| This call for a General Strike is a non-violent, peaceful, and powerful means to send a message to D.C. It is not meant to hurt the country in any way but to remove those who have. | |
Nov. 02-05/08 
The ONLY way to stop those who would bleed our nation dry, dismantle our constitution, and dissolve our national sovereignty is to say
I will not work for you, buy from you, fight for you, or die for you, until the
criminals are gone from the halls of our government.
Get off the internet, I'll see you in the streets!
STRIKE TO IMPEACH FACTS & LINKS
WHITE (HOUSE) LIES: WHY THE PUBLIC MUST COMPEL
THE COURTS TO HOLD THE PRESIDENT ACCOUNTABLE FOR NATIONAL SECURITY ABUSES
ERIC K. YAMAMOTO*
I. INTRODUCTION
II. EXECUTIVE ABUSES OF CIVIL LIBERTIES: A "STRATEGIC BLUEPRINT" FOR "NATIONAL SECURITY" ACCOUNTABILITY
A. Korematsu Revisited: The "Loaded Weapon" in Post 9/11 United States
B. Checking the White House: The Judiciary's Complex Role
C. The Significance of Public Pressure and Critical Legal Advocacy
D. Learning from Korematsu: Four Tasks of Judicial Vigilance
III. THE NOBLE LIE
A. The "Ignoble Lie"
B. Media Maladies
C. Misleading Americans in Order to Maintain Support for Failing or Abusive National Security Actions
D. Dissembling to Maintain a Culture of Fear
E. Stifling Dissent
F. Summary
IV. THE WEN HO LEE PROSECUTION: INDEPENDENT JUDICIARY, OR AN OPEN DOOR FOR ABUSE
A. The Prosecution (Persecution) of Wen Ho Lee
B. Administration Attempts to Avoid Close Court Scrutiny
C. Critical Legal Advocacy and Grassroots Organizing
D. Media Image of Dr. Lee Shifts from "Foreign Spy" to "Victim of Government Racial Prosecution"
V. "ENEMY COMBATANTS" AND THE ADMINISTRATION'S ATTEMPTS TO EVADE JUDICIAL SCRUTINY
A. An "Alternative Legal System"
B. Critical Legal Advocacy and Public Pressure
C. The Politics of Judicial Scrutiny of Executive National Security Actions
VI. EXECUTIVE DISSEMBLING, THE COURTS, AND A PROPOSED "BLUEPRINT FOR STRATEGIC ACTION"
A. National Security Lies and the Case For Heightened Judicial Scrutiny
B. "Strategic Blueprint" Revisited
C. Wen Ho Lee: Post-Release Civil Suit to Unseal Records on Racial Prosecution
D. Hamdi and Padilla and the Role of the Media in Judicial Accountability
E. Concluding Thoughts
FOOTNOTES
History teaches us how easily the spectre of a threat to "national security" may be used to justify a wide variety of repressive government actions. A blind acceptance by the courts of the government's insistence on the need for secrecy, without notice to others, without argument, and without a statement of reasons would impermissibly compromise the independence of the judiciary and open the door to possible abuse.1
I. INTRODUCTION
"Mission Accomplished," said the huge aircraft carrier banner behind President Bush in May 2003 when he announced the United States' victory in Iraq. Six months later, amid intensifying criticism over the rising numbers of American deaths and organizational disarray in Iraq, President Bush publicly disclaimed that he had ever conveyed that message, saying that the ship's crew had hoisted the banner unbeknownst to the administration. The President's people, of course, helped make the banner and approved its placement in the news camera's eye to communicate worldwide the very message the President later disclaimed.2
The President told a White (House) lie.
[*pg 286]
And he did so to minimize mounting political embarrassment over an emerging truth of great consequence: his administration clearly lacked a realistic, coherent plan for the security and governance of "post-war" Iraq, and many Americans and Iraqis were dying as a result.3
A year later, in an unscripted moment, President Bush conveyed an alarming message about what an American is: white in skin color. He startled listeners with his comment that some Iraq reconstruction critics "don't believe that people whose skin color may not be the same as ours can be free and self-govern."4 Leaving aside the self-governance issue, what emerges is a significant racial revelation. Conservative commentator George Will observed that the President "seemed to be saying that white is, and brown is not, the color of Americans' skin."5 The President removed any doubt with his follow-up remark, equating "ours" with "white": "I believe that people whose skins . . . are a different color from white can self-govern."6
These are loaded statements by the commander-in-chief of the war on terror, a leader charged by critics with unfair racial profiling at home and human rights abuses abroad.7 So the President's press secretary Scott McClellan, doing damage control, later explained that the President meant only that, according to critics, "the people in those Middle Eastern countries cannot be free."8 McClellan's "clarification," however, ignored the President's actual words and changed what he clearly meant, obscuring the deep racial implications of his war on terror.9
The President's man told another White (House) lie.
Many have documented this administration's penchant for deliberate misrepresentations on national security -- in blunt terms, for lying to the [*pg 287] American people about threats at home and abroad.10 Some have written about other administrations, Democrat and Republican, that have misled the public about threats to the nation's safety.11 Fewer have written about who is to hold the executive accountable for this dissembling and how this is to be done.
And what almost no one has closely examined in both jurisprudential and Realpolitik terms is this: If the task of holding the executive accountable to constitutional standards ultimately falls on the courts, how does the American public hold the judiciary accountable -- how do we assure that the courts actually scrutinize, rather than blindly accept, the executive's proffered justification for ostensible national security restrictions of our most basic freedoms? This under-explored question is the focus of this essay, and it opens discussion about the strategic need for critical legal advocacy and the significance of constructive public pressure on the courts.
To stimulate that discussion this essay draws a broad "strategic blueprint" for building the political coalitions and cultural momentum needed to impel close judicial scrutiny of executive national security claims. The price for failing to build those coalitions and that momentum is, I suggest, a weak judiciary, unfettered presidential power, and civil liberties disasters in waiting. The proposed blueprint delineates the "who" (a wide array of public advocates tasked with pressuring judges, and the legal process itself, to assure executive accountability); the "how" (critical legal advocacy coupled with organized media and grass roots politicking); and the "what" (judicial acknowledgment that law as interpreted and applied is not neutral or objective in controversial cases, and that, in a genuine democracy, it is the court's role to carefully scrutinize executive national security actions that curtail fundamental liberties).
II. EXECUTIVE ABUSES OF CIVIL LIBERTIES: A "STRATEGIC BLUEPRINT" FOR "NATIONAL SECURITY" ACCOUNTABILITY
A. Korematsu Revisited: The "Loaded Weapon" in Post 9/11 United States
During World War II Fred Korematsu challenged the constitutionality of the Japanese American internment and lost. The Supreme Court then blindly [*pg 288] accepted the Justice and War Departments' false assertion of "military necessity." As was later learned, the executive and military knew then that there had been no national security necessity for the mass racial incarceration and had lied about it to the public and the courts.12 Justice Jackson, in his ringing dissent in Korematsu's case, warned that by deferring to the executive, "the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting U.S. citizens. The principle lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of urgent need."13
The Executive Branch has worked hard to protect U.S. people and institutions. It also has a long, dark history of dissembling to the American people about national security in order to justify what might otherwise be unjustifiable. Some of this dissembling, more than white lies, has had harsh and far-reaching consequences -- witness the incarceration of 120,000 innocent Japanese Americans during World War II, the government's destruction of citizens' reputations and lives during the McCarthy communist witch-hunt era,14 the tens of thousands of American (and Vietnamese) deaths after the government's fabrication of low fatality counts to maintain public support for the Vietnam war,15 and the politically popular smearing and incarcerating of U.S. citizen Wen Ho Lee on trumped-up nuclear espionage claims.16
And now President Bush and his administration have brought forward many "plausible," yet largely false, "claims of urgent need" to justify aggressive actions. The two instances of White House dissembling about national security described in the Introduction are the tip of proverbial iceberg -- much of the danger lies unseen just beneath the surface. Consider, for example, the apparently falsely stated grounds for the post-9/11 indefinite detention of U.S. citizen "enemy combatants" Jose Padilla and Yasser Hamdi without charges or hearing or access to counsel; the false branding as "terrorists" of all detainees in Guantanamo as grounds for indefinite incarceration without charges, access to counsel or judicial review; and the government news leaks of falsified claims of espionage against Muslim U.S. Military Chaplain James Yee, who ministered to the Guantanamo Bay detainees.17
[*pg 289]
Consider also the President's unequivocal statements about Iraq's readily available weapons of mass destruction as the justification for the U.S. "pre-emptive" war against Iraq, and the executive foot-dragging in identifying the high White House or Cabinet officials who leaked CIA operative Valarie Plame's identity as payback for former Ambassador Joseph Wilson's criticism of the President's false statement about Iraq's nuclear threat.18
The Executive Branch needs broad power to defend the country -- an extraordinarily difficult and demanding task. At the same time, in a constitutional democracy, with a bill of rights, the president's national security power cannot encompass the scapegoating and vilification of unpopular groups or lying to the public and Congress to legitimate aggression against innocent people at home or abroad. National security abuses of this kind destroy human lives and threaten the very fabric of U.S. democracy. And yet history has shown that, unless checked, a president facing a fearful public will find it initially politically advantageous to denigrate the civil liberties of those characterized as "outsiders" in the U.S.19
B. Checking the White House: The Judiciary's Complex Role
The initial question then is who will check the President and his or her people? During a time of national fear, who will hold the Executive accountable for its national security abuses or, perhaps more important, prevent them from occurring? More particularly, who will hold the President accountable for lies aimed at legitimating or covering up abuses of power?
