Should speed trump legality in America's 'war on terror'?
Just as Elaine Scarry stated that the assertion that speed is necessary for security — e.g. 'not having time' to go through the courts or get a formal declaration war, which has not been done in the US since WWII — has taken power away from the people and given it to an increasingly centralized government (see "Citizenship in Emergency"), which doesn't always do the best thing with its power, it is easy to make the case that Vice President Dick Cheney and allies, such as close advisor David Addington, used speed and the daunting enemy of terrorism as an excuse for the creation of the unitary executive, among other things. Following the 9/11 terrorist attacks, the White House went as far as ignoring Congress, the courts, and even its own departments (e.g. Justice) to get the national security policy it wanted. The need to counter terrorism in a speedy manner has been used by the Bush administration to justify programs like unauthorized NSA domestic wiretapping (ignoring the FISA court), or interrogation tactics that ignore the ruling of Congress and international law.
Defending the homeland has become a battle against existing expectations of legal due process, governmental checks and balances, and personal freedom. As former Justice Department official Jack Goldsmith told Frontline,
[The Bush administration] decided in the fall of 2001 that speed was more important than these other values. I can't say in the fall of 2001 that they were wrong. I don't know exactly what they thought they were going to do in military commissions, but early on the imperatives to get things done trumped the normal processes of deliberation and consultation. In emergencies that often happens. I think as time went on, the circumvention of the normal processes of deliberation and consultation, maybe the balance tipped; that speed and quick decision making may have been able to go slower on that in exchange for more deliberation and consultation.
Detention and torture of terrorism suspects and warrant-less wiretapping, two infamous tools of the 'war on terror', both of which have been direct results of an argument for speed in the fight against an often-invisible, unorthodox enemy. The courts were too slow and Congress' restrictions too inconvenient for 'aggressive interrogation' not to be used on terrorism suspects — the information needed to be gotten, and fast, from the terrorists, supporters say. FISA was bypassed in the case of the wiretapping; the program's defenders said that the FISA court was too slow, and thus, the White House had to act without the consent of neither the legislature nor the judiciary. Communications are moving too fast for judicial oversight; terrorist attacks need to be prevented, beats the drum of former Bush administration legal architect John Yoo. Thanks to Democratic timidity, the NSA wiretapping program was made legal over the summer.
If America is to continue as a (semi-)functioning democracy, her citizens should not let their rights be subdued for the sake of speed or supposed security. Scarry wrote in her article that,
The most frequent argument used to excuse the setting aside of the Constitution is that the pace of modern life simply does not allow time for obtaining the authorization of Congress, let alone the full citizenry.
Over six years after the 11 September attacks, speed has become the excuse for countless questionable actions taken by the president and his staff. No longer should anyone fall for it.