Tikun Olam-תיקון עולם: Make the World a Better Place

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The New York Times has dropped a bombshell into the continuing debate about national security, civil liberties and the war on terror. Today’s story indicates that Pres. Bush wrote an executive order in 2002 giving the National Security Agency carte blanche to snoop on American citizens within the U.S. Bush authorized the NSA to do so without warrants. The reason this is so breathtaking is that since the 1970s, following revelations of the Church Committee about abuse of wiretapping by our intelligence agencies, the NSA by law has only spied on individuals and communications abroad (and in some instances with the U.S. but only after obtaining a warrant).

George Bush touring NSA headquarters with then director, Lt. Gen. Michael Hayden (credit: Doug Mills/NYT)

While clearly Bush talked big after 9/11 about tearing down the walls between the FBI and CIA in order to streamline the hunt for terrorists, I don’t think anyone except Bush, Cheney, John Ashcroft (don’t you just wish he was still A.G. when you see scandals like this–it’d be so nice to have him to kick around some more) and their hounds contemplated such a radical restructuring of the intelligence rules.

Just as horrendous are the terms under which the NSA can decide who to surveil. Essentially, there are no terms. At least to get a legitimate warrant to snoop on a terror suspect, the FBI or CIA needs to show probable cause that someone may be an “agent of a foreign power,” whatever the hell that means. In the case of the executive order, there are no such terms. And there’s no oversight of NSA practice. Not the Justice Department, not even the Bush Administration itself. No one is consulted. No one gives permission:

Several senior government officials say that when the special operation began, there were few controls on it and little formal oversight outside the N.S.A. The agency can choose its eavesdropping targets and does not have to seek approval from Justice Department or other Bush administration officials.

(cartoon: Elena Steier)

If a mysterious group of NSAers decide you’re a bad dude, you’re on the list buddy. Now, wouldn’t you just love to see the list of people they’ve wiretapped to verify whether they really are bad dudes or whether perhaps they’re a pizza delivery man who once bragged (perhaps not the proper term) to his girlfriend that he met Osama bin Laden. The number of people who’ve fallen under this scandalous domestic spying program is “in the thousands” according to government officials interviewed for the article.

Primary responsibility for this fiasco belongs to Bush and Cheney. But there is much secondary blame to go around. Congress comes in for its fair share:

After the special program started, Congressional leaders from both political parties were brought to Vice President Dick Cheney’s office in the White House. The leaders, who included the chairmen and ranking members of the Senate and House intelligence committees, learned of the N.S.A. operation from Mr. Cheney, Lt. Gen. Michael V. Hayden of the Air Force, who was then the agency’s director and is now a full general and the principal deputy director of national intelligence, and George J. Tenet, then the director of the C.I.A., officials said.

That would include Peter Hoekstra and Jane Harman of the House intelligence committee and Pat Roberts and John D. Rockefeller IV. This passage doesn’t make clear whether Harry Reid and Bill Frist were included. According to the Times article, Rockefeller made his misgivings known in a letter:

After a 2003 briefing, Senator Rockefeller, the West Virginia Democrat who became vice chairman of the Senate Intelligence Committee that year, wrote a letter to Mr. Cheney expressing concerns about the program, officials knowledgeable about the letter said. It could not be determined if he received a reply. Mr. Rockefeller declined to comment.

I’d like to see the contents of Rockefeller’s letter and know whether he ever followed up in any way. As for the others, their records are stained. I’ve thought very highly of Jane Harman’s statements on national security issues till now. She has some explaining to do. We’ve got to ask where was the oversight?? I know Bush did an end around Congress with the executive order. But once these legislators heard a whiff of this dreadful spookery why didn’t they scream bloody murder? Here’s one interesting explanation:

One government official involved in the operation said he privately complained to a Congressional official about his doubts about the program’s legality. But nothing came of his inquiry. “People just looked the other way because they didn’t want to know what was going on,” he said.

They didn’t want to know. I bet the same thing happened in pre-Hitler Germany. The good guys were so cowed by the tenor of the times they didn’t believe it was worth rocking the boat. This is how we slide down the slippery slope to a national security state.

You do have to give a lot of credit to Eric Lichtblau and James Risen for writing the story of the year (though a lot of other great stories on similar themes compete this year). But given the disturbing bastardization of the news revealed by the Times with Judy Miller and the Post with Woodward, there is also evidence that the Times pulled its punches on this story as well:

The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.

What they seem to be really saying is they met with the White House, were cowed by the intelligence artillery they brought to bear, and sat on the story for a FULL YEAR. “Additional reporting?” Since when does additional reporting need to take a year? We should put this into some perspective by acknowledging that there might have been serious investigations in which the NSA was involved which might’ve been jeopardized by the Times publishing this story. But whose fault would it be that George Bush issued an illegal executive order? Is that the Times fault? In normal legal terms, when the prosecution engages in misconduct, the prosecution pays by losing the case or getting a mistrial. Why shouldn’t Bush have to pay the price here as well? Yes, I know lives might be in jeopardy. But if Bush’s officials had gone about the proper route of obtaining legal warrants, then the investigations of these terrorists would not be in jeopardy. I’m sorry, but I have no sympathy for Bush’s position on this. He made his bed and now he has to lie in it. While we need to be deeply concerned about terrorists who want to kill us, we need to be even more concerned about president’s who believe themselves above the law. Do the names Nixon (Watergate) and Reagan (Iran Contra) ring a bell?

