Forwarded-by: Gary Graves
Bush Is Not Above the Law
By JAMES BAMFORD
Op-Ed Contributor, NY Times, Washington
January 31, 2007
LAST August, a federal judge found that the president of the United States
broke the law, committed a serious felony and violated the Constitution. Had
the president been an ordinary citizen - someone charged with bank robbery
or income tax evasion - the wheels of justice would have immediately begun
to turn. The F.B.I. would have conducted an investigation, a United States
attorney's office would have impaneled a grand jury and charges would have
been brought.
But under the Bush Justice Department, no F.B.I. agents were ever dispatched
to padlock White House files or knock on doors and no federal prosecutors
ever opened a case.
The ruling was the result of a suit, in which I am one of the plaintiffs,
brought against the National Security Agency by the American Civil Liberties
Union. It was a response to revelations by this newspaper in December 2005
that the agency had been monitoring the phone calls and e-mail messages of
Americans for more than four years without first obtaining warrants from the
Foreign Intelligence Surveillance Court, as required by the Foreign
Intelligence Surveillance Act.
In the past, even presidents were not above the law. When the F.B.I. turned
up evidence during Watergate that Richard Nixon had obstructed justice by
trying to cover up his involvement, a special prosecutor was named and a
House committee recommended that the president be impeached.
And when an independent counsel found evidence that President Bill Clinton
had committed perjury in the Monica Lewinsky case, the impeachment machinery
again cranked into gear, with the spectacle of a Senate trial (which ended
in acquittal).
Laws are broken, the federal government investigates, and the individuals
involved - even if they're presidents - are tried and, if found guilty,
punished. That is the way it is supposed to work under our system of
government. But not this time.
Last Aug. 17, Judge Anna Diggs Taylor of the United States District Court in
Detroit issued her ruling in the A.C.L.U. case. The president, she wrote,
had "undisputedly violated" not only the First and Fourth Amendments of the
Constitution, but also statutory law, the Foreign Intelligence Surveillance
Act. Enacted by a bipartisan Congress in 1978, the FISA statute was a
response to revelations that the National Security Agency had conducted
warrantless eavesdropping on Americans. To deter future administrations from
similar actions, the law made a violation a felony punishable by a $10,000
fine and five years in prison.
Yet despite this ruling, the Bush Justice Department never opened an F.B.I.
investigation, no special prosecutor was named, and there was no talk of
impeachment in the Republican-controlled Congress.
Justice Department lawyers argued last June that warrants were not required
for what they called the administration's "terrorist surveillance program"
because of the president's "inherent powers" to order eavesdropping and
because of the Congressional authorization to use military force against
those responsible for 9/11. But Judge Taylor rejected both arguments, ruling
that even presidents must obey statutory law and the Constitution.
On Jan. 17, Attorney General Alberto Gonzales unexpectedly declared that
President Bush had ended the program, deciding to again seek warrants in all
cases. Exactly what kind of warrants - individual, as is required by the
law, or broad-based, which would probably still be illegal - is as yet
unknown.
The action may have been designed to forestall a potentially adverse ruling
by the federal appeals court in Cincinnati, which had scheduled oral
arguments on the case for today. At that hearing, the administration is now
expected to argue that the case is moot and should be thrown out - while
reserving the right to restart the program at any time.
But that's a bit like a bank robber coming into court and arguing that,
although he has been sticking up banks for the past half-decade, he has
agreed to a temporary halt and therefore he shouldn't be prosecuted.
Independent of the A.C.L.U. case, a criminal investigation by the F.B.I. and
a special prosecutor should begin immediately. The question that must
finally be answered is whether the president is guilty of committing a
felony by continuously reauthorizing the warrantless eavesdropping program
for the past five years. And if so, what action must be taken?
The issue is not original. Among the charges approved by the House Judiciary
Committee when it recommended its articles of impeachment against President
Nixon was "illegal wiretaps." President Nixon, the bill charged, "caused
wiretaps to be placed on the telephones of 17 persons without having
obtained a court order authorizing the tap, as required by federal law; in
violation of Sections 241, 371 and 2510-11 of the Criminal Code."
Under his program, President Bush could probably be charged with wiretapping
not 17 but thousands of people without having obtained a court order
authorizing the taps as required by federal law, in violation of FISA.
It is not only the federal court but also many in Congress who believe that
a violation of law has taken place. In a hearing on Jan. 18, the chairman of
the Senate Judiciary Committee, Patrick Leahy of Vermont, said, "For years,
this administration has engaged in warrantless wiretapping of Americans
contrary to the law."
His view was shared by the Senate Intelligence Committee chairman, Jay
Rockefeller of West Virginia, who said of Mr. Bush, "For five years he has
been operating an illegal program."
And Senator Arlen Specter, the Pennsylvania Republican who is the ranking
member on the Judiciary Committee, noted that much of the public was opposed
to the program and that it both hurt the country at home and damaged its
image abroad. "The heavy criticism which the president took on the program,"
he said, "I think was very harmful in the political process and for the
reputation of the country."
To allow a president to break the law and commit a felony for more than five
years without even a formal independent investigation would be the ultimate
subversion of the Constitution and the rule of law. As Judge Taylor warned
in her decision, "There are no hereditary kings in America."
James Bamford is the author of two books on the National Security Agency,
"The Puzzle Palace" and "Body of Secrets."
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