You must remember that some things legally right are not morally right.
—ABRAHAM LINCOLN
GEORGE W. BUSH BECAME OUR FORTY-THIRD PRESIdent after one of the most contested presidential elections in US history. Al Gore won the popular vote, but Bush won the Electoral College after winning Florida by a few hundred votes.
The Florida ballot was a mess. The so-called butterfly ballots were printed in such a way that some people who wanted to vote for Al Gore ended up voting for conservative candidate Pat Buchanan, or for both Gore and Buchanan. The voter also had to hand-punch a hole in the ballot to choose a candidate, but the design was faulty, and sometimes the punched-out piece remained bent but attached. These so-called hanging chads weren’t counted when the votes were tallied.
The final total was 2,912,790 for Bush and 2,912,253 for Gore. A difference of 537 votes.
Then came a legal battle over the recount. Which ballots would be recounted in which counties and how many recounts would there be? The Gore and Bush legal teams each pushed a preferred approach. Some election experts have observed that in retrospect the Gore team should have pushed for a statewide manual recount rather than just focusing on Democratic strongholds. Other experts say that the result would not have changed, no matter how many recounts there were. Nobody knows for sure.
On November 21, 2000, the Florida Supreme Court ruled that the deadline for a recount of votes from Miami-Dade County would be extended five days. Republicans organized to make sure it didn’t happen.
The recount was being held in a conference room on the eighteenth floor of the Stephen P. Clark Government Center in Miami. In front of the building Bush supporters, many of them Hispanic, protested the recount. Among them was a band of young Republican congressional aides wearing suits and ties. Republican political operative Roger Stone—who had worked for President Nixon and would later work for President Trump—sent these disruptors into the room where the ballots were being counted to keep the counters from finishing their task. The rioters created so much chaos that the recount stopped. Because of the disruptors’ attire, this was later known as the “Brooks Brothers riot.”
Meanwhile, the Bush legal team complained to the Supreme Court that the protracted recounting process violated the Fourteenth Amendment.
On Tuesday, December 12, 2000, the Supreme Court released its decision. The court voted five to four to stay the recount, in effect ordering the Florida Secretary of State to certify the election in Bush’s favor. Five conservatives on the court voted for Bush: Chief Justice William Rehnquist, Anthony Kennedy, Antonin Scalia, Clarence Thomas, and Sandra Day O’Connor. The four liberals voted for Gore: John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg, and David Souter.
Said Justice John Paul Stevens in his dissent, “Although we may never know with complete certainly the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
Counterfactual historians will always wonder who would have won the election if the Supreme Court had ruled the other way. We do not enter that debate here. Regardless of the answer to that question, the rule of law is jeopardized by the fact that under the Electoral College system mandated by the Constitution, a presidential election can turn on the results in a single state, and that state does not have a trustworthy voting system.
When the courts get involved, elected state court judges, who are often allied with one political party, order recounts (the Florida courts at the time were narrowly dominated by the Democrats). When a candidate complains to the federal courts, the United States Supreme Court (then, as now, narrowly dominated by Republicans) becomes the arbiter. At least in retrospect both Bush and Gore supporters should be able to agree on one thing—such a legal morass surrounding an election should never be allowed to happen again.
Sadly, very little has been done to prevent it from occurring again. Butterfly ballots and hanging chads are gone, but many of the other problems we saw in 2000 remain. And nobody stopped to think that the debacle advertised to the world the potential for electoral chaos in the United States, the world’s strongest representative democracy. With the blue-state/red-state divide so predictable, and presidential elections likely to be very close for the foreseeable future, some foreign adversary just might see for itself an opportunity to make mischief in a future election.
George W. Bush’s presidency would not be an easy one.
Only nine months later, on September 11, 2001, an organized group of terrorists that had been in the United States planning its attack for well over a year hijacked four airplanes. There were nineteen hijackers, all affiliated with Al Qaeda. Fifteen were citizens of Saudi Arabia, and the others were from the United Arab Emirates, Egypt, and Lebanon. The hijackers flew two planes into the twin towers of the World Trade Center in New York City, and one into the Pentagon building in Washington, DC. When the fourth group of hijackers was overpowered by passengers, the plane crashed to the ground in rural Pennsylvania, killing all on board.
Osama bin Laden, leader of Al Qaeda, was the mastermind of the attack. It was his second try to bring down the Twin Towers. His men had been much less successful on February 26, 1993, when they detonated a bomb in the underground garage of the north tower of the World Trade Center, killing six people. Al Qaeda had also launched an attack later during the Clinton administration when the USS Cole was bombed on October 12, 2000. We were still not prepared for 9/11.
Saudi Arabia, where Al Qaeda originated, was never accused of complicity. The United States, continuing a pattern that predated the first Gulf War under President George H. W. Bush, sought to approach Saudi Arabia as an ally in the Middle East rather than an adversary. What the Saudi government knew about Al Qaeda before the attack may never be known. Yet our close relationship with Saudi Arabia, often shrouded in secrecy, continues to this day, despite the autocratic, dictatorial king ruling the country.
