BAD ADVICE: BUSH’S LAWYERS IN THE WAR ON TERROR, by Harold H. Bruff. Lawrence, Kansas: University Press of Kansas, 2009. 400pp. Cloth. $34.95. ISBN: 9780700616435.OUR NATION UNHINGED: THE HUMAN CONSEQUENCES OF THE WAR ON TERROR, by Peter Jan Honigsberg. Berkeley, California: University of California Press, 2009. 324pp. Hardcover. $27.50/£19.95. ISBN: 9780520254725.
Reviewed by Richard A. Glenn, Department of Government and Political Affairs, Millersville University, Pennsylvania.
pp.626-631
Because there is no dearth of books on the Bush administration’s (mis)management of the war on terror, future authors in this area would be well-advised to eschew the general for the specific. In two separate books, Harold H. Bruff and Peter Jan Honigsberg have done just that. BAD ADVICE: BUSH’S LAWYERS IN THE WAR ON TERROR, winner of the 2008 Palmer Civil Liberties Prize, is a critique of the legal advice provided to President Bush. OUR NATION UNHINGED: THE HUMAN CONSEQUENCES OF THE WAR ON TERROR tells the personal stories of those individuals who have suffered as a result of the government’s response to the terrorist attacks of September 11, 2001. Its thesis is direct and oft-repeated: Bush’s war on terror has done enormous damage to American values.
BAD ADVICE begins with a question: “Given the indeterminacy of law, how can we minimize the provision of bad legal advice to presidents?” (p.1). Its author, a professor of law at the University of Colorado, is a former senior attorney-adviser to the Office of Legal Counsel (OLC) at the Department of Justice (DOJ). That office occupied a prominent role in the Bush administration’s justification for certain tactics in the war on terror. Bruff dissects, and ultimately rejects, those justifications as being at odds with both American law and moral authority.
BAD ADVICE is divided into two parts. Part I focuses generally on executive advising. Bruff recounts some stories that “epitomize the enduring nature” of the dilemma of the executive adviser who wants to honor both the ruler and the law. These stories are intended to establish the inescapable conclusion that relationships between heads of state and their advisers are always vulnerable to the vagaries of human nature (p.13). He then provides a selective outline of the history of executive advising in the United States. Bruff discusses the president-legal adviser relationships under Franklin D. Roosevelt, Harry Truman, Richard Nixon, and Ronald Reagan, showing how some legal advisers served their presidents effectively in times of crises by offering independent and candid legal advice (even though such advice was often not well received) and others abandoned their responsibility to provide objective legal advice and became unrestrained advocates of the executive’s wishes. Bruff also explores the difficulty in [*627] combining the ethical duties of lawyers with their “special obligations” as executive advisers. Throughout, former attorney general Robert H. Jackson emerges as the hero for his substantive understanding of separation of powers and his sympathetic detachment as a lawyer. Bruff offers some suggestions for these legal advisers, most of which are related to preserving independent judgment. None of the suggestions comes across as landmark, but neither do any seem objectionable. The final chapter in Part I is a standard recounting of the competing visions of executive power. It is here that Bruff takes exception to the Bush administration’s view that executive authority is virtually absolute on matters of national security. Instead, Bruff prefers a functional approach that emphasizes the blending and balance of power. This basic disagreement between the administration and the author is a recurring theme.
In Part II Bruff turns his attention squarely to the Bush administration. His disappointment in the president for not welcoming contradiction is a recurring theme. In six chapters, Bruff explores three particular case studies of “bad” legal advising – authorization of warrantless surveillance by the National Security Agency, the indefinite detention and trial of enemy combatants, and harsh interrogation methods. He concludes that in each instance Bush made broad and unprecedented claims of executive power after receiving oversimplified and selective legal opinions from legal advisers who were driven by ideology and hell bent on achieving political ends, more interested in telling the president what he wanted to hear than in giving him relatively neutral, law-based advice. If Jackson is the hero of the book, John Yoo – deputy assistant attorney general in the OLC and architect of the Bush legal strategy in the war on terror – is the primary villain. Yoo drafted legal opinions supporting warrantless wiretapping, justifying detentions at Guantanamo, asserting the nonapplication of certain treaties, validating military commissions, and rationalizing harsh interrogation methods. Bruff parses these opinions carefully, concluding that Yoo’s legal advice was oversimplified and disingenuous. Given that many of Yoo’s assertions have been rejected by the courts and others narrowed by Congress, Bruff suggests that it is not a stretch to assume that if Yoo had given such advice in private practice he would have been fired multiple times. Yoo is not the lone villain, however. Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, Attorney General Alberto Gonzales, and the vice president’s chief of staff and legal counsel David Addington make up the supporting cast. (Bruff mentions, without elaborating, that Cheney and Rumsfeld had gotten to know Bush when Bush was but a child, thus leaving the reader with the impression that Bruff thinks this may have led to disproportional influence.) Secretary of State Colin Powell, Attorney General John Ashcroft, and Assistant Attorney General Jack Goldsmith, though largely unsuccessful in countering the bad advice, maintained the proud tradition of providing sound legal advice to their executive.
