With Liberty and Justice for Some (6 page)

During the Bush 43 years, the culture of elite lawlessness slouched toward its most extreme, though logical, conclusions. The Bush administration expressly adopted the theory that the president is greater than the law, that his obligation to protect the nation means that nothing can limit what he does—not even the laws enacted by the American people through their Congress.

Indeed, during the Bush presidency, the Harvard professor of government and well-known neoconservative Harvey Mansfield published an article in the
Weekly Standard
perfectly summarizing the dominant view of America’s political and media class. Mansfield wrote that our “enemies, being extra-legal, need to be faced with extra-legal force”; that the office of the president is “larger” than the law; that “the rule of law is not enough to run a government”; that “ordinary power needs to be supplemented or corrected by the extraordinary power of a prince, using wise discretion”; and, most shockingly, that the American legal system is so constraining that it suggests the need for “one-man rule.” Mansfield’s advocacy may have been starker than most, but it was far from unusual. Its fundamental premise—that elites are the owners of law and thus cannot really violate it—echoes Nixon himself, who infamously told David Frost in a 1977 interview, “When the president does it, that means it is not illegal.”

In response to Bush-era declarations of elite lawlessness and presidential omnipotence, our sober guardians of political wisdom shrugged. Those who objected too strenuously, who used terms such as
criminal
and
illegality
or who raised the specter of impeachment—one of the tools created by the founders to redress executive lawbreaking—were branded as radicals, as unserious, partisan hysterics. The only crime recognized by official Washington was using impetuous or excessively irreverent language to object to the lawbreaking and radicalism of the Leader, or acting too aggressively to investigate them.

Bush 43 and his followers knew that they could freely break the law because our Washington establishment, our “political press,” would never object too strenuously, if at all. During the Bush presidency, the American media directed its hostility almost exclusively toward those who investigated or attempted to hold accountable the most powerful members of our political system; hence their attacks on the GOP prosecutor investigating the Bush administration’s crimes, their anger at the very few investigative reporters trying to uncover Washington’s secrets, and their righteous condemnation of each of the handful of attempts by Congress to exercise investigative oversight of the administration.

In
Federalist 70
, Alexander Hamilton explained why the defining power of the king rendered the British monarchy intolerably corrupt: “In England, the king is a perpetual magistrate; and it is a maxim which has obtained for the sake of the public peace, that he is unaccountable for his administration, and his person sacred.” We have now come to approximate that state of affairs. In the aftermath of the George W. Bush years, replete with one act of high-level lawbreaking after the next, it cannot be reasonably denied that we have become exactly the country that Iran-Contra prosecutor Lawrence Walsh warned us we might turn into: one where “powerful people with powerful allies can commit serious crimes in high office—deliberately abusing the public trust without consequence.”

Evidence of domestic felonies and war crimes committed by high-level Bush administration officials is now so blatant and abundant that few bother to deny any longer that pervasive lawbreaking occurred. Indeed, acts that our highest government officials
acknowledge
they authorized—torture, imprisonment without trials, the kidnapping and disappearing of detainees, warrantless domestic spying, the destruction of incriminating evidence—are among those for which the United States has routinely condemned other nations.

And any hope that this culture of immunity would be challenged by Barack Obama was soon dashed. Although as a candidate he had offered emphatic defenses of the rule of law when asked whether he would consider investigations and prosecutions of Bush-era crimes, Obama quickly abandoned that pretense once he was safely elected—just as Bill Clinton had immediately lost interest in enforcing accountability for his predecessor’s crimes upon assuming office. On January 12, 2009, before Obama was even inaugurated, an article appeared on the front page of the
New York Times
under the headline “Obama Reluctant to Look Into Bush Programs.” The first sentence reported: “President-elect Barack Obama signaled in an interview broadcast Sunday that he was unlikely to authorize a broad inquiry into Bush administration programs like domestic eavesdropping or the treatment of terrorism suspects.” Echoing almost verbatim the excuse Bill Clinton had offered for abandoning his pledge to bring accountability to the crimes of Bush 41 officials, Obama was quoted in the article as explaining that he had “a belief that we need to look forward as opposed to looking backwards.”

