Taking Liberties: The War on Terror and the Erosion of American Democracy (32 page)

During those years, Bush did not tell Congress what he was doing—out of a desire for secrecy and also, according to insiders, because he feared Congress might not approve his plan.
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Instead, he briefed only a congressional “Gang of Eight”: the House and Senate majority and minority leaders, and the heads and ranking members of the House and Senate Intelligence Committees. This end run around Congress was an unorthodox and inadequate means of seeking constitutionally required congressional agreement for a major change in the law. The participants could not even agree on what had happened, as the secret briefings of the “Gang of Eight” took place off the record and without reliable staffers to take thorough notes. Alberto Gonzales reported that the
group had reached consensus approving the president’s action; Representative Nancy Pelosi and Senators Jay Rockefeller and Tom Daschle denied that there had been any such agreement.
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Senator Rockefeller wrote to Vice President Cheney expressing his skeptical views about the legality and constitutionality of the program but, when he found his concerns deflected, kept the White House’s secret.

When Yoo and Bybee left the office, their successors, Patrick Philbin and Jack Goldsmith, were then “read in” and allowed to read Yoo’s memo. They concluded, two years after the fact, that the memo was deficient. The Inspectors General of the five agencies involved with the program later agreed when they were eventually allowed to read the memo, finding that Yoo’s analysis of the FISA statute was incomplete, his supersized view of the inherent power of the president inconsistent with Supreme Court case law, and his consideration of the scope of the program inadequate. Goldsmith and Philbin shared their concerns with James Comey, the new Deputy Attorney General. (The Yoo memo is still classified, although parts of it were quoted in the Inspectors General report. This is one of the documents sought in a pending Freedom of Information Act claim.
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)

Comey was troubled by the dubious legality of the program and its procedures.
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The extreme secrecy surrounding the program also generated a number of worrisome legal and ethical issues. What could the FBI tell its field offices when sharing information obtained as a result of the secret surveillance? Would an agent applying for a search warrant on the basis of evidence gathered under this program have to lie to the court about its source? If someone were prosecuted for a crime discovered as a result of this program, would that person’s attorney be told about the actual, legally precarious source of the evidence, as the law required? How would judges react if they found out that judicial authority required by FISA was being ignored? Illegality breeds cover-up illegality.

A spellbound Senate Judiciary Committee later listened to James Comey testify about the dramatic developments that followed.
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Comey had unexpectedly become Acting Attorney General
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on March 4, 2004, when John Ashcroft was rushed to the hospital with severe gallstone pancreatitis. Comey therefore was the one whom Gonzales, along with David Addington, Vice President Cheney’s lawyer, asked to reauthorize the program as it was about to expire (again) in March 2004. But with doubts cast on the soundness of the Yoo memo, Comey made up his mind to decline to do so. After a series of frantic meetings and consultations, Gonzales and White House Chief of Staff Andrew Card decided (apparently at the request of the
president himself) to call Ashcroft at the hospital to ask him to sign off on reauthorization of the program instead. Janet Ashcroft answered the telephone, however, and refused to allow them to speak to her husband, who was in intensive care recovering from surgery. Gonzales and Card decided that the only way to get past Mrs. Ashcroft was to go to the hospital in person. But Ashcroft’s chief of staff tipped off Comey, who raced to head them off at the pass, enlisting a posse of Robert Mueller (Director of the FBI), Jack Goldsmith, and Patrick Philbin to meet him at the hospital. That evening, Gonzales and Card stood across from Mrs. Ashcroft at the head of her husband’s hospital bed, with Comey, Goldsmith, and Philbin behind them. Ashcroft told Gonzales that he was not feeling very well but nevertheless explained his legal concerns about the program. He concluded: “But that doesn’t matter, because I’m not the Attorney General. There’s the Attorney General [pointing to Comey].” Gonzales and Card walked out. The next morning the program was reauthorized for two more months over the signature of White House counsel Alberto Gonzales.

If these events are dramatic enough to command a popcorn-eating audience’s attention, the embarrassing incident at the hospital, combined with the unprofessionalism of the Yoo memo and the corrosive effect of excessive secrecy even within the department, were earthshaking to insiders. Many resignation letters were drafted that week. Comey, Goldsmith, and Ashcroft (according to his chief of staff) all considered resigning. Mueller threatened to resign if the president commanded the FBI to continue with the program. But the unsatisfying denouement of this part of the story is that Philbin and Goldsmith then drafted a new memo opining that the surveillance program was both legal and constitutional after all, although on a different theory—that the Authorization for Use of Military Force Congress had enacted in September 2001 allowed the president to make decisions about how to conduct the war Congress had authorized, including how to use the tactic of eavesdropping. Therefore, in their analysis, there was still no need to consult Congress because this authorization had supplanted FISA. (This OLC memo also remains classified and is another subject of the pending Freedom of Information Act litigation.) This argument is farfetched, as the Congressional Research Service, among many others, concluded.
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In authorizing the use of force against Al Qaeda, Congress had not repealed or amended FISA, which by its own terms applies even during a declared war.
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But, evidently satisfied, Ashcroft continued to sign off on extensions. The program continued—still without Congress knowing or approving or the FISA court playing the role Congress had
given it, until the
New York Times
story broke a year and a half later—for a total of about four years.

