Cheating Justice (12 page)

The intelligence community professionals interviewed about the President's Surveillance Program “had difficulty citing specific instances where PSP reporting had directly contributed to counterterrorism successes.”
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The president and vice president faked the value of the illegal surveillance, just as they inflated its underpinnings with hyped threat assessments.
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Despite the puffery and claims of President Bush, the information collected through illegal surveillance was not “crucial,” as the vice president proclaimed. The president's illegal surveillance program appears to have provided little useful assistance to U.S. counterterrorism efforts. “It is now clear that many of [the surveillance programs] could have been conducted just as easily within the law—perhaps more effectively and certainly with far less damage to the justice system,” wrote the
New York Times
in an editorial, “Illegal, and Pointless,” on July 16, 2009.
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The claim that “it worked” would not justify the president's lawlessness, but there is scant evidence that it did work in providing uniquely useful
information that prevented attacks on the United States. This attempt to divert attention from the president's illegal activity falls flat.

Another assertion made by the Bush camp holds that the president, in his role as commander in chief of the military, can take whatever actions he wants in order to support a war effort. To defend his illegal electronic wiretapping to the American public, President Bush said in his December 17, 2005, radio address, “I'm . . . using constitutional authority vested in me as commander in chief.”
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This notion is entirely wrongheaded. A preeminent decision of the U.S. Supreme Court, the
Youngstown Sheet & Tube Co. v. Sawyer
—I referred to it earlier—made this utterly clear and did so forty-nine years before President Bush tried to muster this claim. Commander-in-chief powers do not give the president extrajudicial authority. The U.S. Supreme Court ruled in 1952 in
Youngstown
, often called “the Steel Seizure Case,” that President Harry Truman could not issue an order seizing steel mills to prevent a strike, even though the cessation of steel production would interfere with making guns, tanks, planes, and other military products needed for the Korean War effort then under way. The respected justice Robert Jackson wrote that the president is commander in chief of the army and navy, not “Commander in Chief of the country, its industries and its inhabitants.” Seizing the mills, even during wartime, was beyond presidential powers. The justice added: “No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role.”
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Yet this is exactly the Houdini-style escape of control—and accountability—that President Bush tried to pull off.

In Yoo's legal opinion on wiretapping, the precedent of the Steel Seizure Case was not addressed at all, as I mentioned earlier. Is it possible that Yoo missed this all-important case? Or did he deliberately leave it out because he was told to do so by the White House? Other lawyers were certainly alarmed when they read Yoo's opinion after he left his position in 2003. As well they should have been: a legal opinion that fails to cite the main case on the subject is not worth the paper it is written on—none of its conclusions can be trusted.

Judges who ruled on the president's wiretapping program in civil court
challenges reinforced the centrality of the Steel Seizure Case that Yoo overlooked. In August 2006, Judge Anna Diggs Taylor, a federal district court judge in Detroit, directly applied the Steel Seizure analysis to the warrantless electronic surveillance authorized by President Bush in a case brought by the ACLU.
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She noted, as Justice Jackson had, that the president is only commander in chief of the military—not of all the people.
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The same argument, claiming that Congress cannot restrain the president's commander-in-chief powers, was made with respect to the treatment of detainees. But the Supreme Court rejected this, too. In 2004, in
Hamdan v. Rumsfeld
, the U.S. Supreme Court said a president “may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.”
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The president cannot claim that he is protected from prosecution for his illegal acts in violating the FISA law because he is the commander in chief of the military. Even to think of permitting that broadened interpretation of his powers as a defense insults and endangers our democracy.

Call this the Nixon defense. “If the president does it, that means it's not illegal,” former president Richard Nixon told interviewer David Frost in 1977.
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The TV moment was even re-created in an entertaining show on Broadway thirty years later, in part because it is so obviously outrageous.

Similarly, President Bush claimed that he was “the decider.” His defenders echo Nixon, saying whatever the president does is legal. They crown him with a kind of “inherent authority” to break the FISA law. Yoo said that a reading of FISA that placed limits on the president's behavior “would be an unconstitutional infringement on the President's Article II authorities,” referring to that part of the U.S. Constitution that outlines the powers of the president. Additionally, Yoo wrote in his memo attempting to justify surveillance, “we do not believe that Congress may restrict the president's inherent constitutional powers, which allow him to gather intelligence necessary to defend the nation from direct attack,” according to the 2009 surveillance report.
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But that is exactly what Congress can do and intended to do. The FISA law was designed to limit how the president and other government officials could gather intelligence, even in time of war. FISA “puts to rest the notion that Congress recognizes an inherent Presidential power to conduct
surveillance outside the procedures contained in Chapters 119 and 120 [referring to the FISA law],” according to a 1978 Senate Judiciary Committee report cited by the Congressional Research Service.
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And to make it abundantly clear, FISA explicitly repealed language in a prior federal statute that recognized the president's right to protect the nation in wartime. The repealed language said: “Nothing in this chapter shall limit the constitutional power of the president to take such measures as he deems necessary to protect the nation against actual or potential attack, or to protect national security against foreign intelligence activities.” Repealing that provision was done with a purpose: it “eliminat[ed] any congressional recognition or suggestion of inherent Presidential power with respect to electronic surveillance,” said the 1978 Senate Judiciary Committee report.