There are two quick answers, found in most civics books. The first is the electorate -- it can vote out the President at the next election. But that often is years later, and only if it is the President's first term and if executive dissembling is publicly revealed and constantly criticized. The second quick answer is the Judiciary. It is the role of the courts to hold the Executive to constitutional dictates.20
[*pg 290]
But what is the reality? The simplistic answer, that the judiciary checks the executive, is rooted in a widely-held fallacy -- that as a separate co-equal branch of government it is politically independent and that its judgments are necessarily neutral and objective. Bush v. Gore21 and Korematsu v. U.S.22 are just two of many cases that starkly reveal that fallacy by exposing the political underpinnings of judicial decisionmaking in controversial cases. It is not that nine black-robed men and women simply vote their personal and political preferences. The legal method imposes decisional constraints. To maintain public legitimacy judges have to speak in the language of statutes, rules, and case precedents. As many commentators have observed about Bush v. Gore, however, the moorings of the legal method are a weak tether in hot political cases.23 The intricacies of stare decisis and the complexities of the three-tier standard of equal protection review, for instance, are manipulable by sophisticated, politically attuned judges.24
Indeed, across the arc of U.S. legal history, as Justice Jackson's loaded weapon warning highlights, the judiciary has exhibited the inclination to twist the Bill of Rights and to turn a blind eye to popular executive civil liberties abuses during times of national fear, deferring to the executive's unproven claims that "national security" justifies its actions.25 But not always. Sometimes courts have fulfilled their role of "watchful care" over fundamental liberties.26 And at other times, in the very same case opinion, the Supreme Court has pronounced the need for heightened judicial scrutiny and then pulled back in its actual analysis -- as it did in the 2003 "enemy combatant" case, Hamdi v. Rumsfeld. 27 Why the judicial dissonance?
The judiciary's historic ambivalence toward executive national security dissembling is explained in part by the philosophical precept of the "noble lie,"28 which, for the Bush administration, seemingly justifies elite policymaker lies to the public "for its own good." It is also explained by the dynamics of public advocacy and judicial decisionmaking.
C. The Significance of Public Pressure and Critical Legal Advocacy
So the Realpolitik question is, what impels the courts in controversial cases to carry out their constitutional duties -- to hold the executive accountable for [*pg 291] oftentimes politically popular excesses? More particularly, what impels courts ruling on national security and civil liberties challenges sometimes to choose "heightened scrutiny" of the executive's national security claim, thereby requiring the government to seriously account for its actions, rather than (as is more often the case) "minimal scrutiny," thereby largely deferring to the government's explanation without real proof?
The crucial judicial choice between heightened or minimal scrutiny -- an ostensibly neutral aspect of the legal process -- is influenced in two related ways. First, the choice is partly influenced by established legal methods -- case precedents and the language of legislative acts.29 Second -- and the focus here -- in endeavoring to choose the appropriate level of judicial scrutiny, courts will often find that the traditional legal method offers considerable "play in the joints" -- that it does not clearly dictate the "correct" level of scrutiny in controversial cases.30 Rather, critical legal advocacy and public pressure about the necessity for executive accountability in courts of law, in light of the particular controversy, often provide the tipping point.
As illuminated by the Hamdi and Padilla "enemy combatant" cases and the prosecution of Dr. Wen Ho Lee,31 public advocacy emerges in two realms. The first realm is critical legal argument by lawyers and civil and human rights organizations aimed at shaping judges' threshold selections of the level of judicial scrutiny, and ultimately the judges' responses to the specific legal challenges to executive actions. As a complement to usually narrow traditional legal arguments, this kind of critical legal advocacy aims to reveal what is really at stake, who benefits and who is harmed (in the short and long term), who wields the behind-the-scenes power, which social values are supported and which are subverted, how political concerns frame the legal questions, and how [*pg 292] societal institutions and differing segments of the populace will be affected by the court's decision.32
The second realm of advocacy is a species of public education: journalist essays, pundit commentaries, public letters to the editor, clergy sermons, scholars' op-ed pieces, community workshops and school forums, all critically analyzing and advocating the need for the courts to carefully scrutinize the Executive's national security actions. The goal is to create in the public culture a compelling sense that it must be the courts that exercise "watchful care" over our constitutional liberties33 -- that the Executive is charged with protecting our people and institutions from threats from without, and in turn that our courts are charged with protecting our liberties from threats from our own institutions.
The timing of both kinds of public advocacy is crucial. Advocacy of accountability is imperative at the "front end" and at the "back end" of apparent national security abuses:
The real bulwark against governmental excess and lax judicial scrutiny, then, is political education and mobilization, both at the front end when the laws are passed and enforced and at the back end when they are challenged in the courts . . .
In today's climate of fear and anger, our first task in protecting both people and key democratic values is to be pro-active at the front end -- to prevent post-modern forms of the internment. We need to organize and speak out to assure that the expansive new national security regime does not overwhelm the civil liberties of vulnerable groups and move the country toward a police state. We need to mobilize and raise challenges to prevent . . . secret incarcerations, particularly en masse. Through political analysis, education and activism, our job is to compel powerful institutions, particularly the courts, to be vigilant, to "protect all."
Our second task is to be assertive at the back end -- to call out injustice when it occurs, to spell out the damage it does to real people in our midst and to our constitutional democracy, and to demand accountability to principles of equality and due process.34
D. Learning from Korematsu: Four Tasks of Judicial Vigilance
In 1983, aided by a major "back-end" grass-roots political education effort and a Congressional study commission, Fred Korematsu reopened his 1944 case on the basis of newly discovered World War II documents unequivocally showing that the government had lied to the public and the courts about the military necessity for the internment.35 A huge struggle among lawyers in the [*pg 293] Justice Department had erupted over whether to tell the Supreme Court the truth that there had been no military necessity, or instead to be party to the deliberate "suppression of evidence."36 High officials in the Attorney General's office chose suppression.
In ruling on Korematsu's coram nobis petition in 1984, federal judge Marilyn Hall Patel declared the original Korematsu v. U.S. case a "manifest injustice." In her ruling, Judge Patel echoed Justice Jackson's "loaded weapon" warning forty years earlier about government accountability. The Korematsu injustice
stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees. It stands as a caution that in times of distress the shield of . . . national security must not be used to protect governmental actions from close scrutiny and accountability. It stands as a caution that in times of international hostility and antagonisms, our institutions, legislative, executive and judicial, must . . . protect all citizens from the petty fears and prejudices that are so easily aroused.37
With these cautions in mind for post-September 11 America, the essence of Justice Jackson's warning resonates today: How will the courts prevent bald Executive claims of "national security" from lying about like a loaded weapon aimed at our cherished liberties?
The complex jurisprudential and Realpolitik approach advanced in this essay -- organized political pressure coupled with critical legal advocacy -- does not aim to pressure courts to reach a particular legal result. Rather, it aims to pressure courts to undertake four "process" tasks. The first is to employ tools of critical legal inquiry to unearth and then explain what is really going on in the controversy and to articulate what is at stake politically and socially. The second task is for courts to acknowledge that sometimes a presidential administration distorts information and even lies to unduly expand its power and shield national security abuses from public view. The third task is for courts to recognize that traditional legal analysis, often largely devoid of context and visible value judgments, does not itself dictate a politics-free, neutral result. Social value judgments, philosophical commitments, political concerns, as well as perceptions of the government's role during hard times, all play important parts. In this light, the final task is for courts to carefully and openly scrutinize executive actions with dual goals in mind: to afford the Executive broad leeway in its efforts to protect the nation's people, and simultaneously to call the Executive to account publicly for apparent [*pg 294] transgressions of civil liberties and human rights under the possibly false mantle of national security.
