Taking Liberties: The War on Terror and the Erosion of American Democracy (31 page)

What can we learn from this saga? First, real congressional and judicial oversight of searches and seizures truly is essential. Just trusting the FBI, or the other agencies that wield NSL power—or borrow it, like the
Department of Defense
⁵⁸
—invites abuse. In this instance, the abuse was carefully documented by the Inspector General, suggesting that there is indeed reason to be concerned about what has been happening in other areas where painstaking public reports do not exist. Second, instead of accepting Obama’s invitation to expand the NSL, Congress would do better to adopt one of the reform proposals to reintroduce some sort of individualized suspicion threshold.
⁵⁹
Third, the draconian gag rule hid abuses and prevented public debate and reform. Nick Merrill thinks that without the shield of the gag orders it is doubtful that the FBI would have been able to abuse its NSL power. With the gag order, abuses are far less likely to come to light. Secrecy breeds overconfidence and abuse. Finally, we need the courts to be open to claims that even measures touted as increasing national security may be unconstitutional. Nick Merrill was enough of a patriot to stand up to Congress and the FBI, but he needed the third branch of government, the judiciary, to make his voice heard.

Now that his ordeal by silence is over, Nick Merrill is continuing his campaign against gag orders and NSLs. He is in the process of forming a new not-for-profit organization, to be called Calyx like his former company, which will be committed to protecting the privacy of telephone and Internet customers. “All of this,” he says, “has totally distracted me from making money.” He thanked one of his lawyers by giving him a sweatshirt bearing a picture of one of his own heroes, Fred Korematsu—the Japanese-American who challenged the constitutionality of his exclusion from his California home during World War II. He has celebrated his freedom by granting some interviews.
⁶⁰
Of course, it has never been possible to squelch Nick altogether. During the years that he was prohibited from identifying himself, he scrupulously complied with the gag order but also wrote his anonymous op-ed. He even found a way to accept an award recognizing his extraordinary commitment to civil liberties at a public dinner in 2007. At the point when his award was to be presented, the lights in the room dimmed and a video showed a blue-dotted face as an actor’s voice began to read a statement Nick had written: “My name is not John Doe and this is not my real voice.”

10.
The President’s Surveillance Program

These are tens of millions of Americans who are not suspected of anything… Where does it stop?
—Senator Patrick Leahy (2006)
¹

This debate is going to cost American lives.
—Mike McConnell to Congress (2008)

I hope we’ll not hear any more irresponsible rhetoric about congressional inquiries risking American lives.
—Senator Patrick Leahy to Mike McConnell (2008)

Abuse of power comes as no surprise.
—Jenny Holzer (circa 1989)

T
RAWLING THROUGH MILLIONS
of telephone and e-mail conversations for evidence of terrorism may be the biggest dragnet of them all. Beginning in early 2002, President Bush authorized the NSA to capture international telephone conversations and e-mails without consulting any court and without following the procedures Congress had prescribed in the 1978 Foreign Intelligence Surveillance Act (FISA). The program Bush began on his own account is still with us, in expanded form, through at least 2012, now courtesy of Congress. And most courts refused to review serious claims that the program tramples on a range of constitutional rights even if individual people can’t tell exactly when the government is listening. Defense attorneys find that their clients and potential witnesses are afraid to speak with them for fear of being overheard and ending up on a watchlist, implicating the Sixth Amendment right to counsel; authors and scholars find their sources in other countries drying up, affecting their First Amendment rights; human rights investigators at organizations like Amnesty International have good reason to fear that their international calls will be intercepted en masse, compromising their Fourth Amendment right to be free from unreasonable searches and seizures. All Americans
who place or receive an international call or send an international e-mail, especially to a country like Afghanistan, have no way to know whether they have an unexpected eavesdropper.

When George W. Bush authorized the National Security Agency (NSA) to start its new massive spy program, his lawyers were aware of arguments that the program was illegal
²
and possibly unconstitutional as well. FISA, as described earlier, had been Congress’s response to an earlier president’s claim that he did not need a warrant to spy on Americans for national security purposes. Its procedures, specifically intended to prevent presidential power grabs, required FISA court approval before eavesdropping on suspected terrorists or spies, even during time of war. In an epitome of overreaching, Bush took the precaution of not letting Congress or the FISA court know what he was doing so that his program would not be challenged or stopped.

It was not until four years later, when the
New York Times
published James Risen and Eric Lichtblau’s article, “Bush Lets U.S. Spy on Callers Without Courts,”
³
that Americans learned about the highly secret “Terrorist Surveillance Program (TSP),” one aspect of Bush’s personal multi-pronged surveillance scheme. The
Times
had delayed publication of this story for a year at the urging of the administration, which desperately wanted to preserve its secret. The story reported that Bush had authorized the NSA to eavesdrop on multitudes of people, including Americans within the United States, capturing their telephone and e-mail conversations without any court order at all as long as one party to the conversation was outside the country and was believed to have some sort of connection with terrorists. Even today, we do not know the details of how this still-classified TSP program, or its successor under the 2008 FISA Amendments Act (FAA), works. Intercepting these calls and e-mails apparently involves gaining access, with the help of telecommunications providers, to signals that are routed through United States communications systems, even when people outside the country are talking to others outside the country.
⁴
The revelation that such a paradigm-shifting policy had been created and carried out wholly within an executive branch bubble created quite a stir at the time. Members of Congress and the general public were outraged by Bush’s aggressive hijacking of democracy. Judge James Robertson, a member of the FISA court that would have reviewed the applications the law required, resigned from the court.

