Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law by David Cole

Author:David Cole [Cole, David]
Language: eng
Format: azw3
ISBN: 9780465098514
Publisher: Basic Books
Published: 2016-03-28T16:00:00+00:00

NOTWITHSTANDING THE HISTORIC NATURE of these four decisions rejecting assertions of executive power in a time of war, the rulings did not formally require much of the Bush administration. Rasul and Boumediene concerned only the detainees’ right to a day in court; they did not address the legality of the detentions themselves, nor order anyone’s release. Hamdan rested on an interpretation of the Uniform Code of Military Justice, and the Court emphasized that Congress could allow the military commissions to proceed simply by amending that law, which Congress promptly did. Hamdi involved the rights of US citizens held as “enemy combatants,” and only two US citizens were so held in the entire war on terror. Thus, while the decisions were symbolically important, they did not formally demand much from the Bush administration.7

Nonetheless, by the time Bush left office in 2009, he had significantly curtailed or modified many of his counterterrorism policies. When a secret Justice Department memorandum authorizing the CIA to use waterboarding and other forms of torture and cruelty on Al Qaeda suspects was leaked and published by the Washington Post, triggering widespread denunciations, the Bush administration rescinded it, leading the CIA to temporarily suspend its interrogation program. When civil society groups, legal experts, and the New York Times’s William Safire condemned the absence of judicial review of military commission decisions, then–White House Counsel Alberto Gonzales tried to limit the damage by publishing an op-ed claiming that the president never actually meant to deny judicial review—despite having said exactly that in his original order. After the CIA’s secret prisons, or “black sites,” were disclosed in the media, Bush moved all the CIA’s detainees to Guantánamo Bay prison, where the International Committee for the Red Cross (ICRC) was for the first time granted access to them. When civil society groups, European governments, and others condemned the practice of abducting terror suspects and delivering or “rendering” them to third countries that use torture to interrogate, such “extraordinary renditions” ceased. After the New York Times revealed the National Security Agency’s (NSA) warrantless wiretapping program and the ACLU and CCR challenged the program’s legality in court, the administration agreed to subject the surveillance to judicial oversight. None of these reforms was compelled by a court or Congress.8

Bush also introduced many reforms at Guantánamo Bay, the vast majority of which were likewise not mandated by a court or Congress. The administration initially maintained that the men there deserved no hearings, and were “the worst of the worst.” It subjected them to abusive interrogation tactics only slightly less extreme than those employed by the CIA in its secret prisons. Yet by the time Bush left office, he had freed more than five hundred of Guantánamo’s 779 detainees, ended abusive interrogations, improved prison conditions, and offered “combatant status review” hearings to each detainee, albeit with inadequate procedures—all without judicial compulsion. By the end of Bush’s second term, the former legal black hole of Guantánamo operated under legal limits and judicial oversight.9

The Bush administration did not make these changes because it independently realized the error of its ways.

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