[Peace-discuss] Enabling Bush's crimes

Mon Sep 15 21:52:24 CDT 2008

[Another example of how the crimes of the Bush administration would not have 
been possible without the conscious collaboration of the Democrats, whose role 
is to pretend to be an opposition party:  "...we almost certainly would have ... 
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 ... 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..." --CGE]

	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.

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.

http://www.commondreams.org/view/2008/09/15-5