President Bush’s explanations of why he is justified in ordering domestic surveillance by the National Security Agency have shifted with every news cycle. He has sent out Attorney General Alberto Gonzales and Secretary of State Condoleezza Rice to bolster his justifications. (Rice averred that she was “not a lawyer” before repeating the talking points.) Bush personally tried to suppress disclosure by the New York Times, which had held the story for more than a year before breaking it, by summoning Times publisher Arthur Sulzberger and editor Bill Keller to the Oval Office on Dec. 6.
Bush invokes national security, the war on terror, and Sept. 11 as though these phrases are enabling legislation. He has offered no sound legal basis for his evasion of the Federal Intelligence Surveillance Act, his dismissal of Congress, and his abrogation of the Fourth Amendment. He has not presented any convincing reason why he decided not to seek warrants from the special FISA court set up for that purpose. One of the 11 members of the secret FISA court, U.S. District Court Judge James Robertson, has quit in protest.
Bush claims to have briefed and received the approval of congressional leaders. But former Sen. Bob Graham, D-Fla., who was chairman of the Senate Intelligence Committee when Bush began his spying, said, “There was no reference made to the fact that we were going to … begin unwarranted, illegal, and I think unconstitutional, eavesdropping on American citizens.” After being informed of the president’s actions in 2003, Sen. Jay Rockefeller, the ranking Democrat on the Intelligence Committee, sent a handwritten note expressing his misgivings to Vice President Dick Cheney, who had briefed him. “Clearly, the activities we discussed raise profound oversight issues,” he wrote. (Rockefeller’s position on the Intelligence Committee kept him from making public what he knew.) The Republican chairman of the Senate Judiciary Committee, Arlen Specter, has announced his disquiet and is planning to hold hearings.
Attorney General Gonzales and former National Security Agency director Gen. Michael Hayden have issued assurances that there was no purely domestic spying. “People are running around saying that the United States is somehow spying on American citizens calling their neighbors,” Gonzales said. “Very, very important to understand that one party to the communication has to be outside the United States.” But another New York Times report revealed that this claim was false and that there has been purely domestic spying.
Bush has contradicted his previous statements that he sought warrants for all wiretaps and searches. “Now, by the way,” he said on April 20, 2004, “anytime you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way.” But the glaring contradiction between his statement then and his current ones does not deflect the president from stubbornly persisting.
Bush angrily called the leaking of his spying a “shameful act,” expressing an emotion that contrasts with his obvious impassivity to the leak attributed to senior members of his administration of the identity of CIA operative Valerie Plame (an act under investigation by a special prosecutor, who has so far indicted the vice president’s former chief of staff, I. Lewis “Scooter” Libby). For Bush, the whistleblower who disclosed his surveillance is a traitor within. “The fact that we are discussing this program is helping the enemy,” he said. And yet no one has really explained why the president mistrusts and bypasses the FISA court.
Since October 2001, Bush has personally authorized more than three dozen warrantless wiretaps. “We’ve got to be able to detect and prevent. I keep saying that, but this … requires quick action.” But speed cannot be the reason for ignoring the FISA court. From its inception in 1979 through 2002, covering the period when Bush began spying, the FISA court issued 15,264 warrants. In 2003, the court rejected four applications, and the next year it rejected none. In its entire history, those four are the only rejections.
William Rehnquist, the late chief justice of the Supreme Court, appointed all the sitting FISA judges. Nearly all are inclined to presidential prerogative. Its proceedings are ex parte, that is, secret. The FISA statute stipulates that the government can wiretap first and apply for a warrant later, within 72 hours. So long as it can provide “probable cause,” the court will approve. In the light of the law and the court’s record, the only reason to avoid it would be because the government felt the court that had acted almost as a rubber stamp would deny its requests.
The FISA court would reject an application on two grounds. First, that there was no probable cause. The court must adhere to the law and cannot authorize dragnets. But Attorney General Gonzales has declared that any spying is triggered by “reasonable basis” — not probable cause. “Reasonable” means anything the government decides it is, lacking a scrap of potential evidence. Second, the court would reject an application in which the evidence supporting “probable cause” had been produced by torture. But it is unlikely that the government would provide the court with details of the interrogation technique used. In any case, Bush apparently opted to launch trawling expeditions, lacking concrete evidence beyond lists of telephone numbers, and without the lawful imprimatur of the court.
“The authorization I gave the National Security Agency after September the 11th … is fully consistent with my constitutional responsibilities and authorities,” Bush said in his weekly radio address Dec. 17. In other words, he is commander in chief and can act as he chooses. But the Supreme Court ruled in the 1952 Youngstown case, involving President Truman’s seizure of a steel mill to stop a strike during the Korean War, that the commander in chief lacked the power to exceed the will of the Congress. “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb,” wrote Justice Robert Jackson in his concurring opinion.
