Bill of Rights "due process" and all that? There the Attorney General reached back for the ultimate sophist's gambit: 'When you collide with a contradiction, draw a distinction!' In his case, that "due process" didn't necessarily mean "judicial process". Q.E.D.
The conventional way of discussing and arguing these matters is to say that we have to draw a balance between national security and constitutional safeguard but I think the historical record will show that that 'balance' is simply non-existent. A salient instance is provided by FDR's authorization in 1942 for the collective imprisonment of Japanese-Americans, many of them citizens.. Things didn't "balance" then nor since, i.e., the action itself was not repudiated for many years and most of the harm done to these persons was never undone.
And worse, repudiated or not, it left its lingering poison: FDR's action is cited by Yoo, Johnson and Holder as setting a legal precedent for detaining alleged "terrorists" today.
The War on Terror is the direct descendant of the now overshadowed War on Drugs, itself the descendant of the war against 'communist subversion' of the previous era, which was in turn child of our old war on Axis sympathizers, spies and saboteurs during WW II. Each has simply segued into the next, each larger than its predecessor, each further compromising the constitutional rights of citizens, and each with substantive continuity of persons, policies, governmental agencies and domestic political appeals.
The arguments of such as Yoo, Johnson and Holder are intended to portray the common practices of the War on Terror as legal phenomena. But they actually argue something else entirely. Their arguments are largely negative ones -- to the effect that this law 'doesn't hold' or that precedent 'doesn't forbid' or this other practice 'doesn't violate', etc., etc. Their clear tendency, I would say their evident intent, is to remove the War on Terror from all legal restriction, to protect it against any law-like governance at all. Their arguments loose it, as they are intended to loose it from the entire bonds of the law. Thus, if we are to accept their literal meaning, the War on Terror is an a-legal phenomenon. Law has nothing to do with it; it is all about what is "feasible".
This can be put more precisely. The arguments made by Yoo, Johnson and Holder are essentially negative; they do not enunciate law-like principles which can then be applied to guide judgment about the next case. I invite the reader to examine the cited documents for his or her own satisfaction on this very point. No!, the President is not bound by this or that, he can do this and that and anything else because existing prohibitions don't apply. And so on in that vein. Nowhere are they willing to venture the limits of this expanded Presidential power - because what such stalwarts argue today may not be loose enough, not broad enough to justify whatever the President might want to do tomorrow. In brief, their position, their overt position is that there are no predictive prescriptive limits on the presidential war-making power. Again, anything goes!
There are no balances being drawn between national security and constitutional safeguard. Congress declared a metaphorical "war" against al Qaeda and other "co-belligerents"; ergo, anyone who might be thought a co-belligerent by an intelligence official is fair game. The NSA may not spy on domestic communications without court permission - but telephonic and e-traffic signals are automatically loosed into the whole cosmos. Ergo, if it can legally listen in on international traffic, that will catch domestic traffic in its net. It is forbidden by law for the CIA to mount operations within our borders - but it has had a longstanding "liaison" relationship with the NYC Police Department. There are no balances here.
The expansion of the Obama War on Terror is not usefully analyzed for its legal and its illegal aspects. Sooner segregate the grains of sand on a beach by size and color. In the last analysis, the War on Terror is an a-legal phenomenon. It answers to no legal restriction nor for the future legally bars any expansion. "Legal" and "illegal" simply don't bear and those arguments about "balance: serve only to obscure its present dangers to our constitutional arrangements and its even more somber boomerang effects.
POLITICAL FOLLY: THE BOOMERANG EFFECT
The ACLU and The New York Times, as well as many others, have entered suits against the government, typically either to roll back some of the shadows on these Dark Ops, or to restrain this or that particular behavior. One can only hope that the courts, especially the Supreme Court, will be less self-denying about these matters in the future. But that is not the political folly I have in mind. We have to analyze the boomerang effect.
The salient point of Dark Ops, shadow wars, covert operations and the rest is that they occur, at the margins of what is considered legal in national law and international legal standards. That, of course, is mostly why they are "covert" in the first place. But that marginal character is all by itself a source of endless political folly.
It is a simple historical truism that the persons carrying out covert operations will come to adopt an ideology about them that progressively grows more doctrinaire, militant and often authoritarian than that of their high political masters. One doesn't personally shoot a man or direct others to bomb an apartment complex "to advance the policy of such and such"; that's the way the political masters think. But the persons responsible for the actual shooting, or for ordering the bombing, or whatever, come typically to think of themselves as "protecting Freedom", "loving America", "saving innocent lives", "staying faithful to fallen comrades", or some other purpose which must be viewed as a very high one, typically even a sacred one, since the actual deeds themselves are those that are normally carried out only by criminals.
But when, as they invariably will, the high political masters of such things want to scale them back, even terminate them, the persons who've been carrying out the operations will come to believe that such scaling back is in some sense 'liberal', 'unmanly', anti-patriotic, perhaps even treasonous and will take steps to be able to continue their work, often even expand it, and, not seldom, punish the "disloyal elements" above them. This has taken three not unrelated historical forms.
In the first place, the covert apparatus itself will doggedly resist demobilization and even shrinkage. Like all agencies embedded in larger organizations, it will have "clout", "friends" and bureaucratic inertia - a powerful force all by itself - on its side. The larger the apparatus, the harder to cut back - a point to be kept in mind with our outsized and still growing anti-Terror apparatus.
