Cheating Justice (10 page)

At the time it was being considered, public discussion about the new FISA Amendments Act of 2008 largely focused on telecom companies and a provision giving immunity to corporations that cooperated in wiretapping American customers under the illegal program. Petitions flew across the Internet in opposition. This provision was passed, as well. What was largely overlooked, however, is how the clause would help the president and his team escape liability from prosecution for illegal activities. Shutting down civil litigation against telecoms offered a handy way to hide details of presidential actions that broke the law. If the cases had continued, discovery and evidence collection might have shown the extent of illegality emerging from the White House.

The president had another motive in getting a new law passed. The new FISA Amendments Act of 2008 allowed many of the surveillance practices that Bush had illegally authorized in the past, possibly leading the president to believe that he wouldn't be prosecuted for crimes that had been abolished. At the very least, the “decriminalization” would confuse prosecutors. But it's clear that the law wasn't in effect earlier, and Bush had broken the law that was in effect. In addition, analysis by the Electronic Frontier Foundation in
Beyond FISA
indicates that many of the illegal activities Bush undertook would still not be legal under the new law.
33
Finally, it seems that even the new law was violated by the Bush administration in its remaining months in office. In an article in the
New York Times
on April 15, 2009, by reporters Lichtblau and Risen, a Justice Department spokesperson confirmed that “concerns” had been detected with the National Security Agency's compliance with the 2008 FISA Amendments Act. The
Times
reported: “Several intelligence officials, as well as lawyers briefed about the matter, said the N.S.A. had been engaged in ‘overcollection' of
domestic communications of Americans” in the months following the enactment of the 2008 FAA, practices that were “significant and systemic.”
34

President Bush's flagrant refusal to follow the surveillance law could have been grounds for impeachment. Although he was not impeached for this activity, he still can be prosecuted for it. The president of the United States is sworn to enforce the law, not violate it. Because his criminal activities in illegal warrantless wiretapping were so damaging to the fabric of the nation, he should be held accountable under the criminal provisions of the FISA law.

 

Even as he defiantly admitted that he violated the law, President Bush came up with a revolving series of justifications, each weak in itself, and no stronger when strung together. In these defenses, the president and Vice President Cheney variously claimed that it was within the job of the president to conduct warrantless wiretapping, that a lawyer had approved it, and that the surveillance worked to protect the United States from another 9/11-type attack (although there is no evidence that it ever did). Anyhow, their defenders say, the law was changed, making much of what was labeled as illegal fall within the new designation of what is legal . . . so no need to create a fuss about it.

Other defenses and justifications for these blatant repeated violations of the law have been put forward as well. The question is: do any of these possible defenses exonerate the president and others in the administration from accountability under the law? An item-by-item review of the president's central justifications and defenses finds him standing on a wafer-thin plank.

The president, defending his violations of the law, said that he needed to act without following the law because of 9/11. As part of this claim, the president insisted that the surveillance actions that he authorized improperly—had they been undertaken before 9/11—could have prevented the attacks.

In a radio address on December 17, 2005, President Bush said: “Two of the terrorist hijackers who flew a jet in [
sic
] the Pentagon, Nawaf Alhazmi
and Khalid al-Midhar, communicated while they were in the United States, to other members of Al Qaeda who were overseas. But we didn't know they were here until it was too late. . . . The [surveillance] activities I have authorized make it more likely that killers like these 9/11 hijackers will be identified and located in time.”
35

But this claim—not a defense to the violation of the law in any case—is simply not supported by the facts. Intelligence operations had successfully gathered significant information about the 9/11 events in advance of the attacks under the framework of the existing FISA law. The president had been warned weeks in advance.

Five weeks before the attack, the president was given a daily security briefing known as a PDB (President's Daily Brief) by intelligence agencies. It was titled: “Bin Laden Determined to Strike in US.” The document, delivered to the president and described in person to him while he vacationed in Crawford, Texas, followed a summer of intense activity by al Qaeda to which the CIA was listening with growing alarm, noted David E. Sanger in the
New York Times
on May 16, 2002.
36
The PDB mentioned the hijacking of planes among the al Qaeda plans. According to investigative journalist Ron Suskind, in his book
The One Percent Doctrine
, the president, after listening to the briefing about the al Qaeda threat and being handed the PDB, told the CIA briefers, “You've covered your ass, now,” and he then went fishing for the rest of the day. The fact of the August 6, 2001, PDB was not even acknowledged by the White House for nine months.
37

The 9/11 Commission Report noted that the White House took no further action on the briefing information. The report also states that President Bush actually had forty face-to-face warnings about al Qaeda's striking in the United States prior to 9/11—an average of one every six days, although they were delivered with unprecedented intensity in the summer of 2001.
38
Yet, the president did not mobilize top-level officials or convene the cabinet even once. Neither did his national security advisor, Condoleezza Rice, or others in the White House. So unconcerned were top-level officials about a terrorist attack that Attorney General John Ashcroft tried to slice $500 million out of the counterterrorism budget shortly after taking office in January 2001, according to analysis by the Center for American Progress,
39
and only two days before 9/11, Secretary of Defense Donald Rumsfeld tried to shift hundreds of millions of dollars out of counterterrorism to a pet ballistic missile defense project, wrote
Newsweek
reporter
Michael Hirsh on May 27, 2002, in “What Went Wrong.”
40
Yet despite a distinct lethargy inside the Bush administration regarding the al Qaeda threat, President Bush tried to blame both his inaction and his later violations of FISA law on some mythical obstacle in surveillance that held him back. There was no such thing.

