The Hidden State Steps Forward
by Jonathan Schell
The Nation magazine, January 3,
When the New York Times revealed that
George W. Bush had ordered the National Security Agency to wiretap
the foreign calls of American citizens without seeking court permission,
as is indisputably required by the Foreign Intelligence Surveillance
Act (FISA), passed by Congress in 1978, he faced a decision. Would
he deny the practice, or would he admit it? He admitted it. But
instead of expressing regret, he took full ownership of the deed,
stating that his order had been entirely justified, that he had
in fact renewed it thirty times, that he would continue to renew
it and--going even more boldly on the offensive--that those who
had made his law-breaking known had committed a "shameful
act." As justification, he offered two arguments, one derisory,
the other deeply alarming. The derisory one was that Congress,
by authorizing him to use force after September 11, had authorized
him to suspend FISA, although that law is unmentioned in the resolution.
Thus has Bush informed the members of a supposedly co-equal branch
of government of what, unbeknownst to themselves, they were thinking
when they cast their vote. The alarming argument is that as Commander
in Chief he possesses "inherent" authority to suspend
laws in wartime. But if he can suspend FISA at his whim and in
secret, then what law can he not suspend? What need is there,
for example, to pass or not pass the Patriot Act if any or all
of its provisions can be secretly exceeded by the President?
Bush's choice marks a watershed in the
evolution of his Administration. Previously when it was caught
engaging in disgraceful, illegal or merely mistaken or incompetent
behavior, he would simply deny it. "We have found the weapons
of mass destruction!" "We do not torture!" However,
further developments in the torture matter revealed a shift. Even
as he denied the existence of torture, he and his officials began
to defend his right to order it. His Attorney General, Alberto
Gonzales, refused at his confirmation hearings to state that the
torture called waterboarding, in which someone is brought to the
edge of drowning, was prohibited. Then when Senator John McCain
sponsored a bill prohibiting cruel, inhuman and degrading treatment
of prisoners, Bush threatened to veto the legislation to which
it was attached. It was only in the face of majority votes in
both houses against such treatment that he retreated from his
But in the wiretapping matter, he has
so far exhibited no such vacillation. Secret law-breaking has
been supplanted by brazen law-breaking. The difference is critical.
If abuses of power are kept secret, there is still the possibility
that, when exposed, they will be stopped. But if they are exposed
and still permitted to continue, then every remedy has failed,
and the abuse is permanently ratified. In this case, what will
be ratified is a presidency that has risen above the law.
The danger is not abstract or merely
symbolic. Bush's abuses of presidential power are the most extensive
in American history. He has launched an aggressive war ("war
of choice," in today's euphemism) on false grounds. He has
presided over a system of torture and sought to legitimize it
by specious definitions of the word. He has asserted a wholesale
right to lock up American citizens and others indefinitely without
any legal showing or the right to see a lawyer or anyone else.
He has kidnapped people in foreign countries and sent them to
other countries, where they were tortured. In rationalizing these
and other acts, his officials have laid claim to the unlimited,
uncheckable and unreviewable powers he has asserted in the wiretapping
case. He has tried to drop a thick shroud of secrecy over these
and other actions.
There is a name for a system of government
that wages aggressive war, deceives its citizens, violates their
rights, abuses power and breaks the law, rejects judicial and
legislative checks on itself, claims power without limit, tortures
prisoners and acts in secret. It is dictatorship.
The Administration of George W. Bush
is not a dictatorship, but it does manifest the characteristics
of one in embryonic form. Until recently, these were developing
and growing in the twilight world of secrecy. Even within the
executive branch itself, Bush seemed to govern outside the normally
constituted channels of the Cabinet and to rely on what Secretary
of State Colin Powell's chief of staff has called a "cabal."
Former Treasury Secretary Paul O'Neill reported the same thing.
Cabinet meetings were for show. Real decisions were made elsewhere,
out of sight. Another White House official, John DiIulio, has
commented that there was "a complete lack of a policy apparatus"
in the White House. "What you've got is everything, and I
mean everything, being run by the political arm." As in many
Communist states, a highly centralized party, in this case the
Republican Party, was beginning to forge a parallel apparatus
at the heart of government, a semi-hidden state-within-a-state,
by which the real decisions were made.
With Bush's defense of his wiretapping,
the hidden state has stepped into the open. The deeper challenge
Bush has thrown down, therefore, is whether the country wants
to embrace the new form of government he is creating by executive
fiat or to continue with the old constitutional form. He is now
in effect saying, "Yes, I am above the law--I am the law,
which is nothing more than what I and my hired lawyers say it
is--and if you don't like it, I dare you to do something about
Members of Congress have no choice but
to accept the challenge. They did so once before, when Richard
Nixon, who said, "When the President does it, that means
it's not illegal," posed a similar threat to the Constitution.
The only possible answer is to inform Bush forthwith that if he
continues in his defiance, he will be impeached.
If Congress accepts his usurpation of
its legislative power, they will be no Congress and might as well
stop meeting. Either the President must uphold the laws of the
United States, which are Congress's laws, or he must leave office.
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