On Monday, the Senate Intelligence Committee wrongly suggested that the CIA’s interrogation and detention practices, including torture and black sites, were uniquely illegal or repugnant.
They were not.
The CIA abuses were but one chapter of a larger tome portraying wholesale vandalizing of the rule of law: unconstitutional gratuitous wars, criminal NSA surveillance of citizens in violation of the Foreign Intelligence Surveillance Act, the substitution of military commissions for civilian courts, the extermination or detention of Americans without accusation or trial, the indiscriminate slaughter of civilians in pursuit of al Qaeda targets, the unconstitutional suspension of the Great Writ of habeas corpus, and general congressional and public indifference to executive branch lawlessness.
Semi-hysteria reigned after the 9/11 abominations fueled by White House monumental exaggerations of the al Qaeda danger to the national security. In contrast to Germany and Japan in World War II or the Soviet Union during the Cold War, al Qaeda had no air force. It had no navy. It had no satellites. It had no army. It had no Central Intelligence Agency. It had no scientists or industrial base. it had no weapons of mass destruction. It had no taxing power. Al Qaeda was a pygmy compared with the U.S. military colossus.
Yet on Nov. 6, 2001, then-President George W. Bush issued an ultimatum to all other nations: “Over time, it’s going to be important for nations to know they will be held accountable for inactivity. You’re either with us or against us in the fight against terror.”
In no other war in the history of the United States had the president ever said that we would treat any nation that was not an ally as an enemy vulnerable to attack — even after Pearl Harbor. Mr. Bush’s unprecedented bugle frightened the American people into believing that al Qaeda was more threatening than Japan and Germany in World War II.
Then-Vice President Dick Cheney declared that the law would not interfere with the war against al Qaeda. The ends justified the means. We would resort to savagery to defeat savages: “We have to work the dark side, if you will. We’ve got to spend time in the shadows in the intelligence world. … It’s going to be vital for us to use any means at our disposal to achieve our objective.”
Congress passed the Authorization for Use of Military Force (AUMF) on Sept. 18, 2001, by a vote of 98-0 in the Senate and 420-1 in the House. It authorized perpetual global warfare against any organization associated in any way with al Qaeda, for example, praying to Mecca five times daily. It endowed the president with authority to invade the sovereignty of every nation in the world in pursuit of a suspected international terrorist.
The unprecedented breadth of the AUMF further frightened citizens into believing that a caliphate and sharia law would soon be nesting in the United States unless we obliterated every pre-embryonic invisible and inaudible Islamic terrorist threat conceivable — even if it occasioned predator drone killings of 68-year-old grandmothers in Pakistan picking vegetables with 9-year-old granddaughters.
Thus, Mr. Cheney could elaborate his 1 percent doctrine without evoking public repugnance: If there is “a 1 percent chance” that a threat is authentic, “we have to treat it as a certainty in terms of our response.” The Senate Intelligence Committee report errantly chastizes the CIA rather than Mr. Cheney for giving credence to an alleged plan by Jose Padilla to build a “dirty bomb” in a kitchen by swinging buckets of uranium to enrich it.
Congress knew or should have known of each and every one of the post-9/11 executive branch illegalities. it enjoys a virtually limitless power of investigation. It wields the power of the purse. Each member under the Speech or Debate Clause enjoys constitutional immunity from Executive Branch retaliation for anything done in the course of oversight responsibilities.
Yet Congress remained silent — indifferent to Edmund Burke’s admonition that, “All that is necessary for the triumph of evil is that good men do nothing.” To the extent sunshine was cast on executive wrongdoing, it was through leaks to the news media.
It wasn’t the CIA that lost its way after 9/11.
It was the entire nation.
We forgot that our nation was founded on the moral principle that it is better to risk being the victim of injustice than to be complicit in it.
We forgot that we take risks that unfree countries do not because we understand that liberty and justice are impossible without accepting the possibility of tragedy.
We forgot largely because our nation’s leadership frightened us into believing al Qaeda was an imminent existential threat.
We will repeat the errors to our shame if we do not elect leadership that keeps its head on while all around them are losing theirs.
For more information about Bruce Fein, visit brucefeinlaw.