Only then can the democratic United States genuinely say, "Mission Accomplished."
III. THE NOBLE LIE
"White House lies" drive the Bush administration. Recent books are unsparing in advancing this general proposition. Those books include The Book on Bush: How George W. (Mis)Leads America;38 The Lies of George W. Bush: Mastering the Politics of Deception;39 and Fraud: The Strategy Behind the Bush Lies and Why the Media Didn't Tell You.40 Other major works specifically critique the Bush administration's dissembling on the war against Iraq and the war on terror, including The Five Biggest Lies Bush Told Us About Iraq; 41 Hood Winked: The Documents That Reveal How Bush Sold Us a War; 42 and The Exception to the Rulers: Exposing Oily Politicians, War Profiteers and the Media That Love Them.43
Special congressional investigative reports also chronicle the administration's misrepresentations about national security and its penchant for secrecy and denying public access to information. Specifically, the 2004 report of the House Committee on Government Reform (Special Investigations Division, Minority Staff) found that "the five Administration officials most responsible for providing public information and shaping public opinion on Iraq"44 made "237 misleading statements about the threat posed by Iraq."45 Another 2004 congressional investigative committee report documented "a consistent pattern in the Administration's undermining of laws . . . designed to promote public access to information" and expanding laws "that authorized the government to withhold information or to operate in secret."46
[*pg 295]
According to these and many journalists' accounts,47 White House dissembling ranges from white lies, to the apparent fabrication of "facts" so as to label people "terrorists" and thus justify either criminal prosecutions or indefinite incarcerations,48 to the denials of racial profiling in terror investigations49 and post-9/11 immigration policy,50 to misrepresenting terror information to a fearful public to maintain support for flagging national security policies,51 and to disinformation about weapons of mass destruction in order to legitimate what can no longer be called a "pre-emptive" attack on Iraq.52 White House communications on national security matters often convey useful and accurate information. Yet, at the same time, Bush administration misrepresentations on security matters appear to be so numerous and wide-ranging that their quantity and breadth signal a decided political strategy.
A. The "Ignoble Lie"
A key element of the Bush administration's apparent strategy of dissembling is philosophical -- a belief system that not only legitimates but encourages lying to the public "for its own good."53 At the heart of this [*pg 296] philosophy, reportedly embraced by key neoconservatives in the Bush administration, is the "noble lie."54 Journalist Earl Shorris links the thinking of philosopher Leo Strauss to the Bush administration and its "philosophy of mass deception."55 He observes that Strauss and his disciples provided the Bush regime with "a philosophy of the noble lie, the conviction that lies, far from being simply a regrettable necessity of political life, are instead virtuous and noble instruments of wise policy."56
The virtuousness of the lie "depends on who is doing the lying."57 The underlying tenet is that the elite in society are the "wise," that "the wise should rule," and that Machiavellian deception is an instrument of wise policy. The "noble lie" philosophy thus produces two sets of truth-telling rules -- one for those at the top rung of political power and another for the rest of the public. By definition, then, lies by "wise" elite rulers for the benefit of the public (as well as the rulers) are not open to criticism. The rulers know best. Indeed, criticism of public lies damages their ability to rule wisely. Those at the top suffer damage to their legitimacy when lies are exposed because much of the American public, Republicans and Democrats, bolstered by the core of the First Amendment, still wants to believe that its government speaks truthfully.
Hence, the conundrum of the noble lie: How can America's leaders at the highest levels dissemble to garner and maintain support for their larger political agenda without being held publicly accountable for doing so? In light of this conundrum, noble lies -- the "virtuous instruments of wise policy" -- gain legitimacy only through an ineffectual mainstream media that soft-pedals contemporaneous investigation and reporting.
B. Media Maladies
Therefore, a second key element of the White House's dissembling strategy is media complicity -- or at least the "media's lack of democratic accountability."58 Conservative daily news sources, like the news stations controlled by Rupert Murdoch's News Corporation (notably Fox News), and periodicals and journals on current legal affairs, like the Weekly Standard, National Review and the Harvard Journal of Law and Public Policy have been slow to seriously investigate and critique executive national security pronouncements that now appear to have been misleading if not deliberately [*pg 297] false.59 At times journalists from some of these organizations sound more like government public relations spinners than independent commentators. At a minimum, as conservative New York Times columnist David Brooks acknowledges, the conservative media have "cohered to form a dazzlingly efficient ideology delivery system that swamps liberal efforts to get their ideas out."60
The mainstream media, too, has largely failed in timely investigating and reporting on apparent government national security lies. Unlike the Vietnam War era, when reporting by established journalists "on the ground" eventually countered much of the government's war propaganda, today we have government-chosen "embedded" journalists and national news anchors proclaiming full deference to the President.61 Many formerly independent media outlets are now controlled by mega-media corporations,62 and other established news reporting powers appear initially reluctant to levy even modest criticism of the President's national security actions.63 Indeed, more than a year after the war against Iraq began, the New York Times published a mea culpa -- effectively apologizing for its loose and uncritical reporting of the Bush administration's apparently false factual claims in support of the war.64
[*pg 298]
According to media observer Eric Alterman, this skewing of the informational picture transmitted to the public undermines American democracy.65 For Alterman, even worse than simply failing to take its responsibility to democracy seriously, the mainstream media has facilitated the distortion of public information.
This media's ["three major television networks"] lack of democratic accountability adds an element of hearsay and abstraction to the political process that is funneled down through the fabric of our society, distorting the message and creating a confused political climate in which voters are left with the spin, but without the facts.66
The Bush administration's "ignoble lying" about national security, buttressed by a sometimes complicit media, takes many forms, including specific government misrepresentations and distortions in the cases of Padilla, Hamdi, and Wen Ho Lee, and the corresponding need for careful judicial scrutiny (examined below in Sections IV and V). Other aspects of the administration's national security dissembling warrant general mention here. Those aspects fall roughly into three categories, "Misleading Americans to Maintain Support for Failing or Abusive National Security Actions," "Dissembling to Create a Culture of Fear," and "Stifling Dissent." All three raise the looming issue of executive accountability during times of national fear.
C. Misleading Americans in Order to Maintain Support for Failing or Abusive National Security Actions
Neoconservative author Michael Ledeen describes the "noble lie" philosophy. His book Machiavelli on Modern Leadership,67 distributed "to Members of Congress attending a political strategy meeting,"68 cites the necessity and virtue of public lies. Ledeen's work observes that "[l]ying is central to the survival of nations and to the success of great enterprises, because if our enemies can count on the reliability of everything you say, your vulnerability is enormously increased."69 In addition to misleading the American public about "weapons of mass destruction" to gain support for the [*pg 299] war against Iraq, the "noble lie" supports dissembling to soldiers to induce them to go to war because
[d]ying for one's country doesn't come naturally. Modern armies, raised from the populace, must be inspired, motivated, indoctrinated. Religion is central to the military enterprise, for men are more likely to risk their lives if they believe they will be rewarded forever after for serving their country.70
The pressure to distort factual information in order to support the administration's national security policies also reaches deep into executive intelligence-gathering and analysis. Robert Dreyfuss and Jason Vest's article The Lie Factory reports on a "shadow agency" that subverts much of the CIA's intelligence to President Bush. According to State Department intelligence analysts, pressure by administration intermediaries "was being put on them to shape intelligence to fit policy."71 According to Dreyfuss and Vest, neoconservative scholar Edward Luttwak goes further and
says flatly that the Bush administration [before the 2003 attack on Iraq] lied about the intelligence it had because it was afraid to go to the American people and say that the war was simply about getting rid of Saddam Hussein. Instead, says Luttwak, the White House was groping for a rationale to satisfy the United Nations' criteria for war.72
In 2004, seven weeks before the presidential election, former military leaders and military experts charged the Bush administration with deliberately misleading the American public after the Iraq invasion by stating that the United States was winning the post-war. More specifically, those former generals and military observers sharply criticized the administration's downplaying of the accelerating Iraqi insurgency that was destabilizing Iraq's political and economic structure and threatening to scuttle January elections, ignoring the real possibility of an Iraqi civil war, dismissing the reality that America's continuing presence in Iraq is intensifying danger to the United States by breeding many new anti-American insurgents, and denying the real likely future costs to Americans in dollars and lives. At bottom, the critics observed that the administration was deliberately painting a misleading picture of post-war Iraq, a picture unrelated to what had been actually happening "on the ground."73
[*pg 300]
D. Dissembling to Maintain a Culture of Fear
More than any other administration in recent memory, the Bush administration has strategically employed the noble lie to sustain a politics of fear. The administration has done this to keep raw the public's fear of another 9/11 to garner support for its national security actions. Jack M. Balkin observes that the Bush administration "justifies its actions not by giving us freedom from fear but by spreading fear."74Balkin asserts that the administration, to avoid accountability, "raises the specter of grave dangers to our national security, from which it will save us if only we submit ourselves willingly to its greater wisdom."75
As much as to forewarn and prepare the public, key administration statements appear to be calculated to maintain a fearful public.76 One form of these efforts is the press conference that warns of imminent domestic attacks but cites no specific threats or new intelligence on terror. Two vague yet nevertheless anxiety-inducing government press conferences in mid-2004 are illustrative:
On May 26, 2004, U.S. Attorney General Ashcroft and FBI Director Muller held a press conference to inform the public that intelligence from multiple sources indicated that Al Qaeda intended to attack the United States in the coming months.77 At the press conference they "revealed" the identities of seven of the terrorists involved. It turns out that six of the men had been identified one month earlier without fanfare by the Justice Department. The press conference also lacked attack specifics -- "how," "where" or "when." The press conference's tone nevertheless implied that attacks were imminent. Belying immediacy, though, the Homeland Security Department's medium color-threat-level remained unchanged.
