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Bush's State of Exception

With the Bush administration, power trumps law and even reality.

| Mon Feb. 27, 2006 3:00 AM EST

As you know, very shortly after 9/11, the then-White House counsel [Alberto Gonzales] proposed to President Bush that provisions of the Geneva Conventions had been rendered obsolete, even quaint, by this quote "new paradigm." The Geneva Conventions, the Convention against Torture, and the federal statutes against torture -- these undertakings by the U.S. -- represented restrictions that would unduly hobble the country in fighting the war on terror and, by extension, threaten[ed] the existence of the United States. And I think that's where torture -- "extreme interrogation" is the euphemism -- goes to the heart of the reaction against the way this country has observed human rights in the past, a reaction in a way against law itself. What we have here is a conflict between legality and power.

Torture is a very direct route from human rights, which is to say, restricted power, to unleashed power. We see a movement here backwards from ideals that were at the root of this country's founding during the enlightenment: the restriction of government power and the conviction that human beings had certain inherent rights, one of which was the freedom from cruel and inhuman treatment. Under this way of looking at the matter, those enlightenment ideals embodied in the Declaration of Independence and the Constitution, which were given to Americans, were extended through the Geneva Conventions, through the Convention against Torture, to all people -- and the administration, in pushing extreme interrogation, in going from a secret abuse of power to a public one…

TE: Wasn't it really less an abuse of power than a proclamation of power?

Danner: Exactly. In what I've started to call Bush's state of exception, we've now reached the second stage. Many of these steps, including extreme interrogation, eavesdropping, arresting aliens -- one could go down a list -- were taken in relative or complete secrecy. Gradually, they have come into the light, becoming matters of political disputation; and, insofar as the administration's political antagonists have failed to overturn them, they have also become matters of accepted practice, which is where I think we are now. As we sit here, we are approaching the two-year anniversary of the publication of the Abu Ghraib photographs. It would have been the very unusual observer, on seeing those photographs in April 2004, who would have predicted two years later that extreme interrogation would, in effect, have become accepted within the CIA. And though the Senate passed an amendment that forbade it, the President replied with a signing statement that essentially reserved his right to violate that amendment according to his supposed powers as commander-in-chief.

In effect, the President claims to believe that his wartime powers give him carte blanche to break the law in any sphere where he decides national security is involved. An added element is the elevation of Samuel Alito to the Supreme Court. The only countervailing power we've seen since 9/11 really lay in the June 2004 Supreme Court detention decisions. In one of them, Justice O'Connor declared that the President's power in wartime was not a blank check. Now, she's been replaced by an admitted believer in a "unitary executive." It was Alito when he was at the Justice Department who strongly pushed the strategy of presidential signing statements as a way to mitigate congressional assertions of power.

TE: Weren't you struck by the fact that, of all the things top Bush officials did, their urge toward torture, toward taking the gloves off, was first and fastest? It was an impulse at the top.

Danner: I think that's an interesting way to put it, an impulse at the top. The President and the Vice President have said that, after 9/11, they asked the national security and law enforcement bureaucracies to come to them with proposals. What should the U.S. do? Look, it's time to take the gloves off and every one of you has to show me the way to do it. General [Michael] Hayden said in an interview just the other night that, with the NSA eavesdropping program, he was responding to a request from the White House.

TE: Wasn't it Rumsfeld, when they were "interviewing" John Walker Lindh, the American Taliban, in Afghanistan, who actually told the interrogators to take the gloves off?

Danner: According to a Newsweek report, Rumsfeld had someone essentially telephone the interrogators: Do what you have to do. Go as far as you have to go.

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