Supreme Court Helps Obama Trample Press Freedom

The Supreme Court announced today that it refused to hear a federal court case involving the Obama administration’s targeting of New York Times reporter James Risen.  Risen has been in the federal cross-hairs since January 2008 because of details in his 2006 book, A State of War, about a botched CIA effort to subvert Iran’s nuclear program.  The same book also blew the whistle on the NSA’s illegal warrantless wiretapping.  The New York Times had sat on that story for more than a year at the Bush administration’s request.  The Times only published the NSA expose after it was clear that Risen’s book was coming out.

The Obama administration has been squeezing Risen to compel him to testify on his confidential sources.  Risen has refused and the Times and a wide array of media groups rallied to his cause.

The Obama administration’s brief on this case told the Supreme Court that “reporters have no privilege to refuse to provide direct evidence of criminal wrongdoing by confidential sources.”

But the key is that the Obama administration (and several of its predecessors) thereby sought to make it a federal crime to expose federal criminality.

I will be writing more on this case shortly.  Here is a 2006 review I wrote for the American Conservative on Risen’s excellent book.

Watching the Detectives

Review: State of War: The Secret History of the CIA and the Bush Administration, James Risen, Free Press,

James Risen’s State of War has opened a Pandora’s Box for the Bush administration that no amount of howling, scowling, or bogus terrorist-attack warnings will be able to close. Risen’s revelations on pervasive National Security Agency warrantless spying on Americans shred the final pretenses to legality of the Bush administration. Now the debate is simply whether, as Bush and his supporters claim, the president is effectively above the law and the Constitution during a time of (perpetual) war.

Risen has been a national security reporter for the New York Times for many years. He was not one of the Times reporters who simply recycled hokum from the White House Iraq Group. In October 2002, he wrote a piece shooting down the Bush administration’s claims that Mohammad Atta had met an Iraqi intelligence agent in Prague, one of the favorite neocon justifications for attacking Iraq.

Risen had the story on NSA wiretapping before the 2004 election, but the Times, under pressure from the administration, sat on the piece for at least 14 months. The paper’s timidity may have awarded George W. Bush a second term as president. After the Times finally published Risen’s story in mid-December, Bush seized upon the exposé to portray himself as heroically rising above the statute book to protect the American people. The administration has been boasting about its “terrorism surveillance program” ever since.

Bush announced that “the NSA program is one that listens to a few numbers called from the outside of the United States and of known al Qaeda or affiliate people.” Except that the program also listens to calls from inside the United States to abroad. And, in some cases, it has wiretapped calls exclusively within the United States. No one knows how flimsy the standard may be that the administration is using for associating people with terrorist suspects—consumption of more than a pound of hummus a week?

Risen revealed that the “NSA is now eavesdropping on as many as five hundred people at any given time” in the United States. Bush’s “secret presidential order has given the NSA the freedom to peruse … the email of millions of Americans.” The NSA’s program has been christened the “J. Edgar Hoover Memorial Vacuum Cleaner.”

In 1978, responding to scandals involving political spying on Americans in the name of counterespionage, Congress passed the Foreign Intelligence Surveillance Act (FISA). The act prohibited wiretapping of domestic phone calls without a warrant. The special FISA court, however, sets a much lower standard for securing search warrants than is required by other federal courts.

The FISA court has approved almost every one of the more than 17,000 search warrant requests the feds have submitted since 1978. Federal agencies can even submit retroactive requests up to 72 hours after they begin surveilling someone. The number of FISA-approved wiretaps has doubled since 2001. Yet the Bush administration whines that FISA makes the U.S. government a helpless giant against terrorists.

Bush and Attorney General Alberto Gonzales claim that the warrantless wiretaps are based on Congress’s authorization to use military force against the people who attacked the United States. But if that measure actually nullified all domestic limits on the president’s power, then Americans have been living under martial law since Sept. 18, 2001, when Congress passed the resolution. Bush and Gonzales also assert that the president has inherent power to tap phone calls, thanks to Article II of the Constitution. This is the same “commander-in-chief override” that Gonzales invoked after the Abu Ghraib scandal to justify the Bush administration ignoring the federal Anti-Torture Act.

