The DOJ's explicit refusal to obey the law

In addition to President Bush's signing statement reserving the right to ignore national security letters, the DOJ explicitly refused to agree to obey the law on NSLs.

Published March 16, 2007 2:02PM (EDT)

Earlier this week, I wrote about the clear connection between (a) revelations that the FBI has been violating the law with respect to its use of National Security Letters (NSLs) and, specifically, its failure to maintain the requisite records to enable Congress to exercise oversight of NSLs, and (b) President Bush's declaration in the form of a signing statement that he need not comply with those very NSL reporting and auditing requirements. Beyond the signing statement, recent statements made by Alberto Gonzales make this connection as clear as can be.

As I noted in the post below, Gonzales -- in June, 2006 -- appeared before the Senate Judiciary Committee and either refused to answer or claimed he was unable to answer a long list of questions on countless topics. He agreed at the hearing to provide follow-up answers in writing. But for the next six months, the DOJ ignored that promise and provided nothing. It was only once Democrats took over Congress did the DOJ finally get around to answering those inquiries, and did so in the form of a January 18, 2007 letter from the DOJ's Richard Hertling (recently posted by the FAS here - .pdf).

One of the topics about which Gonzales was asked repeatedly was the President's unprecedented use of signing statements to declare his power to ignore various laws. In particular, Gonzales was asked about the signing statement issued by Bush when he signed the re-authorization of the Patriot Act into law, which is when Bush proclaimed his power to ignore the auditing and reporting requirements concerning NSLs. This is how the DOJ answered those questions in its recent letter:

That is Bush-speak for: the President will comply with the law only to the extent he chooses to. The DOJ's answer then goes on to cite multiple instances where prior Presidents have noted their power to maintain national security and classified information, but none where they proclaimed the right to ignore laws.

Glaringly, the DOJ simply refused to say that the administration would comply with the auditing and reporting requirements imposed by Congress when it re-authorized the NSL power. Instead, it emphasized that it need not do so. This is why the FBI violated the law and simply ignored the legal requirements governing NSL. The President declared that he has the power to break those laws, and the DOJ itself will not even answer the question directly as to whether it would comply with those laws, but instead offers all sorts of evasive answers which make clear that it believes it has the right to ignore those parts of the law.

All sorts of Bush apologists are trying to claim that the NSL law-breaking is simply a matter of accidental record-keeping failures or some sort of petty bureaucratic negligence. It is not. It is systematic and deliberate lawbreaking -- lawbreaking which the President openly assigned himself the right to authorize and which the DOJ, as Gonzales' letter reflects, plainly endorses. The very laws which the FBI was revealed to be breaking are the same laws the President proclaimed the power to break and which the DOJ refused to agree to obey.

The connection between, on the one hand, the President's signing statement on NSL reporting requirements (and, now, the DOJ's pointed refusal to agree to abide by that law) and reports that the FBI has been breaking those laws, on the other, still has not been reported by any national media (other than the Post's Dan Froomkin). Isn't it time to rectify that? If the President proclaims the right to break a law, and the DOJ refuses to say it will obey that law when asked directly, and it is then revealed that that very law has been broken -- repeatedly and in quite dangerous ways -- aren't those facts rather vital to understanding what happened here?

By Glenn Greenwald

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