OK, everyone who has studied the Unitary Executive Theory of the Presidency, raise your hand. Anyone? Anyone?
If you are not raising your hand, you’re not alone. As regular readers of Tomdispatch are aware, only recently has the world received notice that President Bush’s “I can do anything I want” approach to governance has a name: the Unitary Executive Theory of the Presidency. Not having heard of this concept, and thinking perhaps that I had missed something in constitutional law, I decided to survey a random sampling of attorneys about it. The group included civil practitioners, prosecutors, a federal judge, a former federal prosecutor who has a Ph.D. as well as a J.D., defense attorneys and a U.S. magistrate. The precise question was, “When did you first hear about the Unitary Executive Theory of the Presidency?” Most said, “The past few weeks,” but my favorite was, “A few seconds ago, when you asked about it.” All agreed that the term does not appear in the U.S. Constitution and that, the last time they checked, we still had three branches of government.
Discussion of this “theory” has been prompted, of course, by President Bush’s recent confession to a crime: repeatedly authorizing the National Security Agency to intercept domestic electronic communications for foreign intelligence purposes without a court order in violation of the Foreign Intelligence Surveillance Act. FISA contains no exception for the president, but Bush claims his action is legal because: 1) Congress endorsed it in its Sept. 18, 2001, Authorization to Use Military Force in response to Al Qaida’s September 11th attacks, and 2) he has inherent power as chief executive to act as he deems necessary in wartime. Many scholars, including Georgetown University’s David Cole and former New York state Rep. Elizabeth Holtzman have thoroughly debunked these arguments.
You don’t have to be a constitutional scholar to know that Bush’s legal justifications are weak. You merely have to consider the administration’s duplicitous conduct. The Bush team has deliberately concealed this program, not only from the public and Congress, but, most damning of all, from the very agency that is responsible for executing the laws of this country: the Department of Justice. It has been widely reported that even Bush appointees, such as former Deputy Attorney General James B. Comey, and possibly former Attorney General John Ashcroft, objected to the NSA’s wide-ranging warrantless spying. After 20 years as a federal prosecutor, I am absolutely certain that the vast majority of career attorneys at DOJ and criminal prosecutors from U.S. Attorneys’ Offices around the country, as well as federal law enforcement agents, would have refused to participate knowingly in this program. Bush and his coterie knew that their legal arguments were weak and intellectually dishonest, if not ludicrous, so rather than making their case honestly, even to their own people, they avoided dissent by acting in secret and affirmatively misleading the entire country. Using a tragically familiar modus operandi, Bush has carried out his unlawful spying scheme by acting not as a unitary executive (whatever that is), but as a solitary executive — as if the president knows best.
To understand the extent and complexity, not to mention frightening consequences, of Bush’s deception with regard to the NSA’s warrantless surveillance, it is necessary to consider some of the practicalities of FISA, both before and after it was changed by the Patriot Act.
As anyone who took high school civics knows, the government must get a warrant before conducting electronic surveillance on people within the United States. But before the Sept. 11 attacks, few citizens knew that law enforcement had to follow different procedures to get that warrant, depending on the investigative purpose. If the purpose was chiefly to aid a criminal investigation, such as in a drug or bribery case, the agents had to get what was called a Title III warrant from the U.S. District Court. If the object was primarily to get foreign intelligence on someone within the U.S., regardless of whether they were communicating with someone in or out of the country, agents had to go to a secret court called the FISA court. Under no circumstances could an agency electronically eavesdrop on a person within the United States without such a warrant, but if people were outside the country, the National Security Agency could electronically intrude on their communications — such as phone calls, e-mails or faxes — without getting any court authorization. So, if the whole communication was outside the U.S., NSA could spy to its heart’s content.
If a criminal case was at stake, the FBI or whichever agency was involved needed a Title III criminal warrant; and if it was a foreign intelligence case, the FBI needed a FISA warrant. What was the difference between the two? Other than the difference in purpose — criminal investigation vs. foreign intelligence — the main differences were threefold. First, the amount of proof needed to get a FISA warrant was less. Second, with a FISA warrant, the person surveilled rarely could seek judicial review because he would normally have had no way of finding out that it had even happened. The third difference flowed from the first two: Because of the relaxed standard of proof and the unavailability of review, foreign intelligence agents were not allowed to share their information with criminal agents, even if they were in the same agency. That barrier between criminal and foreign intelligence agents was called the “FISA wall.”