If the president had in any way deemed that more surveillance information was needed following the August 6, 2001, briefing in which the CIA tried urgently to get his attention, the FISA process was readily available. Had the president determined after 9/11 that more intelligence gathering was needed to prevent further attacks, he could have used the FISA process then, too, and if emergent needs took precedence, could have sought retroactive approval under it. And if the president had found the FISA law insufficient, he could have gone to Congress to ask for changes. Instead, he chose to violate the law. His attempted use of 9/11 to justify his later violations of the law is without foundation, and certainly is no defense against prosecution.

After the existence of the Terrorist Surveillance Program became known to the American public—four years after the president began the illegal program—President Bush insisted in his radio address on December 17, 2005, that he was permitted to violate the FISA law on surveillance because Congress had authorized him to deploy the armed forces to fight against terrorism. The president said: “I'm using authority vested in me by Congress, including the joint authorization for use of military force, which passed overwhelmingly in the first week after Sept. 11.”
41

This claim, made repeatedly by the Bush administration, is an empty shell. It was specifically mandated that the FISA law applied in peacetime and wartime, and the law provided a sensible exception for a fifteen-day period after Congress declared war. President Bush, however, chose to ignore this provision of the law.

The “Authorization for Use of Military Force” (AUMF), passed right after 9/11 and before the war in Afghanistan, states: “The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored
such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
42

Nothing in the military authorization mentions overriding the FISA law, and—especially without a specific statement to that effect—a law cannot simply be steamrolled over. Members of Congress did not believe that they were overriding FISA. Even Senator Lindsey Graham, a conservative Republican, said that when he voted for the AUMF, “I never envisioned that I was giving to this president or any other president the ability to go around FISA carte blanche.”
43
Senator Tom Daschle, Democratic majority leader, wrote an opinion piece in the
Washington Post
explaining that before passage of the AUMF, the White House had tried to insert additional language that would extend its authority to activities in the United States—possibly including wiretapping. The clause was flatly rejected, Daschle noted.
44
The AUMF did not invite the president to break laws of any sort.

Barton Gellman and Jo Becker, in an article in the
Washington Post
about Vice President Cheney, wrote that the AUMF was drawn up instantly after 9/11 inside the White House with further plans in mind. “In fact, [they] knew very well what would come next: the interception—without a warrant—of communications to and from the United States. Forbidden by federal law since 1978, the surveillance would soon be justified, in secret, as ‘incident to' the authority Congress had just granted. . . . It was an extraordinary step, bypassing Congress and the courts, and its authors kept it secret from officials who were likely to object.”
45

Judge Ronald Gilman of the Sixth Circuit U.S. Court of Appeals later addressed the claim that the AUMF overrode the FISA law in the appeal of a civil lawsuit brought by the American Civil Liberties Union that challenged the president's surveillance programs. In a carefully reasoned opinion, Judge Gilman wrote that the Bush argument flies in the face of well-established rules of statutory interpretation. He noted that FISA carries a very specific provision about how the law is to apply in the event of a declaration of war, and that specificity would be given preference over the general one-paragraph language of the military authorization.
46

The claim that the military authorization permitted the president to violate the FISA law has no validity. It cannot form the basis for a defense of his unlawful actions.

President Bush sought to justify his actions by arguing that some members of Congress knew about what he was doing. He claims that the administration told about eight of the 535 senators and representatives. In his December 17, 2005, address, the president put it this way: “Leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it.”

What the president did not say is that these leaders were briefed under a raft of restrictions: they could not bring aides, could not take notes, and could not discuss the program even with their own staffs, according to Douglas Jehl of the
New York Times
in a December 21, 2005, article, “Spy Briefings Failed to Meet Legal Test, Lawmakers Say.”
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This made it impossible to address the concerns that arose.

Nor were the leaders told the truth about the program, according to at least two members of the group. House Intelligence Committee ranking member Jane Harman told Fox News Sunday on January 6, 2006, that the White House never disclosed that it was ignoring FISA to conduct wiretapping on Americans without warrants.
48
Senator Bob Graham, Chair of the Senate Intelligence Committee, agreed. He told ABC's
Nightline
that White House briefings had skipped over the fact that it was conducting surveillance without following the court procedures: “The assumption was that if we did that, we would do it pursuant to the law, the law that regulates the surveillance of national security issues,” said Graham. “There was no reference made to the fact that we were going to use that as the subterfuge to begin unwarranted, illegal—and I think unconstitutional—eavesdropping on American citizens.”
49
Senator Jay D. Rockefeller and House Minority Leader Nancy Pelosi told
Times
reporter Jehl that they had expressed reservations about the Bush program, and Rockefeller produced a copy of a handwritten note he had sent to Vice President Cheney on July 17, 2003, describing his concerns about the wiretapping program after being briefed on it.

Even if they had been fully briefed, eight or ten or fourteen members of Congress cannot ratify the president's illegal acts, and they cannot amend the law. The law stands on its own, impervious to the will of a single individual or a tiny group of elite persons summoned to a meeting by the White House. As then Senator Arlen Specter of Pennsylvania emphasized, “You can't have the administration or a select number of members alter the law.”