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Published on Monday, September 15, 2008 by Salon.com

What Illegal 'Things' Was the Government Doing in 2001-2004?

by Glenn Greenwald

For the second consecutive day, The Washington Post has published an excerpt from reporter Barton Gellman's new book on the Cheney Vice Presidency, and it provides still more details on the intense confrontation in March, 2004 between the Bush Justice Department and the Cheney-led White House over the DOJ's refusal to certify the legality of the NSA's domestic spying activities. As has been known ever since Deputy Attorney General James Comey testified before the Senate in May, 2007, all of the top-level DOJ officials -- including Attorney General John Ashcroft, Comey and FBI Director Robert Mueller -- told President Bush they would resign immediately because Bush ordered the NSA surveillance program to continue even after his own Justice Department told him it was patently illegal. Comey drafted his resignation letter, calling Bush's spying activities "an apocalyptic situation" because he had "been asked to be a part of something that is fundamentally wrong."

Such an en masse resignation in the middle of an election year was averted only when Bush finally agreed to change certain aspects of the surveillance program in order to persuade these DOJ officials to endorse its legality. The illegal NSA spying program revealed by The New York Times in December, 2005 that created so much political controversy -- whereby the Bush administration was spying on Americans without the warrants required by law -- was a program that was actually endorsed and authorized by these same DOJ officials. The program we learned about was the "compromise" program that Bush implemented in 2004 in order to avoid their resignation. That's how extreme -- what right-wing, executive-power-loving ideologues -- these DOJ officials are: they are the ones who authorized and endorsed the illegal NSA program that we came to learn about.

But whatever it was that the Bush administration was doing in spying on Americans for years prior to March, 2004 was so extreme, so patently illegal, so unconscionable that even these right-wing DOJ Bush appointees, who approved of the ultimate warrantless eavesdropping program, were ready to resign en masse if those spying activities continued. Here is how Gellman, in his book, describes the March, 2004 "compromise" that resulted in the "less illegal" and less extreme NSA spying program that the DOJ officials approved:

The FBI director was no more tractable than Comey. This was a rule-of-law question, he told the president, and the answer was in the Justice Department. The FBI could not participate in operations that Justice held to be in breach of criminal law. If those were [the President's] orders, he would respectfully take his leave. . . .

Seven days later, Bush amended his March 11 directive. The legal certification belonged again to the attorney general. The surveillance program stopped doing some things, and it did other things differently. Much of the operation remained in place. Not all of it.

Think about that: in order to persuade the DOJ officials not to resign, "the surveillance program stopped doing some things, and it did other things differently." What "things" did the NSA stop doing in March, 2004 -- and what "things" did it start doing differently -- in order to convince Ashcroft, Mueller and Comey to remain in their jobs? This is one of the greatest political scandals of the Bush era -- not merely the commission of these illegal acts but the fact that they remain concealed from the public-- and it's also one of the most illustrative episodes of how our Government now works, of the extreme secrecy and illegality that characterizes it at its core, and of the complicity of both parties in all of this.

We know (even according to Bush's own right-wing, highest-level DOJ officials) that, for years, the Government was violating the criminal law (i.e., committing felonies) in how it spied on us, and did so in ways that were so severe that even the President's own appointees -- who proved they were willing to endorse plainly illegal spying programs -- were nonetheless ready to destroy the President's 2004 re-election bid by resigning if those activities continued. At least according to what the Government claims, these illegal activities -- what Gellman cryptically calls "these things" -- stopped in March, 2004, when Bush ordered the program changed in order to satisfy the DOJ. Thus, what possible rationale exists for continuing to conceal from the country the extreme lawbreaking in which our Government was engaged during this time -- more than four years ago?

Of course, we almost certainly would have learned the answers to these questions -- or, at the very least, obtained a judicial ruling that the Government broke the law -- had the telecom lawsuits been allowed to proceed. But thanks to the Congressional leadership of both parties, with the support of both major presidential candidates (though over the opposition of the Democratic Vice Presidential nominee), those lawsuits were killed, stopped in their tracks, when the telecom industry was retroactively immunized for their lawbreaking.