After the 9/11 attacks, however, as part of its push for the Patriot Act, administration representatives, mainly from the DOJ, proposed numerous changes to the FISA law that they argued were necessary due to both technological and societal developments since 1978. In particular, they wanted to break down the FISA wall to allow for greater sharing of information in order to avoid the numerous communication snafus that may have prevented discovery of the plans for the 9/11 attacks. Ultimately, the administration received most of its desired changes. Break down the “FISA wall”? You got it. Roving wiretaps? You got it. Administrative subpoenas to libraries? You got it.
And that was just the first round. Since October 2001, the administration has obtained passage of three rounds of additional changes to FISA. All the requested changes have led to considerable public debate about the threat to constitutional protections posed by relaxing the rules for getting electronic surveillance warrants as well as the increase in tools available to law enforcement. Nevertheless, for the most part, Congress has acceded to whatever requests for changes to FISA the Bush administration has made.
At no time during this four-year debate about security and civil liberties, despite well-established congressional procedures for discussions that involve classified material, has the Bush administration advised Congress in any meaningful way that it was in ongoing violation of FISA; nor has it ever formally sought to amend the law to accommodate the sorts of technological advances that it now cites as the very reason for its secret program. In other words, the administration has conducted a prolonged charade during which it has pretended to participate in a democratic process of amending and enacting legislation, while secretly, but monumentally, violating the law that was under consideration.
This charade was not merely for the benefit of the public and Congress but also for the benefit of the thousands of administration employees who are charged with enforcing the rule of law. When Bush announced famously on April 20, 2004, “[T]here are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way…” — the vast majority of people at DOJ most likely believed that to be true. DOJ has an entire Web site devoted to internal and external propaganda about the administration’s commitment to civil liberties. Prominently displayed on the Web site titled the Patriot Act: Preserving Life and Liberty is a smiling photo of Attorney General Alberto Gonzales and the following quote: “We are waging a war … each day in a way that values and protects the civil liberties and the constitutional freedoms that make our Nation so special.”
What makes Gonzales so special is that, despite being the nation’s chief law enforcement officer, he has been entirely indifferent to the rule of law. Indeed, he has been complicit in the activities of an administration that (as if afflicted by an autoimmune disease that causes it to reject parts of its own body) has marginalized its career employees to hide its activities. Note that the only people who have thus far publicly defended the legality of the NSA eavesdropping scheme are President Bush, Vice President Cheney, Secretary of State Condoleezza Rice and the former NSA director Michael Hayden, all non-lawyers whose self-interest is obvious; as well as Gonzales, Bush’s longtime friend and former White House counsel, and Assistant Attorney General William E. Moschella, a Bush appointee who has been a lawyer for fewer than 10 years and has never actually practiced law. We should not expect to hear support for the warrantless NSA spying from any career criminal prosecutors.
Indeed, this illegal surveillance is a prosecutor’s nightmare. As Hayden testified before the Senate Intelligence Committee in October 2002, the National Security Agency turns over legally obtained evidence to the FBI in a way that prevents FBI agents from knowing its source or sources. If the NSA hides the source of its legally obtained evidence, it certainly also hides the source of any illegally obtained evidence it may be turning over. Neither illegally obtained evidence, nor evidence gleaned from it, can be used in a criminal prosecution. Consequently, an untold number of successful prosecutions are now jeopardized by the possible use of tainted evidence. Such challenges have already begun in the case of Iyman Faris, who is serving a 20-year sentence for conspiring to blow up the Brooklyn Bridge. In other words, the government’s reckless adoption of an illegal surveillance program could actually have the effect of undermining the very prosecutions it claims as its successes in the “War on Terrorism.”
The Bush administration, of course, argues that this sort of secret spying is what we have to do for our own security. Indeed, they suggest that if the program had existed prior to 9/11, those attacks might have been prevented because they would have “caught” two hijackers who were making calls to al-Qaida from San Diego. In legal terms, this claim would be called the defense of “necessity,” but, in lay terms, this claim would be called “a big fat lie” — and a poorly chosen one at that.
The hijackers to whom Bush and his advisors are referring are Khalid al-Midhair and Nawaf al-Hamzi. It is astounding that Bush should cite them in support of the illegal spying program, because the NSA knew about these two men and their relationship to al-Qaida as early as 2000 as a result of a legal wiretap they had on a safe house in Yemen. But they never bothered to place them on a watch list or provide detailed information about them to the FBI or the CIA. NSA’s Michael Hayden said they failed to provide the information to other agencies because they didn’t appreciate its significance.
The problem at that time, as the 9/11 Commission and so many other investigative bodies have found, was failure to communicate among the agencies, or even within the agencies. The NSA was unable to recognize the importance of its own information because it didnt know what the other agencies knew, and was institutionally incapable of sharing even legally obtained information because it was operating as a lone wolf. Ironically, in the hands of President Bush, the NSA has effectively become even more isolated — essentially an outlaw. And it still does not know everything that the other agencies know, so it has no more capability of recognizing the importance of what it learns now than it did before. So it is difficult to imagine how it can now possibly use its illegally obtained information to prevent attacks.
