- The Washington Times - Monday, October 31, 2005

Scooter Libby’s five-count indictment for lying about his knowledge of Valerie Plame emerged from a signature “we against them” attitude of the Bush administration: You are either an obsequious friend or an enemy to be destroyed. Life sports no shades of gray, no matters of degree. Success is measured by the number of opponents lacerated, not by the statesmanship accomplished.

President Bush’s division of the world into two camps hearkens back to the shipwrecked presidency of Richard M. Nixon, which featured an “enemies list” and an attempt to destroy Daniel Ellsburg for leaking the Pentagon Papers. But Mr. Bush, like the French Bourbons before the Revolution, forgets nothing and learns nothing.

He declared in the aftermath of the September 11, 2001 abominations that any nation or non-state actor who did not support the United States in all its moods and tenses would be treated as an enemy. His conceptual apparatus had no room for neutrality or partial assistance. The real world intruded on Mr. Bush’s simplicity, however, and hedging allies like France, Spain and Germany were distinguished from al Qaeda, Taliban and state sponsors of terrorism.

With regard to the Libby indictment, President Bush was searching for an unanswerable reason to destroy Saddam Hussein’s murderous regime. A consensus that the Iraqi dictator possessed weapons of mass destruction (WMD) would do the trick. Joseph C. Wilson IV, former ambassador, was dispatched to Niger by the Central Intelligence Agency to evaluate the suspicion that Iraq was in the market for uranium to make a nuclear bomb. He was unpersuaded, and later voiced his disbelief in public. President Bush, in contrast, insisted on Saddam’s WMD in his 2003 State of the Union message.

The Bush administration might have re-checked its analysis in light of Mr. Wilson’s critique and the CIA’s reservations. Wise presidents welcome constructive criticism to avert follies, a lesson John F. Kennedy learned from his Bay of Pigs fiasco. Alternatively, the administration might have openly challenged Mr. Wilson by marshaling unclassified contemporary evidence, Saddam’s past use of WMD against Iran and Iraqi Kurds, and compelling motivations for Iraq’s acquisition of a nuclear capability. Instead, the White House treated Mr. Wilson and the CIA as the enemy over Iraq and WMD. It sought to destroy their credibility by covert tales to Robert Novak and sister media stars that Mr. Wilson’s wife, an agency employee, had suggested him for the Niger mission. Mr. Libby’s indictment was born of the White House effort to conceal that squalid endeavor.

President Bush nominated constitutional novitiate and erstwhile Democrat Harriet Miers to the United States Supreme Court. Many of his customary conservative friends protested the betrayal of Mr. Bush’s promise of Scalia-Thomas appointees. These friends became instant enemies to be maligned as sexist, elitist or worse. The idea that Miss Miers’ detractors were seeking to preserve Mr. Bush’s professed ambition to alter the Court’s philosophical balance was outside his intellectual universe.

Mr. Bush views Congress more as an adversary than a constitutional partner in the wars against global terrorism in Afghanistan, Iraq and elsewhere. Accordingly, he has foolishly resisted legislation that would bolster or clarify the government’s constitutional power to detain, to interrogate and to prosecute enemy combatants. Congress, for example, might suspend the writ of habeas corpus or exclude its application to Guantanamo Bay detainees, draw a clear statutory line between permissible and impermissible interrogation techniques, prescribe the procedures available to illegal combatants to prove mistaken identity, and explicitly authorize the trial of war crimes before military commissions. As the Supreme Court explained in Youngstown Sheet & Tube v. Sawyer (1952), the president’s war powers are at their zenith when buttressed by Congress. Mr. Bush’s refusal to enlist Congress as a full partner has needlessly exposed his war tactics to derailing by the judiciary. Decisions already have cast a cloud over military commissions and status review tribunals for Guantanamo Bay detainees.

If Congress were likely to handcuff the president’s war powers, a reluctance to seek legislation might be understandable. But public opinion, as voiced through Congress, is overwhelmingly in favor of every muscular tactic short of torture (which has been disclaimed by Mr. Bush) to kill, capture and defeat the enemy. It is inconceivable, for instance, that Congress would deny a presidential request for legislation suspending habeas corpus at Guantanamo to facilitate intelligence gathering and to safeguard against erroneous releases.

President Bush would have profited enormously by congressional hearings into plans for a post-Saddam dispensation in Iraq. As any schoolchild knows, the wish is father to the thought. Thus, President Lyndon Johnson preposterously insisted on seeing the light at the end of the tunnel in Vietnam, and President Kennedy a Bay of Pigs success. Mr. Bush similarly believed that Iraqi statesmen in the image of Washington, Madison and Jefferson would emerge from the Tigris and Euphrates after 4,000 years of dormancy to craft a magnificent secular democracy that would capture the imagination of the entire Middle East. Congressional review of that delusion would have saved the United States from incalculable post-Saddam stumbles.

If President Bush declines to jettison his “we against them” insularity, the remainder of his administration will deservedly sputter and flounder. As President Abraham Lincoln advised, a man who does not grow wiser by the day is a fool.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.

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