I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Tuesday, January 31, 2006

The Administration’s pattern of deceit re: eavesdropping

One of the many pressing questions in the NSA scandal is this: If the Administration really believed that the AUMF gave it the authority to eavesdrop outside of FISA, why did it never say so, even as Congress was plainly operating under the assumption that the Administration was eavesdropping only with the judicial oversight required by FISA?

Not only did the Administration never claim that it had authority to eavesdrop outside of FISA (that is, it never claimed this until it got caught doing so), far worse is that the Administration repeatedly and deliberately misled both the Congress and the public into believing that it was always complying with FISA and that it was eavesdropping only with the judicial oversight and approval required by the law.

The Administration’s deceit took place over several years and in many different venues. The record of this deceit should always begin with this statement by George Bush on April 20, 2004, as part of a speech he delivered in Buffalo, New York:

Secondly, there 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. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so.

That statement is an outright falsehood, and it is extremely serious. The President was attempting to address civil liberties concerns regarding the Administration’s wiretap activities, and he stated, falsely, that "any time you hear the U.S. Government talking about wiretaps, it requires – a wiretap requires a court order." He did not limit his assurances to eavesdropping conducted under FISA. To the contrary, he went out of his way to made clear that he was talking about all eavesdropping, and thus emphasized that a court order is required -- to use his words -- "any time you hear the United States talking about wiretap."

Why is George Bush allowed to make baldly false statements to Americans about matters of the gravest importance? Why is there not more outrage and controversy over the fact that the President stood up in front of the country and lied about the Government’s eavesdropping activities by assuring us that the only wiretaps that were done on American citizens first required a court order?

That question is not answered by claiming that national security required the President not to divulge the eavesdropping program, because he did not have to say anything at all. When he made his false statement, he wasn’t responding to a question. This statement was part of his pre-scripted speech. And as part of that speech, in an effort to campaign for his own re-election and for renewal of the Patriot Act, he falsely assured Americans that there was no ground for worrying about excesses with regard to eavesdropping because the only eavesdropping that is done is done under judicial oversight.

One's views of warrantless eavesdropping ought to have nothing to do with one's views of the President's false and misleading statements on this issue. Bill Clinton was impeached ostensibly for lying about a much less serious matter, and yet here is George Bush lying to the country by falsely assuring us that all eavesdropping conducted by the Government is done only with judicial approval. What possible justification is there for George Bush to be able to make false statements of this sort?

The President’s Attorney General engaged in the same deceit. As The Washington Post reported this morning (and as the blogosphere has long discussed), Attorney General Gonzales was specifically asked by Sen. Russ Feingold at Gonzales’ confirmation hearing in January, 2005 whether the President had the power to engage in warrantless eavesdropping, and Gonzales assured Feingold in reply that the Administration does not engage in activities forbidden by Congressional law and the question was therefore "hypothetical." Here is the unbelievably clear exchange referenced by the Post article, which arose from extremely prescient questions from the increasingly impressive Sen. Feingold:


Let me switch to a subject that's come up a lot here today.

In the August 2002 memorandum, the Justice Department concludes that the president, as commander in chief, may authorize interrogations, that violate the criminal laws prohibiting torture and that the Congress may not constitutionally outlaw such activity when it's authorized by the president. This is the claim, essentially, that the president is above the law so long as he is acting in the interests of national security. . . .

You also, I am told, said that many presidents have asserted the power not to enforce a statute that they believe is unconstitutional. But there is a difference between a president deciding not to enforce a statute which he thinks is unconstitutional and a president claiming to authorize individuals to break the law by torturing individuals or taking other illegal action.

So what I want to do is press you on that, because I think, perhaps, you've misunderstood the question. And it's an important one. It goes to a very basic principle of the country, that no one, not even the president of the United States, is above the law. . . .

The question here is: What is your view regarding the president's constitutional authority to authorize violations of the criminal law, duly enacted statutes that may have been on the books for many years, when acting as commander in chief? Does he have such authority? The question you have been asked is not about a hypothetical statute in the future that the president might think is unconstitutional; it's about our laws and international treaty obligations concerning torture. The torture memo answered that question in the affirmative. And my colleagues and I would like your answer on that today.

And I also would like you to answer this: Does the president, in your opinion, have the authority, acting as commander in chief, to authorize warrantless searches of Americans' homes and wiretaps of their conversations in violation of the criminal and foreign intelligence surveillance statutes of this country?


Senator, the August 30th memo has been withdrawn. It has been rejected, including that section regarding the commander in chief authority to ignore the criminal statutes. So it's been rejected by the executive branch. I categorically reject it.

And in addition to that, as I've said repeatedly today, this administration does not engage in torture and will not condone torture. And so what we're really discussing is a hypothetical situation that...


Judge Gonzales, I've asked a broader question. I'm asking whether, in general, the president has constitutional authority -- does he at least in theory have the authority to authorize violations of the criminal law when there are duly enacted statutes, simply because he's commander in chief? Does he have that power?


Senator, in my judgment, you phrase it as sort of a hypothetical situation. I would have to know what is the national interest that the president may have to consider.

What I'm saying is, it is impossible to me, based upon the question as you've presented it to me, to answer that question.