At first glance, the timing, substance and tone of the warning seemed peculiar. Its underlying and apparently diversionary purpose emerged in the light of the political setting. The vague terror attack warning to Americans came amid intensifying international criticism of American human rights abuses in Abu Ghraib prison.78
[*pg 301]
Similarly, in July 2004, Homeland Security Secretary Ridge announced that Al Qaeda was planning to attack targets in the United States, including Citicorp Plaza. The intelligence Secretary Ridge relied on, however, dated back to 2000, prior to the 9/11 attacks. When challenged about the staleness of the intelligence and the timing of Ridge's new fear-inducing warning -- days before the Democratic National Convention -- members of the Bush administration dismissed the questions as nonsense 79
For Professor Harold Hongju Koh, the administration's fear-based approach to national security has not only unnecessarily damaged the American psyche, it has also "placed startling pressure on the structure of human-rights and international law."80 Koh recalls President Roosevelt's post-World War II framework for human rights that embraced four fundamental freedoms: freedom of speech, freedom of religion, freedom from want, and freedom from fear. Koh suggests that the "emerging Bush doctrine" has reprioritized "freedom from fear" to make it the freedom most in need of preservation. The result of this change is not only a more fearful public but also government human rights policy with five oppressive faces: the closing of government and the invasion of privacy, the scapegoating of immigrants and refugees, the creation of extra-legal zones (where government can operate without legal accountability), the creation of extra-legal persons (who have no judicial recourse), and the reduced American human rights presence abroad.81
E. Stifling Dissent
In addition to profiting from a culture of fear, another Machiavellian aspect of the noble lie is the ruler's need -- and right -- to squelch open criticism as a way of avoiding public accountability.82 A poignant illustration is the White House's punitive "outing" of undercover CIA agent Valarie Plame in retaliation for her spouse's sharp criticism of the President. Plame's husband, former U.S. Ambassador to Iraq Joseph Wilson, had criticized the President for wrongly stating in his State of the Union address that Saddam Hussein was in the process of obtaining nuclear-weapons grade uranium from Niger.83
In apparent retaliation, two "high officials" from the Bush administration leaked to conservative columnist Robert Novak that Plame was an undercover CIA agent and that she had recommended Wilson for the Niger investigation.84 Rather than refute Wilson's statement, those administration officials tried to [*pg 302] discredit Wilson with a charge of cronyism. More important, they destroyed Plame's capacity to function as an undercover CIA agent. And through what was apparently an illegal "outing," they placed her and her operatives in potentially life-threatening danger. President Bush, Attorney General Ashcroft and others in the administration then stalled the ensuing criminal investigation.85 In this way, when called to account for an "ignoble lie," the administration powerfully conveyed its counter-message to government insiders: Do not accuse the President of misleading the public on national security, or else.86
F. Summary
Much of the national security information conveyed by the President's administration to the public is accurate. Much of it, however, is not. Indeed, some of that information, on important matters, is deliberately misleading. And that dissembling does not flow from inadvertence or honest mistake. Rather, it appears to emerge from a deliberate strategy. The "noble lie," when backed by a complicit mainstream media, has real consequences. It allows an administration "in good conscience" to mislead Americans to maintain support for failing or abusive national security actions, to dissemble to sustain a culture of fear to garner support for controversial government plans, and to stifle dissent challenging the Executive's national security claims.
The next two sections examine in depth three national security-civil liberties cases (before and after September 11) that illuminate the dynamic of Executive dissembling at both the law enforcement and policy-making levels. The stark circumstances of those cases and the government's machinations to avoid accountability highlight the need for critical legal advocacy and organized public pressure in calling for heightened judicial scrutiny. They also reveal why executive accountability for "ignoble lies" during times of national stress is simultaneously imperative and illusive.
[*pg 303]
IV. THE WEN HO LEE PROSECUTION: INDEPENDENT JUDICIARY, OR AN OPEN DOOR FOR ABUSE
The Wen Ho Lee prosecution offers both exemplary and cautionary examples of judicial scrutiny in national security controversies -- especially those infused with racial fears. Dr. Lee's case falls within a long line of prosecutions in which the Executive Branch dissembles and then demands that the courts defer to Executive's claim of national security.87 Dr. Lee's prosecution also illuminates the strategic importance of critical legal advocacy and organized public pressure in compelling judges to call the executive to account for apparent national security abuses of civil liberties. Anthony Lewis aptly describes the stakes in this executive-courts-public drama: "The [administration's] attempt to avoid any meaningful review by the courts is especially alarming. Judges are the last line of defense for citizens against abuse of government power."88
A. The Prosecution (Persecution) of Wen Ho Lee
In December 1999 the Federal Bureau of Investigation arrested Dr. Wen Ho Lee after nearly a year of intrusive interrogations, private harassment and a disparaging public media campaign fueled by FBI and Justice Department leaks. The Department charged Dr. Lee with fifty-nine felony counts, including violations of the Atomic Energy Act and the Federal Espionage Act.89 It accused Dr. Lee, an employee of the government's Los Alamos Lab, of stealing the "crown jewels" of America's nuclear secrets -- the design of America's W-88 miniaturized nuclear warhead -- and delivering those secrets to China's scientists. The sixty-five-year-old Lee suffered nine months of solitary confinement, without needed medications, often with wrists and ankles shackled.
Earlier, in 1999, the Albuquerque FBI had sought to close its five-year investigation of Dr. Lee, informing Washington D.C. headquarters that Dr. Lee [*pg 304] was no longer an espionage suspect.90 How could the Justice Department justify its prosecution in 2000?
The Clinton administration did so by telling a series of lies to Dr. Lee, the courts, and the public. For instance, the FBI lied about Dr. Lee's failing polygraph tests, the Justice Department dissembled about the classified status of materials downloaded by Dr. Lee on his computer, and CIA former counterintelligence chief Paul Redmond claimed, without evidence, that "[t]his was far more damaging to the national security than Aldrich Ames."91 The government leaked to a hungry media false stories of Lee's theft of the U.S. nuclear weapons program "crown jewels." "Alarmist" media stories then played to popular racial fears to portray Dr. Lee as an "evil Chinese spy."92 The leaked public lies enabled a Democratic administration, which was the target of conservative attacks for its "softness" in foreign affairs, to project itself as "tough on Communist China" and national security.93
From jail, Dr. Lee sought not only to defend against the substantive charges, but he also asked the court to compel the government to disclose evidence relating to selective racial prosecution. After careful consideration, Federal District Judge Parker ordered the Justice Department to produce documents relating to Lee's charge.
