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

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

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.

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:

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

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.

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?":

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.

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