So, in response to the specific question from Sen. Feingold as to whether the President has the authority "to authorize warrantless searches of Americans' homes and wiretaps of their conversations in violation of the criminal and foreign intelligence surveillance statutes of this country" - indisputably exactly what the President had ordered three years earlier, as Gonzales knew -- Gonzales, under oath, assured Feingold that this was purely a "hypothetical situation" and he therefore could not answer.

That is the same falsehood George Bush told the country in his Buffalo speech – that the Administration was not eavesdropping on Americans without a warrant even though it had been doing exactly that for three years.

Worse still, Sen. Feingold expressly asked Gonzales to make a public commitment that he would inform the Senate should the Administration decide that it would engage in activities prohibited by a Congressional law on the ground that the Administration thought the law was unconstitutional -- exactly, precisely what the Administration did with FISA -- and Gonzales made that commitment:


I recognized and I tried to make that distinction, Judge, between electing not to enforce as opposed to affirmatively telling people they can do certain things in contravention of the law.


Senator, this president is not -- it's not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes.


Finally, will you commit to notify Congress if the president makes this type of decision and not wait two years until a memo is leaked about it?


I will commit to advise the Congress as soon as I legally can, yes, sir.

After overtly misleading Feingold by assuring him that warrantless surveillance in violation of FISA was nothing more than a "hypothetical situation," Gonzales then gave Feingold a commitment which, as soon as he gave it, was violated – namely, that he would advise the Senate in the event the Administration engaged in such activities, rather than having the Senate only find out by virtue of a leak.

The Administration’s deceit on this eavesdropping issue began shortly after it started eavesdropping in violation of FISA. At the July, 2002 Senate Intelligence Committee hearings to debate the FISA amendments introduced by Senators Kyl, Schumer and DeWine, the Justice Department’s James A. Baker -- also under oath -- falsely assured the Committee that the Senate could liberalize FISA without worrying about incursions into civil liberties:

So you would be, you know, connecting electronic surveillance and potentially physical search of those targets and that raises all the same kinds of civil liberties questions that FISA does to begin with. But nevertheless, you would have had--before you get to that point, you would have had a finding by a neutral and detached magistrate, and indeed in this case a sitting federal judge, district court judge, that all of the requirements of the statute are met and that there's probable cause to believe that this individual is engaged in international terrorism activities, or activities in preparation therefor.

A statement more starkly false is difficult to imagine. What Baker swore was true to the Committee (and, by implication, to all of us) -- namely, that no eavesdropping occurs without a federal judge first finding that all of the requirements of FISA were met -– was completely false. Unbeknownst even to the Senate Intelligence Committee, eavesdropping without warrants had been ordered by the President many months earlier.

And, independent of all of these plainly false statements from George Bush and his Administration, the Administration, through its deeds, also repeatedly and deliberately misled Congress, as I documented several days ago, by affirmatively leading the Congress to believe that it was eavesdropping only in compliance with FISA, and that FISA amendments were therefore necessary in order to expand the Administration’s eavesdropping powers. This was done not only by the DoJ's Baker, but also by the representatives of the CIA and FBI who attended the hearings, both of whom led the Committee to believe that all eavesdropping is done only within the parameters of FISA.

All of this deceit is, independent of the law-breaking issues, scandalous in itself. Lying under oath to Congress is itself a criminal offense – as Gonzales plainly did when answering Feingold and as Baker likely did when he testified that all eavesdropping requires a warrant. And it is the greatest breach of public trust for George Bush to urge his own re-election and renewal of a highly controversial law by knowingly making false statements to the public designed to assure us of things which are simply false.

Beyond the deceit, all of this underscores the glaring weakness, the fundamental falsity, of the Administration’s entire defense in this NSA scandal. If, as the Administration now claims, it clearly had authority under the AUMF to eavesdrop in violation of FISA, why did it never say so – even as the Congress was clearly operating on the assumption that it was complying with FISA, and even as Congress was debating totally unnecessary amendments to FISA? At any time, the Administration could have simply told Congress: "there is no need to amend FISA to give us increased eavesdropping powers because you already have authorized us to exercise unlimited eavesdropping powers when you enacted the AUMF."

And worse than never saying this, the Administration ran around in multiple venues and on many different occasions, over the course of several years, giving false assurances that it was complying with FISA. That is not the conduct of officials who believe that what they are doing is legal and proper. People lie to conceal their behavior only when they believe that their behavior is wrong, not when they believe their behavior is justifiable.

And there is no conceivable justification for this repeated deceit. The Administration could have easily told Congress that it interpreted the AUMF as giving it unlimited eavesdropping authority, and certainly could have refrained from falsely assuring the public that it eavesdrops only with judicial oversight and approval. There were numerous public discussions about the Administration's eavesdropping activities, the most detailed and revealing of which were from President Bush as he campaigned for re-election, and the Senate itself, both in 2001 and 2002, was openly debating what standards ought to govern FISA. The notion that it would harm national security for the Administration to state then what it is now claiming -- i.e., that it believed the AUMF gave it unlimited eavesdropping powers -- could not even be argued with a straight face.

Most presidential law-breaking scandals in our nation’s history have two components – the law-breaking itself, followed by the deceit and lies designed to conceal the law-breaking. The Administration’s law-breaking has been the subject of significant attention. Its pattern of deliberate deceit deserves a lot more attention.

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