Two days before the deadline for government compliance with the judge's disclosure order, the Justice Department capitulated. Dr. Lee pled guilty to a single felony count of unauthorized possession of documents relating to national defense. The government agreed to drop the remaining fifty-eight charges. Dr. Lee pled guilty to actions no worse than those committed by hundreds of other white American government employees (who were never prosecuted), including then CIA Director John Deutch, who admitted to [*pg 305] downloading unsecure files onto his home computer.94 Dr. Lee spent nine months in solitary confinement tagged as an evil spy. By contrast, Deutch faced only a misdemeanor charge, was never prosecuted and, in the end, received a full pardon.
Even a cursory look at the case timeline shows that the threatened exposure of racial profiling pressured the government to plea-bargain the case. Early on the racial profiling charges by advocates and journalists stirred little response.95 The eve-of-disclosure timing of Dr. Lee's unconditional release -- after two years of government portrayals as the worst spy since the Rosenbergs -- indicated that the Justice Department and the FBI, particularly, had something to hide.96
Former Chief Counterintelligence Officer of Los Alamos National Labs (LANL) Robert Vrooman, who initially headed the Lee investigation, declared in a court filing that FBI spokesperson Messemer "regularly distorts" and "deliberately mischaracterize[s]" information. More important, Vrooman stated that "[d]ozens of individuals who share those characteristics were not chosen for investigation. . . . It is my opinion that the failure to look at the rest of the population is because Lee is ethnic Chinese."97 He directly challenged any government argument for racial profiling by saying, "I am unaware of any empirical data that would support any inference that an American citizen born in Taiwan would be more likely [to spy for China] than any other American citizen." Former Acting Director of Counterintelligence at the U.S. Department of Energy Charles E. Washington similarly stated, "I believe that [investigator] Mr. Trulock improperly targeted Dr. Lee due to Dr. Lee's race [*pg 306] and national origin."98 Like Vrooman, Washington offered, "I am unaware of any empirical data that would support a claim that Chinese-Americans are more likely to commit espionage than other Americans."
Indeed, Harry Brandon, former FBI head of counterintelligence, conceded that "critics say our government is racist because the government is targeting Chinese-Americans because they are Chinese. . . . And the answer is, [y]es, we are targeting them, because they are targets (of Beijing)"99 -- which made little sense in Dr. Lee's case since Taiwan (his country and origin) and China are bitter foes. Paul Moore, Deputy Director of the FBI acknowledged more generally that, "there is racial profiling based on ethnic background, asserting that "[t]he FBI applies a profile[;] . . . so do other agencies who do counter intelligence investigations."100 Collectively, these tantalizing public statements suggested incriminating documentary evidence of racial prosecution in the government's files.
In September 2000 Judge Parker, a Reagan appointee, accepted Dr. Lee's plea and released him from jail. In an extraordinary gesture, Judge Parker apologized to Dr. Lee from the bench, expressing distress at being misled by the Justice Department, including the FBI and U.S. Attorney.
I am truly sorry that I was led by our Executive Branch of government to order your detention last December. Dr. Lee, I tell you with great sadness that I feelI was led astray last December by the Executive Branch
of our governmentthrough its Department of Justice, by its Federal Bureau of Investigation and by its United States Attorney
for the District of New Mexico . . . .101
Based on government leaks and early frenetic media reporting, and without a court hearing, the public had presumed Dr. Lee's guilt. Dr. Lee's legal counter-charge of selective racial prosecution and, over time, strong public commentary by civil rights, scientific and ethnic communities across the country helped remake public perceptions. The New York Times, for example, shifted its rhetoric from 'the worst spy case since the Rosenbergs" to an admission of its own flaws and an apology for the "alarmist" tone of its reporting.102
[*pg 307]
Dr. Lee's victory was tempered, however, by the reality that the case settled without government accountability. The Justice Department denied wrongdoing in Lee's prosecution while continuing to shield evidence that might have revealed the government's race-based selective prosecution. No one from the Department acknowledged the national security lies or the harm they caused Dr. Lee and Chinese Americans generally.
B. Administration Attempts to Avoid Close Court Scrutiny
Dr. Lee's prosecution embodied a classic tension between the Judiciary and the Executive. The government first tried to avoid close judicial scrutiny of its espionage claims and of Dr. Lee's counter-charge of selective prosecution by maintaining that "the world's strategic balance" was at stake.103 In terms reminiscent of the government's attempt to justify Japanese American internment during World War II, FBI agent Messemer testified at a pre-trial hearing that it was important to continue Lee's incarceration, even without evidence of disloyalty, because, if he were actually innocent, he might now try to exact revenge on the United States for his persecution.104 For nine months, the court accepted the government's national security assertions.
The government also sought to avoid accountability by vigorously opposing Dr. Lee's motion for disclosure of prosecution documents. Its position amounted to more than ordinary legal argument. It reflected a Justice Department effort to keep probative documents from public view -- to use the court's "sealing" process apparently to hide government wrongdoing.105 Indeed, Judge Parker's extraordinary apology to Dr. Lee from the bench hinted at this. He intimated that the Justice Department had lied to Dr. Lee and the court, that the government might have engaged in racial profiling, and that because of the quick plea bargain the public might never know the "real reasons why the Executive Branch has done all of this."
I find it most perplexing, although appropriate, that the Executive Branch today has suddenly agreed to your release without any significant conditions or restrictions whatsoever on your activities.I note that this has occurred shortly before the Executive Branch was to have produced, for my review in camera, a large volume of information that I previously ordered it to produce.
What I believe remains unanswered is the question: What was the government's motive in insisting on your being jailed pretrial under extraordinarily onerous [*pg 308] conditions of confinement until today, when the Executive Branch agrees that you may be set free essentially unrestricted?106
Why did the Justice Department pursue this dissonant course? Prosecutors admitted to racial profiling while claiming neutrality and fairness in its actions. Simultaneously, government investigators vigorously denied racial profiling.107 The emerging answer is that the administration sought to benefit politically from its new "tough on China" image and that the "noble lie" legitimated national security dissembling to the court and public -- until Dr. Lee's advocates persuaded the court to take a close look at what was actually going on.
C. Critical Legal Advocacy and Grassroots Organizing
Judge Parker's decision responded in part to organized advocacy. Just as the government effectively used the media to leak fabricated stories and create a public perception of Dr. Lee as foreign spy, Lee's defenders applied counter-pressure.
The legal community, through amicus briefs and op-ed pieces, made explicit what had only been implied -- that Dr. Lee was targeted because of race, not because of his actions. A consortium of Asian American advocacy organizations108 filed an amicus curiae brief urging the "Court to rise above the racial stereotyping of Asian-Pacific Americans and to continue our judicial system's protection of the rights of minorities."109 In the brief, the Asian American legal advocates analyzed the government's failure even to follow its own (albeit flawed) matrix in targeting Dr. Lee in the "Kindred Spirit" investigation.110 The brief further showed that "there is no question that similarly situated individuals could have been prosecuted, but were not."111
[*pg 309]
Grassroots organizing efforts also reiterated the message that Dr. Lee was a victim of racism and government abuse. Guided in large part by Dr. Lee's daughter Alberta,112 Asian American communities, college campuses, and social justice groups rallied around his case.113
Prominent science organizations added pressure with statements protesting Dr. Lee's treatment. Scientists openly criticized the basis of the government's charges by showing that most of the material Dr. Lee was accused of mishandling was non-classified and readily available in public reports. They also questioned the prosecution of Dr. Lee for actions that were typical of many Los Alamos Lab scientists. The presidents of the National Academy of Sciences, the National Academy of Engineering, and the National Institute of Medicine wrote an open letter to Attorney General Janet Reno, stating that Dr. Lee appeared to be "a victim of unjust treatment" that "reflects poorly on the U.S. justice system."114 This action marked "the first time that the three congressionally chartered academies ever intervened on behalf of an American scientist."115
D. Media Image of Dr. Lee Shifts from "Foreign Spy" to "Victim of Government Racial Prosecution"
These events and counter-messages garnered national press. Belatedly, the mainstream media responded with new images and opinions. Writers who had contributed significantly to the public vilification of Dr. Lee now became critical of his treatment and even advocated for his release.116 On August 22 and 23, 2000 -- during the crucial days when Judge Parker was considering the defense's key motions for bail, discovery, and evidence -- editorials and [*pg 310] headlines in major newspapers declared: "Wen Ho Lee Deserves Bail and Fair Treatment"(San Francisco Chronicle); "Is Lee Guilty Until Proven Innocent?" (Chicago Tribune); "Free Wen Ho Lee" (St. Louis Post-Dispatch); "Wrong One Is on Trial in Lee Case" (Los Angeles Times); and "Bail for Wen Ho Lee" (New York Times).117
Organizers also employed an effective strategy of public education through print ads in major newspapers. For example, on August 7, 2000, Chinese for Affirmative Action organized a full-page ad in the New York Times demanding "Drop all charges. Free Dr. Wen Ho Lee now." The ad was titled, "Wen Ho Lee & The Nuclear Witch Hunt" and focused on being "charged with being ethnic Chinese." The ad presented Dr. Lee in a different light than New York Times readers had become accustomed to seeing. Instead of the stereotypical foreign spy, Dr. Lee was presented as an "American scientist" separated from his wife and two children for eight months, countering the usual media image of Dr. Lee in shackles.
