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 rightsrevolution, which helped to liberate racial minorities, women, and gay people andincreased the fairness of criminal prosecutions, was largely occasioned by thewillingness 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 todeprive the federal courts of their authority. In the 1990s, they were joined byClinton Democrats, gravitating right. Relying partly on fear generated by theOklahoma City bombing, Congress enacted laws that greatly limited the power offederal courts to review state convictions; to remedy unsafe, unconstitutionalprison conditions; and to review determinations by immigration officials to deportpeople or deny them asylum.
As the bombing of the Murrah Federal Building demonstrated, the tragedy ofterrorism is an opportunity for officials who are impatient with theconstitutional checks and balances that help to protect democracy. In the pasttwo months, we've been witnessing the birth of an imperial presidency, shaped bythe new unilateral powers of federal law-enforcement officials. The new USAPatriot Act strips the courts of much of their power to review and monitorelectronic surveillance by law-enforcement and intelligence agencies; it alsoallows government access to private student records, disclosure of informationobtained through grand-jury proceedings, and even long-term and possiblyindefinite 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 neverhave gotten around to reading or comprehending the bill. But the executive branchhas also assumed formidable new judicial powers without congressionalauthorization. Battles are pending over the executive order establishingextraconstitutional military tribunals to try suspected terrorists and over thenew Justice Department regulation allowing federal agents to eavesdrop onconversations between prisoners and their lawyers without asking permission ofany court.
The unilateral power of the president and his law-enforcement appointees willalso be greatly enhanced by the breakdown of boundaries between intelligenceoperations and crime control. It should be stressed repeatedly that many newpowers enjoyed by the executive branch under the USA Patriot Act are not limitedto cases involving terrorism; they extend to ordinary criminal investigations.For example, the act allows the federal agents to obtain wiretap authorizationfrom special secret courts under the loose standards of the 1978 ForeignIntelligence Surveillance Act, even when intelligence gathering is not theprimary 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 informationabout a pending attack, should they have the power to torture him?" That questionabout torture is becoming familiar; not surprisingly, it usually elicits a yes.But it would be more appropriate to pose a hypothetical involving multipledetainees, some of whom are suspected of having information about a pendingattack. Should all of them be tortured? If you condone the use of torture orkangaroo 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 havebeen battling abroad--an autocracy with little regard for human rights--ishyperbolic or, at least, premature. But the Bush administration's autocraticbehavior, buttressed by public hunger for a strongman, does raise the question ofhow to battle evil without being entirely corrupted by it (some taint is probablyinevitable).
We could simply focus pragmatically on enhancing security instead ofreflexively enhancing executive power. What's striking about most repressivemeasures passed during wartime is their irrelevance to security. Americans werenot safer during World War I and its aftermath because immigrants and dissenterswere imprisoned or deported; they were not safer during World War II whenJapanese Americans were interned; and they were not safer during the 1990s whenArab Americans were detained on the basis of secret evidence. Eliminatingjudicial review of federal law-enforcement activities will not make us safertoday. In general, judges are sensitive to the demands of national security; andconsidering the FBI's abysmal record during the last decade, our safety wouldprobably increase if the bureau were carefully monitored.
If the president, the attorney general, and their army of agents trustthemselves with unbridled discretion, we should mistrust them for theirarrogance. If they continue to appropriate power from Congress and the courts, weshould condemn them for political profiteering. People rightfully want decisiveleadership during times of crisis, but decisiveness needn't preclude a measure ofsimple modesty. We need leaders who are prone to wonder whether God endorsesthem, leaders with no delusions about their fallibility. An administration intenton ignoring or dismantling constitutional checks on its power is seeking to rule,not to lead.
