Bush's Law by Eric Lichtblau
Having just finished a lengthy book on the birth of the American Republic, which was in many ways the modern birth of civil liberties, I thought it might be interesting to read a book that covered as close to the opposite topic as possible. It came down to a biography of Joseph Stalin, or the story of the Bush administration's law enforcement and intelligence gathering policy in the years since 9/11. The ironic dichotomy of the latter carried the day.
The last few years have not been kind to the Bush administration, with the president entering uncharted waters for sustained unpopularity. That's only fair, after all, since for the last eight years the Bush administration has not been kind to this country. Several former administration officials recently claimed that Hurricane Katrina was the 'tipping point' that turned the tide against the president. I am sure there is some evidence to support this, and perhaps for many that was the blunder that finally laid bare the administration's incompetence. Along the way, however, there was plenty to suggest that there was more than mere incompetence at work. There was intentional malfeasance as well.
From the perspective of an attorney like myself, in law school from 2002-2005, a former intern at the ACLU, the most destructive efforts were those aimed at America's rule of law, the fundamental understanding that everyone in this nation, including the President of the United States, are subordinate to the laws of the land. This basic premise, thought to be widely accepted in the post-Watergate era, turned out to be anathema to this administration.
We still do not all the ways that the White House chose to circumvent or subvert existing law in its twisted theories of unfettered executive power. But for what we do know, we owe a debt of gratitude to the reporters who have zealously investigated and disclosed the numerous policies and programs that the Bush administration sought to keep secret. These are men and women who work long hours under great pressure for little pay, and they were rewarded by this administration by having their credentials pulled, being labeled as traitors, and threatened with imprisonment. At the center of much of this controversy was Eric Lichtblau of The New York Times, who co-authored a bombshell article in December 2005 revealing the NSA's warrantless wiretapping of domestic targets (and won the Pulitzer Prize for it).
Early last year, Lichtblau published Bush's Law, which details a range of post-9/11 efforts by the Bush administration to expand the reach of executive power, from the 2001 roundups by immigration officials to the NSA wiretap program to the collection of international banking transaction data:
This war would require different tactics, different tools, and a different mindset in what would amount to the most radical remaking of America's notion of justice in generations. What Woodrow Wilson did in going after the socialists and anarchists, what J. Edgar Hoover did in going after communists, what Bobby Kennedy did in going after organized crime mob figures, Bush and his inner circle would now do in training the sights of the American government on those suspected of aiding the enemy known as al Qaeda. There was a new ethos at work, and it relied at its core on smashing walls-walls that had failed to stop the enemy from storming the country on 9/11; walls that had been erected in a bygone "don't tread on me" era to protect the American people from the powerful reach of its own government. Now, counterterrorism agents from the National Security Agency, the CIA, and the FBI would be allowed to go places and do things they had never done before in the quest to stop the next attack. Lawyer would give legal sanction to covert programs and secret interrogation tactics unimaginable just a few months earlier. And the drift net of government would sweep up thousands of suspects--some real, many imagined--in its tide. The walls had come crashing down.
Lichtblau peppers these tales with the anecdotal richness characteristic of journalism and the authoritative insider view offered by Lichtblau's numerous well-placed sources. He does not offer a binary portrait of administration officials or Republicans as universally evil or unprincipled. In fact, the only officials who come across as utterly contemptible are rather deserving: John Yoo, whose legal work in the service of torture is only the tip of the iceberg of damage he did to to America's rule of law; and Alberto Gonzales, the ultimate yes-man, whose enabling of the administration's overreach extended from his days as White House counsel doing end-runs around the DoJ to his time in charge of that department as it became the laughingstock of the political and legal world until his resignation in disgrace (the man is apparently unemployable). The most infamous example being his trip to the hospital room of Attorney General John Ashcroft in an attempt to overturn a decision by Acting Attorney General James Comey (another story Lichtblau broke):
Ashcroft, weakened and drugged up, lifted his head from the pillow. In language that both Comey and Gonzales regarded as remarkably lucid, he outlined his concerns about the legality of the surveillance program, paralleling many of the same issues Comey had briefed him on the week before. He made clear that he shared those concerns. "I've been told it would be improvident for me to sign," he told Gonzales. "But that doesn't matter," he said, "because I'm not the attorney general." Gesturing to Comey next to him, he said: "There is the attorney general." Ashcroft put his head back down on the pillow. He looked so ill that [OLC chief Jack] Goldsmith figured he was going to die right there on the spot; it was, Goldsmith said later, "the most amazing scene I've ever witnessed."