At this point, it is extremely easy to understand why not only the White House and Congressional Republicans, but also the Democratic leadership, was so eager to ensure that this law-breaking remain concealed from the public and that there are never any consequences for it. It's because, as is true for so much of the Bush radicalism and lawbreaking over the years, top Democrats were fully aware of what was taking place and either explicitly endorsed the lawbreaking or, with full complicity, allowed it to continue. In his book, Gellman details a March 10, 2004 meeting convened by Dick Cheney regarding the DOJ's objections to the NSA surveillance programs -- in which various Bush national security officials were present along with "the four ranking members of the House and the Senate, and the chairmen and vice chairmen of the intelligence committees" -- and this is what Gellman writes:

With a nod from Cheney, [then-NSA Director Gen. Michael Hayden] walked through the program's vital mission. Gonzales said top lawyers at the NSA and Justice had green-lighted the program from the beginning. Now Attorney General John D. Ashcroft was in the hospital, and James B. Comey, Ashcroft's deputy, refused to certify that the surveillance was legal.

That was misleading at best. Cheney and Gonzales knew that Comey spoke for Ashcroft as well. They also knew, but chose not to mention, that Jack L. Goldsmith, chief of the Office of Legal Counsel at Justice, had been warning of major legal problems for months.

More than three years later, Gonzales would testify that there was "consensus in the room" from the lawmakers, "who said, 'Despite the recommendation of the deputy attorney general, go forward with these very important intelligence activities.'" By this account -- disputed by participants from both parties -- four Democrats and four Republicans counseled Cheney to press on with a program that Justice called illegal.

In fact, Cheney asked the lawmakers a question that came close to answering itself. Could the House and Senate amend surveillance laws without raising suspicions that a new program had been launched? The obvious reply became a new rationale for keeping Congress out.

Though there is dispute about whether these members of Congress expressly endorsed the continuation of the illegal program, there is no dispute that the meeting took place and that these members were repeatedly briefed on the spying program -- not only after 2004, but before 2004. This specific meeting described by Gellman, and the briefings generally, included Nancy Pelosi, Jane Harman, Steney Hoyer, and Jay Rockefeller -- all of whom voted to put an end to the telecom lawsuits (and thereby ensure that these crimes remain concealed), and the latter two of whom were, far and away, the key forces behind the new law that killed the lawsuits looking into these spying activities (and then joined Bush and Cheney at a festive, bipartisan White House signing ceremony to celebrate their joint victory).

If we had an even minimally transparent and open government, or an even theoretically extant opposition party, it would be unthinkable that these crimes would remain concealed, uninvestigated and unpunished. Instead, we have deeply corrupt and complicit leadership in both parties that act in unison to protect the culpable actors (i.e., themselves), while neither reporters nor citizens seem particularly interested in learning about the illegal "things" our Government did for years in spying on us and our communications. Did they listen in on our exclusively domestic calls, read our emails, do physical searches by breaking into our homes all without warrants, engage in other types of equally intrusive and illegal surveillance?

As former DOJ official Marty Lederman wrote last year in the wake of the Comey revelations -- after detailing how extraordinary were these threats to resign from these right-wing DOJ officials -- in a post entitled: "Can You Even Imagine How Bad it Must Have Been?":

If that's 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?
We still have no idea, and we (meaning our political and media class) don't seem to care all that much. We know the President committed felonies by engaging in activities which his own ideologically-sympathetic DOJ officials declared were violative of the criminal law. We know this went on for years, and that he stopped only when it became clear that his political career would be destroyed by massive DOJ resignations if he continued. But we are content not to know what he did, what the extent of the lawbreaking was, and what was done with the criminally-obtained information about U.S. citizens.
Copyright ©2008 Salon Media Group, Inc.

Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.

Posted in civil rights, military industrial complex, Surveillance

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