Vice President Cheney, known for his expansive views of executive authority, forcefully claimed in an exit interview with ABC News on December 18, 2008, that the president's spying program was legal. “It's legal. It was legal from the very beginning. It is constitutional. To claim that it isn't, I think is just wrong,” he said.
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But he gave no legal support for this bald statement.

When the government tried to assert that wiretapping Americans was within the constitutional prerogative of the president in a civil case, it was soundly rejected. Federal judge Taylor in the Eastern District of Michigan said in 2006 that the government could not claim that the president had inherent power “to violate not only the laws of Congress, but the First and Fourth Amendments of the Constitution itself.”
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Unlike a monarch, the president has no inherent authority to make up the law or violate the law or ignore the law. If the president believes the law is wrong, he can go to Congress and seek an adjustment, something President Bush was very good at doing. By his oath of office, the president is sworn to “uphold the law.” The president cannot claim that he is outside the law, above the law, or gets his law from some other authority. The defense that the president can violate the law because he is, after all, the president, is utterly invalid and undermines the very Constitution upon which the nation is founded.

After the disclosures of the Bush warrantless wiretapping program in 2005,
President Bush at first admitted in a grandiose speech that he had ignored the law, and then insisted that it was his right to do so. But before he left office, the president was singing a different tune, and he pressured Congress to change the law.

As described earlier, the FISA Amendments Act of 2008 (FAA), pushed through Congress by the Bush administration, changed the original FISA law radically, eliminating most of the strong protections of FISA and permitting wiretapping without a court order. Under the new law, wiretapping is approved internally in the Justice Department, which then sends a report twice a year to the FISA court. The FISA court can still review requests for warrants, but the situations in which the government must apply for a warrant are pretty meager. Some of what President Bush authorized from 2001 to 2007 in forty-three executive orders that violated the original FISA law might be legal under these new provisions. (Other Bush actions may not be legal even under the new amendments, but because information about the surveillance programs has been held in secret, a full reckoning has been impossible.)

To defend themselves from prosecution for their FISA criminal violations, President Bush, Vice President Cheney, and others are likely to claim that the law has changed, so they shouldn't be accused of violating an old law. Why should they be prosecuted when, in large part, the crimes they committed from 2001 to 2007 were decriminalized later? On a December 16, 2008, interview with ABC News, Vice President Cheney defended the surveillance program, saying, “It's now embodied in the FISA statute that we passed last year. . . . It is legal.”
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While the new FISA Amendments Act went so far as to provide immunity from civil suits to telecoms that collaborate in wiretapping, it did not provide criminal immunity to President Bush, administration officials, or even telecoms. And to underscore this point, Congress did not change the criminal penalties for violation of FISA. The 2008 change in the law—six years after President Bush began to violate the law—does not erase the fact that President Bush broke the law that existed.

But maybe the Bush team forgot about the savings clause. When a law is changed after the violations have occurred, a provision swings into effect under the United States Code known as the “savings clause” or the “repeal of statutes as affecting existing liabilities” (1 USC § 109). Under it, the prior law is “saved” for the purposes of prosecuting wrongdoers unless the
new law explicitly repeals the old law. The new FISA Amendments Act did not repeal the old FISA law. There are technical exceptions to the savings clause, but they do not save the president from prosecution.
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An important ruling that shines light on the president's accountability under the original FISA law was issued on March 31, 2010, in a lawsuit brought by the Al-Haramain Foundation and its lawyers,
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who asserted that they were subjected to illegal surveillance.
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In 2010, Judge Vaughn Walker, chief judge of the federal district court in San Francisco, noted the “purported January 2007 termination” of the president's surveillance programs, but said that, even if the program had ended, the government could be sued for damages during its period of operation.
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The court ordered the government to pay damages for its violations of the laws on surveillance. Although this was a civil lawsuit for damages, importantly, some of the same analysis—that the actions were illegal when undertaken—applies to accountability under the criminal law.

In addition, some reports indicate that the Bush administration violated even the new FISA Amendments Act. The Electronic Frontier Foundation, a watchdog and litigation organization in California, believes that the National Security Agency continued a dragnet of domestic communications without following the simple procedures of the FISA Amendments Act.
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An article in the
New York Times
, “Officials Say U.S. Wiretaps Exceeded Law,” reported that “the N.S.A. was improperly capturing information involving significant amounts of American traffic” for many months after the FAA was passed in the summer of 2008.
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Because the president and vice president had repeatedly violated FISA, they were understandably concerned about protecting themselves from prosecution. President Bush and Vice President Cheney tried hard to create a legal environment in which they could not be prosecuted. They tried to cause confusion for a prosecutor and attempted to spin verbally a change in the law as amnesty for themselves. But they did not fully succeed. President Bush broke the law, hid his actions, and tried to cover up—for four years before it was publicly disclosed, and for another two years after that. Our country cannot survive as the democracy our founders envisioned if our highest elected executives can simply ignore the law or attempt to change the law to whitewash their own actions. They cannot escape prosecution for their illegal actions by claiming that the law was later changed.

The president, vice president, the head of the NSA, their aides, and others who joined in a conspiracy to violate the FISA law may try to claim that the statute of limitations has run out, so even if they broke the law, it's too late to prosecute them.

The statute of limitations for criminal violations of FISA is five years,
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and the statute of limitations on a conspiracy runs from the date of the last overt act in furtherance of the conspiracy.