.104 Rushed through Congress in only six weeks following the September 11, 2001 tragedy without public debate, without the usual committee hearings and without an opportunity for most legislators even to read the massive 131 page single-spaced bill they were about to pass by overwhelming majorities in both houses, the USA PATRIOT Act concentrates vast new powers in the Executive Branch that subvert the Madisonian tripartite scheme of checks and balances while trampling on the basic civil liberties of U.S. citizens in the name of national security.105

The USA PATRIOT Act gives the FBI and the CIA greatly expanded powers to access business and personal records without prior judicial approval or subsequent judicial review, wiretap telephone conversations, monitor e-mail, obtain medical, financial and library records, and break into homes and offices without any prior notice in so-called “sneak and peak” searches.106 It also creates the new crime of “domestic terrorism”

all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence.

Id. at 120-21 (emphasis added). In Milligan, the Supreme Court rejected the President’s claim that he had the inherent authority to detain and try civilians regardless of the any restriction Congress had placed on that power and held that the President “is controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the laws.” Id. at 121.

102. Id. 103. Berger v. New York, 388 U.S. 41, 63 (1967). 104. USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001). The

full bombastic, misleading title of this law is “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.”

105. See, e.g., Nancy Chang, The USA PATRIOT Act: What’s So Patriotic About Trampling on the Bill of Rights?, (November 2001) available at http://www. sevenstories.com. The foregoing essay is an excerpt from NANCY CHANGE, SILENCING POLITICAL DISSENT: HOW POST-SEPTEMBER 11 ANTITERRORISM MEASURES THREATEN OUR CIVIL LIBERTIES (2002).

106. For a detailed analysis of the USA PATRIOT Act, see Charles Doyle, The USA PATRIOT Act: A Legal Analysis, Congressional Research Service (CRS) of the Library of Congress (Apr. 15, 2002) (CRS Code RL31377). See also Electronic Privacy Information Center (EPIC), The USA PATRIOT Act, available at http://www.epic.org/privacy/terrorism/usapatriot/.

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that is so ambiguously defined that citizens engaged in protected First Amendment activity, such as the public expression of political dissent, could be arrested if such activity “involve” criminal “acts dangerous to human life” that “appear to be intended . . . to influence the policy of a government by intimidation or coercion.”107 The USA PATRIOT Act and other new legislation also greatly expand the Executive’s powers to deport noncitizens and detain them indefinitely without judicial appeal.108

Like virtually all of the Bush administration’s so-called antiterrorism initiatives, the USA PATRIOT Act concentrates too much unchecked authority in the hands of the President in overt violation of the doctrine of separation of powers. It is now apparent that this offensive law was the opening salvo from an administration bent on transforming the President into a maximum leader in time of undeclared war free from democratic congressional and judicial constraints. Those provisions of the USA PATRIOT Act that violate constitutionally protected civil rights and senselessly restrict our fundamental freedoms must be repealed.

VI. CONCLUDING THOUGHTS: ENDING THE ABUSE OF POWER

After surveying the long litany of the abuse of power that has become the legacy of the Bush administration, two questions inevitably arise in the minds of concerned citizens who believe in democracy: “What can be done to stop this madness?” and “Who will stop it?” I respectfully suggest that it is up to us to stop the madness. By “us,” I mean the people in this room, the ordinary citizens of the United States and the citizens of other countries who care about the rule of law, human rights and peace.

For the past six years, a Republican Congress has lain prostrate, face down in the gathering pool of blood, while Democrats often stood idly by, apparently reluctant to oppose the White House for fear of being branded “soft on terror,” and a conservative majority on the Supreme Court would rather look the other way. Consequently, the responsibility devolves upon us to protect ourselves from the ongoing attack on our liberties, to search out the truth despite the propaganda, to judge for ourselves the facts as we find them and to let our voice be heard, not only at the polls, but in every forum available to us until the

107. Under Section 802 of the USA PATRIOT Act, the term “domestic terrorism” is defined as “activities that (A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; (B) appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination or kidnapping; and (C) occur primarily within the territorial jurisdiction of the United States . . . .” 18 U.S.C. 2331(1), (5) (as amended by § 802).

108. ROBERT A. LEVY AND THE CATO INSTITUTE, CATO HANDBOOK FOR CONGRESS 120-23 (2002).

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reverberations of our collective outrage disarm the assailants who threaten our democracy and the sanctity of human rights.

