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Warrantless Wiretapping: Bringing the Justice Department to Heel

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The trial of Scooter Libby is a story of government officials lying to the American people, smearing those who tried to reveal the truth and then lying further to cover it up. Lawbreaking, smearing opponents and lying seem to be recurring themes of the Bush Administration, but this story may offer hopeful signs of eventual public accountability.

We’ve known about the President's illegal domestic spying program since it was revealed on December 16, 2005 by the New York Times. Rather than deny that the NSA was spying on American citizens without obtaining a warrant from a secret court as required by the Foreign Intelligence Surveillance Act of 1978 (FISA), the President admitted he was not obeying the statute and boasted that he would continue authorizing his renamed "Terrorist Surveillance Program," despite strong arguments by many legal experts that he was authorizing the commission of repeated felonies and violating the Fourth Amendment rights of unknown hundreds of American citizens.

Even though FISA was unequivocal that it was the “exclusive” method by which such surveillance could be lawfully undertaken against Americans, the President and his Attorney General argued to Congress, the public and to federal courts that the warrantless spying program was lawful under the President's executive war powers and implicitly authorized under the 2001 Authorization to Use Military Force in response to 9/11. Each of these arguments was rejected by a Federal District Court, which ruled the program unlawful, and the Attorney General's legal arguments were further undermined by the US Supreme Court in the Hamdan decision. But the President persisted, claiming throughout 2006 that the program was both lawful and indispensible to the nation's security and could not possiby be conducted in compliance with the FISA. In the 2006 elections he and Karl Rove tried to use the few Democratic criticisms of his actions as proof that the Democrats were soft on terrorism.

That was then. Now we have a Democratic Congress and Patrick Leahy instead of Arlen Specter as Chairman of the Senate Judiciary Committee. On Thursday, Attorney General Gonzales had to appear before a new Democratic Chairman with subpoena power who is deeply opposed to the President's unlawful actions. And Gonzales knew that the arguments on appeal of the District Court decision in the case that ruled the program illegal are only two weeks away.

On Wednesday, the AP reported that Attorney General Gonzales sent a letter to Senator Leahy, the new Chairman of the Senate Judiciary Committee, and Senator Specter, the Committee's Ranking Minority Member, informing them that the President would no longer reauthorize his "Terrorist Surveillance Program" but would instead conduct such surveillance pursuant to orders issued by the FISA Court. From Gonzales' letter:

As a consequence of these orders, any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court.

Glenn Greenwald has written here and here on the meaning of this apparent turnaround, and Marty Lederman, who is quoted extensively in this Boston Globe story adds more questions. Glenn and Marty note the frequent claims, now proven false, by the President, the President's men (especially former NSA head and now CIA Director Hayden) and the President's attorneys about how it would be impossible to undertake the necessary surveillance if NSA had to comply with the FISA and how the nation's security would be compromised if they were forced to obey the law — all statements that are now inoperative. A key question is whether the new FISA Court orders are blanket authorizations or a process for obtaining individual authorizations/warrants, as the Constitution seems to require. And it remains to be seen whether Gonzales’ transparently preemptive action will be successful in rendering moot the federal case now awaiting appeal. Glenn concludes:

There is no repentance here, nor (more importantly) is there any rescission of their claimed powers of lawbreaking. Quite the contrary. Gonazles' letter affirms, as one would expect, their belief that they were legally entitled to violate this law. That means (a) that they can violate it again at any future point when they want to, (b) they can violate other laws under the same theories, and (c) whatever other lawbreaking is already occurring as a result of those theories is not going to stop.

This "reversal" merely proves what we already knew — that there was never any legitimate reason to violate FISA in the first place, and that all of the claims about how they had to in order to stop The Terrorists were complete fiction (claims which, just incidentally, they tried to use to win the last election; if you wanted to make them comply with FISA, it meant that you loved the Terrorists).

They have been doing this all along. Every time they are about to face consequences for their conduct, they stop doing what they are doing and find another way. When the Supreme Court was about to rule on the legality of their detention of Jose Padilla, they transferred him to a criminal court and finally charged him, then told the court that the questions were "moot." When the Supreme Court in Hamdan ordered them to give Hadman [sic?] (a U.S. citizen) a venue to charge him with a crime and prove his guilt, they simply let This Extremely Dangerous Terrorist go free instead of charging him. . . .

This is what they do and how they always operate. They have not conceded anything and they have certainly not done anything which mitigates their lawbreaking — their crimes — over the past five years with regard to eavesdropping without warrants.

I suspect NYT reporter Eric Lichtblau, who with James Risen first reported the illegal program in December 2005, and who was threatened by DoJ investigations and vilified by the White House, Congressional Republicans and rightwing pundits who insinuated they had damaged national security, was smiling a bit when he and David Johnston wrote the follow up story yesterday. But justice is not done yet.

UPDATE: In today’s NYT, Adam Liptak has a take on Gonzales’ legal strategy. He quotes an ACLU attorney on the case now on appeal: “It’s another clear example of the government playing a shell game to avoid accountability and judicial scrutiny.”

UPDATE 2: Commenter twolf1 provides a link to a video of Senator Feingold’s questioning of Gonzales on his prior statements.

UPDATE 3: Commenter bourbonjockey finds links to Fox News and Republicans questioning the patriotism of NYT reporters: see comments 96 and 114.

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Scarecrow

Scarecrow

John has been writing for Firedoglake since 2006 or so, on whatever interests him. He has a law degree, worked as legal counsel and energy policy adviser for a state energy agency for 20 years and then as a consultant on electricity systems and markets. He's now retired, living in Massachusetts.

You can follow John on twitter: @JohnChandley

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