Why is the United States poised to try Jose Padilla as a dangerous terrorist, long after it has become perfectly clear that he was just the wrong Muslim in the wrong airport on the wrong day?
Why is the United States still holding hundreds of detainees at Guantanamo Bay, long after years of interrogation and abuse have established that few, if any, of them are the deadly terrorists they have been held out to be?
And why is President Bush still issuing grandiose and provocative signing statements, the latest of which claims that the executive branch holds the power to open mail as it sees fit?
Willing to give the benefit of the doubt, I once believed the common thread here was presidential blindness—an extreme executive-branch myopia that leads the president to believe that these futile little measures are somehow integral to combating terrorism. That this is some piece of self-delusion that precludes Bush and his advisers from recognizing that Padilla is just a chump and Guantanamo merely a holding pen for a jumble of innocent and half-guilty wretches.
But it has finally become clear that the goal of these foolish efforts isn’t really to win the war against terrorism; indeed, nothing about Padilla, Guantanamo, or signing statements moves the country an inch closer to eradicating terror. The object is a larger one, and the original overarching goal of this administration: expanding executive power, for its own sake.
Two scrupulously reported pieces on the Padilla case are illuminating. On Jan. 3, Nina Totenberg of National Public Radio interviewed Mark Corallo, spokesman for then-Attorney General John Ashcroft, about the behind-the-scenes decision-making in the Padilla case—a case that’s lolled through the federal courts for years. According to Totenberg, when the Supreme Court sent Padilla’s case back to the lower federal courts on technical grounds in 2004, the Bush administration’s sole concern was preserving its constitutional claim that it could hold citizens as enemy combatants. “Justice Department officials warned that if the case went back to the Supreme Court, the administration would almost certainly lose,” she reports, which is why Padilla was hauled back to the lower courts. Her sources further confirmed that “key players in the Defense Department and Vice President Cheney’s office insisted that the power to detain Americans as enemy combatants had to be preserved.”
Deborah Sontag’s excellent New York Times story on Padilla on Jan. 4 makes the same point: He was moved from military custody to criminal court only as “a legal maneuver that kept the issue of his detention without charges out of the Supreme Court.” So this is why the White House yanked Padilla from the brig to the high court to the federal courts and back to a Florida trial court: They were only forum shopping for the best place to enshrine the right to detain him indefinitely. Their claims about Padilla’s dirty bomb, known to be false, were a means of advancing their larger claims about executive power. And when confronted with the possibility of losing on those claims, they yanked him back to the criminal courts as a way to avoid losing powers they’d already won.
This need to preserve newly won legal ground also explains the continued operation of the detention center at Guantanamo Bay. Last week marked the fifth anniversary of the camp that—according to Donald Rumsfeld in 2002—houses only “the worst of the worst.” Now that over half of them have been released (apparently, the best of the worst) and even though only about 80 of the rest will ever see trials, the camp remains open. Why? Civil-rights groups worldwide and even close U.S. allies like Germany, Denmark, and England clamor for its closure. And as the ever-vigilant Nat Hentoff points out, new studies reveal that only a small fraction of the detainees there are even connected to al-Qaida—according to the Defense Department’s own best data.
But Guantanamo stays open for the same reason Padilla stays on trial. Having claimed the right to label enemy combatants and detain them indefinitely without charges, the Bush administration is unable to retreat from that position without ceding ground. In some sense, the president is now as much a prisoner of Guantanamo as the detainees. And having gone nose-to-nose with the Congress over his authority to craft stripped-down courts for these “enemies,” courts guaranteed to produce guilty verdicts, Bush cannot just call off the trials.
The endgame in the war on terror isn’t holding the line against terrorists. It’s holding the line on hard-fought claims to absolutely limitless presidential authority.
Enter these signing statements. The most recent of the all-but-meaningless postscripts Bush tacks onto legislation gives him the power to “authorize a search of mail in an emergency” to ”protect human life and safety” and “for foreign intelligence collection.” There is some debate about whether the president has that power already, but it misses the point. The purpose of these signing statements is simply to plant a flag on the moon—one more way for the president to stake out the furthest corners in his field of constitutional dreams.
Last spring, The New Yorker’s Jane Mayer profiled David Addington, Vice President Richard Cheney’s chief of staff and legal adviser. Addington’s worldview in brief: A single-minded devotion to something called the New Paradigm, a constitutional theory of virtually limitless executive power, wherein “the President, as Commander-in-Chief, has the authority to disregard virtually all previously known legal boundaries, if national security demands it,” Mayer describes.
Insiders in the Bush administration told Mayer that Addington and Cheney had been “laying the groundwork” for a vast expansion of presidential power long before 9/11. In 2002, the vice president told ABC News that the presidency was “weaker today as an institution because of the unwise compromises that have been made over the last 30 to 35 years.” Rebuilding that presidency has been their sole goal for decades.
The image of Addington scrutinizing “every bill before President Bush signs it, searching for any language that might impinge on Presidential power,” as Mayer puts it, can be amusing—like the mother of the bride obsessing over a tricky seating chart. But this zeal to restore an all-powerful presidency traps the Bush administration in its own worst legal sinkholes. This newfound authority—to maintain a disastrous Guantanamo, to stage rights-free tribunals and hold detainees forever—is the kind of power Nixon only dreamed about. It cannot be let go.
In a heartbreaking letter from Guantanamo this week, published in the Los Angeles Times, prisoner Jumah Al Dossari writes: “The purpose of Guantanamo is to destroy people, and I have been destroyed.” I fear he is wrong. The destruction of Al Dossari, Jose Padilla, Zacarias Moussaoui, and some of our most basic civil liberties was never a purpose or a goal—it was a mere byproduct. The true purpose is more abstract and more tragic: To establish a clunky post-Watergate dream of an imperial presidency, whatever the human cost may be.
A version of this piece appeared in the Washington Post Outlook section.