In the last six years, President Bush and his neoconservative cohorts have taken the first dangerous steps in creating a national security state controlled by a maximum leader exempt from the rule of law. The President has tried to justify his unprecedented assertions of power with the claim that he requires new imperial prerogatives as commander-in-chief to protect us from the ever-present threat of terrorism. In the name of national defense, we have been compelled to surrender our liberties to a “unitary executive” unknown to our constitution. The President’s fervent belief that such submission to arbitrary authority makes us safer or stronger as a Nation is perhaps the most dangerous delusion of this son of Daedalus.

President Bush, however, has placed more at risk than the precious civil liberties of the American people for his reckless new policy of preventive war has literally imperiled the world. Writing in, of all places, the journal Dædalus, Professors John Steinbruner and Nancy Gallagher argue that the global military destabilization resulting from the Bush Doctrine exposes human civilization to “an appreciable risk of ultimate doom.”109 Once again, the voice of Daedalus can be heard warning of possible disaster.

As you will recall, I began my talk this evening comparing our Dear Leader to Icarus, the errant son of Daedalus whose reckless judgment caused his own demise. Now that I have reached the conclusion of my remarks, I hope you might agree that the comparison is still apt. Although the sun has started to melt the wax holding his feathers together, President Bush is still airborne, still blinded by dangerous delusions, although visibly disabled and losing altitude fast. I suggest to you that our democracy and the world cannot afford the luxury of waiting for the sun’s rays to finish the job. We must intervene and clip his wings for plummeting from such heights, with such immense power as he still possesses, threatens the downfall of us all.

If we truly seek a safer world, free from terrorist threats, we must begin that quest by repudiating the hypocritical doctrine of American exceptionalism and rededicate ourselves as a nation to the principle of universality that demands we abide by the same international standards we expect other countries to honor. We must rededicate ourselves and our government to respect for the rule of law and human dignity, rather

109. John Steinbruner & Nancy Gallagher, Constructive Transformation: An Alternative Vision of Global Security, 133 DÆDALUS 83-103 (Summer 2004), working paper version available at www.cissm.umd.edu/documents/securitytransform.pdf. The authors explain that “[o]ver time, technology developed in the United States will assuredly diffuse to the rest of the world. If the context for that diffusion is competition in intimidation, the inherent vulnerability of the United States will be a rising danger, potentially an unmanageable one.” Id.

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than contriving pretexts for war and injustice in the name of national defense.

As Chief Justice Earl Warren poignantly observed nearly four decades ago when another foreign war called Viet Nam and another convenient nemesis called communism were invoked as a pretext for the unconstitutional assumption of presidential power, “Implicit in the term ‘national defense’ is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which [make] the defense of the Nation worthwhile.”110

Thank you for your attention.

110. United States v. Robel, 389 U.S. 285, 264 (1967).

Acknowledgments

I am very grateful to American Voices in Spain for having so kindly invited me to share my thoughts with its members and associates at the tertulia it hosted on 24 November 2006, thereby providing me with the stimulus to prepare the following essay, “Delusions of the Son of Daedalus: The Bush Presidency, the ‘War on Terror’ and the Downfall of American Democracy?”

It was a great privilege and a distinct pleasure to have been able to participate in such an animated and thought-provoking dialogue with citizens from the United States, Spain and other countries who share a deep concern about the grave implications of the Bush administration’s so-called “war on terror” for civil liberties and human rights at home and abroad. I was greatly impressed with how well informed the participants in the tertulia were with current legal and policy developments back in the United States and their deep commitment to human rights, justice and peace.

I would like to express my gratitude to Isabelle Runkle and Diana Castillo for their patience and perseverance in planning and promoting the tertulia. In addition, I would also like to convey a special word of thanks to Judy Sharp, whose gracious hospitality, moral support and engaging conversation made my participation in the tertulia an especially warm and memorable experience.

As we consider the dangers posed to respect for human rights by the unprecedented claims of power now being asserted by President George W. Bush, the folk wisdom reflected in the Spanish proverb, “quien hace la ley hace la trampa” seems especially relevant: “he who makes the law sets a trap (or cheats).” Let us hope the President’s self-serving unilateral claims are defeated before we are all ensnared in his abuse of power. D.N. 26 November 2006 Barcelona, Spain