It appears, then, that President Bush, using his wholly fabricated Unitary Executive Theory, has clandestinely managed to marginalize his own agencies and eviscerate many of the information-sharing benefits of his own Patriot Act. When will we, as a country, finally stop thinking that the president knows best?
This article originally appeared on TomDispatch.com.
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Elizabeth de la Vega is a former federal prosecutor with more than 20 years of experience. During her tenure, she was a member of the Organized Crime Strike Force and Chief of the San Jose Branch of the U.S. Attorney’s Office for the Northern District of California. Her pieces have appeared in the Nation Magazine, the Los Angeles Times, and Salon. She writes regularly for Tomdispatch. She may be contacted at ElizabethdelaVega@Verizon.net.
In October, 2007, candidate Barack Obama — in response to the Bush administration’s demand for a new FISA law — emphatically vowed that he would filibuster any such bill that contained retroactive amnesty for telecoms which participated in Bush’s illegal spying program. At the time, that vow was politically beneficial to Obama because he was seeking the Democratic nomination and wanted to show how resolute he was about standing up against Bush’s expansions of surveillance powers and in defense of the rule of law. But in a move that shocked many people at the time — though which turned out to be completely consistent with his character — Obama, once he had the nomination secured in July, 2008, turned around and did exactly that which he swore he would not do: he not only voted against the filibuster of the bill containing telecom amnesty, but also voted in favor of enactment of the underlying bill. That bill, known as the FISA Amendments Act of 2008, was then signed into law by George W. Bush at a giddy bipartisan signing ceremony in the Rose Garden, which — by immunizing telecoms and legalizing most of the Bush program — put a harmless, harmonious end to what had been the NSA scandal.
Beyond telecom amnesty, the FISA Amendments Act also wildly expanded the Government’s power to conduct warrantless surveillance of telephone calls and emails. In large part, the bill was intended to legalize the illegal Bush NSA program that had caused so much faux controversy among Democrats. As Yale Law Professor Jack Balkin put it: ”Through the FISA Amendments Act of 2008, Congress has legitimated many of the same things people are now complaining about”; separately, Balkin contended that Obama voted for the bill because, as President, he himself would want the same powers Bush had to intercept people’s communications without bothering with court approval.
When trying to placate his numerous supporters furious over his reversal, Obama insisted he voted for the bill with “the firm intention — once I’m sworn in as president — to have my Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future” (that promise caused his then-large band of faithful followers to evangelize that Obama only voted for the bill to make sure he won the election, so that he could then use his majestic power to fix civil liberties abuses of the type he had just voted for; that was when people were still willing with a straight face to invoke the 11-dimensional chess justification for everything he did). Needless to say, it would have been unhealthy in the extreme holding one’s breath for that “we’ll-fix-it-when-I’m-President” promise to be fulfilled, as — more than 2 years into his presidency — nothing like it has remotely happened.
Immediately upon enactment of the Bush/Obama-supported FISA Amendments Act, the ACLU filed a lawsuit seeking to enjoin its enforcement on the ground that the law’s expanded warrantless eavesdropping powers violated the Fourth Amendment. Aside from its warped and radically enlarged “state secret” doctrine, the Bush administration’s standard tactic for avoiding judicial review of their illegal eavesdropping programs was a two-step “standing” exercise grounded in extreme cynicism: (1) they shrouded their eavesdropping actions in total secrecy so that nobody knew who was targeted for this eavesdropping, and they then (2) exploited that secrecy to insist that since nobody could prove they were actually subjected to this eavesdropping, nobody had “standing” to contest its legality in courts (that’s how the Bush DOJ got an appeals court to dismiss on procedural grounds a lower court ruling that their NSA program broke the law and violated the Constitution).
In the case brought by the ACLU, the plaintiffs were a variety of human rights activists, lawyers and journalists (including Naomi Klein and Chris Hedges), who argued that both they and their sources have a reasonable fear of being subjected to this expanded surveillance, and that fear– by rendering them unable to perform their jobs and exercise their Constitutional rights — constitutes sufficient harm to vest them with “standing” to challenge the new eavesdropping law. In response, the Bush administration argued — as always — that the plaintiffs’ inability to prove that they were actually targeted by this expanded surveillance precluded their suing; their mere “fear” of being targeted, argued the Bush DOJ, was insufficient to confer standing to sue.