We have now come to the Deep Throat part of the story. After years of watching the president run an illegal and unchecked surveillance program, close to a dozen insiders decided to become whistleblowers and agreed to talk to Risen and Lichtblau. Jack Goldsmith, who was in the eye of the storm, believes that these insiders were reacting to what they perceived as a crisis of legitimacy—a lack of checks to ensure that the government did not act illegally or unconstitutionally.
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“The Bush administration’s failure to engage Congress,” he wrote, “eliminated the short-term discomforts of public debate, but at the expense of many medium-term mistakes.”
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It is probably not coincidental that while these insiders were reflecting on the events of and before March 2004 and pondering the future of the surveillance program after May 2004, when it again expired, April saw the publication of the shocking photographs from Abu Ghraib. Jane Mayer, in her book
The Dark Side
, draws a connection between the shameful conduct documented in those photos and the politicization of the Justice Department and OLC under the influence of Dick Cheney and David Addington, as well as the questionable craftsmanship of memos by John Yoo.
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Abu Ghraib served as an excruciating reminder of what can happen when people who expect to operate in secret believe they are justified in bending the rule of law.

In January 2006, after the
New York Times
story was published, the president publicly acknowledged the existence of the NSA program. A year later, after the midterm elections, the president finally “withdrew the program,” having found a way to get the Foreign Surveillance Intelligence Court to review applications and give permission for surveillance en masse. Goldsmith believes that had the president taken that approach in the first place, this whole sorry episode could have been avoided.
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But later that spring, the Foreign Intelligence Surveillance Court evidently wanted to revise the procedures covering this surveillance, perhaps giving the court a greater role in decision-making—all conversations on this subject were secret—so Bush decided to try his luck with Congress.

The Rubber Stamp Congress

It turned out that Bush need not have worried about congressional cooperation. Even though the midterm elections had left the Democratic Party in control, Congress not only approved the eavesdropping program twice,
first in the temporary Protect America Act in 2007, passed after four days of discussion with no hearings, and then in the FISA Amendments Act of 2008 (FAA), but also actually overshot the president’s program. Bush had only claimed the right to eavesdrop on people who were connected with Al Qaeda, however loosely. The FAA does not require any type of individualized suspicion—not even a finding that the target is connected with terrorism. In addition, the statute does not require any individualized court orders authorizing surveillance; does not require identifying people or places to be searched; and does not impose any meaningful limits on the acquisition, retention, analysis, or dissemination of “foreign intelligence” information obtained. The only prerequisites for an eavesdropping order are (1) that acquiring “foreign intelligence” is a “significant purpose” of the eavesdropping, and (2) that one party to the conversation or e-mail is believed to be overseas and not an American. This amounts to letting the FISA court approve blanket, en masse eavesdropping as long as an application states that people abroad are being monitored for the purpose of gathering foreign intelligence—an order, for example, allowing monitoring of all calls between the United States and Afghanistan. Because there is always someone at the other end of telephone calls or e-mails, Americans will inevitably be involved. And because it can be impossible to determine where an e-mail originates, some of the communications intercepted will be purely domestic. The statute resolves all doubts in favor of allowing the government to eavesdrop more with fewer checks.

Senator Patrick Leahy, Chair of the Senate Judiciary Committee, remarked that the media had been doing Congress’s job. “Shame on us for being so far behind and being so willing to rubber stamp anything this administration does. We ought to fold our tents.”
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It may not be strictly accurate to describe Congress’s actions here as a rubber stamp, as Congress did give the FISA court some role (albeit a toothless one) and adopted a program that was more extreme than the president’s. But Leahy was appropriately critical of Congress’s decision-making process. In 2008, Congress did not know enough to make an independent judgment about whether these changes to FISA were either wise or necessary. Bush Administration officials were making extravagant claims about the program’s necessity that were never documented and indeed seem impossible to substantiate. Vice President Cheney declared to CNN News, for example, that eavesdropping without warrants had saved thousands of lives.
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The information Congress had before it to evaluate claims like this was insubstantial, unreliable, and one-sided. Just as the secrecy surrounding the program had
roiled the Justice Department, it also impaired Congress’s ability to make a considered judgment about the costs and benefits of this eavesdropping program. Having tight control of information about the program, administration spokespersons could pick and choose examples of alleged success to showcase in their testimony. They did not need to fear contradiction by the members of Congress, who had few independent sources of information about the program. In fact, no one outside the administration had access to the whole picture and few knew anything at all about the impact of this program because, of course, the people spied on generally did not know they were targets.

Was there another side to the story that Congress wasn’t hearing? Leahy was also right that reporters were doing a better job than Congress at uncovering what the administration was trying to bury. Lawrence Wright, Pulitzer Prize–winning author of
The Looming Tower
,
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a book exploring the connections between terrorism and 9/11, wrote a
New Yorker
article about Mike McConnell, Director of National Intelligence, which was published in January 2008, during the period when Congress was considering whether to make permanent the temporary surveillance authority it had approved in the 2007 Protect America Act. The article contended that McConnell was telling Congress things that were demonstrably untrue. One of the episodes McConnell liked to cite as proof that the president’s courtless surveillance was necessary involved the capture of three American soldiers in Iraq. Analysts at the NSA in Fort Meade, Maryland, wanted to examine communications traffic in Iraq to try to locate the missing soldiers but, because those communications might pass electronically through U.S. circuits, McConnell would explain, this surveillance would require a court order under the pre-2008 Foreign Intelligence Surveillance Act—a perverse requirement when speed was of the essence in trying to find the soldiers.
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But why, Wright asked him, was there any problem with speed, given that the FISA statute in force at the time actually allowed a three-day grace period after monitoring begins to seek a court order? The preexisting statute simply did not prevent immediate surveillance. When Wright did not buy McConnell’s vague alternative explanation—that applications would nevertheless have to go through an administrative process—McConnell exploded: “This debate is going to cost American lives.”
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