The United States within months invaded Afghanistan, which under the Taliban had been harboring the Al Qaeda terrorists who had, among other things, used that country for a training ground. Pursuing bin Laden and the terrorists into Afghanistan made sense in theory. Keeping American ground forces in Afghanistan over a protracted period of time, however, had risks that any student of world history would recognize. Three great military powers—Macedonia under Alexander the Great, the British Empire, and the Soviet Union—have all tried to invade and hold Afghanistan. All failed. Entering Afghanistan required an exit strategy. Almost twenty years later, we are still there.
Then there was Iraq, which was a problem entirely unrelated to the 9/11 attacks. Iraq was led by a cruel dictator, Saddam Hussein, who had violated international law by invading Kuwait in 1990 and was driven out by a broad-based coalition led by the United States and NATO. He used poison gas on his own people. In 1993 Hussein had made an unsuccessful assassination attempt on George H. W. Bush while Bush was visiting the Persian Gulf region. Several times during his presidential campaign, George W. Bush had talked of removing Hussein from power. But Hussein had no connection to the Al Qaeda terrorists, and none of the 9/11 attackers had any connection to Iraq.
The strongest argument for invading Iraq was the fact that Hussein might have been in possession of weapons of mass destruction.
How this “might” became enough of a certainty to justify a US and UK invasion of Iraq was one of the more serious intelligence failures in American history. That failure was not a defect in raw intelligence as much as it was a failure in how facts reported by reliable sources are interpreted by career professionals in intelligence agencies and then by political appointees seeking a certain conclusion. At some point along the way, hard facts became conjecture or even alternative facts, and they no longer reflected the reality on the ground as much as the perception of that reality in the mind of some politically appointed government official thousands of miles away. Officials then used the intelligence to make decisions and recommendations or to support those that had already been made.
This happened in Vietnam under LBJ and Nixon. It happened again with Iraq. And it would happen yet again in 2016 when intelligence officials were asked a simple question: Did the Russians interfere in our presidential election?
In sum, myths—or alternative facts—can again and again undermine the rule of law when facts are mingled with politically motivated interpretations of those facts.
The opening salvo in the campaign to convince the public that Hussein was a danger to America came on August 26, 2002, when Vice President Cheney announced, “Simply stated, there is no doubt that Saddam Hussein now has weapons of mass destruction.” He continued, “There is no doubt he is amassing them to use against our friends, against our allies, and against us.”
According to Anthony Zinni, the former commander in chief of the United States Central Command, there was no credible evidence that Hussein had such a program.
On March 30, 2003, Secretary of Defense Donald Rumsfeld told the press, “We know where [Iraq’s WMDs] are. They’re in the area around Tikrit and Baghdad and east, west, south, and north somewhat.”
No such weapons were ever found.
One debunker, Joseph Wilson, had gone to Niger only to find that the story that Iraq was importing uranium from Niger was pure fiction. To that end he wrote an op-ed piece in the New York Times on July 6, 2003.
Wilson wrote, “If my information was deemed inaccurate, I understand. If the information was ignored because it did not fit certain preconceptions about Iraq, then a legitimate argument can be made that we went to war under false pretenses.”
Days later, someone told conservative columnist Robert Novak that Wilson’s wife, Valerie Plame, was a covert CIA agent. Novak said the information had come from “two White House officials.” When Novak printed the information, he was putting Plame’s career in jeopardy.
Novak’s column outing Wilson’s wife clearly was retaliation for Wilson’s criticism of the Iraq War. When the Justice Department investigated, John Ashcroft, the attorney general, recused himself from the case because of his close involvement with the White House. James Comey, who had just been appointed deputy attorney general three weeks earlier, took over the case. Comey named Patrick Fitzgerald to be the special counsel. A grand jury was convened, and though no one was indicted for outing Plame, I. Lewis “Scooter” Libby, Vice President Cheney’s top aide, was indicted for lying to the grand jury and obstructing justice. He was sentenced to thirty months in prison and two years of probation.
President Bush commuted his sentence but let the conviction stand. Libby would later be pardoned by President Trump. Lying to protect the president, after all, is not that serious an offense, and perhaps in the eyes of President Trump, it is something that should be encouraged.
The “intelligence” about weapons of mass destruction (that were never found) was used to get congressional approval to invade Iraq. This was similar in some ways to what happened with the Gulf of Tonkin Resolution in 1964 when the Lyndon Johnson administration told Congress what it wanted to hear to get permission to escalate our involvement in Vietnam. This time, once again, Congress asked some questions but took the intelligence reports at face value. Congress overwhelmingly—with many Democrats including Senator Hillary Clinton voting yes—authorized the invasion of Iraq.
Another important aspect of the Iraq War was that some of the billions spent by the US Treasury went to corporations as the private sector took on more and more of the responsibility for the war. In addition to paying Halliburton and other large contractors to rebuild Iraq, the administration hired a firm called Blackwater as the new private fighting force abroad. Founded by Erik Prince, a former member of the Navy SEALs, Blackwater grew from a small company providing shooting ranges in rural North Carolina for police departments and the military into a global security contractor for the State Department and the CIA.
