Last week Attorney General Alberto J. Gonzales testified before the Senate Judiciary Committee that the President had personally shut down a Justice Department investigation into the domestic eavesdropping program being run by the National Security Agency. According to Neil Lewis of the New York Times,

"Mr. Gonzales made the assertion in response to questioning from Senator Arlen Specter, Republican of Pennsylvania and chairman of the committee. Mr. Specter said the Office of Professional Responsibility at the Justice Department had to call off an investigation into the conduct of department lawyers who evaluated the [NSA] surveillance program because the unit was denied clearance to review classified documents.

"'Why wasn't O.P.R. given clearance as so many other lawyers in the Department of Justice were given clearance?' Mr. Specter asked.

"Mr. Gonzales replied, ‘The president of the United States makes decisions about who is ultimately given access," and he added that the president ‘makes the decision because this is such an important program.'"

It was the first time in its thirty-one year history that investigators from the OPR, who regularly conduct "investigations into executive branch programs involving the highest levels of classified information," were blocked from doing so.

An anonymous "senior Justice Department official" offered the following explanation to Lewis: "We had to draw the line somewhere" -- one of those classic descriptions that should have been in the headline, not deep in the piece. For the most secretive administration in American history, even the anonymity of the source was perfect. The only inaccuracy in the line was that splendidly placed "somewhere." As on every other issue of legal, ethical, or constitutional import, this administration never draws the line "somewhere"; it always draws its line at the same place -- the place, to be exact, which gives the commander-in-chief presidency that is this administration's heart and soul the most possible power and denies power most outrageously to any other branch of, or agency of, government (except, of course, the Pentagon).

Recently, though, one of those branches refused to accept the administration's "somewhere" in the sand and instead drew some rather striking lines of its own. David Cole, law professor and author of Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism, offers a canny and vivid account of how the Supreme Court drew those lines, challenging an administration that, until recently, brooked no challenge. Thanks to the kindness of the editors of the New York Review of Books in whose most recent issue this piece appears, Cole's essay is now posted here. Tom

Why the Court Said No
By David Cole

[This piece, which appears in the August 10, 2006 issue of the New York Review of Books, is posted here with the kind permission of the editors of that magazine.]

1.

Since the first few days after the terrorist attacks of September 11, 2001, the Bush administration has taken the view that the President has unilateral, unchecked authority to wage a war, not only against those who attacked us on that day, but against all terrorist organizations of potentially global reach. The administration claims that the President's role as commander in chief of the armed forces grants him exclusive authority to select "the means and methods of engaging the enemy." And it has interpreted that power in turn to permit the President to take actions many consider illegal.

The Justice Department has maintained that the President can order torture, notwithstanding a criminal statute and an international treaty prohibiting torture under all circumstances. President Bush has authorized the National Security Agency to conduct warrantless wiretapping of American citizens, despite a comprehensive statute that makes such surveillance a crime. He has approved the "disappearance" of al-Qaeda suspects into secret prisons where they are interrogated with tactics that include waterboarding, in which the prisoner is strapped down and made to believe he will drown. He has asserted the right to imprison indefinitely, without hearings, anyone he considers an "enemy combatant," and to try such persons for war crimes in ad hoc military tribunals lacking such essential safeguards as independent judges and the right of the accused to confront the evidence against him.

In advocating these positions, which I will collectively call "the Bush doctrine," the administration has brushed aside legal objections as mere hindrances to the ultimate goal of keeping Americans safe. It has argued that domestic criminal and constitutional law are of little concern because the President's powers as commander in chief override all such laws; that the Geneva Conventions, a set of international treaties that regulate the treatment of prisoners during war, simply do not apply to the conflict with al-Qaeda; and more broadly still, that the President has unilateral authority to defy international law. In short, there is little to distinguish the current administration's view from that famously espoused by President Richard Nixon when asked to justify his authorization of illegal, warrantless wiretapping of Americans during the Vietnam War: "When the President does it, that means that it is not illegal."