The end of the year brought up yet another episode of the ongoing disagreement between the executive branch and Congress over the rightful powers of the president.
The administration has defended the following policies as necessary to wage the "war on terror": holding terrorism suspects without the right to a hearing; sending captured suspects to foreign countries for interrogation; Central Intelligence Agency (CIA) prisons overseas; eavesdropping without court-approved warrants on e-mail communications and telephone conversations between callers from domestic and foreign countries; and the use of harsh interrogation techniques, especially waterboarding.
Defenders of the president's powers point to the president's commander-in-chief role to wage war granted by the U.S. Constitution. The majority in the new Congress, however, oppose the above policies and the unchecked power of the president, and say that he cannot do whatever he likes and must still obey statutes and international laws.
Clashes between the two sides erupted throughout the year, as it has during most of the Bush administration. The latter regards the office of president weakened as a result of the Vietnam War and Watergate.
The most recent episode occurred at the end of the year in December. It was disclosed that the C.I.A. had made two videotapes that recorded the interrogations of Abu Zubaydah and another al-Qaeda operative, but then decided to destroy them in November 2004. Their explanation? To protect the identity of the agents involved in the interrogations.
But this explanation was rejected out of hand by most experts. The Democrats and some Republicans in Congress charged that the destruction of the tapes amounted to a cover-up to conceal evidence of torture, particularly waterboarding.
The latter is a method of strapping the person to a board and pouring water over the mouth and nose, drowning the person until the interrogator stops the procedure before death occurs. Three investigations are ongoing: one by the Department of Justice, one by the C.I.A., and a third by Congress. This story will undoubtedly play out in 2008.
The controversial waterboarding technique nearly derailed the appointment of Judge Michael Mukasey to succeed Gonzales as U.S. Attorney General. He was asked Oct. 30 if waterboarding was an illegal form of interrogation and he replied he would have to learn more about it to answer the question.
Mukasey said waterboarding was "repugnant" to him personally, but couldn't say unequivocally that it was illegal. Many senators on the Judiciary Committee said his answer was unacceptable and that waterboarding, which has been prosecuted as a war crime since the Spanish-American War, was torture, forbidden under U.S. law and the Geneva Conventions.
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One White House official consulted about whether to destroy the C.I.A. tapes was David S. Addington, who was Vice President Cheney's counsel and now is Cheney's chief of staff. Addington and Cheney advocate for the expansive power of the executive branch and Mr. Addington wrote the "infamous" 2002 memo that allowed the C.I.A. to use harsh interrogation techniques, including waterboarding, head slapping, prolonged sleep deprivation, stress positions, induced hyperthermia, and sensory deprivation or overload.
The memo was rescinded secretly in August 2002 by Jack Goldsmith, head of Justice's Office of Legal Counsel (OLC), but it took Congress in 2006 to pass the Military Commissions Act (MCA) to weigh in formally on its strong displeasure of the above forms of "harsh interrogations," which Senator John McCain and others leading this fight regard as simply torture and beneath American character. However, the administration reserved the right to judge what constitutes torture. The MCA did not grant detainees the right to challenge their status (habeas corpus), and so Congress compromised here.
The discussions within the administration's anti-terrorism policies are classified and not generally made public. But last May, the public was afforded a rare window into the conflict over the legality of the warrantless surveillance program created by the Bush administration. Former deputy Attorney General James B. Comey testified May 15, 2007 before the Senate Judiciary Committee, recounting a story that dramatized the high stakes on both sides of the issue of presidential powers.
The administration did not choose to work within the current law as set forth in the Foreign Intelligence Surveillance Act (FISA), which requires the monitoring of domestic e-mails and telecommunications by obtaining a warrant before eavesdropping.
Before 9/11, the National Security Agency (NSA)—considered the most secret of the U.S. intelligence agencies—had not monitored domestic communications but only foreign threats and so many questioned the legality of the presidential order authorizing NSA's eavesdropping on American citizens without a warrant.
The defenders of the program (led by Vice President Cheney) say it is needed to detect terrorist plots and safeguard the United States from terrorist attacks. Others, like Attorney General John Ashcroft, felt domestic surveillance without a court-order warrant was not constitutional and would not agree for the Justice Department to re-authorize it.
Comey said that in March 2004 Ashcroft had to be hospitalized and during that time, Comey became acting Attorney General. The then-White House Counsel Alberto Gonzales and White House Chief of Staff Andrew Card came to the George Washington University hospital and attempted to get the ill and sedated Ashcroft to sign off on the program.
Ashcroft had enough presence of mind to re-state his position and refused to sign, pointing out that his deputy, Comey, who got to the room just before Gonzales and Card entered, was the acting Attorney General. Undeterred, the administration went ahead and re-authorized the program without the approval from the Department of Justice.
Soon afterward, Ashcroft, Comey, FBI director Robert Mueller, and many of their top aides threatened to resign in protest if the NSA surveillance program continued without Department of Justice certification. President Bush eventually relented and the embarrassment of a mass resignation from the Justice Department was avoided.
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