The Bush-era torture regime might have been that administration's most flamboyant act of criminality, but its illegal NSA warrantless eavesdropping program (and other still-unknown surveillance programs) has always been the clearest. We had a law in place for 30 years that made it a felony punishable by up to 5 years in prison and a $10,000 fine for each offense to do exactly that which Bush got caught doing: eavesdropping on the communications of American citizens without warrants from the FISA court. The Inspectors General report (.pdf) on Bush's NSA activities released on Friday afternoon -- one that was mandated by the FISA Amendments Act of 2008 in lieu of a real investigation -- highlights how rampant and blatant was the lawlessness that pervaded the Bush administration.
Nonetheless, because the Obama administration is actively blocking any real investigation -- Obama opposes all Congressional investigations into Bush-era crimes and, worse, is engaged in extraordinary efforts to block courts from adjudicating the legality of Bush's surveillance activities by claiming that even long-obsolete and clearly criminal programs are "state secrets" -- it is quite likely, despite how blatant is the lawbreaking, that there will be no consequences for any of it. In a Look-to-the-Future-Not-the-Past political culture, it's irrelevant how severe is the lawbreaking by high government officials. They know they will face no consequences even when, as here, they deliberately commit felonies -- which is precisely why criminality is so rampant in our political class.
(1) The IG Report is more notable for what it fails to address than for what it discloses, but that's the nature of IG Reports. Most of the key players who authorized the illegal domestic spying -- David Addington, John Yoo, Dick Cheney, Andrew Card, John Ashcroft, George Tenet -- simply refused to talk to the IGs or, in many cases, didn't even bother responding to their request. The IG's have no power at all to compel them to do so; it's entirely optional. That -- aside from the fact that they work within the Executive Branch and for the very agencies they are supposed to investigate -- is what makes IGs such an inadequate substitute for real oversight: no matter how much integrity and independence they might have, they are extremely limited in what they can achieve.
As any litigator will tell you, the lack of power to compel key witnesses to answer questions and produce documents severely hampers any ability to conduct a real investigation. Yet, when they passed the FISA Amendments Act -- which legalized Bush's spying programs and immunized lawbreaking telecoms -- Democratic leaders kept pointing to the requirement of an IG Report to placate those complaining that they were whitewashing and legalizing Bush abuses. But IGs are simply incapable, given their very limited powers and their institutional allegiances, of any real investigation of this sort. What they were unable to disclose in this Report underscores how limited are their investigative abilities.
(2) Though there are a few new facts disclosed by the IG Report, most of the key facts remain concealed -- including in cases where ongoing concealment is plainly unjustified. Ever since February, 2006 -- when Alberto Gonzales used conspicuously strained phraseology when testifying before the Senate Judiciary Committee -- it has been crystal clear that the NSA program famously disclosed by The New York Times in December, 2005 (which involved "only" international calls placed or received by Americans) was just one of many illegal surveillance programs Bush had ordered. This is how I described that clear fact all the way back in February, 2006:
As the exchange with Schumer demonstrates, Gonzales was very meticulous in pointing out that Comey (and Goldsmith) had no objections to the current incarnation of the program, which means they did have objections either to: (a) some prior incarnation or otherwise proposed version of the program and/or (b) some other eavesdropping programs.
And ever since James Comey testified in May, 2007 that he was willing to give legal approval to the illegal program that the NYT disclosed, but had threatened to resign if a whole slew of other blatantly criminal surveillance activities did not cease, it has been publicly known that there are still many illegal surveillance programs which remain concealed. In the wake of the Comey testimony in 2007, current OLC official Marty Lederman noted that even the right-wing radicals who approved of the program revealed by the NYT (Comey, Goldsmith, Ashcroft) were so disturbed by the blatant criminality of these other programs that they were going to resign en masse if they did not cease. As Lederman put it:
If [what the NYT revealed] is the narrow version of the NSA program, just how broad and indiscriminate was the surveillance under the program that Ashcroft, et al. would not approve? . . . . This is the real heart of the Comey story -- What happened between September 2001 and October 2003, before Comey and Goldmsith came aboard? Just how radical were the Administration's legal judgments? How extreme were the programs they implemented? How egregious was the lawbreaking?