Op-ed pieces also countered the executive lies and stereotypes. Attorneys Theodore Wang and Victor Hwang published an opinion piece titled, "Charged With Being Ethnic Chinese."118 In it they exposed the racial profiling and challenged the premise on which the government based its racist actions. They correctly framed the issue as "not only for Lee but for all Americans concerned about whether the government should be able to launch criminal investigations based on the race of a suspect." They also argued that "[b]y focusing only on Asian Americans, a real spy may have escaped the scrutiny of the federal government altogether."119 This and other op-ed pieces strategically framed the issue of racial profiling as one for "all Americans" and publicly questioned the effects of allowing the government to continue such practices without accountability.120
Critical legal advocacy and organized pressure helped reframe for the public, and for Judge Parker, the real issues -- selective racial prosecution Executive lies and the need for accountability. This new sense in the public culture of what was really going on and what was really at stake provided the backdrop for courtroom decisions. Amid intensifying demands to free Dr. Lee and put the Justice Department on trial instead, Judge Parker ordered the government to disclose documents on racial profiling and negotiate a release agreement with Dr. Lee.121
[*pg 311]
With the ensuing plea-bargained "settlement," however, the Justice Department's documents -- and the administration's accountability for apparent national security lies -- once again lay beyond public reach.122
V. "ENEMY COMBATANTS" AND THE ADMINISTRATION'S ATTEMPTS TO EVADE JUDICIAL SCRUTINY
A. An "Alternative Legal System"
Shortly after September 11, President Bush's administration shaped the broad outlines of an "alternative legal system."123 Described by observers as embracing a "shadow Constitution,"124 the system vastly expanded the Executive's national security powers. Most extraordinarily, the system also aimed to shield the executive from legal accountability for abuses of those broad powers by blocking meaningful judicial review.125
The administration-sponsored PATRIOT Act, for instance, allows secret Justice Department "national security letters" (instead of court-issued subpoenas) to force a wide range of private and public institutions to disclose confidential information on members of the public. The Act then bars the institutions from ever revealing what they did.126 In September 2004 Federal District Judge Marreo declared this part of the Patriot Act unconstitutional [*pg 312] because it "effectively bars or substantially deters any judicial challenge to the propriety of an NSL request. In the Court's view, ready availability of judicial process to pursue such a challenge is necessary to vindicate important rights guaranteed by the Constitution or by statute."127
1. Designating and Detaining "Enemy Combatants" While Avoiding Judicial Scrutiny
From the outset of the U.S. attack on the Taliban in Afghanistan, the Bush administration asserted that "the capture and detention of enemy combatants is an inherent part of waging war, and the President's decision whether to detain a person as an enemy combatant is a basic exercise of his discretion to determine the level of force needed to prosecute the conflict."128
From the outset of the U.S. attack on the Taliban in Afghanistan, the Bush administration asserted that "the capture and detention of enemy combatants is an inherent part of waging war, and the President's decision whether to detain a person as an enemy combatant is a basic exercise of his discretion to determine the level of force needed to prosecute the conflict."128
Simply put, the administration declared that it had the power to unilaterally designate citizens and non-citizens "enemy combatants,"129 and that a person so designated would not be criminally charged or tried, would have no access to family, would have no access to counsel, could be held in solitary confinement indefinitely, and, most important, would lack any right to contest whether the designation was proper in the first place.130 The administration further maintained that "the best interests of the Nation in wartime" shielded the President's designation and detention of enemy combatants from searching judicial inquiry because "judges have little or no background in the delicate business of intelligence gathering."131
2. Guantanamo Bay (Rasul v. Bush)
In 2001 the administration announced that "enemy combatants" captured in Afghanistan and incarcerated in the U.S. prison in Guantanamo Bay, Cuba did not have the rights of prisoners of war and indeed had no right to challenge [*pg 313] their indefinite detentions in the federal courts.132 The administration argued that because Guantanamo Bay is outside the territorial jurisdiction of the United States, no U.S. court could hear their challenges. The detainees could only challenge their enemy combatant designation if and when the President chose to allow them a limited hearing before a military tribunal.133 The President declined to hold military tribunal hearings until belatedly compelled to do so by the Supreme Court. Even those hearings offered very limited due process protections.134 Vice President Cheney explained that those detainees "don't deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process."135
In 2001 the administration announced that "enemy combatants" captured in Afghanistan and incarcerated in the U.S. prison in Guantanamo Bay, Cuba did not have the rights of prisoners of war and indeed had no right to challenge [*pg 313] their indefinite detentions in the federal courts.132 The administration argued that because Guantanamo Bay is outside the territorial jurisdiction of the United States, no U.S. court could hear their challenges. The detainees could only challenge their enemy combatant designation if and when the President chose to allow them a limited hearing before a military tribunal.133 The President declined to hold military tribunal hearings until belatedly compelled to do so by the Supreme Court. Even those hearings offered very limited due process protections.134 Vice President Cheney explained that those detainees "don't deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process."135
3. Lindh, Hamdi, and Padilla
Cheney's statement implied that the administration intended to recognize that U.S. citizens possessed due process "guarantees and safeguards." But subsequent administration actions revealed that only certain citizen enemy combatants would be afforded legal protections.
Cheney's statement implied that the administration intended to recognize that U.S. citizens possessed due process "guarantees and safeguards." But subsequent administration actions revealed that only certain citizen enemy combatants would be afforded legal protections.
White American John Walker Lindh, from a middle class California family, tightly fit the government's enemy combatant description -- "an individual who surrenders with enemy forces in an active theater of combat while armed with a military assault weapon is an archetypal enemy combatant."136 The President, however, declined to designate Lindh an enemy combatant. After his transfer to the United States from an Afghan battlefield, the government immediately lodged criminal charges against Lindh in open court. Lindh received full access to a first-class lawyer and to family members. Because he admitted fighting for the Taliban against the U.S., his lawyer plea-bargained a lengthy prison term in exchange for elimination of the death penalty.137
By contrast, the government denied Yaser Hamdi all legal protections. A U.S. citizen born in Louisiana, of Saudi Arabian family heritage, he, like Lindh, was taken into custody in Afghanistan in 2001. Unlike Lindh, Hamdi maintained that he was not fighting for the Taliban or Al Qaeda and that he [*pg 314] was in Afghanistan to do humanitarian relief work. Yet, after three years, the government still declined to bring charges or allow him to establish innocence. Instead, it held him indefinitely in solitary confinement as an enemy combatant in a military brig with no family contact and no access to a lawyer (until litigation belatedly procured limited legal access).138
The administration designated Jose Padilla, a Puerto Rican American, an enemy combatant even though he did not fit the "archetypal enemy combatant" description. The government initially detained Padilla at the Chicago Airport pursuant to a material witness warrant. He possessed no weapons and was clearly outside any zone of combat. Padilla, a former gang member with a murder conviction, had met with Al-Qaeda members in Afghanistan. One month after his arrest in the U.S., and two days before a federal district court was expected to rule on the lawfulness of his material witness detention, the President designated Padilla an enemy combatant.139
The Attorney General and other administration officials vilified Hamdi and Padilla as terrorists acting to destroy America. As detailed below, those statements, made to justify their indefinite detention without charges or trial, appear to have been knowing misrepresentations.