The final chapter offers some general ways to remedy bad legal advice to presidents. Since men are not angels, the overall strategy is greater checks and balances; more specifically, to employ [*628] ordinary administrative law techniques to address the separation of powers problem. Wisely, Bruff is cautious here; mandated layers of review are often unwise and counterproductive. Bruff mentions the deterrent value in crime and punishment for bad legal advice, but recognizes that neither criminal nor civil liability for legal advisers is likely.
BAD ADVICE is not written for general readers. The language is technical; the legal analysis is dense, perhaps too dense even for a standard undergraduate course. It is heavily documented with eighty pages of endnotes. Bruff relies on a cross section of original documents – Supreme Court cases, White House and DOJ memoranda, and other public records; interviews with participants; newspapers; and other publications, most law-based. It includes a lengthy bibliography.
OUR NATION UNHINGED is a much different book. While BAD ADVICE is about decision-making within the Bush administration, OUR NATION UNHINGED is about how those decisions, once translated into actual action, directly and seriously affected a dozen or more people who were ensnared in the antiterrorism dragnet. Although Honigsberg makes clear that he thinks the Bush administration abandoned the rule of law and the core values of due process and justice, his book is not really about the law.
OUR NATION UNHINGED divides into four parts. Part I talks about how the Bush administration “manipulated the law” in three specific areas – introducing the term “enemy combatant” to circumvent the Constitution and the Geneva Conventions, justifying harsh interrogation methods, and asserting absolute and unrestricted executive authority. In this part, the reader will find many of the same material, villains, and conclusions as in BAD ADVICE, although the legal analysis is far less detailed.
Part II tells the stories of Yaser Hamdi and Jose Padilla, both American citizens, and Ali al Marri, an American resident, all of whom were detained for lengthy periods of time in a naval brig in Charleston without basic due process protections. Honigsberg contrasts the absence of due process in these situations with the provision of due process to other more well-known enemies of the state – Nazi war criminals, captured Vietnamese soldiers, and Timothy McVeigh. More importantly, Honigsberg points out the illogic of some of the Bush administration’s arguments regarding these detainees. For example, after the Bush administration designated Hamdi as an enemy combatant, it held him for an extended period incommunicado, in isolation, and without access to counsel. Presumably this citizen was so dangerous that he did not even deserve the opportunity to contest his designation as an enemy combatant. Yet just months after the Supreme Court required the government to provide Hamdi with a hearing to challenge his status, the government released him. The public explanation for the release: Hamdi was no longer a threat. One must wonder how long Hamdi would have languished in the brig had the justices not compelled the administration to show its hand.
Part III – detentions at Guantanamo – takes up more than 40 percent of the [*629] text. The most informative and compelling part of OUR NATION UNHINGED is in the descriptions of the mental and physical difficulties – waterboarding, denial of medical treatment, deprivation of sensory stimulation, removal of human contact, beatings, druggings, forced feedings, and so forth – encountered by these detainees. Honigsberg is not satisfied simply to repeat the terms that had been commonly listed under the general rubric of “torture.” Instead, relying on interrogation logs, observations and conversations with military personnel at Guantanamo, and interviews with lawyers representing detainees, Honigsberg documents the specific abuses of particular detainees, often in graphic terms. It is also in this section that the author discusses the major Supreme Court decisions and acts of Congress dealing with detentions at Guantanamo. For the decisions, the holdings are repeated and the rationale neatly summarized; the counterpositions are ignored. This is certainly not the book’s strength, but it was not intended to be.
Two stories – one of crafty lawyering and one hilarious – are worth passing on. First, the role of the Cuban iguana in persuading the Supreme Court to grant review in RASUL v. BUSH (2004). Rasul’s lawyer argued that once a Cuban iguana crossed into the military base at Guantanamo, it was protected by the Endangered Species Act. Could it really be that the iguana was protected and human beings were not? Honigsberg writes that, while the Court never mentioned the iguana in its opinion, “if you looked carefully, you could see it proudly peeking out from behind the pages of the decision” (p.92). Second, the case of nonstandard issue underwear. Government interference with habeas lawyers representing detainees at Guantanamo was apparently quite commonplace. But one lawyer was accused of sneaking contraband underwear to his client. The letter from the Department of Defense (DOD) to the lawyer, and the lawyer’s response, are reprinted in full. The lawyer’s response is comical.
