While serving as President Bush’s White House lawyer, Alberto Gonzales advised Bush that the president’s war time powers permitted Bush to ignore the Foreign Intelligence Surveillance Act (FISA) and to use the National Security Agency (NSA) to spy on US citizens without obtaining warrants from the FISA court as required by law. Under an order signed by Bush in 2002, NSA illegally spied on Americans without warrants.
By spying on Americans without obtaining warrants, Bush committed felonies under FISA. Moreover, there is strong, indeed overwhelming, evidence that justice was obstructed when Bush and Gonzales blocked a 2006 Justice Department investigation into whether Gonzales acted properly as Attorney General in approving and overseeing the Bush administration’s program of spying on US citizens. Also at issue is whether Gonzales acted properly in advising Bush to kill an investigation of Gonzales’ professional actions with regard to the NSA spy program.
We are faced with the almost certain fact that the two highest law enforcement officials of the United States are criminals.
The evidence that Bush and Gonzales have obstructed justice comes from internal Justice Department memos and exchanges of letters between the Justice Department’s Office of Professional Responsibility (OPR), an investigative office, and members of Congress. The documents were leaked to the National Journal, and the story was reported in the March 15, 2007, issue by Murray Waas, who also relied on interviews with both current and former high ranking DOJ officials. Ten months previously on May 25, 2006, Waas broke the story in the National Journal about the derailing of the OPR investigation.
From Waas’s report it is obvious that many current and former Justice Department officials have serious concerns about the high-handed behavior of the Bush administration. The incriminating documents were leaked to the National Journal, the only remaining national publication that has any credibility. The New York Times and Washington Post have proven to be supine tools of the Bush administration and are no longer trusted.
When the Bush administration’s violation of the Foreign Intelligence Surveillance Act was leaked to the New York Times, the paper’s editors obliged Bush by spiking the story for one year, while Bush illegally collected information that he could use to blackmail his critics into silence. As I wrote at the time, the only possible reason for violating FISA is to collect information that can be used to silence critics. The administration’s claim that bypassing FISA was essential to the "war on terror" is totally false and is a justification and practice that the Bush administration, no longer able to defend, abandoned in January of this year.
The known facts: After keeping the information from Congress and the public for one year, on Dec. 16, 2005, the New York Times reported that Bush was spying on Americans without complying with the FISA statute. In response to a request from members of Congress, the Justice Department’s Office of Professional Responsibility launched an investigation into the Bush administration’s decision to ignore FISA and to conduct domestic spying on American citizens without obtaining the warrants required by law. On January 20, 2006, Marshall Jarrett, the Justice Department official in charge of OPR, informed senior Justice Department officials of his investigation and its scope.
Gonzales informed President Bush about the OPR investigation, and Bush shut down the investigation by refusing security clearances to the Justice Department officials in OPR. In a response to Senate Judiciary Committee chairman Arlen Specter on July 18, 2006, Gonzales disclosed that President Bush had halted the OPR investigation.
This is the first and only time in history that DOJ officials have been denied security clearances necessary to conduct an investigation. The Bush administration claimed that the secret spying was too crucial to our national security to permit even Justice Department officials to learn about it. However, even as Bush was denying clearances to OPR, he granted identical clearances to: (1) the FBI agents ordered to find who leaked the administration’s secret spying to the New York Times, (2) DOJ officials in the Civil Division who had to respond to legal challenges to the illegal spy program, and (3) five private sector individuals who sit on the Privacy and Civil Liberties Oversight Board.
Obviously, the unprecedented denial of security clearances to OPR was done in order to prevent the investigation.
On March 21, 2006, Marshall Jarrett wrote to Deputy Attorney General Paul McNulty that OPR was being "precluded from performing its duties."
In May, 2006, Jarrett informed Congress: "On May 9, 2006, we were informed that our requests had been denied. Without these clearances, we cannot investigate this matter and therefore have closed our investigation." The National Journal reports: "[Rep. Maurice] Hinchey and other Democratic House members asked Jarrett why he was unable to obtain the necessary clearances; Jarrett’s superiors, according to government records and to interviews, instructed him not to inform Congress that President Bush had made the decision."
When the illegal domestic spying program was launched in 2002, Gonzales was still White House Counsel. Documents and interviews show that most high ranking Justice Department officials opposed the illegal program. Attorney General Ashcroft, Deputy Attorney General James Comey, Assistant Attorney General Jack Goldsmith in charge of the Office of Legal Counsel, and James A. Baker, counsel for the Office of Intelligence Policy and Review all raised objections to the illegality and propriety of Bush’s National Security Agency eavesdropping program. Baker went so far as to warn the presiding judge of the FISA court that authorities were improperly obtaining information and bypassing the court. On learning that the administration was violating FISA, one of the federal judges on the FISA court resigned in protest.
Goldsmith was troubled by Bush’s claim that the "war on terror" gave the president virtually unlimited powers. Goldsmith’s objections to the Bush-Cheney-Gonzales view that the president is above the law during time of war brought him under fierce attack from Vice President Dick Cheney and Cheney’s two principal henchmen, Scooter Libby, now a convicted felon, and David Addington.
Goldsmith found an ally in Deputy Attorney General Comey. Comey defied the White House in March 2004 when he refused to reauthorize Bush’s spying on American citizens unless the program was brought within the law. Comey incurred additional Bush-Cheney enmity when he appointed Patrick J. Fitzgerald to investigate the leak of Valerie Plame’s identity, an investigation that resulted in the arrest and conviction of Vice President Cheney’s chief of staff.
In his lengthy and detailed report in the National Journal, Waas quotes a former White House Official: "Comey showed us that he was a guy who wouldn’t be kept on a leash in an administration that likes to keep everybody on a short leash."
A criminal political administration has no choice but to keep everyone on a short leash in order to keep its illegal acts under wraps. Americans have never experienced an administration so replete with crimes as the Bush Regime.
This criminal regime must now be brought to an end. Impeachments of Bush, Cheney, and Gonzales, followed by felony indictments and trials are imperative if the rule of law in the United States is to be preserved.
Paul Craig Roberts [send him mail] wrote the Kemp-Roth bill and was Assistant Secretary of the Treasury in the Reagan administration. He was Associate Editor of the Wall Street Journal editorial page and Contributing Editor of National Review. He is author or coauthor of eight books, including The Supply-Side Revolution (Harvard University Press). He has held numerous academic appointments, including the William E. Simon Chair in Political Economy, Center for Strategic and International Studies, Georgetown University and Senior Research Fellow, Hoover Institution, Stanford University. He has contributed to numerous scholar journals and testified before Congress on 30 occasions. He has been awarded the U.S. Treasury’s Meritorious Service Award and the French Legion of Honor. He was a reviewer for the Journal of Political Economy under editor Robert Mundell. He is the co-author of The Tyranny of Good Intentions. He is also coauthor with Karen Araujo of Chile: Dos Visiones — La Era Allende-Pinochet (Santiago: Universidad Andres Bello, 2000).