In late 2008, a lower court judge granted the Bush argument and dismissed the ACLU’s lawsuit on “standing” grounds. On appeal, the Obama DOJ — needless to say — faithfully adopted exactly the Bush argument to demand dismissal of the ACLU’s lawsuit on procedural grounds of “standing,” i.e., without assessing the merits of whether this law violates the Fourth Amendment.
But today, a three-judge appellate court dealt a serious blow to the Bush/Obama tactic for shielding government eavesdropping from judicial review (i.e., placing secret executive surveillance above and beyond the rule of law). The unanimous court ruled that the plaintiffs’ fear that they will be subjected to this expanded warrantless eavesdropping is reasonable given the sweeping powers the law vests in the Executive, that these fears substantially impede their work, and that these impediments constitute actual harm sufficient to allow them to challenge the constitutionality of the FISA Amendments Act:
This may sound like a legalistic development but its significance extends far beyond that. Unlike the bastardized Bush/Obama “state secrets” weapon for avoiding judicial review, ”standing” is actually a legitimate and important constitutional restriction on a court’s jurisdiction. The idea is that courts are permitted to resolve only actual disputes between actual parties where the defendant’s conduct has uniquely injured the plaintiff in direct ways; we don’t want courts to be free-floating, omnipotent tribunals that issue binding answers to every abstract political question. They are empowered to issue legal rulings only when there is an actual “case or controversy” before them involving parties directly and uniquely harmed by the challenged conduct.
But what the Bush DOJ and then the Obama DOJ have done is manipulate that important “standing” limitation beyond all recognition into a weapon of full-scale presidential immunity. If one were to accept their tactic, a President need only break the law in total secrecy and prevent anyone from finding out what exactly he did and to whom he did it. With that secrecy in place, the DOJ can then tout that secrecy as a means of preventing any judicial challenges to the President’s conduct — which is another way of saying that the President has placed his conduct outside of the rule of law (because we did it in secret, everyone is unable to sue over it). Obviously, if one can break laws but then block courts from adjudicating allegations of lawbreaking, then one is — by definition — free to break the law. That has been the case thus far with the Bush administration thanks to the warped doctrines it pioneered and the Obama DOJ then swallowed whole.
This danger is particularly acute in the post-9/11 world where so much of what the Executive branch does of any significance — I’d say most of what it does — takes place behind a wall of secrecy. To allow Presidents to escape all legal challenges on “standing” grounds merely because they managed to conceal the identity of the victims of their lawbreaking would be, in essence, to have laws that apply to Presidents only in theory but not in reality.
Today’s ruling puts at least some brakes — for now — on that license of lawlessness. It rejected the Bush/Obama claim that citizens must prove they have been targeted by an illegal presidential program before they have the right to ask a court to declare it illegal. Instead, a plaintiff’s reasonable fear that their rights are being violated due to enactment of an allegedly unconstitutional law — combined with actual harm suffered as a result of that fear — suffices to allow them to challenge the legality of those actions. It is, of course, possible that the Supreme Court can review and reverse this ruling, but the Second Circuit is a well-regarded court — situated on the level immediately below the Supreme Court — and this well-reasoned decision will have significant sway. At the very least, this is an important ruling in eroding what is easily one of the worst political problems plaguing America in the post-9/11 world: the ease with which Presidents and their underlings can insulate their secret actions from the rule of law.
What you might have seen: Last Thursday night, Rachel Maddow exposed a group of al-Qaida sympathizers who had served as lawyers on behalf of Guantánamo detainees, revealing that these pro-terrorist attorneys have not only taken over the Department of Jihad (previously known as the Department of Justice) but have even infiltrated our armed forces. One of the military lawyers identified on the broadcast was Air Force Reserve Lt. Col. David Frakt, who served as a defense lawyer for Guantánamo detainees in 2008 and 2009.
What you missed : On Friday, Lt. Col. Frakt agreed to an exclusive interview with Maddow. But shortly after the interview was taped, federal agents, sporting a secret warrant from the FISA Court, forced their way onto the set and confiscated the video footage, citing national security. Fortunately, one of the technicians secretly recorded the interview on his iPhone, which is how Salon obtained the following transcript:
Maddow: Lt. Col. David Frakt is a JAG officer in the U.S. Air Force Reserve and a law professor in California. Professor Frakt, welcome back to the program.
Frakt: Happy to be here, Rachel.
Maddow: Is it true that you’re a terrorist sympathizer?
Frakt: Yes, Rachel. That’s why, in 2008, I volunteered to represent detainees at Guantánamo. The chance to actually be a U.S. government-paid spokesperson for al-Qaida under the guise of “promoting fairness, justice and the rule of law” was just too delicious an opportunity to pass up. I figured the military commissions at Guantánamo would be the perfect soapbox for me to espouse my terrorist ideology.