In Iraq the Blackwater militia had a reputation for recklessness and criminal behavior. Iraqis reported that they were impolite and showed no respect for Iraqi civilians. Iraqis said that the contractors often would shout at them if they got too close. Blackwater militiamen were accused of shooting into the streets, running cars off the road, and even killing civilians.
On September 16, 2007, a convoy of Blackwater contractors guarding State Department employees entered a crowded square near the Mansour District in Baghdad. According to Baghdad police, when a small car driven by a couple with a small child wouldn’t get out of their way, the contractors opened fire on them. Iraqi police and the Iraqi military retaliated, and other Blackwater forces raced over.
Twenty Iraqi civilians were killed in the firefight, including the couple in the car and their child.
The Iraqi government was furious. Iraqi prime minister Nouri al-Maliki called the killings a crime. The Blackwater militiamen, however, were never prosecuted. Because contractors are not subject to court martial, and their crimes took place outside the United States, prosecution under United States law was difficult. Prosecuting them under Iraqi law was politically and legally unworkable at a time when Iraq was dependent upon US military personnel and contractors for security and basic services.
The massive outsourcing of military operations has created a dependency on the private sector that seriously threatens the rule of law. These men from Blackwater were lone wolves acting under their own rule of law. They weren’t answerable to the leaders of our armed forces, only to Erik Prince. And because Iraqi Prime Minister Nouri al-Maliki was dependent upon American forces for his own protection, he could not insist upon prosecution.
Then came the question of what to do with captured enemy combatants and noncombatants who were suspected terrorists.
After ending Saddam Hussein’s reign in Iraq, the CIA took over the Abu Ghraib prison on the outskirts of Baghdad.
American soldiers made reports of waterboarding—pouring water over a prisoner’s head to simulate drowning. Another military log stated, “All three detainees reported separately that they received an electric shock to different parts of their body. Detainee ##### reported that an Iraqi policeman (1) held a knife to his throat and (2) placed a pistol to his head and pulled the trigger. He further alleged that American forces (1) punched him and hit him with weapons, (2) threw urine on him, and (3) applied electric shocks to his body.”
To justify “enhanced interrogation” techniques in some situations, John Yoo, a UC Berkeley law professor serving as the deputy assistant attorney general, and other Department of Justice lawyers, wrote a series of memos that distorted the law to justify the enhanced interrogation methods. What they were really talking about was torture.
Was it worse than what sometimes has happened in big-city police stations with criminal defendants? Probably not, but it was still horrible. The difference was that lawyers—and that’s the key—said it was okay. (Police officers using excessive force during interrogation don’t get explicit approval from prosecutors, but that is essentially what happened when the Department of Justice approved torture as an interrogation method.)
This was the first time lawyers at the highest level of our government said, “Torture is okay.”
Not believing in an objective concept of right and wrong is nihilism. We can argue about the role of nihilist theories in abstract philosophy, but in the political realm nihilism means that everything is reduced to power and that any means is justified. Political nihilists don’t believe in normative values of right and wrong. Torture for them is not necessarily wrong.
Nihilists in charge of interpreting laws are dangerous to our democracy. When John Yoo wrote that torture memo, he twisted federal statutes, the Constitution, and the United Nations Convention Against Torture to get the result he wanted. He threw in a ludicrous common-law “self-defense” argument for good measure. By doing so, he basically substituted power for the rule of law.
And to achieve nothing. Experts quickly pointed out that torture has no purpose and doesn’t lead to valuable information. The Senate Select Committee on Intelligence in 2014 issued a report that found that CIA detainees subjected to “enhanced interrogation techniques” either produced no intelligence or “fabricated information,” which resulted in faulty intelligence. The report refuted CIA claims that waterboarding Abu Zubaydah 83 times and Khalid Sheikh Mohammed 183 times produced useful intelligence. All useful information came from traditional nonviolent questioning.
“Waterboarding produced nothing further of value,” said the report.
Not to mention the terrible consequences for American military personnel and civilians captured by hostile forces. Torture is a practical and moral disaster.
In the world of actual facts, not anger-driven conclusions, torture doesn’t work. The rule of law was tragically destroyed to achieve nothing.
One last “scandal” really wasn’t a scandal at all. Between 2003 and 2009, more than twenty-two million private emails of the Bush administration disappeared. The Bush White House used a private email server owned by the Republican National Committee and failed to keep the emails, as required by law. When a congressional investigation sought to subpoena them, they couldn’t be found.
In 1978, Congress had passed the Presidential Records Act, which declared that all presidential and vice-presidential records created after January 20, 1981, be preserved. The public, not the president or vice president, owned the records. In the end, the Bush administration admitted it “lost” up to twenty-two million emails. Then in 2009, after Bush was out of office, they were found. They had been “mislabeled.”
White House aides Karl Rove and Josh Bolton were held in contempt of Congress for refusing to comply with subpoenas for those emails, but the matter was not pursued. Losing emails was not a criminal offense, said the Senate Investigative Committee. Nobody was going to call the FBI. At the Democratic National Convention in the summer of 2008 nobody yelled: “Lock them up.” The matter simply went away. When Barack Obama was elected, he didn’t pursue it.