Cheating Justice (11 page)

In addition, the president had a legal obligation under the National Security
Act to keep all of the members of the House and Senate Intelligence Committees fully informed of White House intelligence activities—this he did not do. The reporting provision—the reports were to be in writing—was passed “as part of an effort to compel the executive branch to provide more specificity and clarity,” wrote the
Times.
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The meetings with congressional leaders—held under rigid controls—were a clear tactic used by the president and vice president to justify their actions and set up a defense against prosecution. Vice President Cheney continued to insist that their illegal actions were legal because some members of Congress had been told about it. Just weeks before he left office on December 21, 2008, Cheney told Fox News, “We briefed them on the program and what we'd achieved and how it worked, and asked them, ‘Should we continue the program?' They were unanimous, Republican and Democrat alike. All agreed—absolutely essential to continue the program.”
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Immediate and direct retorts came from pundits and bloggers.
ThinkProgress
quoted earlier remarks by Senator Rockefeller, who said: “The record needs to be set clear that the Administration never afforded members briefed on the program an opportunity to either approve or disapprove the NSA program.”
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This flimsy defense, attempting to use a small group of congressional members as a human shield for illegality, also fails to protect the president from liability for his acts in breaking the law. If anything, it shows more convincingly that the president and vice president knowingly intended to violate the law and bamboozle Congress in the process.

If a lawyer tells someone it's okay to commit a crime, may a defendant rely upon that as a defense against prosecution? The answer, it would seem, without hesitation, is no. Yet, “defense of counsel” is a subject that frequently arises with reference to President Bush's actions both on surveillance and torture (I'll say more about that in the next chapter).

But is it valid? Actually, in some cases, it may be. The good-faith reliance upon the independent judgment of a lawyer, known as a “mistake of law,” is sometimes recognized as a defense in criminal prosecution—mostly in tax cases. For example, when the crime requires that the defendants know that their actions violate the law, they are permitted to present evidence that they relied, in good faith, on the independent advice of counsel,
and the jury can consider that defense. The mere involvement of a lawyer is not enough—the keys are “good faith” and “independent advice” and “reliance.” This defense is impermissible, as the federal Court of Appeals for the Ninth Circuit wrote in
U.S. v. Shewfelt
, when defendants retain counsel “to insure the success of their mendacious scheme, not to secure legal advice.”
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If the lawyer is merely hired to “bless” a preexisting scheme, there is no good-faith reliance on counsel's advice.

In the case of the illegal warrantless wiretapping programs, President Bush and his team engineered a wholly cynical scheme to insulate themselves from prosecution. What emerges is a picture of the White House “gaming” the system—rigging the procedures to secure a fake justification for what it wanted to do, and then turning around and waving this justification to deflect criticism. The legal opinion was not sought or given in “good faith” and it was not “independent advice.” It was not even given before President Bush started the wiretapping program. According to the surveillance program report by the five inspectors general in 2009, “The first OLC [Office of Legal Counsel] opinion explicitly addressing the legality of the PSP [President's Surveillance Program] was not drafted until after the program had been formally authorized by President Bush in October 2001.” By definition, then, the president did not act “in reliance” on the legal opinion, which came after his decision point.
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This scheme to manufacture a legal opinion had several steps: (a) the president and vice president sought an opinion not before, but after they initiated the illegal wiretapping programs; (b) they arranged for an opinion from a lawyer who they knew would deliver what they wanted; (c) in order to assure that the lawyer's work would not be subjected to unwelcome questioning or outside scrutiny, they created an unprecedented workflow, blocking out standard levels of comment, review, and revision; (d) upon receipt of an opinion that served their needs—though laden with shockingly erroneous legal and factual assertions—they stamped it secret and refused to allow it to be made public or even shown to others who were supposed to rely on it as a policy guide.

To engineer the legal opinion that the president wanted on wiretapping, the task was assigned to John Yoo, the conservative deputy assistant attorney general in the Office of Legal Counsel who also authored memos sanctioning torture. Yoo “became the White House's guy,” said Jay Bybee, who came into the Office of Legal Counsel as Yoo's boss.
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The memo on the illegal surveillance program written by Yoo was so poor and so full of factual, legal, historical, and intellectual inaccuracies that it was later withdrawn when he left the office and others in the Justice Department's Office of Legal Counsel finally saw it. There were several improprieties. The process was manipulated from the start. In the Office of Legal Counsel the writing of opinions for the creation of an entirely new government policy—to say nothing of attempting to override important laws already in place—usually involves several lawyers who write, read drafts, and engage in rigorous peer review. In this case, Yoo—a trusty Federalist Society lawyer who had served as a clerk to U.S. Supreme Court Justice Clarence Thomas and apparently became known in legal circles for his advocacy of the radically expansive executive authority desired by the White House—was singled out. In a highly unusual process, he alone was given the assignment and he alone handled it.
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The Bush administration controlled this situation by refusing to give other lawyers access to the details of the program. Access was known as being “read in” to the program. The president himself made all of the decisions about who would be “read in” to the program, said Alberto Gonzales, counsel to the president. With “all decisions . . . of who has access to the program, the President of the United States makes the decisions, because this is such an important program,” Gonzales told the Senate Judiciary Committee on July 18, 2006, reported Neil Lewis of the
New York Times.
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Yoo was the only person in his division to be “read in” to the program. Not even Yoo's boss—Bybee—was “read in.” As a result, there was no one—no colleagues, no supervisor, no one with the ability to read, analyze, and comment—to engage in peer review. Attorney General Ashcroft was “read in” to the program on the same day he was asked to sign off on it, and Ashcroft's request to consult on the complex legal and constitutional issues with his deputy attorney general was flatly rejected. (The single other lawyer “read in” to the program was the counsel for intelligence policy, James Baker, presumably because he was responsible for interacting with the FISA court on all other FISA matters.) No interest existed in having thoughtful input. Consequently, the president was able to ensure that no other lawyer could interfere with or contradict Yoo's memo.