Part IV details the process and brutality of extraordinary rendition and CIA black sites. Although little is formally known about these “ghost detainees,” Honigsberg asserts that they are captured, beaten, tranquilized, stripped, diapered, goggled, hooded, short-shackled, and transported secretly to prisons in Egypt, Syria, Jordan, and Morocco for “interrogation.” Quoting multiple sources, Honigsberg puts the number of persons “rendered” at between one hundred and one thousand.
Part V examines detentions in the United States with due process. The people discussed here – John Walker Lindh, Richard Reid, Zacarias Moussaoui, and the Lackawanna Six – were all accused of supporting terrorism. Their stories are told to demonstrate the author’s conclusion that the Bush administration could have achieved the same result – national security – while observing the rule of law.
OUR NATION UNHINGED is a less traditional academic book, written for a more general audience. The narratives are easy to follow and told compellingly; it even has pictures of key detainees and [*630] lawyers. Honigsberg has done a yeoman-like job of getting connected people – military personnel; and lawyers, family members, and friends of detainees – to talk. And he has poured over transcripts of court filings, review board hearings, interviews, e-mails, and the like. These are the stories rarely reported in the popular press. This is part original investigation (perhaps this is why no bibliography is included). It is not the type of book that one could complete from behind a desk, even with access to the Internet!
My primary criticism of OUR NATION UNHIINGED is the author’s tendency to offer statements that are short on substance and long on bias. For example, “June 28, 2004” – the day RASUL was decided – “was a day of rejoicing” (p.113). When discussing HAMDAN v. RUMSFELD, the author writes that Justice John Paul Stevens
“must have smiled at the providence of life” as he prepared to announce HAMDAN (p.144). In BOUMEDIENE, Justice Anthony Kennedy “rose to the occasion” (p.170). Additionally, statements like “One hopes the day will arrive when customary international laws and norms of human rights will be valued and honored by our government” are more self-serving than instructive (p.224).
A few times, Honigsberg draws conclusions without informing the reader as to how he came to that conclusion. For instance, Honigsberg asserts, with no documentation, that Stevens offered the BOUMEDIENE opinion to Kennedy to bring him on board; Stevens was “not going to let authorship get in the way of making history” (p.170). The author also regularly repeats his assertion that America’s moral authority has declined. This may well be true, but it does not match the evidence offered in the book. Furthermore, it is certainly difficult to quantify how much our moral authority has declined, for what specific reasons, and what can be done to reverse that trend while remaining loyal to national priorities. And at least once, Honigsberg takes a cheap shot at the vice president. When describing the facility at Guantanamo, he informs that reader that one of the camps was built by a subsidiary of Halliburton, where “Cheney was CEO” (p.238).
BAD ADVICE and OUR NATION UNHINGED have some commonalities. Both assert that the president received legal advice that was not independent, candid, or truthful. Both place the blame squarely on specific advisers. Both acknowledge the rift between the White House and the DOJ, on the one hand, and the Department of State, on the other, bemoaning the marginalization of dissenting voices. Both are critical of the Hamiltonian view of executive power – BAD ADVICE for legal reasons, OUR NATION UNHINGED because of the human consequences. Neither accepts the proposition that this nation must choose between the rule of law and national security. Similarly, neither informs us precisely how to balance those values made more at conflict by modern realities. Benjamin Franklin’s aphorism about liberty and security is not helpful. Certainly there have been some negative consequences resulting from the Bush administration’s war on terror. But there would have been consequences for fighting this war via other means also. A true cost-benefit analysis would at least consider the benefits of Bush’s approach, and not just its costs. [*631]
If interested in both books, read BAD ADVICE first. It is the story of how the Bush administration came to interpret the law to justify certain policies in the war on terror. Then read OUR NATION UNHINGED, and learn about the human consequences of those decisions.
CASE REFERENCES:
BOUMEDIENE v. BUSH, 128 S.Ct. 2229 (2008).
HAMDAN v. RUMSFELD, 548 U.S. 557 (2006).
HAMDI v. RUMSFELD, 542 U.S. 507 (2004).
RASUL v. BUSH, 542 U.S. 466 (2004).
© Copyright 2009 by the author, Richard A. Glenn.
