Terrorism was expected to bring back big government, but
lately it seems that federal power isn't growing so much as it is coalescing in
the White House. Some in Congress have reacted to recent power grabs by the Bush
administration with appropriate outrage. But the tendency of Congress to guard
its own power shouldn't obscure its now historic role in stripping power from the
federal courts. Attacks on the judiciary have intensified since September 11 but,
like terrorist cells, they have been growing for years.
This has been an ominous development. The twentieth-century rights
revolution, which helped to liberate racial minorities, women, and gay people and
increased the fairness of criminal prosecutions, was largely occasioned by the
willingness of the federal judiciary to begin enforcing the Bill of Rights. That,
of course, is why many social conservatives hate the courts.
Since they came to power in the 1980s, conservatives have been working to
deprive the federal courts of their authority. In the 1990s, they were joined by
Clinton Democrats, gravitating right. Relying partly on fear generated by the
Oklahoma City bombing, Congress enacted laws that greatly limited the power of
federal courts to review state convictions; to remedy unsafe, unconstitutional
prison conditions; and to review determinations by immigration officials to deport
people or deny them asylum.
As the bombing of the Murrah Federal Building demonstrated, the tragedy of
terrorism is an opportunity for officials who are impatient with the
constitutional checks and balances that help to protect democracy. In the past
two months, we've been witnessing the birth of an imperial presidency, shaped by
the new unilateral powers of federal law-enforcement officials. The new USA
Patriot Act strips the courts of much of their power to review and monitor
electronic surveillance by law-enforcement and intelligence agencies; it also
allows government access to private student records, disclosure of information
obtained through grand-jury proceedings, and even long-term and possibly
indefinite detention of noncitizens without meaningful judicial review. Of course,
Congress bears considerable responsibility for the inaptly named USA Patriot Act
(what's more unpatriotic than autocracy?), even though many members may never
have gotten around to reading or comprehending the bill. But the executive branch
has also assumed formidable new judicial powers without congressional
authorization. Battles are pending over the executive order establishing
extraconstitutional military tribunals to try suspected terrorists and over the
new Justice Department regulation allowing federal agents to eavesdrop on
conversations between prisoners and their lawyers without asking permission of
The unilateral power of the president and his law-enforcement appointees will
also be greatly enhanced by the breakdown of boundaries between intelligence
operations and crime control. It should be stressed repeatedly that many new
powers enjoyed by the executive branch under the USA Patriot Act are not limited
to cases involving terrorism; they extend to ordinary criminal investigations.
For example, the act allows the federal agents to obtain wiretap authorization
from special secret courts under the loose standards of the 1978 Foreign
Intelligence Surveillance Act, even when intelligence gathering is not the
primary purpose of their investigation.
Proposals to continue expanding law enforcement's power are more unsettling.
"If federal agents have someone in custody who they know has vital information
about a pending attack, should they have the power to torture him?" That question
about torture is becoming familiar; not surprisingly, it usually elicits a yes.
But it would be more appropriate to pose a hypothetical involving multiple
detainees, some of whom are suspected of having information about a pending
attack. Should all of them be tortured? If you condone the use of torture or
kangaroo courts, you have to be prepared to see them used against the innocent.
The suggestion that we are in the process of becoming at home what we have
been battling abroad--an autocracy with little regard for human rights--is
hyperbolic or, at least, premature. But the Bush administration's autocratic
behavior, buttressed by public hunger for a strongman, does raise the question of
how to battle evil without being entirely corrupted by it (some taint is probably
We could simply focus pragmatically on enhancing security instead of
reflexively enhancing executive power. What's striking about most repressive
measures passed during wartime is their irrelevance to security. Americans were
not safer during World War I and its aftermath because immigrants and dissenters
were imprisoned or deported; they were not safer during World War II when
Japanese Americans were interned; and they were not safer during the 1990s when
Arab Americans were detained on the basis of secret evidence. Eliminating
judicial review of federal law-enforcement activities will not make us safer
today. In general, judges are sensitive to the demands of national security; and
considering the FBI's abysmal record during the last decade, our safety would
probably increase if the bureau were carefully monitored.
If the president, the attorney general, and their army of agents trust
themselves with unbridled discretion, we should mistrust them for their
arrogance. If they continue to appropriate power from Congress and the courts, we
should condemn them for political profiteering. People rightfully want decisive
leadership during times of crisis, but decisiveness needn't preclude a measure of
simple modesty. We need leaders who are prone to wonder whether God endorses
them, leaders with no delusions about their fallibility. An administration intent
on ignoring or dismantling constitutional checks on its power is seeking to rule,
not to lead.