Yoo's opinion justifying the surveillance program has never been fully released publicly. Even a redacted version released in March 2011 after a lawsuit by the ACLU blacked out all but a handful of words.
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But commentary
on his memo is included in the 2009 surveillance report of the inspectors general. In brief, the commentators were appalled. They found Yoo misstated the facts about the programs, misstated the language of the FISA law, and overlooked the universally recognized major case precedent on executive power—
Youngstown Sheet & Tube Co. v. Sawyer
, decided by the U.S. Supreme Court in 1952.
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This type of memo by Yoo—a lawyer who attended Harvard University and Yale Law School, a constitutional law professor, and a supposed expert on executive authority—suggests that he was not giving his best independent legal opinion. The Department of Justice officials who later saw the memo declared that it had “serious factual and legal flaws,” and refused to accept it.
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Yoo cobbled together a series of fake and falsified positions. For example, Yoo wrote that the FISA law did not make a clear statement “that it sought to restrict presidential authority to conduct warrantless searches in the national security area”—when nothing could be further from the truth. Foreign intelligence, by definition, is a matter of national security, and that's what the FISA law is all about. The law was written explicitly to restrict presidential authority and directly addresses it; the legislative history states that the FISA law is intended to restrict presidential authority “in the national security area.” An opinion by Steven Bradbury, who came into the Office of Legal Counsel after Yoo left, noted that Yoo's proposition “is problematic and questionable given FISA's express references to the President's authority,” and that it is “not supported by convincing reasoning.”
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I later describe other outlandish and untrue claims by Yoo in the wiretapping memo.

But Yoo discussed the still-secret “Other Surveillance Program” only briefly—the memo focused mostly on the separate Terrorist Surveillance Program, the outlines of which became publicly known with the
New York Times
exposé in December 2005. What Yoo did say about the “Other Surveillance Program” was patently wrong, factually and legally. The 2009 surveillance report said that Yoo “did not accurately describe the scope of these activities” and found his analysis “insufficient.” As a consequence, there was a “serious impediment” to certifying the “Other Surveillance Program.” In fact, those who finally saw the memo when Yoo departed the Justice Department in 2003 recognized its extreme inadequacies, resulting in a high-stakes showdown with the White House. Acting attorney general James Comey refused to continue signing off on the president's wiretapping
in March 2004, and FBI director Robert Mueller followed suit, threatening to quit if Comey were not heeded. The White House rushed Alberto Gonzales to the hospital bedside of the ailing Attorney General Ashcroft on March 11, 2004, to get his consent. Ashcroft refused to discuss it. Something was seriously amiss.

Clearly, a president who was concerned with doing the right thing and not merely having puppet permission to engage in illegal activities would have asked the best lawyers in the government—a bevy of lawyers—to analyze and review his plans, and to do so before he set them in motion. President Bush did none of this. He started his program and then manufactured a situation so that a single, demonstrably sympathetic lawyer would ratify it outside the normal channels of review. This isn't a good-faith reliance on legal advice, and President Bush is not entitled to rely upon the “defense of counsel” argument to protect him from accountability for his illegal actions.

President Bush and Vice President Cheney have repeatedly justified these rogue surveillance operations by saying that, well, so what, the steps they took worked. The president's illegal authorizations of surveillance produced important information that has prevented attacks, they say. In his December 17, 2005, radio address justifying the illegal orders, the president put it this way: “The activities conducted under this authorization have helped detect and prevent possible terrorist attacks in the United States and abroad.”
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As he was leaving office, Vice President Cheney continued to make this argument. In an interview with ABC News in December 2008, Cheney said: “On the question of terrorist surveillance . . . It's worked. It's been successful.”
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But this was at some variance from the conclusions of the inspectors general of the nation's major intelligence agencies, which were decidedly more circumspect and ambivalent about the success of the program. They found that the secrecy of the president's illegal surveillance program inhibited its effectiveness, that the information could have been collected in other ways, and that the intelligence was without context, which limited its usefulness for analysts.

For example, the inspector general for the CIA concluded that it was
“difficult to attribute the success of [any] particular counter terrorism case exclusively to the PSP [President's Surveillance Program].” Because much of the information collected under the program was vague—apparently because it was sweeping in vast amounts of intercepted calls, e-mails, and data, or the communications were never translated—CIA personnel relied upon other information. The secrecy of the program hindered its effectiveness—there was little legal guidance, and working on-the-ground personnel were not “read in” to the President's Surveillance Program, preventing effective use. The CIA inspector general was “unable to independently draw any conclusion on the overall effectiveness of the program to the CIA.”

The inspector general of the Justice Department “found it difficult to assess or quantify the overall effectiveness of the [program] as it related to the FBI's counterterrorism activities.” FBI agents were “frustrated” because the sources of information were not provided and many “PSP leads were determined not to have any connection to terrorism.” The inspector general said that the illegal surveillance program was only “one tool of many.” The program also created problems for agents because of its “exceptionally compartmented nature.” The president's programs “played a limited role in the FBI's overall counterterrorism efforts,” the Department of Justice inspector general concluded. Similarly, the director of national intelligence viewed the program as “not of greater value than other sources of information.”
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