End the war on terror as a legal paradigm, abolish military commissions, and restore FISA.
With President Bush's approval rating hovering in the 30s, just about everyone has an opinion on what George W. has done wrong in the past seven years. But not everyone can explain what the next president must do to fix it. So we've called in some experts to tell us. Fixing It is a 10-part series to be published over the course of the week by some of our favorite writers, offering detailed policy prescriptions for the next president, whoever that may be, on how to quickly undo some of the damage that's been wrought. One of our contributors wryly describes the series as "News You Can Use. If You Happen To Be President." Read the other entries here.
President George W. Bush's successor should renounce his monarchy. It betters the instruction of King George III, which provoked the Declaration of Independence. Among other things, the 44th president of the United States should do the following promptly upon taking office: Transfer the impending trials of six "high-value" al-Qaida detainees before Spanish Inquisition-like military commissions to civilian courts; repudiate President Bush's kidnappings, secret imprisonments, and maltreatments of suspected al-Qaida supporters abroad on his say-so alone—a page from Hobbes' state of nature; denounce signing statements that declare the president's intent to disregard provisions of bills he has signed into law because he disputes their constitutionality; and end the snobbish custom of former government Brahmins preening in their honorifics after leaving office. The Founding Fathers prohibited titles of nobility to encourage a nonhierarchical culture that honors equality before the law.
Robert Draper recounts in Dead Certain: The Presidency of George W. Bush an alarming averment by the current occupant of the White House. Without blushing, Mr. Bush insisted to his biographer: "You can't learn lessons by reading. Or at least I couldn't." Here's a to-do list for his successor:
• Put an end to the imperial presidency. President Bush has usurped what Gen. Washington and the Founding Fathers reprehended: unchecked power that sacrifices fundamental liberties to trust in the president. To paraphrase Lord Acton, absolute power corrupts absolutely. Just ask President Bush's kidnap-and-torture victims, including Khaled El-Masri, Abu Omar, or Maher Arar. The Constitution's marquee is checks and balances, a system predicated upon a suspicion of human nature. James Madison sermonized in "The Federalist No. 51": "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary."
To restore the constitutional equilibrium envisioned by the Founding Fathers, the next presidential inaugural should enumerate the following particulars.
• End the "war on terror" as a legal paradigm.International terrorists are criminals, not warriors. The next president should see to it that terrorists will be captured, interrogated, prosecuted, and punished according to civilian law. The United States is not at war with international terrorism. The next president should ensure that we do not brandish the weapons of war in lieu of traditional law enforcement against international terrorists.
If the conflict of the United States with international terrorism amounts to a war, then this nation is permanently at war—a condition the Founding Fathers insisted was irreconcilable with freedom. War crowns the president with monumental powers and sweeping secrecy. It tends to gratify popular bigotries and encourages a conflation of any dissent with treason. Remember the imprisonment of Eugene Debs; the concentration camps for 120,000 Japanese-Americans; the burglary of the office of Lewis Fielding, Daniel Ellsberg's psychiatrist; and President Bush's water-boarding and warrantless spying on American citizens in criminal contravention of the Foreign Intelligence Surveillance Act of 1978. The next president must recognize the fundamental dangers of a permanent state of war and the granting of infinite power as commander in chief
• Abolish military commissions.Under the new president, military commissions should be promptly abolished. No citizen or noncitizen should be detained without charges as an unlawful enemy combatant. No detainee in the custody of the United States should ever again be denied an opportunity to challenge the factual or legal basis for his detention before an impartial judge in habeas corpus proceedings. The Classified Information Procedures Act of 1980 should be employed to prosecute terrorists without compromising national security. Ramzi Yousef, Zacarias Moussaoui, and Jose Padilla—among other accused terrorists—all have been successfully prosecuted under CIPA. Existing criminal conspiracy law should be employed to thwart terrorist plots in their pre-embryonic stages. Although we seem to have forgotten this fact of late, the criminal law is both forward- and backward-looking.
• Withdraw all U.S. troops from foreign countries. The Declaration of Independence explains that the purpose of government is to secure unalienable rights of life, liberty, and the pursuit of happiness. The United States was not created to build an empire, to aggrandize government, or to purge the planet of nondemocratic regimes. Accordingly, the next president should announce that we are withdrawing all U.S. troops from foreign countries and that, hereinafter, all the nation's military resources will be devoted to building missile, electronic, and other defenses against potential foreign attacks. The United States lacks the wisdom necessary to spin modern democratic gold from centuries of despotic flax by military force or otherwise. Iraq and Afghanistan are clear proof. Further, the United States has no moral responsibility for the destiny of persons outside its jurisdiction who pay no taxes to support the government and pledge no allegiance to the republic.
• Restore both oversight and transparency.No president is infallible. Executive-branch decisions or policies made without congressional vetting or oversight are prone to staggering mistakes—for example, the Bay of Pigs, the Vietnam War, or post-Saddam Iraq. Endogamous thinking is as foolhardy as endogamous marriages. And secrecy, moreover, breeds lawlessness, maladministration, and abuses. Sunshine is the best disinfectant. The next president must restore the tools of judicial and congressional oversight that have been eroded if not obliterated in the past eight years.
Bruce Fein is a constitutional lawyer with Bruce Fein & Associates Inc. and author of Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy.
Illustration by Jason Raish.