The Sorrows of Empire: Militarism, Secrecy, and the End of the Republic

the city of Mountain View, California (even though she voted against the resolution). As Wheeler concluded, all that the public owed their representatives after such a debacle was “the fare for a trip to the dustbin of history.”²³

The Bush administration also arrogated to itself the power unilaterally to judge whether an American citizen is part of a terrorist organization and could therefore be stripped of all constitutional rights, including the Sixth Amendment guarantees of a speedy trial before a jury of peers, the assistance of an attorney in offering a defense, the right to confront one’s accusers, protection against self-incrimination, and, most critically, the requirement that the government spell out its charges and make them public. The key cases here concern two native-born American citizens—Yasir Esam Hamdi and Jose Padilla.

Hamdi, age twenty-two, was born in Baton Rouge, Louisiana, but raised in Saudi Arabia. The Pentagon at first claimed he was captured fighting for the Taliban in Afghanistan. In a more detailed submission it later acknowledged that he surrendered to the Northern Alliance forces, the warlords paid to fight on our side, without having engaged in any form of combat. Handed over to the U.S. military, Hamdi was transferred to the detention camp in Guantanamo, Cuba, where many foreign nationals captured on foreign soil are now sequestered. Discovering that Hamdi was an American citizen and fearing intervention by the courts, prison officials flew him to a naval prison in Norfolk, Virginia, where he was held incommunicado. As a citizen, he should be covered by the due process guarantees of the Constitution, but the Department of Justice contends that, having been designated an “enemy combatant” by the president, he can be held indefinitely without a lawyer merely on the president’s say- so.

On June 19, 2002, representatives of the Bush administration and the Pentagon outlined to the Fourth Circuit Court of Appeals a claim of presidential power that in its breathtaking sweep is unsupported by the Constitution, law, or precedent. “The military,” they argued, “has the authority to capture and detain individuals whom it has determined are enemy combatants ... including enemy combatants claiming American citizenship. Such combatants, moreover, have no right of access to counsel to challenge their detention.” They went on to contend that “the court may not second-guess the military’s enemy combatant determination” because by doing so they would intrude on “the president’s plenary authority as commander in chief,” which supposedly includes the power to order “the capture, detention, and treatment of the enemy and the collection and evaluation of intelligence vital to national security.” The courts should defer to the military “when asked to review military decisions in time of war.”

Since only Congress can declare war, however, the president’s personally declared “war on terror” is merely a rhetorical device. There is no legally valid war on terrorism. Moreover, the president does not enjoy “plenary” (absolute or unqualified) authority in his role as commander in chief, since both he and the military theoretically exercise their powers subject to the budgetary authority of Congress. The claim that a military commander, acting under presidential orders, can be “the supreme legislator, supreme judge, and supreme executive” within his area of responsibility was struck down by the Supreme Court following the Civil War. In Ex Parte Milligan (1866), the Court held that “martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction.”²⁴ The federal judge hearing the Hamdi case challenged everything the government asserted, but the solicitor general’s representative merely replied, “The present detention is lawful.” The judge then asked, “So the Constitution doesn’t apply to Mr. Hamdi?” He got no answer. Hamdi remains in military confinement until the Supreme Court, the same court that intervened in the 2000 election to appoint Bush president, hears his appeal—if it ever does.

Padilla’s case is similar. A Brooklyn-born American of Puerto Rican ancestry, Padilla (known as Abdullah al- Muhajir after his mid-1990s conversion to Islam) was arrested by federal agents on May 8, 2002, at O’Hare Airport, Chicago, as he stepped off a flight from Pakistan. He was held for a month without charge or any contact with an attorney or the outside world. Finally, on June 10, while visiting Russia, Attorney General John Ashcroft made the sensational announcement that Padilla had been plotting with al-Qaeda to detonate a “dirty bomb” somewhere in the United States. On the eve of Padilla’s appearance in federal court in New York, however, he was hastily transferred to a military prison in Charleston, South Carolina, while President Bush publicly designated him “a bad guy” and an “enemy combatant.” No charges were brought against him, and attempts to force the government to make its case via writs of habeas corpus have been routinely turned down on the grounds that the courts have no jurisdiction over a military prisoner.²⁵

The government may have resorted to these procedures because its only evidence against Padilla seems to consist of statements by prisoners at Guantanamo whom it knows to be untrustworthy. Attorney General Ashcroft, a notorious Washington “camera moth,” may have used his announcement simply to gain some personal publicity, as he has done in the past. Even the administration’s hardest of hard-liners, Deputy Defense Secretary Paul Wolfowitz, said to CBS News, “I don’t think there was actually a plot beyond some fairly loose talk and Padilla’s coming in here obviously to plan further deeds.”²⁶ Meanwhile, Padilla remains in a military prison— uncharged, unrepresented, unfree.

The Bush administration has expanded presidential power at the expense of the constitution in another area, thanks to the little-known and totally secret Foreign Intelligence Surveillance Court, which threatens to turn into an American version of the Star Chamber, Henry VIII’s personal tribunal for bringing actions against his opponents and having them whipped, pilloried, or branded. The court came into being following the Watergate scandal. For decades up until then, the Federal Bureau of Investigation and the Central Intelligence Agency had illegally wiretapped the telephone calls of citizens, opened their mail, and surreptitiously entered their homes to snoop for information that might be used to blackmail or smear them. The Senate committee investigating these matters after Richard Nixon’s resignation from the presidency revealed that between 1953 and 1973 the Postal Service in New York City had illegally made more than twenty-eight million letters available to the CIA.

In one of the few concrete cases that came to light, the FBI admitted using such illegally obtained information to concoct a piece it planted in Newsweek magazine that defamed the then-pregnant actress Jean Seberg, who committed suicide as a result. Her death led fifteen months later to the suicide of her husband, French novelist and diplomat Romain Gary. The intent of the story, partially based on illegally obtained information, was to “cause her embarrassment and serve to cheapen her image with the public.”²⁷ In 1974, that public learned for the first time that the FBI had illegally spied on over 10,000 U.S. citizens, including virtually all national politicians as well as public figures like Martin Luther King.

To bring the FBI and CIA under some semblance of control, Congress passed the Foreign Intelligence Surveillance Act (FISA), which President Jimmy Carter signed into law on October 25, 1978. This act allowed the FBI and the National Security Agency to continue to conduct intelligence operations against American citizens within the United States but only under the supervision of a new secret federal tribunal known as the Foreign Intelligence Surveillance Court (FISC). In snooping on suspected criminals in cases not involving intelligence, the FBI must go before an ordinary federal judge and obtain a warrant. It must also meet the “probable cause” standard by providing a judge with evidence that an individual is committing, has committed, or is about to commit a crime. The Fourth Amendment states unambiguously: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” In setting up the Foreign Intelligence Surveillance Court, Congress reasoned that monitoring spies might not be the same as catching thieves but that some form of judicial supervision should still exist to keep federal investigators and voyeurs in line. It has not worked out that way.

The court was originally made up of seven federal judges appointed by the chief justice of the Supreme Court; the USA Patriot Act of 2001 expanded that number to eleven. The judges’ identities are secret. They meet in total privacy behind a cipher-locked door in a windowless, bug-proof, vaultlike room guarded twenty-four hours a day on