Cheating Justice (22 page)

The appointment of Fitzgerald as a special prosecutor turned out to be a fluke. The last attorney general appointed by President Bush, Michael Mukasey, simply refused to investigate incidents that might incriminate the president or vice president. He even refused to enforce congressional subpoenas for White House staff, reported CNN.com in 2008, undermining the ability of Congress to investigate and correct illegalities.
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Under pressure from the CIA inspector general, Mukasey did name one special prosecutor, John Durham, on January 2, 2008, to investigate missing CIA videos of detainee interrogations. But Durham's assignment was carefully limited; he was not granted the same independent powers as Patrick Fitzgerald. Fitzgerald was designated “special counsel independent of the supervision or control of any officer of the Department,” and was accorded “all the authority of the attorney general.” Durham, by contrast, was to report to the deputy attorney general, as do all United States attorneys. In other words, he was asked to do a special assignment for his boss—he was not given the independence to go where the investigation might take him.
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In fact, for more than two and a half years, Durham seemed to let the investigation languish. Finally in November 2010, just as the statute of limitations appeared to be expiring, Durham issued a press release saying that he did not have the evidence to prosecute. He issued no report, no document, no guide to what he had investigated or how he had come to this conclusion, noted the
New York Times
in an editorial on January 25, 2011.
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By way of contrast, the special prosecutor law that existed until 1999—U.S.
Code Title 28, Section 595(a)(1)—required that a report of findings be made to Congress.
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In any event, Durham picked up another assignment from the Obama administration. In August 2009, President Obama's attorney general, Eric Holder, asked Durham to look into specific cases of torture, as reported in the
Washington Post.
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From the start, Holder narrowed the investigation, calling it a “preliminary review,” and gave Durham only the authority to report to higher-ups in the Justice Department. The inquiry was to investigate select situations overseas in which interrogators may have gone beyond what was permitted under the enhanced interrogation techniques approved by President Bush.
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The investigation was not authorized to look into the actions of policy makers, decision makers, the authorizers, facilitators, and people at the top of the heap who approved torture techniques—that is, the president, the vice president, the secretary of defense, the lawyers, or the group of National Security Council Principals who met to discuss how torture should be applied to detainees in black sites around the world.

On June 30, 2011, Attorney General Holder announced that 99 of the 101 cases reviewed by Durham were being dropped, and two involving death in custody would be subject to “full criminal investigations” of the CIA interrogators who allegedly went beyond the enhanced interrogation techniques approved by President Bush.
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By refusing to consider cases involving harm from the EITS, the Justice Department essentially condoned those who adopted the torture rules and left unquestioned those who authorized them.

This review does not prevent a further inquiry. An independent and detailed investigation of the possible crimes of President Bush and Vice President Cheney is needed. The attorney general should designate a special prosecutor—one with the same independent powers that Patrick Fitzgerald had—to investigate the criminal behavior of higher-ups in authorizing torture.

To protect the country against future transgressors, Congress should dust off the special prosecutor law and reenact it. A revived law will vindicate the public's right to accountability—it might even be used to bring about justice and accountability for the Bush administration.

A new special prosecutor law should follow the model of the three-judge panel with some modifications. This time around, the panel should be prohibited from picking anyone with an appearance of a conflict, and the law should include safeguards against the appointment of a biased or over-zealous
prosecutor. A revived law also should prohibit the special prosecutor from straying into unrelated allegations or questions of impeachment.

The seeming criminality and gaming of the system of the type that the Bush administration employed would be less likely to happen if our highest officials knew that a special prosecutor were available to take action when needed.

To protect themselves from prosecution, the Bush officials deliberately hobbled the War Crimes Act of 2006, as I described in chapter 3. Prior to their manipulation, the War Crimes Act provided a clear path of accountability for those who mistreated detainees or permitted their mistreatment in violation of the Geneva Conventions.

The War Crimes Act in its present form is decimated and drained of meaning. The law as it stands does not meet the U.S. obligations under the Geneva Conventions, putting the United States starkly out of compliance. For example, the Geneva Conventions require countries to make it a crime to violate “grave breaches” of their provisions, and now the United States has something that doesn't do the job.
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This is no minor matter: the Geneva Conventions, as an international treaty, are the “supreme law of the land” under the U.S. Constitution. Failure to have a law properly enforcing the Geneva Conventions shows continuing contempt for the Conventions by the United States—and that is a stain that should be erased.

The important provisions of the law need to be reinstated so that, in the future, it can be used as intended and required—a tool for prosecuting war criminals.

After the president had broken the law dozens of times with warrantless wiretapping, the Bush administration pushed through Congress a revision of the Foreign Intelligence Surveillance Act of 1978. The FISA Amendments Act of 2008 (or FAA) turned upside down the previous law's careful plan for electronic surveillance. While the original FISA created a court to act as a neutral arbiter to review government requests for surveillance of U.S. citizens and residents, the FISA Amendments Act of 2008 substantially eliminated the neutral arbiter role.
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Under the old law, the government had to apply to the FISA court for a warrant to wiretap Americans for foreign intelligence or counterintelligence
purposes. For certain kinds of mass surveillance, the new law limits the role of the FISA court to approving the procedures being used for surveillance instead of reviewing the details of the proposed surveillance itself. This allows for the wholesale acquisition of communications with almost no FISA court scrutiny. Exactly whose communications are being “acquired” by the government in these processes isn't divulged to the FISA court, even when it involves diverting a vast amount of private communications to government computers—possibly all e-mail traveling in or through the United States or sent to and from other countries.

