Lessons from the Bush years

USA Today (Society for the Advancement of Education), July, 2008 by Robert J. Bresler

THE STORY OF George W. Bush is a work in progress. At this point in history, his public support rivals the historic lows of Pres. Harry Truman after he fired Gen. Douglas McArthur, as well as Pres. Richard Nixon after Watergate. While his presidency is not yet over and his legacy far from clear, a few lessons can be drawn from it:

* When the country is at war and the public sees victory at hand, the president will be rewarded at the polls. On the other hand, if the nation is involved in a protracted and unresolved conflict, the president will pay a serious political price. In 1864, had Gen. William Tecumseh Sherman not broken through the Confederate defenses in Atlanta, Pres. Abraham Lincoln may well have lost the election to George McClelland. In 1944, our successes in the Pacific and at D-Day convinced voters that victory against Germany and Japan was within reach. Thus, Franklin D. Roosevelt easily was reelected to an unprecedented fourth term.

On the other hand, in 1952, with the Korean War stalemated, Pres. Truman faced likely political defeat and withdrew as a candidate for reelection; in 1968, with the Vietnam War losing public support, Pres. Lyndon Johnson also withdrew as a candidate for reelection. Today, if George W. Bush were allowed to run for a third term, no one would give him much of a chance.

* When the public perceives a serious threat to its security, it will grant the president broad powers to protect the country, even at the expense of some liberties. In 1861-62, Pres. Lincoln's early suspension of the writ of habeas corpus elicited little opposition in the North; in 1942, Pres. Roosevelt's decisions to intern Japanese-Americans and to try a group of Nazi saboteurs by military commission received broad public support and the sanction of the Supreme Court; in 1949-50, after the Communist takeover of China, the Soviet atomic tests, the North Korean invasion of South Korea, the Alger Hiss case, and the atomic spy cases, all of the measures to curb communist activity had enthusiastic support.

In The Terror Presidency, Jack Goldsmith recounts how the liberal left cheered Roosevelt's decision to try Nazis in a military court. The Nation opined that any open trial would be "rich in information that be of value to the enemy, particularly to other saboteurs still on the loose." The Detroit Free Press went so far as to demand that, "Realism calls for a stone wall and a firing squad, and not a lot of holler-than-thou eye-wash about extending the protection of civil rights to a group that come among us to blast, bum, and kill."

The Court upheld Roosevelt's decision in Ex Parte Quirin (1942), stating that military trials could be used to prosecute "the enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property." Three days after the Supreme Court handed down its verdict, six of the eight Nazis were electrocuted.

After 9/11, Congress and the public, deeply aroused, supported the President's initiatives--passing the Patriot Act, invading Afghanistan, and placing prisoners for detention in Guantanamo Bay.

* When a perceived threat recedes, the public and the courts are more sensitive to the loss of civil liberties and more critical of presidential power. Since Sept. 11, 2001, there has been no terrorist attack on American soil. The enemy at home seems to have disappeared. Public urgency is waning, and the parade of horribles many predicted has not occurred. Congress is far less willing to grant the President broad powers. There remains a serious gap between the urgency felt by those in the Executive Branch charged with fighting this war and the growing relaxed view among the public and Congress. Pres. Bush has faced a difficult challenge in developing a legal architecture for the war on terror and balancing the values of liberty and security. The civil liberties concerns that were shoved aside right after 9/11 are back. On matters of interrogation and surveillance of possible suspects, there is a constant tug of war between the president and Congress.

* The war on terror is an unprecedented conflict where uncertainty and ambiguity are the rules of the game. Pres. Bush faces challenges that did not confront his predecessors. Unlike Pearl Harbor, the enemies that gave us 9/11 are invisible until they strike. They wear no uniforms and are harder to find--but are just as lethal. There is no country to declare war against or negotiate with. We have a war with no clear beginning or end. As a consequence, it is harder for the Administration to maintain the public trust and vigilance against the threat.

The domestic threat is not a simple criminal enterprise nor connected with one particular hostile nation, where intelligence gathered can be put to use in public trial. Yet, the threat is too serious to wait until the bombs go off or the planes crash into buildings. The object is not arrest and conviction; it is prevention. Presidents cannot give suspected terrorists the same rights given to ordinary criminals in the civil courts. One member of the Bush Administration, Jim Baker, former head of the Office of Intelligence Policy and Review, explained the challenge as more difficult than a goalie's in soccer since, "The goalie cannot see the ball--it is invisible. So are the players--he doesn't know how many there are, or where they are. He also doesn't know where the sidelines are--they are blurry and constantly shifting, as are the rules of the game itself."