The administration's refusal to explain its enemy combatant designation process generally, its apparent public dissembling about the threat posed by detainees, and its differential treatment of white and non-white citizens together raised the red flag of potential Executive abuse of power. Perhaps for this very reason, the administration staunchly resisted close judicial review of its actions. Initially, the administration advocated for no judicial review at all, arguing that the "courts may not second-guess the military's determination that an individual is an enemy combatant."140 But in light of lower federal courts' reluctance to acquiesce entirely to the executive,141 the administration softened its stance and conceded that its determination could be subject to minimal (or less than minimal) judicial review. More particularly, the administration maintained in Hamdi's and Padilla's cases that a bare hearsay-laden declaration (the "Mobbs Declaration") by an unknown official without personal knowledge of the particulars, setting forth conclusory statements about their capture, should be sufficient to defeat a detainee's habeas corpus challenge.142
[*pg 315]
4. Exaggerations, Distortions, and Lies to Justify the Detention of "Enemy Combatants"
The administration's argument for no -- or at most attenuated -- judicial scrutiny thus amounted to "the government is on a war footing[;] . . . you have to trust the executive."143 As described generally in the first three sections and developed here, however, the Bush administration's dissembling on national security belied that trust.
The administration's argument for no -- or at most attenuated -- judicial scrutiny thus amounted to "the government is on a war footing[;] . . . you have to trust the executive."143 As described generally in the first three sections and developed here, however, the Bush administration's dissembling on national security belied that trust.
For example, the administration publicly celebrated detaining over six hundred "enemy combatants" in Guantanamo Bay because "locked within the steel-mesh cells of the military prison . . . are some of the most dangerous terrorists on Earth."144 The administration knew early on, however, that none of the detainees ranked "as leaders or senior operatives of al-Qaida" and "only a relative handful . . . [were] sworn al-Qaida members or other high-value militants able to elucidate the organization's inner workings."145 The administration later conceded that many of the detainees, who were barred from demonstrating their innocence, were never dangerous -- some were young teenagers and others were taken by mistake or by unscrupulous bounty hunters.146
Exaggerations and factual distortions also influenced the administrations' portrayal of Padilla, the "dirty-bomber." In announcing Padilla's arrest, Attorney General Ashcroft announced that the government had "disrupted an unfolding terrorist plot"to attack the United States with a radioactive "dirty bomb."147 Shortly thereafter, Deputy Security of Defense Wolfowitz explained [*pg 316] that there was "no actual plan" and no "unfolding terrorist plot." At most, a plot was "still in the initial planning stages."148
Several months later, the administration submitted the Mobbs Declaration to justify Padilla's continued indefinite detention as an enemy combatant. The declaration stated that Padilla had discussed plans with a senior lieutenant for Al-Qaeda "to build and detonate a radiological dispersal device (also known as a 'dirty bomb') within the United States"149 and indicated that the plans were on-going. Declassified Pentagon papers, however, indicated that the administration overstated if not misrepresented its case.150 A Pentagon report suggested that top Al-Qaeda officials were never on board with Padilla's dirty-bomb plot.151 In the report's footnotes were Padilla's statements to interrogators that he never swore allegiance to Al-Qaeda and that he had doubts about his involvement with the organization.152 The administration failed to submit this relevant, potentially exculpatory, information to the courts. Instead it constructed an at least partially false picture of Padilla's threat to national security and then argued that the courts should "trust the executive."
Recently, additional signs of administrative dissembling emerged after two years of fierce litigation in Hamdi's case. From the start, the Bush administration publicly justified its indefinite and unchallengeable detention of Hamdi by saying that he posed an ongoing terrorist threat -- releasing Hamdi would allow him to "rejoin the enemy and renew [his] belligerency against" American forces.153 The government's recent handling of Hamdi's case, however, suggests that Hamdi may never have been a significant threat. After three years of his incommunicado imprisonment, the administration decided to free Hamdi in another country rather than to continue his detention under the limited due process parameters set out by the Supreme Court's June 2004 Hamdi decision.154 This turnaround -- releasing a supposedly dangerous anti-[*pg 317] American Al-Qaeda terrorist or Taliban fighter -- triggered deep suspicion that the administration was dissembling all along in an attempt to justify its unilateral and indefinite detention of all persons it designates as enemy combatants -- regardless of their danger. As one commentator aptly observed, "If Hamdi is such a minor threat today that he can go back to the Middle East without a trial or any other proceeding, it's hard not to wonder whether the government has been crying wolf all these years."155
B. Critical Legal Advocacy and Public Pressure
1. Legislative UndersightWith mounting evidence of White House abuses of its national security powers, hundreds of cities and several states passed resolutions rejecting the administration's disregard for civil liberties.156 Congressional Republicans and Democrats also submitted bills to roll back the overreaching sections of the PATRIOT Act.157 Yet, despite recent signs of legislative resistance, Congress has done little to rein in the Executive's expansive national security powers.158 With an ineffectual Congress and an administration claiming near absolute authority in matters of national security, executive accountability has devolved to the third branch of government -- the courts -- and an informed public.
2. Critical Legal Advocacy
Contrary to conventional teachings, courts "are responsive in varying ways to political will" and will exercise vigilance in protecting constitutional guarantees in controversial cases, "but only when pushed to do so by the coordinated efforts of frontline community and political organizations, scholars, journalists and politicians."159 Critical legal advocacy is one integral element of that push. In addition to traditional legal arguments based narrowly on past case texts, critical legal advocacy aims to reveal what is really at stake, who benefits and who is harmed (in the short and long terms), who wields the behind-the-scenes power, which social values are supported and which are subverted, how political concerns are framing the legal questions, and how societal institutions and differing segments of the populace will be affected by the court's decision.160
[*pg 318]
An array of powerful amicus briefs reflected this kind of legal advocacy. In the Hamdi, Padilla, and Rasul detention cases, retired federal judges, government officials, legal experts, and civil, social, and political organizations challenged the Bush administration's attack on fundamental civil liberties. From across the political spectrum these groups filed briefs urging the courts to hold the administration accountable for national security abuses. A common theme emanated from this effort: The Bush administration transgressed the principles of the separation of powers and must be held in check by the courts.
In one unlikely alliance, the libertarian Cato Institute, the conservative Rutherford Institute, and the liberal People for the American Way joined in an amicus brief in the Second Circuit Padilla case "to support the traditional understanding of the separation of powers between the Legislature and Executive Branches."161 They also argued that Congress's Authorization for Use of Military Force Act did not authorize the executive to detain American citizens on American soil.