Maddow: And did your position as a defense counsel give you the opportunities that you were seeking?
Frakt: Not exactly, Rachel. The whole experience was a bit disappointing. Initially, things looked very positive. The first detainee I was assigned to represent, Ali Hamza al Bahlul, was a member of Osama bin Laden’s inner circle and a very committed al-Qaida member. In fact, he has been frequently referred to as the al-Qaida minister of propaganda. So, I thought I’d hit the jackpot.
Maddow: So why didn’t it work out?
Frakt: Well, sadly, Mr. al Bahlul wouldn’t cooperate. He refused to let me represent him in court or speak on his behalf. He said he didn’t trust me because I was an American military officer. In fact, he basically boycotted the proceedings and ordered me to do the same. Can you believe that?
Maddow: That must have been very frustrating for you. Didn’t you also represent another client, a juvenile?
Frakt: Yes, I did represent another young Afghan named Mohammed Jawad, but he was a big disappointment also.
Maddow: How so?
Frakt: Well, as it turned out, he wasn’t a member of al-Qaida, or even the Taliban. In fact, he wasn’t a terrorist at all. He didn’t even know any terrorists! The only real consolation with Mohammed was that the United States had tortured him, so I was able to exploit that for substantial propaganda value, but otherwise, he was a dud.
Maddow: What happened to him?
Frakt: Unfortunately, after I proved that his confession was the product of torture and that he was innocent, he was ordered released by a federal judge. I’m pretty sure she is a terrorist sympathizer as well. In fact, your viewers may be interested to learn that all the judges on the Federal District Court bench in Washington are part of one big al-Qaida sleeper cell.
Maddow: How do you know this?
Frakt: Well, it’s obvious, Rachel. What other explanation is there for the fact that they’ve granted habeas corpus petitions and ordered the release of 33 detainees out of the 44 cases they’ve heard?
Maddow: Could it be that the government didn’t have sufficient evidence?
Frakt: Don’t be naive, Rachel. They’re obviously fellow al-Qaida sympathizers. The only reason they don’t let them all go is they don’t want to blow their cover.
Maddow: I see. One final question, professor Frakt. In your previous appearances on the program, you were in uniform; why aren’t you in uniform today?
Frakt: Well, after I actually won a case at Guantánamo, the Pentagon didn’t want to give me any more cases, so I was forced to leave active duty and return to my civilian position as a law professor.
Maddow: And how is that going?
Frakt: It’s not so bad. At least in this position, I can indoctrinate the impressionable young minds of the next generation of lawyers with my pro-terrorist views, while getting paid to churn out pro-terrorism “scholarship.” Academic freedom has its advantages, although I’m obviously opposed to it for those with differing viewpoints. If I didn’t have to grade papers, this would be the perfect job. Fortunately, I have teaching assistants for that.
Maddow: Well, we appreciate your taking the time to be on our program this evening.
Frakt: Any time, Rachel. I’m always glad to have any opportunity to advance my pro-terrorist agenda.
David Frakt is a lieutenant colonel in the Air Force Reserve who has defended Guantanamo detainees Mohammed Jawad and Ali Hamza al-Bahlul in front of military commissions.
This summer, on a remote stretch of desert in central Utah, the National Security Agency will begin work on a massive, 1 million-square-foot data warehouse. Costing more than $1.5 billion, the highly secret facility is designed to house upward of trillions of intercepted phone calls, e-mail messages, Internet searches and other communications intercepted by the agency as part of its expansive eavesdropping operations. The NSA is also completing work on another data warehouse, this one in San Antonio, Texas, which will be nearly the size of the Alamodome.
The need for such extraordinary data storage capacity stems in part from the Bush administration’s decision to open the NSA’s surveillance floodgates following the 9/11 attacks. According to a recently released Inspectors General report, some of the NSA’s operations — such as spying on American citizens without warrants — were so questionable, if not illegal, that they nearly caused the resignations of the most senior officials of both the FBI and the Justice Department.
Last July, many of those surveillance techniques were codified into law as part of the Foreign Intelligence Surveillance Amendments Act (FAA). In fact, according to the Inspectors General report, “this legislation gave the government even broader authority to intercept international communications” than the warrantless surveillance operations had. Yet despite this increased power, congressional oversight committees have recently discovered that the agency has been over-collecting on the domestic communications of Americans, thus even exceeding the excessive reach granted them by the FAA.
