Bush's Law: The Remaking of American Justice
By Eric Lichtblau
Pantheon, $26.95
New York, 2008
(Note: the author, Eric Lichtblau, is joining us for a discussion of his book in the comments.)
As political bombshells go, the headline that popped up on New York Times Web site on December 15, 2005, "Bush Lets U.S. Spy on Callers Without Courts," was a pretty big one, the biggest in the chronicling of the Bush administration's "war on terror." The story had been well over a year in the making, the process of it coming to light filled with nearly as much intrigue as the story itself.
Eric Lichtblau and his colleague James Risen won a much deserved Pulitzer prize for that story. They also won the enmity of the administration and the right wing Wurlitzer. Just this year, Director of National Intelligence Mike McConnell predicted that "some Americans are going to die" because of the public debate. Now that the full story of Lichtblau's and Risen's reporting on the NSA warrantless wiretapping, on torture, on FBI- and CIA-bungled operations, on Cheney and Gonzales and Addington and Bradbury and Ashcroft and Yoo, is compiled in one coherent and compelling book by Mr. Lichtblau, he's like to see his press pass, one revoked but restored by the Pentagon, permanently black-listed.
Bush's Law is a compelling read, and lays out with the clarity and the precision you would expect from a Pulitzer-caliber investigative reporter, the path from 9/11 through the litany of extra-legal, illegal, and even just mundanely ridiculous programs and actions by the Bush administration: those that we know about, that is. From Ashcroft's $8,000 drapery preserving the modesty of a statue to torture, extraordinary renditions, warrantless wiretapping, to the Prosecutor Purges, Mr. Lichtblau manages to bring it all together in an engaging and informative read. If the book has a missing component, it's an understandable one. Mr. Lichtblau largely avoids the subject of the war and occupation in Iraq, a forgivable omission given the scope of what he set out to cover.
But, like Jeffrey Rosen, the most resonate stories for me are those about the "collateral damage," as Mr. Lichtblau titles one of his chapters, of the zealous and unfocused war on terror.
Mr. Lichtblau has especially memorable accounts of some of the 2,700 men locked up after 9/11 by American authorities; most of those men were never shown to have connections to terrorism.
There is Taj Bhatti, an elderly Pakistani doctor in Virginia whose house and computer discs were surreptitiously ransacked and who was secretly imprisoned in the county jail as a "material witness."...
There is Brandon Mayfield, the lawyer and former Army lieutenant from Kansas whose house was secretly searched and who was arrested after being linked to the Madrid bombings by an F.B.I. agent’s mistaken fingerprint match. (He got an apology and $2 million from the government.)
Mr. Lichtblau also describes the many innocent victims whose e-mail messages, phone calls and political activities were secretly surveilled. More than 180 peaceful groups opposed to the Iraq war ended up in the Pentagon’s Talon database, which was designed to collect leads that might be related to terrorism....
They included an Iranian-American doctor in Kentucky suspected of possibly helping Osama bin Laden with his kidney ailments simply because he was a nephrologist. Mr. Lichtblau identifies another possible victim: a teenage student at the Horace Mann School in New York who sent e-mail messages to India about parking spots in Manhattan, which led F.B.I. agents to show up at his door. (It turned out he wanted to rent the spots to out-of-towners.)
And there is, of course, the damage that has been done not only to our reputation abroad, but to our government itself--to the career employees who devoted their lives to public service to be drummed out for political reasons, or who found serving under this administration untenable. Like Mike German, a 16 year employee of the FBI who had been an invaluable asset in infiltrating white supremacist organizations who became a whistle-blower when one of his operations was taken over and completely bungled. German ended up working as a lawyer on national security issues for the ACLU.
Mr. Lichtblau's book is that proverbial onion, layer after layer of documentation of the administration's abuse of the rule of law, each stinkier than the last, and each revealing the essential core--or lack thereof--of these programs and activities. What have they achieved? Beyond the moral and constitutional arguments against torture, against illegal spying, against this assault on the rule of law, has any of this worked to keep us safer? Torture provides unreliable information. Wiretapping millions of communications makes sifting through the data to find real, actionable information that much more impossible. Subverting the Constitution damages the republic more deeply and permanently than any terrorist attack could.
The Bush administration substituted zeal and its vision of an unimpeachable unitary executive for remaking an efficient and competent government capable of working within the rule of law to answer the demands of a changing world. On this shaky foundation, they built a government that is becoming increasing unsustainable. Mr. Lichtblau spoke with the former, and first, director of Homeland Security, Tom Ridge, about these things.
Yes, the nation had avoided another attack. Whether it was the result of smarter defense, or stronger offense, or luck, or patience by al Qaeda, or some combination of all these factors, no one was quite certain. But everyone was thankful for it, even as they prayed that it held true. In the months after the attacks, Bush and his aides were given wide berth to do whatever it took to stop the much-feared "second wave" of attacks, and many of the changes put in place to fortify the country were no doubt essential and overdue. Few blinked at the beginning when Bush declared the country was in a state of emergency, a wartime footing. The problem, even in the view of many counterterrorism officials in Bush's own administration, was that the state of emergency never ended and that the modus operandi--the extralegal measures; the obvious disdain for oversight from Congress, the courts and international allies; the intense secrecy and lack of transparency--all continued unabated as part of that wartime footing. There was little attempt to go back to Congress to get clear authority for some of the secret programs the administration had been running. There was little attempt to take a breath, to step back a year or two after the attacks and say: What now? As Ridge put it to me: "Shouldn't we be talking about adjusting the adjustments? Or do we want to operate in this new world permanently?"
We know what Bush's answer is, we're in a permanent state of war. Answering that question is going to be the primary challenge of his successor.