To date, Obama has succeeded in blocking and suppressing virtually every investigation into Bush crimes, whether by congressional committees, courts, international tribunals, or even internal executive branch inquiries. The specific methods Obama has adopted to strengthen and expand elite immunity are the subject of a later chapter, so for now, it suffices to note how seamlessly this continuity of Washington’s culture of consequence-free lawbreaking has extended into the era of the self-proclaimed Agent of Change.

Why has Obama been so intent on shielding his politically powerful predecessors from accountability? A
New York Times
article from November 2008, examining the possibility that Obama would authorize investigations into Bush-era crimes, provides a key insight: “Because every president eventually leaves office, incoming chief executives have an incentive to quash investigations into their predecessor’s tenure.” In other words, by letting criminal bygones be bygones within the executive branch, presidents uphold a gentlemen’s agreement to shield each other from accountability for any crimes they might want to commit in office.

That dynamic expresses the underlying motive of the political and media classes’ general defense of elite immunity: by protecting the lawbreaking license for other powerful individuals, they strengthen a custom of which they might avail themselves if they too break the law and get caught. It is class-based, self-interested advocacy. That is why belief in this prerogative and the devotion to protecting it transcend political ideology, partisan affiliation, the supposed wall between political and media figures, and every other pretense of division within elite classes. It is in the interest of every member of the privileged political and financial class, regardless of role or position, to maintain the vitality of this immunity. And what we have seen over the last decade is the inevitable by-product of elite immunity: pervasive, limitless elite corruption and criminality.

What began with the Nixon pardon as legal immunity for the most powerful political officials has now been extended to those who wield the most power in the private sector. The defining event in this expansion was the Bush-era warrantless wiretapping scandal, which revealed that executive branch officials had worked for years with the nation’s largest telecommunications companies to spy on American citizens without a shred of oversight from courts or Congress. In the ensuing uproar, the political class demanded legal immunity not only for the government officials who ordered this lawbreaking but also for their indispensable “corporate partners,” who had enabled the spying by indiscriminately turning over to the government the telephone calls and e-mail records of millions of their customers.

In addition, the wiretapping controversy demonstrated the severe erosion of the wall traditionally separating government functions and the private sector. It showed that America’s surveillance state is not maintained by public officials alone but relies crucially on their partnership with the private telecom industry. Such melding of public and private forces now characterizes most areas of government, and has resulted in the creation of a single large, self-protecting entity. In the process, corporate elites have gained equal footing with political officials when it comes to being shielded from consequences for their illegal acts.

The telecom immunity battle marked the point when politicians and corporations perfected the process of immunizing elites in the private sector. There is no more compelling example of the death of the rule of law in America than the bipartisan scheme to vest the nation’s largest telecoms with retroactive immunity, both criminal and civil, for the transgressions they committed on a grand scale.

Telecoms and the Law

Torture and aggressive war may have been the most serious crimes that the Bush administration committed, but the warrantless wiretapping of American citizens was its clearest and most undeniable act of lawbreaking. In a
New York Times
article published on December 16, 2005, the reporters James Risen and Eric Lichtblau made the situation plain: in early 2002, “President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States…without the court-approved warrants” required by law. For three years, Risen and Lichtblau revealed, the intelligence agency had illegally monitored and intercepted the “telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States.”

When the spying program was exposed, Bush showed no hint of contrition. Instead, he went on national television and proudly admitted that he had done exactly what the
Times
had described, and defiantly vowed that he would continue doing it. That there was a criminal law in place explicitly prohibiting warrantless eavesdropping did not seem to concern him in the slightest.