I am an author and journalist specializing in national security issues and terrorism, and often communicate with parties in the Middle East as part of my work. Because of concerns that my communications might have been monitored, in early 2006, shortly after NSA’s warrantless surveillance program was revealed by the New York Times, I became a plaintiff in a lawsuit brought by the American Civil Liberties Union against the NSA that argued that the program was illegal and should be shut down. We prevailed in federal district court, with Judge Anna Diggs Taylor finding that President Bush had violated both the law and the Constitution, but lost on the government’s appeal when the court ruled the plaintiffs could not prove that they were personally victims of the secret eavesdropping program. In a decision worthy of Lewis Carroll, the appeals court held both that the government could refuse to confirm or deny whether it had monitored plaintiffs’ communications and that plaintiffs could not challenge the constitutionality of the program unless they could show that their communications had been monitored. A dissenting judge pointed out that the court’s decision was inconsistent with Supreme Court precedent and would effectively render the program unreviewable by the courts.
On Wednesday, the ACLU will once again appear in federal court, this time in a separate lawsuit charging that the new FAA statute is unconstitutional. The ACLU is right. While the FAA prohibits the agency from intentionally “targeting” people within the U.S., it places virtually no restrictions on the targeting of people outside the U.S. even if those targets are communicating with U.S. citizens and residents. The law essentially allows the agency virtually unfettered access to the international communications of innocent Americans in clear violation of the Fourth Amendment.
Also troublesome is the fact that the FAA emasculates the Foreign Intelligence Surveillance Court, the one independent check and balance between the agency and the American public. Originally established as a response to the discovery by Congress in the mid-1970s that the NSA had been illegally eavesdropping domestically for decades, the FISA court required the government to show that there was probable cause to believe that its surveillance target was an agent of a foreign government or terrorist group in order to obtain a necessary warrant. But the new law does away with this requirement, and now the NSA does not even have to identify the targets of its surveillance at all as long as it is targeting people outside the U.S., leaving the agency free, for example, to target human rights activists or media organizations overseas, even if they are communicating with family or editors back in the U.S. As former NSA “voice interceptor” Adrienne Kinne told me in my book, “The Shadow Factory: The Ultra-Secret NSA From 9/11 to the Eavesdropping on America,” the agency targeted both groups during the Bush administration, including eavesdropping on intimate bedroom conversations.
Further removing the FISA court from any meaningful role, the new law even gags the judges, prohibiting them from asking the government who, what, where or why it is launching any particular surveillance program.
Finally, the FAA fails to place any meaningful limitations on the NSA’s retention of phone calls, e-mail and other communications that it collects — necessitating the colossal data storage mausoleums it is now building. The agency need only show that it has “reasonably designed” procedures to minimize information retention, which must give way to the NSA’s need “to obtain, produce, and disseminate foreign intelligence information.” And because “foreign intelligence” is very broadly defined, this allows the NSA to conduct immense data mining operations within those centers.
Among the most striking discoveries to come out of the Inspectors General report was that, despite the enormous expansion of the NSA’s capabilities, including turning its giant ear inward for the first time in three decades, no one could point to any significant counterterrorism success. Instead, it warned that while the agency had little difficulty collecting vast amounts of data, the trouble was analyzing it all. It was a problem akin to Jorge Luis Borges’ “Library of Babel,” a place where the collection of information is both infinite and at the same time monstrous, where the entire world’s knowledge is stored, but not a single word understood. In this “labyrinth of letters,” Borges wrote, “there are leagues of senseless cacophonies, verbal jumbles and incoherences.” In addition to the civil liberties and constitutional defects in the new surveillance law, another compelling argument against it is that it only increases the amount of “senseless cacophonies” in America’s Library of Babel.
When Congress passed its amendments to our surveillance laws a year ago, part of the compromise — much-criticized among liberals — required the inspectors general of a number of federal agencies to review the warrantless wiretapping programs. Now, a year later, the report is complete, and has been partially declassified.
Though we can’t get anything like a complete picture because so much is still classified, the report says that the program exceeded the warrantless wiretapping we already knew about. The IGs use the term “President’s Surveillance Program” to encompass the full monitoring effort.
The Atlantic’s Marc Ambinder has a good run-down of key nuggets from the report. Most notably, at the urging of Vice President Cheney, President Bush recertified the program without the consent of the Department of Justice, outraging Deputy Attorney General James Comey. In fact, for two years, no one in the DOJ who ranked below deputy attorney general even knew about the program, with one exception: John Yoo, who was somewhat mysteriously tasked with writing legal opinions in defense of the operation. (Indeed, Ambinder says, it’s not even clear that then-Attorney General John Ashcroft knew that Yoo was providing the department’s legal opinions on the program.)