Below the fold are a few questions I posed to Mr. Lichtblau, along with his answers. He'll be joining us in the comments.
Q. The essential premise of the book is not terribly far off from Naomi Klein's Shock Doctrine (although certainly not as politically oriented), that the Bush administration's war on terror has been employed to mask the most radical remaking of American justice in generations. Can you explain that, and do you have a sense of how much of it was reaction to the horrors of 9/11, and how much of it was people like Cheney and Addington seizing an opportunity to remake a unitary executive?
Eric Lichtblau: In my view, it was all about 9/11. The calamity of the terror attacks and the need for a swift and overwhelming government response dovetailed with Cheney's views of an eroded presidency. Back to his days in the Ford administration, he believed that the post-Watergate reforms meant to prevent Nixonian abuses had put dangerous restrictions on the power of the president in the realm of national security. One of the themes I lay out in the book, based on my interviews with administration officials, is that the initial response to 9/11 was in many ways overdue and understandable, no different in some ways than what an Al Gore administration might have done in the same situation. But what frustrated even administration officials was the permanent state of emergency. A year or two out from the attacks, after the country had avoided the 'second wave' that everyone in Washington thought sure was coming, there was little attempt by the administration to take a step back, re-examine some of these extraordinary steps it had taken, work through Congress and the judicial system, and say: OK, what do we do now?
But I think it's also important to stress that this isn't a book of heroes and villains. I try to lay out, hopefully in an interesting and readable narrative, the inside story of an extraordinary period through the eyes of the people who were living it inside the government and out, and people can decide for themselves what they think about it all. I think that's my basic job as a reporter-turned-author.
Q. The centerpiece of the book is of course your NYT article cowritten with James Risen that blew the lid off the NSA's warrantless domestic surveillance program. The trail you describe in the book that led you and Risen to the story is fascinating. Can you briefly describe it here?
EL: Sure. As I lay out in the book in narrative fashion, Jim and I began hearing – separately – about anxieties that appeared to be roiling the administration in 2004 over intelligence operations. It took us a while to realize we were tugging at different threads in the same ball of yarn and to join our reporting. We then approached the administration about what we knew, and they were, needless to say, not happy. Senior officials in the administration began a full-court press to stop publication of the story.
Q. Your editors held the story for some 13 months at the request of the Bush administration, echoing of course back to the Pentagon Papers when the Nixon administration tried to block the Times from publishing the secret history of the Vietnam War. That discussion had to come up with your editors--how did it inform their decision to hold the story for so long?
EL: The Pentagon Papers came up at the very end. In December of 2005, the editors had essentially decided to go ahead and publish the story after prolonged discussions with the administration, including a final appeal by Bush himself to our publisher. The only real question was exactly when it would be published. I learned in the midst of all this that the administration had talked about dusting off its Pentagon Papers filings to seek an injunction that would stop publication. That was a bombshell for me, and it helped convince the editors to post the story on our web site the night before we published in the paper. They figured that the administration might be able to get an injunction to stop the presses, but once it was out on the Internet, it was out. All our competitors were able to match the story as a result in their Friday editions, but it was worth it.
Q. Does the experience you and your editors had with the administration, and its building track record of being less than trustworthy have an impact on whether you pursue or hold stories now?
EL: Yes and no. You certainly factor in your past experiences when looking at a story, but every situation is different. As I discuss in the book, we came across a couple of apparently covert programs in our reporting that we decided not to pursue because they seemed to clearly tilt on the side of national security versus public interest.
Q. One of the least explored aspects of this story you touch on in the book: the NSA's reaching out to telecoms prior to 9/11, in fact early on in the Bush administration. In fact, this effort by the NSA is playing a central role right now in the case of former Qwest CEO Joseph Nacchio, who's conviction on insider trading was recently overturned.
The question in a lot of minds was, from the very beginning, pre-9/11, this program centered on national security or did it have political targets as well? We know that the surveillance spilled over onto political ground post 9/11, when peace groups and other protesters were infiltrated and investigated by the FBI. In your investigations, have you uncovered anything that raises your suspicion about whether political targets could have been included of this program, particularly given Cheney's and Gonzales's deep involvement in it?
EL: Well, if we'd found clear evidence that political figures had been targeted, you can be sure we would have printed it in the paper. But that said, there are many unanswered questions about the program because there has yet to be any real investigation into its operations. That's one thing that the House bill that passed a few weeks ago would do – mandate a congressional investigation with subpoena power.
Q. What grade would you give the traditional media, as a whole, in covering the Bush administration and its unique relationship to the rule of law, from war to torture to domestic surveillance, and why do you give that grade?
EL: In the first few years, barely passing. As I talk about at length in the book, the first few years after 9/11, we in the media, like most everyone else, were as fixated as anyone on 'connecting the dots' and looking at signs of the next big attack – scuba divers off California, hazmat trucks, etc. That's not to say that's not important reporting, but it came at the expense of all else, with little of the media's natural skepticism about what we were hearing from the administration about this new 'war on terror.' In the last three years or so, that's clearly changed, and the media has become more of a watchdog again on these big issues. Almost all the big stories in this area that are now being debated – torture and interrogation tactics, Abu Ghraib, renditions, CIA black site prisons, surveillance, etc – were broken by the media. I'd give us an A. (Then again, I'm in the class, so I'm biased.)
Q. What do you think are the primary questions about the domestic surveillance program that remain unanswered?
EL: Who was targeted, how exactly data-mining was used, and what other programs or operations were approved.
Q. You've seen pretty much everything from this administration, and have been the target of an awful lot of abuse from it as well. What do you find most shocking among all the things you have reported on and experienced in regards to this administration?
EL: Nothing shocks me anymore.