JURIST Guest Columnist A. John Radsan of William Mitchell College of Law, former assistant general counsel at the CIA, says that the elaboration of secrecy under the Bush administration endangers the rule of law and is contrary to basic American principles…
President Bush proudly admits that, several years ago, he secretly approved taps on some of our international communications. This is the tip of an iceberg that could sink Good Ship America. Beyond partisanship, we should all be as concerned about a secret process that hatches policies as we are about the policies themselves.
Bush's extreme views on commander-in-chief powers, including Executive prerogatives to keep secrets and to investigate leaks to the fullest extent, are a danger to the rule of law. Extreme presidential power threatens us all more deeply than the particular actions of the National Security Agency listening in on some people without court approval.
The perverse lesson Bush may have learned from public disclosure of his bypass of the FISA court is that he should have told far fewer people the secrets. Under a heavier cloak of national security, the Bush administration may be disregarding other laws. It could claim – secretly to itself – that support for the global war on terror would be diminished, here and abroad, if the public knew the truth about American policies. And if Bush keeps everything to himself and his operatives, how could anyone in Congress, the courts, or the media challenge them?
A few years back, the Justice Department argued that, "Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield." Since then, although the Justice Department has retracted most of the "torture memo," Vice President Cheney and others have not softened their sharp notes on presidential power.
Coercive interrogations by American officials are one possibility for secret government. At the end of 2005, Senator McCain convinced Bush to sign a law that prohibits all such interrogations. Now, it seems, the CIA must comply with the Army Field Manual, the rules for interrogations by the Defense Department. Many view this law as our redemption from Abu Ghraib, as proof that we will not lower ourselves to the level of our adversaries.
But, in a twist on the FISA episode, what would prevent Bush from violating the McCain Amendment and hiding that violation, all in the name of national security, from Congress, the courts, and the rest of us? Only a few people would serve the commander-in-chief on coercive interrogations, and those who dared to reveal anything would lose their security clearances and face civil and criminal sanctions. Our government, lest we forget, is usually tight-lipped about secrets. Our officials still neither confirm nor deny whether Khaled Sheikh Mohammed, an alleged 9/11 mastermind, has been (or is being) water-boarded in their custody. They expect us to take on faith that their interrogations comply with the law.
Assassinations are another possibility. While a long-standing Executive Order precludes our government from engaging in or being involved in assassinations, the President may have secretly amended that Order. Reports of a secret Presidential "finding" for the government to go full force against Al Qaeda, issued days after 9/11, highlight this possibility. Here, Bush could justify the secrecy because of the importance he sees in most everyone believing that we are out of the assassination business. Or time-servers who give him legal advice may say that "assassinations" of some bad guys are actually military attacks permitted on the enemy's "command and control."
Another area where secrecy may cause abuse is "rendition." We hope our officials comply with the Convention Against Torture by not rendering terrorism suspects to other countries where there are "substantial grounds for believing" the suspects will be tortured. But Bush may have set this standard aside, keeping his actions from a democracy's full view through a bureaucrat's "Top Secret" stamp.
I am not against all secrets. Keeping some of them is necessary to our diplomacy, our military policy, and our intelligence activities. But a secret government, segregated from reasonable checks and balances, is contrary to the principles many Americans have nobly sacrificed to protect.
This is of more than academic interest to me. If we are unfortunate enough to be attacked again on American soil, Bush's next step may be to round up more people. Citizens and aliens alike, Ali, Ahmed, and one author who hides behind a middle name, may be off to secret camps after secret trials. As a patriot, I hope these nightmares are false. As a realist, I fear for the truth. There are just too many people, politicians and their apologists, who try to deceive us without any twitch of shame.
A. John Radsan was a federal prosecutor from 1991-1997 and assistant general counsel at the CIA from 2002-2004. He teaches national security law at William Mitchell College of Law in Minnesota.
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.