The surveillance operation appears to have been quite large, because random sampling was used, rather than case-by-case examination, to make sure that it was monitoring appropriately suspicious targets. Senior intelligence officials were unsure whether the surveillance had led to any arrests, but the IGs seem to believe it did.
President Obama probably isn’t thrilled that the compromise, for which he caught so much flak, hasn’t put the issue to bed. Judging by his performance thus far on sensitive constitutional and national security issues, we can probably expect him to try to avoid getting too involved in the impact of this report, though it may affect some terrorism prosecutions.
Befitting an administration that has spent eight years obliterating America’s core political values, its final year in power — 2008 — was yet another grim one for civil liberties and constitutional protections. Unlike the early years of the administration, when liberty-abridging policies were conceived of in secret and unilaterally implemented by the executive branch, many of the erosions of 2008 were the dirty work of the U.S. Congress, fueled by the passive fear or active complicity of the Democratic Party that controlled it. The one silver lining is that the last 12 months have been brightly clarifying: It is clearer than ever what the Obama administration can and must do in order to arrest and reverse the decade-long war on the Constitution waged by our own government.
The most intensely fought civil liberties battle of 2008 — the one waged over FISA and telecom immunity — ended the way most similar battles of the last eight years have: with total defeat for civil libertarians. Even before Democrats were handed control of Congress at the beginning of 2007, the Bush administration had been demanding legislation to legalize its illegal warrantless NSA eavesdropping program and to retroactively immunize the telecom industry for its participation in those programs. Yet even with Bill Frist and Denny Hastert in control of the Congress, the administration couldn’t get its way.
Not even the most cynical political observer would have believed that it was the ascension of Harry Reid and Nancy Pelosi that would be the necessary catalyst for satisfying Bush’s most audacious demands, concerning his most brazenly illegal actions. If anything, hopes were high that Democratic control of Congress would entail a legislative halt to warrantless eavesdropping or, at the very least, some meaningful investigation and disclosure — what we once charmingly called “oversight” — regarding what Bush’s domestic spying had really entailed. After all, the NSA program was the purified embodiment of the most radical attributes of a radical regime — pure lawlessness, absolute secrecy, a Stasi-like fixation on domestic surveillance. It was widely assumed, even among embittered cynics, that the new Democratic leadership in Congress would not use their newfound control to protect and endorse these abuses.
Yet in July 2008, there stood Pelosi and Reid, leading their caucuses as they stamped their imprimatur of approval on Bush’s spying programs. The so-called FISA Amendments Act of 2008 passed with virtually unanimous GOP and substantial Democratic support, including the entire top level of the House Democratic leadership. It legalized vast new categories of warrantless eavesdropping and endowed telecoms with full immunity for prior surveillance lawbreaking. Most important, it ensured a permanent and harmless end to what appeared to be the devastating scandal that exploded in 2005 when the New York Times revealed to the country that the Bush administration was spying on Americans illegally, without warrants of any kind.
With passage of the Act, Democrats delivered to the Bush administration everything it wanted — and more. GOP Sen. Kit Bond actually taunted the Democrats in the Times for giving away the store: “I think the White House got a better deal than they even had hoped to get.” Making matters much worse, by delivering this massive gift to the White House, the House undid one of its very few good deeds since taking over in 2006: its galvanizing February 2008 refusal to succumb to Bush’s rank fear-mongering by allowing “The Protect America Act” to expire instead of following the Senate’s lead in making it permanent.
Adding the final insult to this constitutional injury, Barack Obama infamously violated his emphatic pledge, made during the Democratic primary, to filibuster any bill containing telecom immunity. With the Democratic nomination fully secured, Obama blithely tossed that commitment aside, instead joining his party’s leadership in voting for cloture on the bill — the opposite of a filibuster — and then in favor of the bill itself. The photographs of the celebratory, bipartisan signing ceremony that followed at the White House — where an understandably jubilant George Bush and Dick Cheney were joined by a grinning Jay Rockefeller, Jane Harman and Steny Hoyer — was the vivid, wretched symbol of what, in 2008, became the fully bipartisan assault on America’s basic constitutional guarantees and form of government.
The FISA fight was the destructive template that drove virtually every other civil liberties battle of the last year. Time and again, Democrats failed to deliver on a single promise. They failed to overcome a GOP filibuster in the Senate to restore habeas corpus, which had been partially abolished in 2006 as a result of the Military Commissions Act that passed with substantial Democratic support and wholesale Democratic passivity. Notably, while Senate Democrats, when in the minority, never even considered a filibuster to block the Military Commissions Act, it was simply assumed that the GOP, when it was in the minority, would filibuster in order to prevent passage of the Habeas Restoration Act. And filibuster they did.