The dictates of that law—the Foreign Intelligence Surveillance Act—could not have been clearer. FISA specifically barred government officials from intercepting the “electronic communications” of American citizens, and of foreigners on U.S. soil, without first obtaining a warrant from a specially created court. And while some Bush officials attempted to justify their illegal spying on the ground that they were doing it to stop terrorism, FISA’s warrant requirements explicitly applied to surveillance of anyone believed to be “engaged in international terrorism or activities in preparation therefor.”

Some background is in order. FISA had been enacted in response to the shocking discoveries made in the mid-1970s by the U.S. Senate’s Church Committee investigation. That investigation, which had been prompted by reports of serious eavesdropping improprieties by the Nixon administration, uncovered decades of surveillance abuses by the executive branch under every president since World War II. For all those years, the government’s eavesdropping power had been publicly justified as necessary to fight communism, but the Church Committee found that those powers were in fact continuously misused to spy on the communications of thousands of American citizens for purely political purposes. The most notable abuse documented by the committee was the FBI’s malicious, years-long eavesdropping on the telephone calls of Martin Luther King Jr., carried out in an attempt to obtain embarrassing personal information with which King could be blackmailed.

The FISA bill was meant to remedy these abuses. It stipulated that before government officials could listen in on private communications, they had to obtain judicial approval in the form of a warrant. That requirement was designed to ensure that government agencies would eavesdrop on Americans only if they first were able to present convincing evidence to a federal judge that the target of the eavesdropping was acting as an agent of a foreign power or a terrorist group. In the face of intense public anger over the abuses revealed by the Church Committee, FISA passed both houses of Congress with large majorities and substantial bipartisan support, and was signed into law in 1978.

In language as clear as English permits, section 1809 of FISA provided that anyone who violates its mandates by eavesdropping without the requisite judicial approval has committed a felony punishable by up to five years in prison and a $10,000 fine for each offense. And there was no question that George W. Bush, Dick Cheney, former NSA and CIA director Michael Hayden, and many other Bush officials had violated FISA’s requirements by spying on Americans without warrants. Not only had the
New York Times
article exposed that illegality, but Bush himself had confirmed the findings on national television. If we were a country that actually lived under the rule of law, the illegal actions would have carried grave consequences for the lawbreakers—just as if they had been caught robbing a bank, embezzling money, or dealing drugs. But since we’re not such a country, it has done nothing of the kind. From the start of the wiretapping scandal, the nation’s media stars and the leaders of both political parties unanimously adhered to the same piety: whatever else one might want to say about the NSA spying program, it was simply wrong—inappropriate, unserious, and reckless—to talk about it as though it were a crime.

Time
’s Joe Klein, for example, echoed the rapidly emerging consensus of the Beltway class. In an article titled “How to Stay out of Power,” he sternly warned Democrats not to criticize Bush for his illegal surveillance, let alone demand accountability for it. Conceding the long history of government abuse of surveillance powers when exercised without oversight, and further acknowledging the mountains of public evidence that the Bush administration had transgressed the limits of the law when acting in other areas, Klein nonetheless insisted that “these concerns pale before the importance of the program.” He then ventured this guess: “I suspect that a strong majority would favor the NSA program…if its details were declassified and made known.” He concluded by denouncing what he called “civil-liberties fetishism” as “a hangover from the Vietnam era” and warned, “Until the Democrats make clear that they will err on the side of aggressiveness in the war against al-Qaeda, they will probably not regain the majority in Congress or the country.”

That the eavesdropping was illegal, criminal, a felony under long-standing statutes was not mentioned by Klein at all. It simply did not enter the calculus. Nor did that issue get noted by the overwhelming majority of media figures or, for that matter, by politicians from both parties who commented publicly on this scandal. After all, it was the president who had ordered this program. And as Richard Nixon announced long ago, “When the president does it, that means it is not illegal.” The NSA scandal left no doubt that what was once a strange Nixonian formulation had become unchallenged orthodoxy. It is difficult indeed to find any media figure with a national platform in 2005 who was willing to even refer to Bush’s program as a “crime,” let alone call for legal accountability. The vast majority, with very few exceptions, affirmatively defended it.