Heavy pressure on the courts also came from a group of former federal judges and attorneys who shared "an abiding interest in the independence of the judiciary as a check on the actions of the Executive Branch."162 This group submitted amicus briefs to the Supreme Court in Hamdi and Padilla that criticized the Second and Fourth Circuits for abdicating this crucial judicial responsibility. Specifically, the amici asserted that the Fourth Circuit violated the separation of powers doctrine when it immunized "executive actions from judicial scrutiny"163 by affording "conclusive effect to the two-page hearsay Mobbs Declaration.164
[*pg 319]
Even more unlikely support came from the military's own lawyers, the Judge Advocate General's Corps, who criticized the government for politically tainted prosecutions and violations of international law. In seeming defiance of an administration that has proclaimed that "you are either with us or you are against us,"165 five JAG attorneys assigned to defend Guantanamo detainees before the administration's proposed military tribunals filed an amicus brief with the Court.166 The JAG lawyers characterized "the tribunals as inherently unfair, contrary to international law and susceptible to political influence."167
In another extraordinary move, members of the British Parliament echoed this view in their amicus brief to the Supreme Court. The brief, in support of the Guantanamo detainees, recounted the shared historical commitment of the United States and the United Kingdom to a "tripartite separation of powers and a truly independent judiciary."168 The brief warned that judicial acquiescence to the administration's claim of absolute power over the detainees would legitimate the existence of "a prison for indefinite detention functioning in total secret, under the unchallenged exclusive control of the Executive Branch of the U.S. government."169
Most poignantly, an amicus brief filed by Fred Korematsu reminded the Court that "the Government's position is part of a pattern whereby the Executive Branch curtails civil liberties much more than necessary during wartime and seeks to insulate the basis for its actions from any judicial scrutiny."170 The brief recounted six instances in U.S. history in which the Executive reacted "too harshly in circumstances of felt necessity and underestimate[ed] the damage to civil liberties," only to have its actions legitimated by courts employing an uncritical standard of judicial review.171 Fred Korematsu challenged the Court to learn from the lessons of history and "to protect constitutional liberties when they matter most, rather than belatedly, years after the fact."172
[*pg 320]
3. Public Pressure
The amicus briefs, along with the writings of critical race scholars, sought directly to influence the courts and the reporting media. Legal and social commentators also sought indirectly to influence the courts by exposing to the public the threats to civil liberties posed by the Bush administration's national security policies. These commentators, providing intellectual grist for community group protests and street marches,173 employed a variety of media to voice their concerns about administration excesses and its penchant for dissembling about national security, including op-ed essays, articles, books, and internet messages.174
The amicus briefs, along with the writings of critical race scholars, sought directly to influence the courts and the reporting media. Legal and social commentators also sought indirectly to influence the courts by exposing to the public the threats to civil liberties posed by the Bush administration's national security policies. These commentators, providing intellectual grist for community group protests and street marches,173 employed a variety of media to voice their concerns about administration excesses and its penchant for dissembling about national security, including op-ed essays, articles, books, and internet messages.174
For instance, three books by authors from varying political perspectives "share a chilling view of the Bush administration's war on civil liberties."175 According to reviewer Michael Stern, Nat Hentoff176 is a "staunch lefty," Philip Heymann177 a centrist and James Bovard178 a libertarian.179 Despite philosophical differences, their "sobering conclusions about the impact of the 'war on terror' on U.S. democracy have three core elements in common."180 First, all three worry that the administration's realignment of power in the Executive Branch has significantly weakened America's system of checks and balances. Second, each author expresses deep skepticism about the administration's "declaration of a permanent state of emergency."181 Last, all three object to the administration's persistent efforts to undermine fundamental "democratic values and traditions."182
[*pg 321]
Perhaps most compelling, John Dean, Republican and former White House counsel, whose truthful testimony broke open the Nixon White House's Watergate cover-up, authored a series of biting critiques. In particular, two of his influential essays revealed the depth and breadth of Bush White House dissembling in justifying the war against Iraq and in outing CIA undercover operative Valarie Plame in retaliation for her spouse's criticism of the President's "Iraq nuclear threat" misrepresentation in his 2003 State of the Union address.183 Dean characterized the Bush administration's exaggerations and fabrications as exceeding those of the paranoid Nixon administration -- all of whose top officials were imprisoned for their Watergate lies. Dean also characterized the Bush administration's dissembling and retaliation on matters of grave national importance "an impeachable offense" -- especially when compared to the "sex lies" grounds for the Republican impeachment of then-President Clinton.184
C. The Politics of Judicial Scrutiny of Executive National Security Actions
1. Lower Courts and the Political Underpinnings of Judicial Decisionmaking
In the face of wide-ranging challenges to the Bush administration's national security actions, the federal judiciary responded erratically. Most reviewing courts expressed deep skepticism of the administration's early argument advocating for no judicial review at all. These lower federal courts, however, disagreed about the appropriate level -- or intensity -- of judicial scrutiny and therefore how active the courts should be in holding the administration accountable for its apparent national security abuses.
In the face of wide-ranging challenges to the Bush administration's national security actions, the federal judiciary responded erratically. Most reviewing courts expressed deep skepticism of the administration's early argument advocating for no judicial review at all. These lower federal courts, however, disagreed about the appropriate level -- or intensity -- of judicial scrutiny and therefore how active the courts should be in holding the administration accountable for its apparent national security abuses.
Federal district court Judge Doumar, a Reagan appointee, articulated a heightened standard of judicial review for enemy combatant cases. As the trial judge in Hamdi, Doumar announced that at a minimum meaningful judicial review must "determine if the government's classification was determined pursuant to appropriate authority, the screening criteria used to make and maintain that classification is consistent with due process, and the basis of the continued detention serves national security."185 Doumar concluded that the Mobbs Declaration was insufficient to justify Hamdi's enemy combatant designation and ongoing detention. In particular, the declaration failed "to address the nature and authority of Mr. Mobbs to review and to make declarations on behalf of the Executive regarding Hamdi's classification,"186 and [*pg 322] omitted "the screening criteria actually used by the government in its classification decision."187 Rejecting the deferential judicial role advocated by the administration, Judge Doumar concluded:
The Mobbs Declaration is little more than the government's "say-so" regarding the validity of Hamdi's classification. . . . If the Court were to accept the Mobbs Declaration as sufficient justification for detaining Hamdi in the present circumstances, then it would be abdicating any semblance of the most minimal level of judicial review. If effect, this Court would be acting as little more than a rubber-stamp.188
Judge Doumar's approach to heightened scrutiny of the administration's national security claim offers insight into the feasibility and importance of the "four key process tasks" in the "Strategic Blueprint"189 for "watchful judicial care" -- in particular, the judge's critical examination of what was at stake politically and socially in the controversy beyond the narrow legal claims, his careful assessment of the role of the executive during national crisis and the corresponding role of the courts in actually reviewing and not "rubber-stamping" executive actions that appeared to curtail liberties of Americans, and his call for governmental production of bona fide evidence of danger posed by those targeted for indefinite government incarceration.
By contrast, other courts' enemy combatant decisions more closely tracked the administration's "no meaningful review" posture. For example, in Padilla v. Rumsfeld, District Judge Mukasey, another Reagan appointee, granted Padilla the right to present facts through counsel to challenge his enemy combatant designation.190 But, Judge Mukasey then sharply limited Padilla's ability to advocate. Based on the All Writs Act, rather than on the Constitution, Mukasey's ruling "excluded Padilla from using counsel to conduct discovery, cross-examine witnesses, and meaningfully rebut the executive's testimony." Equally important, Mukasey adopted the highly deferential "some evidence standard" of judicial review advanced by the administration. That standard, which observers characterize as "masquerading" for meaningful review, 191 directs the court effectively to ignore facts presented by the detainee and to focus entirely on the government's evidence (for example, the entirely hearsay-based Mobb's Declaration) to determine simply "whether "there is some evidence of Padilla's hostile status" and "whether that evidence has not been entirely mooted by subsequent events."192
The politically conservative Fourth Circuit Court of Appeals193 in Hamdi embraced a similar hands-off approach andchastised Judge Doumar for [*pg 323] requiring the Bush administration to substantiate the hearsay-based statements in the Mobbs Declaration. To do so, the court observed, "would be to wade further into the conduct of war than we consider appropriate and is unnecessary to a meaningful judicial review."194 And although "the privilege of citizenship" entitled Hamdi to judicial review, no factual inquiry was needed in the case because "it [was] undisputed that Hamdi was captured in a zone of active combat operations in a foreign country and because any inquiry must be circumscribed to avoid encroachment into the military affairs entrusted to the Executive Branch."195 Notably, the Fourth Circuit's Judge Motz, in dissent, rejected the majority's determination that hearsay could justify an enemy combatant designation and criticized the court for merely rubberstamping "the Executive's unsupported designation."196
The District of Columbia Circuit Court of Appeals also vindicated the administration's enemy combatant policy. Embracing the administration's stance in its entirety in Al Odah v. United States, the court held that the detainees could not seek redress in the courts because Guantanamo Bay falls outside the territorial jurisdiction of the United States.197 "They cannot seek release based on violations of the Constitution or treaties or federal law" because "the courts are not open to them."198
In late 2003 the tide changed for the Bush administration when two separate appellate courts, often characterized as liberal-leaning, rebuked the administration's attempts to evade judicial scrutiny. In Gherebi v. Bush, the Ninth Circuit's "outspoken liberal," Judge Stephen Reinhardt, observed that "[e]ven in times of national emergency . . . it is the obligation of the Judicial Branch to ensure the preservation of our constitutional values and to prevent the Executive Branch from running roughshod over the rights of citizens and aliens alike."199 In stark contrast with the D.C. Circuit's earlier ruling, the Ninth Circuit held that federal courts have jurisdiction over the U.S. naval base in Guantanamo Bay.200
The next rebuke came when the Second Circuit held that President Bush had neither inherent constitutional authority nor the Congressional authorization required by the Non-Detention Act of 1971 to detain American Padilla on American soil outside a zone of combat.201 Rejecting the administration's assertion that the judiciary should refrain from second-guessing military decisions, the court emphasized that "separation of powers are heightened when the Commander-in-Chief's powers are exercised in the [*pg 324] domestic sphere."202 Although it conceded that "grave national emergencies" may necessitate the curtailment of citizens' liberties, the court reminded the administration that Congress must act in concert with the President to do so.203 Drawing from amici, the court affirmed the "fundamental role for the courts" in carefully scrutinizing executive actions "where the exercise of Commander-in-Chief powers . . . is challenged on the ground that it collides with the powers assigned by the Constitution to Congress."