A similar scenario played out with the attempt in February to redress America’s torture crisis by enacting an amendment to the Defense Authorization Act compelling all government agencies, including the CIA, to comply with the Army Field Manual when interrogating detainees. The most immediate effect of such a law would have been to impose an absolute ban on the use of waterboarding, along with any other coercive tactics — torture techniques — which the Manual does not explicitly authorize.
Knowing that the president would veto the bill, the GOP allowed a floor vote on the Army Field Manual amendment. Signaling what would be his year-long, soul-selling captivity to the far right of his party, John McCain — despite years of parading around as a righteous opponent of torture — voted against the torture ban. The bill passed both houses largely along party lines, President Bush vetoed it as promised, and the House then failed to override the veto. The path taken was slightly different, but the outcome was the same: total failure in reining in Bush’s abuses. Indeed, by the end of 2008, civil libertarians could point to many defeats suffered in the Democratic-controlled Congress, but not a single victory.
The fate of civil liberties in the judiciary was much more mixed, punctuated with several significant victories. Undoubtedly the most important win was the Supreme Court’s June decision in the Boumediene case, which struck down as unconstitutional one of the worst constitutional assaults of the Bush era: Section 7 of the Military Commissions Act, which had purported to abolish habeas corpus for Guantánamo detainees and prohibited them from challenging their detention in a federal court.
The Court ruled, by a precarious 5-4 margin, that Guantánamo detainees could not constitutionally be denied the right to have their detentions reviewed by an American federal court. That seminal ruling paid quick dividends for some of the detainees. Last month, a Bush 43 federal judge — the same jurist who had originally upheld the Act’s abolition of habeas review for Guantánamo detainees and was ultimately reversed by the Boumediene court — conducted a habeas hearing for six Algerian-Bosnian detainees imprisoned without charges at Guantánamo for the last six years.
The judge concluded that the Bush administration had no credible evidence to justify the detention of five out of the six detainees and thus ordered them released immediately. Four of the five are now back in Bosnia, while the fifth awaits release. Without the Boumediene ruling, the truly heinous provisions of the Military Commissions Act would still be operative and would continue to empower the government to hold those detainees — along with dozens if not hundreds of others — indefinitely and without charges. Boumediene is one of the few civil liberties bright spots of this decade.
The Bush administration, also earlier this year, suffered another judicial defeat at the hands of a very conservative, Bush 43-appointed federal judge, when that judge emphatically rejected the administration’s claim that Bush aides Harriet Miers (former White House counsel) and Josh Bolten (former White House chief of staff) are entitled to absolute immunity from Congressional subpoenas. That dispute, which arose from the House Judiciary Committee’s efforts to investigate the notorious firing of nine U.S. attorneys, dispensed with one of the administration’s most radical tools — a claim of absolute, unconstitutional executive privilege — for shielding itself from accountability.
One of the most potentially damaging judicial developments of the year was a horrendous ruling issued in July by the conservative Fourth Circuit Court of Appeals in the case of Ali Saleh Kahlah al-Marri. The al-Marri court actually upheld the president’s claimed authority to detain legal residents and even U.S. citizens in a military prison as “enemy combatants,” rather than charge them in a civilian court with a crime. But the damage done by that ruling was mitigated substantially when the U.S. Supreme Court announced just two weeks ago that it has agreed to review the al-Marri ruling, and civil libertarians are cautiously optimistic that the Court will likely reverse it.
For the last seven years, Democrats have repeatedly cited GOP political dominance to excuse their wholesale failures to limit, let alone reverse, the devastating war waged by the Bush administration on America’s core liberties and form of government. With a new Democratic president and large majorities in both Congressional houses, those excuses will no longer be so expedient. As dark and depressing as these last seven years have been for civil libertarians, culminating in an almost entirely grim 2008, there is no question that the Obama administration and the Democrats generally now possess the power to reverse these abuses and restore our national political values. But as the events of the last 12 months conclusively demonstrate, there are substantial questions as to whether they have the will to do so.
President Barack Obama speaks at Kenmore Middle School in Arlington, Va., in this photo taken Monday, March 14, 2011. Barack Obama once said it was a scandal that then-President George W. Bush didn't force a renewal of the assault weapons ban. Now it's Obama himself who's steering clear of that and other politically sensitive gun safety measures, even while calling for "a new discussion on how we can keep America safe for all of our people." (AP Photo)(Credit: AP) 
David Frakt 
The National Security Agency/Central Security Service (NSA/CSS) building in Fort Meade, Md., Wednesday, Sept. 19, 2007, during a visit by then President Bush. 