While detailing the incredible audacity of henchmen like Alberto Gonzales, Lichtblau also tells the story of those in the administration who resisted such overreaching. Ashcroft and Comey's dramatic standoff with Gonzales is the most famous example, but there are many others. Like James Ziglar, the INS commissioner (and self-described "Goldwater conservative") who on 9/11, with fires will still burning at Ground Zero, had the courage to raise red flags about proposals to make door-to-door sweeps and arrests in heavily Muslim neighborhoods and would later vigorously oppose the FBI's no-release policy regarding prisoners detained on immigration violations.
In addition to providing coverage over the numerous abuses of power, Lichtblau also sheds significant light on his experience as a journalist covering those abuses. The book is 20% autobiography, and in this case it's a perfect mix. Lichtblau was on the razor's edge with his reporting, and drew tremendous ire from the administration and its conservative allies. In the book, Lichtblau provides great details about the behind-the-scenes battle to get the NSA wiretapping story published. Contra conservative tirades, the Times editors actively debated whether to print the story:
A week before the election in November 2004, we had a draft of a story in hand that laid out the NSA program and the legal and operational concerns about it. The editors debated whether to run it--and if so, when. The Times had just run an explosive story about the Bush administration's failure to guard munitions in Baghdad, a story that critics on the right had lambasted as a last-minute ploy to hurt Bush. In fact, the timing of the Baghdad story had nothing to do with the election, and Keller made clear to us that if the NSA story was ready to go before the election, it would run before the election too... The problem was that he didn't think the story was ready. He had questions, including the central one: whether, as the administration so urgently insisted, the story would harm national security if it were published.
It is a troubling counter factual to ponder, whether public knowledge of this spy program might have tipped the scales of the election. As it turned out, the newspaper would end up holding the story for over a year, giving the administration repeated opportunities to establish why the story should not run. It was only after Lichtblau's co-author threatened to publish the story in his upcoming book that the story got back on track, and only when the administration seemed poised to once again abuse its power, this time directed at the paper itself, that the story actually ran:
I learned, almost in passing, that the administration had apparently discussed seeking a Pentagon Papers-type injunction against the paper to stop the publication of the NSA story. Senior administration officials had reviewed the legal options for possibly seeking an injunction, but they had not moved on it. The tidbit was a bombshell. Few episodes in the history of the Times, or for that matter in all of journalism, had left as indelible a mark as the courtroom battle over the Pentagon Papers. The case had proven perhaps the ultimate test of the tense balance between the government's claims of national security and the public's right to know, and the Supreme Court had clearly tipped the scales on the side of the press.
Now, we were learning that the Bush administration had dusted off a Nixon-era tactic to consider coming after us again... By the time word about the injunction had been relayed to the editors in New York some hours later, it had an effect I hadn't envisioned. The editors had already run out of patience with the White House and were ready to move ahead with the story, but talk of an injunction helped seal the decision. We had a tool that wasn't available three decades earlier during the Pentagon Papers clash--the Internet--and the paper wanted to use it to our advantage... The editors figured that once we had notified the administration of our intention to publish the story, a court injunction might, in theory, be able to shut down the presses in the hours it took to get an edition print and on the streets. But there was no way to stop the near-instant ability to post a story on the Internet.
Indeed, the story's publication rocked the political world. President Bush went on television the next morning for an unapologetic confirmation of his extra-legal endeavors (he claimed the only thing illegal was the leak to the media). The ramifications of the disclosure of this and other Bush policies are felt right to the present, with President-elect Obama's appointees' views on the limits of executive power of immediate concern (things are looking good).
Lichtblau's book is a fast, fascinating read. He carries the accessibility of his journalism into long form, and manages to effectively tell two intertwined stories: the growing abuse of executive power by the Bush administration after 9/11, both in theory and practice, and the journalistic efforts to uncover these abuses and expose them to public scrutiny. Those predisposed to think that Lichtblau should have been tried for treason and executed will be unimpressed, but this is a remarkably even-handed account of a sad saga in the annals of American government.