As a glancing accommodation to people concerned about the abuses of surveillance, intelligence agencies were required to report on how Americans' privacy is being maintained under the law. But the information has been delivered at less than lightning speed, and what's been reported is downright discouraging.

Semiannual reports by the National Security Agency and other government intelligence bodies “assessing compliance with the targeting and minimization procedures” seemed to vanish into thin air. The American Civil Liberties Union sued for copies under the Freedom of Information Act, and finally, on November 29, 2010, secured nine hundred heavily redacted pages. Between the blacked-out lines and words, the documents gave glimpses into the program's operations, and nothing about them was very comforting. The conclusion from the redacted semiannual reports showed that “[t]he federal government has repeatedly violated legal limits governing the surveillance of U.S. citizens,” wrote the
Washington Post
's Spencer H. Hsu.
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The reports showed that a large number of surveillances did not comply with the law, and minimization requirements were not followed (“minimization” is a procedure that is supposed to make sure information that is not pertinent to the investigation isn't misused).

“It is clear,” the ACLU wrote in releasing the documents, “that violations continued to occur on a regular basis.” It noted: “Every internal semiannual assessment . . . conducted from the enactment of the FAA through March 2010 [the date of the last report released] finds violations of the FAA's targeting and minimization procedures. This likely means that citizens' and residents' communications were either being improperly collected or ‘targeted' or improperly retained and disseminated.”
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But exactly what the agencies did and how were all big unknowns. Nor was it known what would happen to the information that was improperly collected. Is it retained in some giant computer file? Has it been destroyed?

Eighteen months before the document release to the ACLU, the
New York Times
had also reported on similar problems with surveillance and the failure to comply with the law. “The National Security Agency intercepted private e-mail messages and phone calls of Americans in recent months on a scale that went beyond the broad legal limits established by Congress last year,” wrote Eric Lichtblau and James Risen in April 2009. The Justice Department acknowledged problems with what was termed “overcollection” of Americans' communications. In addition, the
Times
reported on a whistleblower's accusations of “significant misconduct” in FBI surveillance, apparently targeting Americans for warrantless surveillance under the guise of “foreign intelligence” when there was no rationale connecting the Americans to terrorism, and then seemingly retaining or disseminating information improperly.
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In other words, reports from inside the government were showing one thing: surveillance operating under minimal oversight posed serious problems that endangered the privacy and liberty rights of Americans.

The FISA Amendments Act of 2008 expires in 2012. This is an excellent opportunity for the nation to review the law objectively and to see if it is balancing the privacy needs of Americans and the government's need for foreign intelligence. This will be the time when it can—and should—be revised.

All government agencies will not scrupulously follow the law—as noted, several have already admitted that they do not. Stronger protections are needed. Despite the efforts of Congress to build detailed reporting requirements into the 2008 law, it is nearly impossible to assess whether surveillance has better protected the country against terrorist attacks or has simply resulted in wholesale violation of Americans' privacy with nothing much to show for the effort. Unredacted versions of the agency reviews need to be made available to public experts so that there can be a complete understanding of how the law is working to help or to harm. And instead of requiring citizens to rely on lawsuits under the Freedom of Information Act to find out what the government is doing, the next version of the law should make the reports automatically available (in a redacted form, at least) to the public.

Concerns raised in 2008 by then senator Russ Feingold, something of an expert on this subject because of his membership on both the Senate Judiciary and Intelligence Committees, provide good guidance on what provisions
should be analyzed closely and—if the law isn't working—fixed.
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He identifies possible problem areas, including the broad scope of collection of all communications between the United States and the rest of the world, the potential for “reverse targeting” that uses a foreign target as a pretext to wiretap a U.S. citizen or resident, and insufficient procedures for minimization of surveillance of U.S. persons so that communications acquired illegally are not retained or used improperly for other purposes.

Americans whose information is part of the material that is “overcollected” under the law should have an opportunity to know about it and clear it out of government files. The next version of the FISA Amendments Act should include a “freedom of information” clause that allows Americans to find out whether their information was unlawfully overheard or collected under FISA, and to remove or otherwise “minimize” the record. This adjustment, while not fully reining in executive branch excesses, will provide some measure of relief to Americans whose constitutional rights are improperly infringed.

Most claims of wrongful collection of information have been foreclosed in court because the individuals suing cannot show that they have been secretly surveilled under the law, and they can't show it because all of the activities under the law are secret. A federal appeals court ruling on March 21, 2011, in the case
Amnesty v. McConnell
finally allowed a consortium of news organizations, attorneys, and human rights advocates who worried that their international communications might be wrongly intercepted to proceed with a legal action to challenge the FISA Amendments Act of 2008.
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In revision, however, the law itself should include a provision that allows people to seek relief from the government if they have a reasonable suspicion that their privacy has been invaded.

The next version of the foreign intelligence surveillance law should keep all the needs of America in mind—those of intelligence agencies to gather the information to protect national security, as well as those of citizens to enjoy the fruits of liberty from living in a democratic society.

Records are evidence. Any fan of television crime programs knows that letters, mail, and video- and audiotapes can be central to determining criminal liability and fixing accountability. But pivotal records of the Bush
administration have gone AWOL, including records that might illuminate actions relevant to torture and war deceptions.