“I’m also using constitutional authority vested in me as commander in chief,” Bush went on. But the Supreme Court ruled in the 2004 Hamdan case that the commander in chief could not imprison U.S. citizens without trial no matter what the suspicion. “A state of war is not a blank check for the president when it comes to the rights of the nation’s citizens,” wrote Justice Sandra Day O’Connor.
“To fight the war on terror,” Bush continued, “I am using authority vested in me by Congress, including the Joint Authorization for Use of Military Force, which passed overwhelmingly in the first week after September the 11th.” But that congressional war resolution authorizing Bush to take “necessary and appropriate force” against those responsible for the 9/11 attacks did not intend presidential usurpation of all congressional and judicial powers in the name of national security. Indeed, after the AUMF, the administration sought amendments to FISA, understanding that congressional authority was required.
Gonzales provided yet another rationale, stretching the definition of al-Qaida: “Another very important point to remember is that we have to have a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.”
In other words, anyone can be tapped who is not a member of, or affiliated with, al-Qaida, but is unknowingly connected by “working in support.”
Who would fall under the Bush guidelines? Consider the following case study: A lawyer represents a man involved in an Islamic charity that turns out to be raising funds for al-Qaida. The lawyer theoretically could be wiretapped without a warrant, detained indefinitely without charges, imprisoned in isolation, and unable to consult legal counsel. In fact, there has been such a lawyer — who represented precisely such a client in New Jersey. The client’s name was Dr. Magdy Elamir; the lawyer’s name, Michael Chertoff, now the secretary of homeland security. (Chertoff represented Elamir, who owned an HMO sued by the state of New Jersey for fraud. The FBI filed a report that he had skimmed money to support al-Qaida and that he financially supported the Al Salam mosque, which “blind sheik” Omar Abdel-Rahman used as a base of operations for the 1993 World Trade Center bombing. Elamir denied any involvement with al-Qaida, but admitted funding the mosque.)
The legal justification, such as it is, for the president’s domestic surveillance policy rests in the arguments made in a Sept. 21, 2001, memorandum written by John Yoo, then deputy director of the Justice Department’s Office of Legal Counsel. The commander in chief, he stated, could wiretap without court permission. “The government may be justified,” Yoo wrote, “in taking measures which in less troubled conditions could be seen as infringements of individual liberties.” Congress, he wrote in another memo four days later, could not put “limits on the president’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing and nature of the response. These decisions, under our Constitution, are for the president alone to make.”
Yoo is also the author of memos justifying torture. On Jan. 9, 2002, he wrote a memo stating that the Geneva Conventions did not apply to detained terrorist suspects. On Aug. 1, 2002, Yoo authored another memo, signed by his superior, Jay Bybee, defining torture as “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”
These are the four known Yoo memos rationalizing expanded presidential authority. But there are at least a dozen of these documents, most of which have not yet come to light, sources close to attorneys at the Justice Department tell me. The overriding theme of them all is that the president can ignore congressional acts.
Yoo, who left the Justice Department two years ago and is now a law professor at Boalt Hall at the University of California at Berkeley, was the prolific writer. But he was not the author of the process. Nor was Gonzales, who was then White House legal counsel. Then, as now, the driving force was Vice President Cheney.
Cheney’s point man was David Addington, then his legal counsel and longtime aide (back to his time in Congress). Addington was the chief writer of a memo on torture policy that argued the case of unfettered presidential power. “In light of the president’s complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the president’s ultimate authority in these areas,” the memo stated. Prohibitions “must be construed as inapplicable to interrogations undertaken pursuant to his commander-in-chief authority.” And Congress was relegated to the sidelines: “Congress may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” Addington is now Cheney’s chief of staff, having replaced Scooter Libby.
Aboard Air Force Two, on a trip back from Iraq, the prime mover granted an interview to the traveling press. “I believe in a strong, robust executive authority, and I think that the world we live in demands it,” said Cheney. He explained that he has been anxious about “infringement on the authority of the presidency” since the Nixon White House, where he served as deputy to counselor Donald Rumsfeld. “Watergate and a lot of the things around Watergate and Vietnam, both during the ’70s, served, I think, to erode the authority I think the president needs to be effective, especially in the national security area,” he said.
But Cheney was even more revealing in an interview on CNN on Tuesday, responding to a question from reporter Dana Bash, who sought to give the vice president every benefit of the doubt and an avenue of escape. “You talked about the fact that you briefed Congress voluntarily, that you do have a review process,” said Bash. “But let’s just say, in 10 years or a few years, a president is elected who doesn’t want to do those things, but you’ve given him this kind of power. What happens then?”
“Well,” Cheney replied, “it will be up to him whether or not he uses it.”
Cheney’s idea of the head of state invested with absolute power is a venerable one. Bush’s presidency is the latest experiment to achieve it. Yoo’s memos are the founding documents. But the idea lacks an American pedigree.
The original commentary on it appeared in a pamphlet published in 1776, “Common Sense,” written by Tom Paine:
“But where says some is the King of America? I’ll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve as monarchy, that in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is.”