Bush's Goons, Jenna's Barhopping, and Breathtaking Lawlessness

As I said, I'll be heading out to San Jose tomorrow for the CDP Convention, so posting will be light in the morning and California-centric through the weekend. But I wanted to highlight this incredible excerpt from Eric Lichtblau's upcoming book Bush's Law: The Remaking of American Justice. Lichtblau and his partner James Risen won a Pulitzer for breaking the illegal warrantless wiretapping story in late 2005. But they had the story over a year earlier, and were rebuffed from going to print due to the Administration's intimidation of New York Times editors. In this excerpt Lichtblau recounts the story when Bush sends in the big guns to try and kill the story once and for all. You really sense how they work as a kind of loanshark operation rather than an executive branch:

For 13 long months, we'd held off on publicizing one of the Bush administration's biggest secrets. Finally, one afternoon in December 2005, as my editors and I waited anxiously in an elegantly appointed sitting room at the White House, we were again about to let President Bush's top aides plead their case: why our newspaper shouldn't let the public know that the president had authorized the National Security Agency, in apparent contravention of federal wiretapping law, to eavesdrop on Americans without court warrants. As New York Times Editor Bill Keller, Washington Bureau Chief Phil Taubman, and I awaited our meeting, we still weren't sure who would make the pitch for the president. Dick Cheney had thought about coming to the meeting but figured his own tense relations with the newspaper might actually hinder the White House's efforts to stop publication. (He was probably right.) As the door to the conference room opened, however, a slew of other White House VIPs strolled out to greet us, with Secretary of State Condoleezza Rice near the head of the receiving line and White House Counsel Harriet Miers at the back.

For more than an hour, we told Bush's aides what we knew about the wiretapping program, and they in turn told us why it would do grave harm to national security to let anyone else in on the secret. Consider the financial damage to the phone carriers that took part in the program, one official implored. If the terrorists knew about the wiretapping program, it would be rendered useless and would have to be shut down immediately, another official urged: "It's all the marbles." The risk to national security was incalculable, the White House VIPs said, their voices stern, their faces drawn. "The enemy," one official warned, "is inside the gates." The clichés did their work; the message was unmistakable: If the New York Times went ahead and published this story, we would share the blame for the next terrorist attack.

It's impossible to overstate how much of a lie this is. "Terrorists" who didn't know they were being surveilled before December 2005 were indeed very stupid and out-of-work terrorists. The program that would have to be shut down immediately is illegal; but spying on terrorists who threaten the country is still, in fact, both legal and operative, under FISA. And the chief Administration concerns are on full display here: how would the phone companies get out of their lawsuits, and who would get blamed for their own fuck-ups. Corporate crime and passing the buck; that's the Bush way.

And later we learn that the White House is so concerned about keeping every American safe in their beds that they have agencies like the Secret Service only tackle the most important assignments.

As federal officials scrambled to avert the much-feared "second wave" of attacks, reporters likewise scrambled to follow any hint of the next possible attack and to put it on the front page—from scuba divers off the coast of Southern California to hazmat trucks in the Midwest and tourist helicopters in New York City. One example of the shift: On Sept. 12, 2001, another major newspaper was set to run a story on the extraordinary diplomatic maneuverings the U.S. Secret Service had arranged with their Mexican counterparts to allow Jenna Bush, then 19, to make a barhopping trip south of the border. (She had just been charged with underage drinking in Texas.) A few days earlier, a scoop about a presidential daughter's barhopping trip getting special dispensation from the Secret Service and a foreign government might have gotten heavy treatment. But the story never ran, and the Secret Service's maneuverings remained a secret until now. In the weeks and months after 9/11, there was no longer an appetite for such stories.

Then Lichtblau explains to us the Administration's contempt for the press:

By 2004, I had gained a reputation, deservedly or not, as one of the administration's toughest critics in the Justice Department press corps; the department even confiscated my press pass briefly after I wrote an unpopular story about the FBI's interest in collecting intelligence on anti-Iraq war demonstrations in the United States. To John Ashcroft and his aides, my coverage reflected a bias. To me, it reflected a healthy, essential skepticism—the kind that was missing from much of the media's early reporting after 9/11, both at home in the administration's war on terror and abroad in the run-up to the war in Iraq.

And what's so typical of this crowd, guys like Cheney who really think they are the smartest guys in the room, is that they can out and out lie to reporters and the American public even when they must KNOW that the recipients of their lies know the truth. That's a rare gift.

On that December afternoon in the White House, the gathered officials attacked on several fronts. There was never any serious legal debate within the administration about the legality of the program, Bush's advisers insisted. The Justice Department had always signed off on its legality, as required by the president. The few lawmakers who were briefed on the program never voiced any concerns. From the beginning, there were tight controls in place to guard against abuse. The program would be rendered so ineffective if disclosed that it would have to be shut down immediately.