Critically, it was not only Bush and his aides who were implicated in this criminality, but also the nation’s telecom giants. In the 1970s, the Church Committee investigation revealed to Americans that domestic eavesdropping abuses by the government had been carried out with the cooperation of the telecommunications companies. AT&T, for example, had allowed the government unfettered access to its customers’ telephone calls for years, while Western Union had turned over to government agents all private telegrams that it transmitted throughout the 1950s and 1960s.

To prevent such abuses, Congress, in addition to passing FISA, had enacted stringent new laws that specifically criminalized such conduct on the part of telecommunications firms. These laws imposed on telecom companies an absolute duty—under pain of severe criminal sanctions as well as civil liability—never to allow government access to their customers’ communications without a court warrant authorizing such spying.

But a series of revelations in 2006 and 2007 left no doubt that most of the major telecoms had indeed allowed the Bush administration full access to their customers’ private telephone and e-mail communications without warrants of any kind. In other words, these telecoms, in collusion with the government’s illegal domestic spying program, had for years knowingly engaged in precisely the behavior that federal statutes prohibited and criminalized.

In May 2006,
USA Today
reported that “the National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth.” One AT&T whistleblower, Mark Klein, disclosed that AT&T had gone out of its way to give the government access to all its customers’ communications. Specifically, Klein revealed in an interview, the company had “installed a fiber optic splitter at its facility at 611 Folsom Street in San Francisco that makes copies of all emails, web browsing, and other Internet traffic to and from AT&T customers, and provides those copies to the NSA.”

At least four federal laws were clearly violated by the telecoms when they decided to cooperate with the Bush administration. FISA made it illegal for any party—not only government officials—to intentionally engage in electronic surveillance unless authorized by a court. The Wiretap Act prohibits any person from illegally intercepting, disclosing, or using, phone calls or electronic communications. The Communications Act prohibits carriers from unauthorized divulgence or publication of customer communications. And the Stored Communications Act makes it unlawful for carriers to disclose the contents of customers’ stored communications and to pass along records of such communications to a governmental entity without valid legal process.

Notably, these laws had all been written with the active participation of the telecoms themselves. After the Church Committee investigation, when it became clear that Congress intended to set up a strict new legal regime regulating the telecoms’ interactions with the government, the telecoms had one principal demand: that their legal obligations be set forth as clearly as possible so that there would be no ambiguity regarding their duties. The congressional committees that drafted these statutes worked directly with the lawyers for the telecom giants to ensure clarity.

In deference to the telecoms’ primary concern that their duties be clearly spelled out, and that they not end up suffering liability for accidental violations, Congress included broad immunity provisions in these statutes. Specifically, with regard to any criminal or civil accusations against the telecoms, FISA and the other laws provided full-scale amnesty in the event that telecoms could show that they acted in good faith—that even if they violated the law, they did not do so knowingly. Section 2520 of Title 18 of the U.S. Code created as broad and absolute an immunity provision as could be imagined: it provided that a demonstration of good faith by the telecoms “is a complete defense against any civil or criminal action brought under this chapter or any other law.” In other words, under the laws in place at the time the illegal spying began, the only situation in which telecoms could be sued or prosecuted for working with the government was when they
clearly and knowingly
violated their legal duties to their customers and the country by enabling plainly illegal government spying.

When the Bush administration originally approached the telecoms about cooperating with its new warrantless eavesdropping program—and there are credible reports that some of these discussions took place prior to 9/11—a small handful of the companies emphatically refused. They did so based on their conviction that the proposed program was so obviously illegal that taking part in it would leave them outside the scope of the statutory immunity rights conferred by Congress.

One company that refused was Qwest. To see just how reckless most telecoms were in deliberately violating the law, consider what motivated Qwest’s refusal, as reported by
USA Today
.