But the leaks had not yet ended. A second round of stories disclosed another facet of the president’s surveillance program: the accumulation of
the largest collection of information ever assembled, intended to create a database of every telephone call made within the nation’s borders. In May 2006, Leslie Cauley reported in
USA Today
that the NSA had been secretly collecting information about tens of millions of telephone calls, reaching “into homes and businesses across the nation by amassing information about the calls of ordinary Americans—most of whom aren’t suspected of any crime.”
⁵
This collection did not involve the contents of the conversations but did record data about who was calling whom that could easily be cross-referenced with other information to find out a tremendous amount about the callers. Although the workings of this program too are still cloaked in mystery, Mark Klein, a former technician for AT&T, explained that his company had enabled the collection of call-detail information by splicing fiber optic cables and running a duplicate set of information to a secret room in San Francisco: Room 641A at 611 Folsom Street.
⁶
Total Information Awareness, the megaspying program proposed by Admiral Poindexter that Congress had repudiated in 2003, had been resurrected in a new form.

On learning about this additional program, Republican Sue Kelly, chair of a House banking subcommittee, asked in exasperation, “What else is it that we don’t know?” White House spokesperson Dana Perino assured the press that even though government activities had been concealed from everyone including Congress, all of the intelligence activities involved were “lawful, necessary and required for the pursuit of al-Qaeda and affiliated terrorists.”
⁷

Five years later, the Terrorist Surveillance Program continues in a legalized and expanded form despite the fact that neither Congress nor any court has actually taken a hard look at whether the program is constitutional, whether it is worth its costs, or whether it needs procedural modifications. Congress placed its imprimatur on this radical spying program in 2008, expanding it beyond Bush’s concept, and also granted the telecommunications companies retroactive immunity for their illegal cooperation.
⁸
Then-Senator Barack Obama voted in favor of both measures. Obama Administration lawyers have been employing the same extreme procedural arguments Bush-era lawyers crafted to persuade the courts not to do their job of deciding whether the eavesdropping program violates the Constitution—arguments based on the state secrets privilege, standing, and governmental immunity. In fact, the Obama lawyers have taken those arguments to new heights—or, more accurately, to new depths. In one case, Obama Department of Justice lawyers argued that the government is immune from lawsuits on this
subject unless the government decides to reveal on whom it is spying and actively cooperates in the litigation (the state secrets privilege).
⁹
In the same case, the Obama lawyers also came up with an audacious standing argument, convincing the court that no one should be allowed to challenge a spy program if so many people have been spied on that grievances have become “generalized.”
¹⁰
In another case, the government lawyers argued that the plaintiffs could not show they had standing to bring a lawsuit because the government had forced them to pretend that a document once in their possession, which proved that their conversations were being intercepted, did not exist.
¹¹
Even when a later challenge was brought to the statute Congress had passed to authorize questionable surveillance, the Obama lawyers argued that no one could have standing unless they knew for a fact that they had been spied on—thus insulating the statute itself from constitutional review.
¹²
Acceding to Congress and the administration, until very recently the courts have fouled away all of the serious challenges to the legality of the NSA’s and the telecoms’ actions, with one very odd exception I will describe and one case whose outcome is still in doubt as I write.

It is well worth spending some time on the story of how the Bush Administration’s excessive penchant for secrecy and self-regard, some of which the Obama Administration has inherited, had a devastating impact on the ability of each of the three branches of government to do its job. The Constitution took a hit as internal checks in the Department of Justice failed, Congress was manipulated, and the courts were confounded.

In the Halls of the Department of Justice

One article of faith of the Just Trust Us philosophy woven into the Patriot Act was trust that requiring high-level executive branch officials to approve surveillance requests could substitute for checks and balances by Congress, the courts, and the American people. What went on behind the tightly closed doors of the Justice Department demonstrates dramatically, once again, that the framers knew what they were doing in requiring involvement of all three branches of the federal government as well as the American people in important policy decisions. Even the best and most independent legal minds at the Department of Justice got caught up in the fight to neutralize the fundamental checks and balances built into the Constitution, in a bizarre series of events that ranged from the hospital bed of John Ashcroft to the isolated office of John Yoo.
¹³

The Office of Legal Counsel (OLC), an elite division within the Department of Justice, by tradition is expected to provide a special check on unconstitutional executive branch action through objective legal analysis. The OLC was asked in the fall of 2001 to write a memo analyzing the legality and constitutionality of the president’s surveillance program. Many have commented on the extraordinary degree of influence the White House exercised over the Department of Justice, including the OLC, during the Bush years.
¹⁴
Alberto Gonzales, first as White House counsel and then as Attorney General, seemed determined to afford President Bush all the powers he wanted in meeting the threat of terrorism. In addition, the White House was so intent on maintaining the secrecy of this program that it exerted extraordinarily tight control over information about these covert operations, even within the Justice Department itself. Very few people were “read in”—that is, allowed to know about the program and how it worked. One lawyer in OLC, John Yoo, was chosen to be read in and prepared a memo confidently dismissing concerns that the surveillance program violated either existing statutes or the Fourth Amendment. In his view, Article II of the Constitution gives the president capacious inherent authority to respond to emergencies like 9/11 regardless of Congress or everyday constitutional rights, and so the Fourth Amendment simply had to step out of the way. This was the same type of argument Richard Nixon had made before the passage of FISA. Yoo’s memo was not subject to the usual peer review because his boss, Jay Bybee, was not “read in.” Even Ashcroft’s requests to have his own chief of staff and Deputy Attorney General read in were not granted. Jack Goldsmith, who later replaced Bybee as head of the OLC, said, “in practice Yoo worked for Gonzales.”
¹⁵
Relying on Yoo’s memo, Ashcroft approved and Bush reauthorized the new surveillance program about every forty-five days, sometimes with modifications, for over two years.