All these assertions, as my partner Jim Risen and I would learn in our reporting, turned out to be largely untrue. Jim and I had already learned about much of the internal angst within the administration over the legality of the NSA program at the outset of our reporting, more than a year earlier in the fall of 2004.

It wasn't until Risen basically told the paper that he would put the wiretapping story in his book State of War that the Times got serious about publishing it. And even after their reporting uncovered all the ins and outs of the story - and how the debate reached the highest levels - the Bushies were about to go so far as blocking publication through a "Pentagon Papers-type injunction." (This led the Times to publishing the story online the night before they put it in the paper.)

There's only one reason for this: because the Administration knew what they were doing was flagrantly illegal, and at the time thought they wouldn't be able to wiggle their way out of it. The extraordinary lengths to which they wanted to go to spike the story speaks only to the enormity of the crime. We still don't know the extent of it, but Lichtblau and Risen gave us a road map to follow, and Mark Klein and the EFF and the ACLU are continuing down that path today. For now, the Congress hasn't put up a roadblock. But add this excerpt, and Lichtblau's forthcoming book, to the pile of cautionary tales which should give any Blue Dog or Jello Jay pause before they eviscerate the rule of law.

That issue looks to be in a stalemate for now. What is far more revealing in this story is how utterly shameless this crew, which should have a restraining order barring them from coming within 100 yards of Washington, has always been. A responsible media would be churning out story after story about the breathtaking state of lawlessness inside the White House, viewing it in historical context and talking about the pall they've cast over our nation. As it is, everybody wants to forget it. But that would be a crucial mistake. There should be no binding up of wounds and moving on for the sake of the nation. In fact, for the sake of the nation we must do just the opposite: have a full recounting of the facts and a full prison cell for everyone who participated in this wreck.

Rep. Jane Harman (D-Elite)

It is well-known that, shortly after elements of President Bush's illegal warrantless wiretapping program was divulged by the New York Times in December 2005, Rep. Jane Harman wasn't happy. She went on Meet The Press shortly thereafter and blasted the paper for leaking the details. But we did not know that she actively sought to cover up contents of the program PRIOR to the Pulitzer Prize-winning story.

Eric Lichtblau, who along with James Risen broke the story, has a new book coming out which details the wrangling between the NYT and the Administration which caused a one-year delay in the revelation of the warrantless wiretapping program in the press. During that time, Lichtblau ran into Jane Harman in the Capitol.

In his book, Lichtblau tells how a few months after the story was held, he happened to be covering a House hearing where he heard Rep. Jane Harman (D-CA) argue passionately for stronger civil liberties safeguards in the reauthorization of the Patriot Act.

Lichtblau saw this as an opportunity to question Harman about the warrantless wiretapping program, since Harman, as a member of the "gang of eight," was one of the four Democrats who'd been briefed on it. He writes:

I approached Harman with notepad in hand and told her that I’d been involved in our reporting the year before on the NSA eavesdropping program. “I’m trying to square what I heard in there,” I said, “with what we know about that program.” Harman’s golden California tan turned a brighter shade of red. She knew exactly what I was talking about. Shooing away her aides, she grabbed me by the arm and drew me a few feet away to a more remote section of the Capitol corridor.
“You should not be talking about that here,” she scolded me in a whisper. “They don’t even know about that,” she said, gesturing to her aides, who were now looking on at the conversation with obvious befuddlement. “The Times did the right thing by not publishing that story,” she continued. I wanted to understand her position. What intelligence capabilities would be lost by informing the public about something the terrorists already knew – namely, that the government was listening to them? I asked her. Harman wouldn’t bite. “This is a valuable program, and it would be compromised,” she said. I tried to get into some of the details of the program and get a better understanding of why the administration asserted that it couldn’t be operated within the confines of the courts. Harman wouldn’t go there either. “This is a valuable program,” she repeated. This was clearly as far as she was willing to take the conversation, and we didn’t speak again until months later, after the NSA story had already run. By then, Harman’s position had undergone a dramatic transformation. When the story broke publicly, she was among the first in line on Capitol Hill to denounce the administration’s handling of the wiretapping program, declaring that what the NSA was doing could have been done under the existing FISA law.

What comes through in this exchange is that the elites in Washington have far more fealty to each other than the public. Harman has come around; she argued strongly against the program and was one of the leaders in the House fight to amend FISA responsibly last week. Now we're seeing a likely stalemate on that issue, and George Bush is almost certain not to get what he desperately wants, amnesty for the telecom companies and a rejection of the lawsuits against them which could reveal even more about the program.

Still, we have this portrait of Harman, eager to cover up, convinced that what she is told must stay secret has to stay secret, untrained in the Constitution enough to see that warrantless wiretapping is unnecessary under FISA and in defiance of the Fourth Amendment. It's relieving a bit that the past few years, with the help of the blogosphere, have given many in the Congress an education on the document they swear to uphold and defend. It's also completely sad.