Note too that the War on Terror has been extensively 'privatized' - in the form of those 75-odd private firms. Now, to whatever policy momentum the War on Terror enjoys, it also has on its side the profit desires of firms in multiple congressional districts and throughout the states. As we know from the military budget battles of the past, arguments about out-dated, even unwise, even failed policies only minimally if at all affect "profit constituents" like these which add their powerful voices for indefinite continuance.
Typically, the action arm of an intelligence service (and their "profit constituents") will lobby with patriotic passion within government for continuation of their work. Of course, this is also a matter of agency budgets and personal careers so that the attempt to continue with officially out-of-favor covert activities gets that added impetus too.
In the second place, even when, especially when, these covert arms have lost the policy battle within the executive itself, they will try to rally their congressional, party political, think-tank, media and private sector allies to their aid. It is, I think, this same sort of process, not at all limited to covert ops, that operates throughout government to keep alive policies which on their own merits are outmoded, often even of positive harm. Such patriotic lobbying has often in the past spilled over into party electoral differences where it has poisoned the political atmosphere. Recall, "Who lost China?", and its role in spawning McCarthyism.
But even more threatening than all of the above, it has not been at all unusual, in fact it's been a common pattern, that disappointed and frustrated covert ops people, ideologically driven, will apply their illegal skills and aptitudes to working against their own government more or less in the same fashion as once they worked against the Algerians, the Soviets, or the Cubans, or the Sandinistas
Angry over the political settlement of the Algerian War, France's Secret Army Organization of former 'paras' attempted both to overthrow the French government and, later, assassinate DeGaulle. In Britain, in a case still shrouded in some secrecy, some intelligence operatives worked to unseat Prime Minister Harold Wilson over some alleged "subversive" failing or other on his part. Our own experience is not dissimilar. One can make something of the fact that when President Nixon needed burglars to break into this or that office, he went to willing ex-CIA 'spooks'. He was only asking them to do - now illegally - what they had 'legally" been doing all along for the Agency. The sorry history of J. Edgar Hoover is also a case in point; from employing extra-legal means against saboteurs, 'reds and subversives', to acting with the same legal abandon against those of his superiors that he had convinced himself were a threat to national security.
A most serious case was that of the then sitting CIA Director William Casey. During the Reagan presidency, he had been directing subversive activities aimed to overthrow the Sandinista government in Nicaragua when, under congressional pressure, that policy was changed and funding cut off. Casey was not to be deterred by a "misled" Congress. Along with, among others, Marine Colonel Oliver North, Admiral John Poindexter, and Elliott Abrams of the State Department, he set up a secret intelligence service within the CIA which would be self funding and therefore not accountable at all to the President or the Congress. From the nature of the case they had access to stockpiles of illegal arms, which they then sold illegally to Iran - which also had been officially forbidden - in order to fund themselves and the now forbidden, unfunded covert operations against the Nicaraguan government. All of this was eventually revealed and these miscreants had their hands slapped; since these criminals had a 'patriotic' motivation they got light sentences, followed by presidential pardons.
Overlooked still is the fact that a group of very high government officials attempted, and for a time succeeded, to establish a government within the government to serve those 'higher' purposes they had earlier served as part of their official duties, to actually carry out their own, private foreign policy. Given the ideological passion and the sheer size and longevity of the apparatus that has been organized to fight the War on Terror we can readily expect that threats of this nature will extend indefinitely into the future. Whether it will be a simple matter of burgling some office, or doing a bit of illegal arms trading, or instead attempting to assassinate a domestic critic or even a sitting President, is 'up to the vagaries of chance'. That things of such nature will be carried out in our own future by frustrated covert-ops agents is as probable as the historical pattern predicts, which is to say, nearly certain. Like the Cold War, the War on Terror will have long term, continuing boomerang effects; hopefully only small ones and with no dire cost to our political process or even constitutional arrangements. "Small ones" are to be hoped for but not, experience warns us, to be expected.
There is more here than the classic need to submit the military and security services to civilian control. That control is always tenuous; that's why there are military coups. That tenuousness increases by leaps and bounds when we mix in a-legality, secrecy, passionate ideology and private gain. As already argued, guns that have been employed at the legal margins are all too likely to take the next step and 'go rogue'.
Unfortunately, one must often employ military, even covert force in international relations. But how, how much, by whom, against what, and for how long are questions that demand the most rigorous prudence on the part of government leaders. Such prudence has nowhere been seen in the Congress nor in either the Bush-II or the Obama Administrations. In the larger picture, the sheer passion and size of the War on Terror, abetted by the short-sightedness of its sponsors, have created a behemoth within government which already governs much of our government. But that is only the earliest of the boomerang effects of the War on Terror.
A LINGERING QUESTION
Is there no way to bring the War on Terror fully under legal, constitutional, even political restraints? I've seen no proposal that realistically appears to accomplish that while those much acclaimed "balances' have a fairy-tale quality. I would like to address this difficult 'restraint' question in a forthcoming Appendix to this chapter of OBAMA PLUS AND MINUS.
-- Jim Devine / "In science one tries to tell people, in such a way as to be understood by everyone, something that no one ever knew before. But in poetry, it's the exact opposite." -- Paul Dirac