“The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
So wrote Justice Louis Brandeis in 1928.
Perhaps no more incisive summary than these words of the Justice can be found to describe Jane Mayer's highly readable, gripping The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals. In the days and months that followed 9/11, a small group of men inside the Bush Administration, led by the Vice President, pushed to dismantle the Constitutional limits on executive power.
Deeply researched, filled with insights and direct quotes from many inside the circle of power, The Dark Side traces the fateful consequences of that momentous decision, consequences that would damage America's moral standing in the world as those charged with protecting the nation crossed into the dark side.
The historical moment in which men like Addington and Yoo worked, crafting the now infamous memos that provided the legal scaffolding for unlimited, unchecked executive power to capture and detain terror suspects, even American citizens on American soil, was a time of panic. Much of that panic was stemmed from the visceral, deeply emotional response to the crisis.
For men steeped in the Cold War mythology, the idea that a ragtag band of men from another side of the world could wreck so much havoc and destruction behind the lines was almost unimaginable. It was as if the ground had moved under their feet. Worse, there was no immediate target that could be hit in retaliation, for unlike previous enemies the U.S. faced and fought in the past, Al Quaeda was a non-state entity with no fixed mailing address. Not only couldn't you nuke a training camp, the terror networks were spread around the globe, hidden in the ruins of failed states. And Al Quaeda fought in ways that no former enemy ever dared to consider. As bad as the Soviet Union seemed, Stalin never bombed downtown Manhattan. He wouldn't dare. The terrorists showed themselves to live inside a completely alien world view.
Something entirely new had to be developed to address this new kind of enemy, and fast. In those feverish days following the strikes, Cheney and his men worked under the dark cloud of new attacks — the sky seemed to be falling. Most inside the intelligence apparatus believed that a new wave of attacks was imminent and that the destruction would be even greater. The time for analysis, for an audit of the bureaucratic failures, if it ever came, would have to wait.
Adding to the fear of the already heady mixture of events was Cheney's insistence that he and other key presidential advisers see raw intelligence data. The reports he received were filled with frightening information. Reading them was a “mind-altering” experience. But much of that raw data was also “garbage.” Still, given the tons of new threats that appeared daily in the chatter streams, national security concerns became of near religious import to Cheney and other key policy makers inside the Bush administration — anything, anyone could be sacrificed on that altar.
But it is a mistake to believe that the panic that followed the attacks was solely responsible for the attempts to run around the Constitution. Mayer sketches a much longer history of the idea of the imperial presidency. The notion that the president should have more power and authority can be traced to the era of Watergate and the Nixon presidency's disgraceful fall. For conservatives like Cheney, this was a difficult intellectual and cultural era. The Congress, seizing on the public outrage over Nixon's excesses, had, in their view, gone too far in laying down the law, which ended up hamstringing the president.
The Iran-contra crisis indicated the degree of dissatisfaction on part of certain people in government with the growing power of the legislative branch — decisions were made, according to Mayer, to simply get around Congressional interference and meddling. 9/11 seems to have offered a silver lining, giving them the perfect opportunity to push back and to put into place their interpretation of the office of the president, even if it conflicted deeply with the established ideas.
The fact that Al Quaeda did not sprout overnight had a great deal to do with the perceived need for a more muscular presidency. Bin Laden had been formally, if secretly, recognized as America's main enemy long before 9/11. As early as 1996, for example, he and his organization had been targeted by the Clinton administration. And the CIA was waging a slow and largely unsuccessful war against Al Quaeda for at least five years before the tragic events of 9/11. There were obstacles to a more aggressive approach. Obstacles, one concludes after reading the book, that Cheney and his men would later work to address in a way that made sense to them — by giving removing much of the restraints on the executive. In one instance, which illustrates the ethical quandaries that held back American power, Bin Laden was in the sights of a Predator drone but the president hesitated giving the order to kill the terrorist leader, the incredibly clear live video feed showing the unsuspecting criminal mastermind also showed a swing, indicating the presence of children. It would take 9/11 and Dick Cheney for the gloves to come off. It was okay for the President to hurt children, as Yoo latter would admit in a 2005 interview, if the president was doing so to protect American children.
In Cheney's estimation, America had become weak, soft and perhaps even too good for its own good. There were too many civil liberties, too many rights for defendants and criminals constraining the hands of America's defenders. Taken out of context, it may seem that Cheney's beliefs were unfounded and that men like Addington and Yoo were extremists bent on taking down the Constitution.
But after the attacks, as disturbing information came to light about the many breakdowns and missed opportunities to address the growing Al Quaeda threat, it seemed that central cause for the massive failure of the intelligence apparatus to detect the plot was simply the failure to follow up and follow through on evidence that did come to light long before the attacks. It is eay to conclude that precisely for this reason Cheney believed that America had become weak by being too generous with liberties and rights — after all, only in a nation that was undisciplined and weak could actionable threat intelligence be dismissed. Only in a country that had lost its street smarts in a dangerous world, becoming soft and naïve, could those charged with its security fall asleep at the switch.
This “sleep” was deep indeed. When Congress refused to grant the Presidency unlimited power, even after 9/11, Cheney's men, principally Addington and Yoo, began to craft a framework that would unleash the powers of the executive to wage an unlimited war on a new enemy.
Under The New Paradigm, America's legal system was viewed as a burden, its provisions too cumbersome in a new reality and was to be dispensed with. In its place were build the foundations for a new way of dealing with enemies of a new era — preventive arrests, indefinite detentions, a legal system in parallel to the old structures, one in which there were no juries, no lawyers and no impediments to state power.
Not everyone agreed with the interpretation put forth by Cheney and his men. As the effects of their ideology were becoming clearer, pushback began from people inside the FBI, the Navy and other branches of the military to end the renditions, the “robust” interrogation, and to shut down the black sites and restore the rule of law. A struggle ensued between Cheney and his men and those who felt that they had gone too far.
Intertwined with the struggle against terrorism was the struggle for America's soul. The essence of this struggle was about the answer to one simple question, Would we wake up one day to find ourselves living in a nation where you could be “disappeared” for having the wrong friends, visiting the wrong Internet sites, and reading the wrong things?
The New York Times reviewer wrote about that ideological struggle, “It's a cage match between the Constitution and a cabal of Ideological extremists, and the Constitution goes down.” Will it ever get back up? The prospects seem grim, at least to Jack Goldsmith, former head of the Office of Legal Counsel; he writes in an article for The New Republic,
“The new administration has copied most of the Bush program, has expanded some of it, and has narrowed only a bit. Almost all of the Obama changes have been at the level of packaging, argumentation, symbol, and rhetoric.”