The Magazine

Is the President a "Dictator"?

Dec 3, 2001, Vol. 7, No. 12 • By DAVID TELL, FOR THE EDITORS
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IT IS NOW a virtually unquestioned assumption of American elite conversation that the law enforcement measures George W. Bush has adopted in the aftermath of September 11 make him, as the New York Times matter-of-factly reports, "only the latest of many presidents to restrict civil liberties in wartime."

There is apocalyptic indignation about this development at the Times editorial page, which excoriates Bush for a "travesty of justice" and a "breathtaking departure" from legal tradition. There is bipartisan grumbling over executive branch unilateralism among legislators on Capitol Hill. On the other hand, leading constitutional lawyers--Laurence Tribe on the "left" and Kenneth Starr on the "right," for example--have generally voiced approval of the administration's moves, citing certain real-world exigencies. And then there is Judge Richard A. Posner of the Seventh U.S. Circuit Court of Appeals, eager as ever to pee on the shoes of civics-class pietism. "It stands to reason that our civil liberties will be curtailed" during national emergencies, Posner snorts in the December Atlantic. "They should be curtailed." Except, the judge adds, with respect to the private enjoyment of heroin and cocaine, which should be decriminalized posthaste (the better, perhaps, to subdue domestic dissent).

So in one sense, reaction is obviously mixed. But at the same time there is something strikingly consistent about most of the commentary so far: its near-total unconcern for substantive detail. Practically everyone is weighing in on the question whether we should be alarmed or relieved that the president has suspended legal protections ordinarily taken for granted in the United States. But hardly a one of them bothers to demonstrate with any precision that the president has, in fact, done anything of the kind. Bush's most splenetic critics, in particular, apparently deem a mere recitation of recent Department of Justice initiatives sufficient to establish that those initiatives have emasculated the Bill of Rights.

This is quite weird, really. Anyone with an average IQ and an Internet connection can perform the kind of legal research necessary to reach a minimally creditable judgment about the constitutional character of the Bush administration's anti-terrorism campaign. But a job like this takes more time and mental effort than most of us prefer to expend. So we have come to depend on professional journalists and politicians to do the bulk of it for us. Which is fine--as long as they're actually doing it. Say, in the ordinary course of events, that the punditburo reports the president of the United States has lately "assumed...dictatorial powers" (syndicated columnist William Safire, November 15). We would like to think that any such conclusion was based on a more than passing familiarity with the relevant statutes and regulations and Supreme Court precedents, wouldn't we? And we should therefore expect to find some evidence to that effect in the work of our designated opinionmakers, shouldn't we?

But we don't. Instead we find this, and it is altogether bizarre: George W. Bush is nowadays everywhere and constantly criticized for anti-terrorism "decrees" that allegedly disdain the standard procedural guarantees of American law--by people who themselves disdain to explain, or simply don't know, exactly what those guarantees might be.

For instance. Just this past June, the Supreme Court decided a case called Zadvydas v. Davis involving, among other things, the extent to which the Fifth Amendment limits the federal government's authority to incarcerate aliens it is attempting to deport. Here the Court was sharply divided, and its narrow holding was logically problematic, to say the least: In certain limited circumstances, the majority appeared to rule, a criminal alien whose presence in the United States is otherwise and completely illegal still enjoys a constitutional right to be set free on our streets. Nevertheless, despite the peculiarity of its bottom-line reasoning, much of the Zadvydas decision remains directly applicable to the current controversy over whether the Bush presidency has become a tyranny.

Over the past two and a half months, since the World Trade Center and Pentagon atrocities, John Ashcroft's Justice Department has "subjected" more than 1,000 foreign nationals temporarily resident in the United States, most all of them of Arab descent or Muslim faith, to "summary," "secret," and "indefinite" detention--"beyond review" by the federal courts. The program so characterized has been widely and bitterly condemned as unconstitutional. Richard Cohen of the Washington Post informs us that the detentions are so outlandishly unconstitutional, in fact, as to constitute an "American gulag."