http://www.nytimes.com/2007/01/31/opinion/31bamford.html?_r=1&oref=slogin
January 31, 2007
Op-Ed Contributor
Bush Is Not Above the Law
By JAMES BAMFORD
Washington
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
attorneyÂ’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 thatÂ’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
shouldnÂ’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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