Tuesday, January 27, 2009


What explains the absence of a single international terrorist attack on United States soil in the more than seven years that have elapsed since Sept. 11, 2001?

Former President George W. Bush, former Vice President Richard Cheney and many supporters and detractors insist the Bush-Cheney usurpations and abuses were key: warrantless surveillance targeting American citizens on American soil in contravention of the Foreign Intelligence Surveillance Act (FISA); torture; detentions of enemy combatants without accusation or trial; military commissions combining judge, jury and prosecutor for the trial of alleged war crimes by noncitizens; extraordinary rendition; and secret kidnappings, coercive interrogation and imprisonments abroad shielded from legal or political accountability.

But the weight of the evidence indicates the Bush-Cheney lawlessness accomplished nothing that could not have been achieved by constitutional means and, in some respects, made the United States more, not less, vulnerable to terrorism.

FISA governs the collection of foreign intelligence by electronic surveillance when the target is a citizen of the United States. FISA generally requires a judicial warrant based on probable cause to believe the U.S. person is acting as an agent of a foreign government or international terrorist group.

FISA leaves unregulated more than 99 percent of intelligence collection initiatives because their targets are aliens abroad without any constitutionally protected expectation of privacy, for example, Osama bin Laden. Prior to Sept. 11, 2001, virtually all of the Justice Department’s 20,000 warrant requests had been granted by the FISA Court. No president, including George W., had complained that FISA warrants handicapped their collection of foreign intelligence during the 23-year interval from 1978-2001, which included international terrorist incidents like the 1993 World Trade Center bombing, the 1998 U.S. Embassy bombings in Kenya and Tanzania, and the USS Cole attack.

The president, nevertheless, chose to flout FISA’s warrant requirement for more than five years in the aftermath of Sept. 11 in favor of a warrantless “Terrorist Surveillance Program” (TSP). An indeterminate number of Americans were subject to unchecked spying by the National Security Agency (NSA) for unknown reasons. What was done with the intelligence on American citizens similarly remains unknown. FISA was enacted because a 50-year history of unchecked presidential spying by the FBI, CIA and NSA was a history of chronic spying for political purposes, for instance, discrediting Vietnam War protesters.

President Bush described the TSP as targeting only “known” members of al Qaeda or other international terrorist organizations. If that description were accurate, FISA warrants could have been easily obtained for every target, making the TSP a gratuitous assault on the rule of law. President Bush, moreover, never demonstrated that even a crumb of useful intelligence collected under the TSP could not have been collected in compliance with FISA. The statute does not deny the power of the president to spy. But it recognizes the necessity of reasonable regulations to prevent misuse of the power to advance a political rather than an intelligence agenda.

Mr. Bush has conceded he authorized waterboarding on at least three al Qaeda prisoners. That interrogation method inspires a fear of imminent death, which is specifically defined as torture in the federal criminal code. Susan Crawford, a military commission leader, recently concluded that another prisoner was tortured by other means. The FBI and military personnel reject torture. It is fashionable only at the CIA. According to interrogation experts, it yields faulty intelligence.

President Bush abandoned torture when it became public knowledge with no hint that the abandonment would make the United States less safe. Even if there were exceptions, there is no way to know when torture would yield reliable information, and thus confine its use.

Torture heightened danger to the United States in at least three respects. The precedent exposed our captives abroad to torture, it served as a recruiting agent for al Qaeda and it curtailed counterterrorism cooperation from foreign countries.

Indefinite detentions of alleged “enemy combatants” without accusation or trial at Guantanamo Bay were held unconstitutional by the United States Supreme Court in Boumediene v. Bush. As with torture, the arbitrary detentions targeting predominantly Muslims (including hapless Uighurs oppressed by China) boosted al Qaeda’s ranks.

Further, President Bush never explained why an authentic “enemy combatant” could not be prosecuted in civilian courts for conspiring to provide or providing “material assistance” to a foreign terrorist organization, including simple training in a terrorist camp. Jose Padilla, for instance, was initially held as an enemy combatant, but was later tried and convicted in a federal civilian court for conspiring to provide material assistance. If prosecutions might be thwarted because the accused was illegally tortured, the proper remedy is to cease the government’s illegalities or to prosecute with untainted evidence.

Requiring proof of guilt before imprisonment in open civilian courts risks some wrongdoing, including terrorism. The risk could be eliminated by empowering the government to detain anyone for any reason indefinitely and in secret. But that would be the end of freedom, and the reason for the United States.

Even if a benevolent president resisted the temptation to abuse monarch-like powers, the legal precedent would lie around like a loaded weapon ready for use by any less saintly successor who claimed an urgent need.

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

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