Amazingly, that key question goes completely unanswered in the IG Report. We still have absolutely no idea what the Government was doing regarding domestic spying ("Other Intelligence Activities") that -- even in the eyes of Far Right, Bush-appointed legal theorists who approved of the program the NYT revealed -- were so blatantly illegal that they would quit if they did not cease. Given that these programs allegedly stopped in 2004 once the DOJ refused to certify their legality, what possible justification is there for continuing to conceal blatantly criminal acts by our high government officials? While the IG Report fails to identify what these "Other Intelligence Activities" were, it does make crystal clear -- on pp. 28-29 -- just how blatantly illegal they were (click on images to enlarge them):
To say that "a viable legal rationale could not be found" and that there is no "legal basis to support" these Other Intelligence Activities is to say that they are criminal. And even DOJ lawyers so extreme that they were willing to approve the illegal NSA program we know about concluded this was so. Nonetheless, they went on for two years at least, and Bush ordered them to continue even after his own DOJ concluded they were criminal. Revealingly, Alberto Gonzales explicitly told top DOJ lawyers that the White House didn't care about their views that what Bush was doing was illegal because that renowned legal scholar -- George W. Bush himself -- declared that they were legal:
So here we have proof of clear presidential criminality as blatant as can be imagined: knowing his own DOJ believed these surveillance activities were criminal, Bush ordered them to continue anyway (and then only ordered them to cease once the entire top-level of his DOJ, in an election year, was on the verge of resigning in protest). Yet we still have no idea what these illegal activities were. The IG Report does nothing to illuminate this central question. And President Obama continues to actively impede the only meaningful avenues for disclosure and accountability: a Congressional investigation armed with subpoena power and/or a judicial adjudication of the legality of these acts.
(3) When the Democratic-led Congress -- with Barack Obama on board -- responded to the NSA scandal by enacting a law (the FISA Amendments Act of 2008) to legalize Bush's criminal surveillance programs and retroactively immunize the private-sector telecom lawbreakers, many of us wrote at the time that the law Obama supported actually authorized even broader eavesdropping powers than the illegal Bush program itself asserted. The IG Report confirmed this to be the case:
That, for me, remains the single most compelling evidence of how ludicrously broken and corrupt our political class is on a very bipartisan basis. George Bush gets caught red-handed breaking long-standing laws in how he spies on Americans. The "opposition party" which controls the Congress not only blocks any investigations and attempts to impose accountability. Far worse, they proceed to legalize the very criminal programs that were exposed and to vest even greater surveillance powers in the very administration that got caught deliberately breaking the law.
(4) The IG Report makes very clear that John Yoo's legal opinions authorizing these surveillance programs were not merely wrong, but were something much worse: radically flawed and fundamentally inaccurate. The IG Report accuses Yoo of simply misstating the spying activities he was authorizing. His opinions steadfastly ignored the parts of FISA which made clear how illegal the administration's conduct was (Yoo, for instance, claimed that FISA did not apply to wartime but then ignored the provision of FISA that explicitly defined the President's eavesdropping powers during war). Yoo never once mentioned the key Supreme Court opinion -- Youngstown -- that defined presidential and Congressional powers in the modern era and made clear how invalid was Bush's claim that he had the right to break the law.
These were not legal opinions in any sense of the word. What happened, instead, is clear: Cheney and Addington knew that Yoo was a hardened ideologue who would authorize anything they wanted. So they purposely chose only him -- a low-level Assistant Attorney General -- to be "read into" the program, and then used his memos to give themselves legal cover. The same thing happened in the realm of torture. This is what reveals how corrupt is the claim that Bush officials cannot be held accountable for the laws they broke because they had DOJ lawyers telling them it was legal. These legal opinions were anything but exercises in good faith. They were nothing more than bureaucratic cover to commit crimes, and -- as the IG Report makes clear -- ones that were as factually inaccurate as they were legally flawed (yet John Yoo remains on the faculty of Berkeley Law).
To accept the central premise of our political class -- it's unfair to prosecute Bush officials for things that DOJ lawyers told them was legal -- is to destroy the rule of law in the United States. Presidents will always be able to find subservient John Yoos in the bowels of the DOJ willing to authorize anything they want to do. There is no such thing as a permission slip from an underling to commit felonies. Yet our political class -- obviously motivated by their own self-interest -- has decided in unison to endorse the principle that the existence of such documents should bar accountability even for clear crimes.
(5) That these surveillance programs were criminal -- no matter the ends to which they were used -- has always been crystal clear. But what has always been uninvestigated is whether these surveillance powers were systematically abused for purely political ends. The IG Report does not answer that because -- lacking subpoena power -- it cannot. All it does is survey various national security officials -- the ones who agreed voluntarily to answer questions -- to find out if they thought the programs were helpful. Even that very limited and unreliable inquiry revealed that most eavesdropping leads had little or nothing to do with Terrorism.
Over the past couple of years, there have been isolated leaks suggesting abuses of these eavesdropping powers, but there has been no real investigation into the ends to which these surveillance powers were used. As a legal question, it matters little: eavesdropping without warrants is a felony no matter the purpose for which it was done. But since FISA's warrant requirement arose from the recognition that widespread surveillance abuses were virtually inevitable if eavesdropping was conducted without judicial oversight, the lack of any investigation into this question reveals the extent to which both parties have been eager to help cover-up the crimes that were committed during the Bush years. The IG Report sheds some light onto what happened, but most of it, as intended, remains in the dark, and real accountability is still as far away as it was before this Report was issued.