So to return to the Times, we need to know the full story on why this story was kept in the can for so long. The Washington Post reveals a statement by Keller which attempts (rather unsuccessfully in my opinion) to explain the Times’ thinking in delaying publication:

“Officials also assured senior editors of the Times that a variety of legal checks had been imposed that satisfied everyone involved that the program raised no legal questions,” Keller continued. “As we have done before in rare instances when faced with a convincing national security argument, we agreed not to publish at that time.”

And what would those “legal checks” have been, Bill? Your reporters expose the ridiculous legal theories on which this preposterous program is based. And you took that claptrap seriously? Come on now. To me this just adds another reason why Bill Keller should not be the Times top editor (unless this was Sulzberger’s decision and he just went along for the ride).

“When faced with a convincing national security argument…” I think that Lichtblau and Risen themselves blow that statement out of the water. And for any editor of a major national newspaper to be ‘convinced’ by this feeblemindedness is shameful.

I know there are those on the left who’ve been calling for Bush’s impeachment. Until now, this just seemed to me a feeble attempt at payback for the Republicans’ ridiculous attempt to place Bill Clinton in the stocks. But this is the first story I can recall that actually shows Bush violating Congressional statutes. Martin Garbus, a distinguished attorney, has made the argument about impeachable offense at Huffington Post:

the President in authorizing surveillance without seeking a court order has committed a crime. The Federal Communications Act criminalizes surveillance without a warrant. It is an impeachable offense.

Hilzoy, writing in the Washington Monthly covers this issue in much greater depth. And while we’re at it, Michael Hayden’s head should roll too as the NSA director who conceived and oversaw this monstrosity.

Of course, the Bush and Cheneyites claim they’ve not violated any law. What is their proof?

President Bush did not ask Congress to include provisions for the N.S.A. domestic surveillance program as part of the Patriot Act and has not sought any other laws to authorize the operation. Bush administration lawyers argued that such new laws were unnecessary, because they believed that the Congressional resolution on the campaign against terrorism provided ample authorization, officials said.

The legal opinions that support the N.S.A. operation remain classified, but they appear to have followed private discussions among senior administration lawyers and other officials about the need to pursue aggressive strategies that once may have been seen as crossing a legal line, according to senior officials who participated in the discussions.

I think the reporters did their story a disservice by not asking Administration sources to point to specific portions of the Congressional resolution which they view as authorizing this witch hunt. I already note that Dianne Feinstein has denounced the notion that she and her colleagues in any way authorized or even contemplated such a domestic spying plan run amok as this one when they voted for that resolution.

These legislators better put Bush’s feet to the fire on this. I want to see those legal opinions which justified this program. Who wrote them? Those individuals should be made to stand behind their intellectual chicanery and not behind a veil of national security secrecy.

One of the main intellectual author of all this tomfoolery is none other than John Yoo (he’s the guy who wrote a legal opinion that abusing a prisoner was not torture unless the victim was within a hair of dying):

…Just days after the Sept. 11, 2001, attacks on New York and the Pentagon, Mr. Yoo, the Justice Department lawyer, wrote an internal memorandum that argued that the government might use “electronic surveillance techniques and equipment that are more powerful and sophisticated than those available to law enforcement agencies in order to intercept telephonic communications and observe the movement of persons but without obtaining warrants for such uses.”

Mr. Yoo noted that while such actions could raise constitutional issues, in the face of devastating terrorist attacks “the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties.”

The next year, Justice Department lawyers disclosed their thinking on the issue of warrantless wiretaps in national security cases in a little-noticed brief in an unrelated court case. In that 2002 brief, the government said that “the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority.“

Did you catch that line about “inherent authority?” Translated into English that means these brilliant legal minds couldn’t come up with any express authority in the Constitution, so they claim the authority is inherent. Meaning it is implied. Implied my ass. To generate a legal basis for such a shocking policy by claiming it is implied or inferred from the Constitution is an abomination. It twists the Constitution, as in Alice in Wonderland, into anything they want it to mean.

And they add insult to injury by claiming that even if Congress doesn’t like what Bush did, there’s nothing it can do about it. I dare Bush to bring this argument to the Supreme Court for a judicial review. Hell, he knows no one outside his circle would buy it, not even the conservatives on the Supreme Court (well, Thomas and Scalia would go for it but they certainly wouldn’t put together a majority).

Seems that the super-secret Foreign Intelligence Surveillance Court of Review too has some explaining to do:

Administration officials were also encouraged by a November 2002 appeals court decision in an unrelated matter. The decision by the Foreign Intelligence Surveillance Court of Review, which sided with the administration in dismantling a bureaucratic “wall” limiting cooperation between prosecutors and intelligence officers, cited “the president’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance.”

But the same court suggested that national security interests should not be grounds “to jettison the Fourth Amendment requirements” protecting the rights of Americans against undue searches. The dividing line, the court acknowledged, “is a very difficult one to administer.”

Civil libertarians have long questioned the very premise of this accountable-to no-one judicial entity. With this questionable ruling their concerns are redoubled.