The Founding Fathers, in the Fourth Amendment of the Bill of Rights, decreed that government searches must be based on probable cause and approved by a neutral magistrate. The Bush wiretapping program is based solely upon the president’s edict. Shift supervisors at the National Security Agency decide which Americans get wiretapped. But a GS-13 civil servant is not constitutionally on par with a federal judge.

Risen is soft on Michael Hayden, the former Air Force general who was NSA chief when the illegal spying began shortly after 9/11. Risen notes that Hayden “hosted off-the-record dinners for the press at his home at Fort Meade.” He does not recite the menu for the dinners, but the fare seems to have paid off handsomely. Risen neglects to mention that Hayden deceived Congress in Oct. 17, 2002 testimony regarding FISA. Hayden told Congressman Porter Goss—now the Director of Central Intelligence—that once a person enters the United States, “that person would have protections as what the law defines as a U.S. person. And I would have no authorities to pursue it” outside of a court-authorized wiretap. But the NSA was vigorously pursuing the calls and e-mails of many people within the United States at that time regardless of the law.

Perhaps because of his obedience in carrying out warrantless wiretaps, Hayden was promoted by Bush in 2005 to be the number-two intelligence official within the federal government. If the NSA wiretap scandal continues heating up, Bush may be obliged to give Hayden a presidential Medal of Freedom, as he did to former CIA director George “Slam Dunk” Tenet.

The subtitle of the book is “The Secret History of the CIA and the Bush Administration,” and Risen provides many insights into the perversion of that agency’s intelligence and analysis in the Bush era. Before the 2003 invasion, the CIA swayed many Iraqi-Americans to return to their homeland to pump relatives who were scientists for information on Saddam’s weapons programs. When the bravehearts returned to the U.S. and reported that the programs had been shut down, the CIA buried their reports, refusing even to forward the information to senior Bush policymakers. The CIA did express its gratitude to Sawsan Alhaddad, a Cleveland doctor who risked her life to ask her nuclear scientist brother in Baghdad for information, by giving her an American flag that had purportedly flown over CIA headquarters.

Some CIA flops are due to the dumbing down of its analyses. The popularity of cable news networks pressures policy makers to respond to endless transient crises. Risen points out that some CIA analysts learned that to get ahead, “they had to master the trick of writing quick, short reports that would grab the attention of top policy makers. CIA analysts had become the classified equivalent of television reporters, rather than college professors. The result was that fewer analysts were taking the time to go back and challenge basic assumptions.”

State of War provides excellent new insights into how much evidence the Bush administration and the CIA scorned in building the case to attack Iraq. Risen notes, “Israeli intelligence played a hidden role in convincing Wolfowitz that he couldn’t trust the CIA, according to a former senior Pentagon colleague. Israeli intelligence officials frequently traveled to Washington to brief top American officials, but CIA analysts were often skeptical of Israeli intelligence reports, knowing that Mossad had very strong—even transparent—biases about the Arab World.” But nothing could undermine Mossad’s credibility for neoconservatives like Wolfowitz and Feith, determined to believe anyone and anything that sanctified attacking Saddam.

The most compelling material in this book, however, remains the exposure of domestic intelligence abuses. The NSA illegal surveillance uncovered by Risen dwarfs the Patriot Act controversies. Many Republicans have nonetheless rushed to embrace and defend the Bush administration’s warrantless spying. Bush’s comments on his “terrorism surveillance program” got a standing ovation from GOP congressmen during his State of the Union address. Republicans are staking their honor on the Bush administration’s honesty—on the assertion that all the wiretaps were carefully targeted to people linked to al-Qaeda suspects. This is a reckless wager. If the wiretaps were actually limited to calls to and from al-Qaeda suspects, it would have been easy as pie to get FISA warrants.

It is naïve to believe that the feds will behave properly once they are permitted to violate the law. During J. Edgar Hoover’s later years, the FBI carried out more than 2,000 COINTELPRO operations to spy on Americans they disliked, using the intelligence gathered to incite street warfare between violent groups, wreck marriages, portray innocent people as government informants, sic the IRS on citizens, and cripple or destroy left-wing, black, communist, and other organizations. Even the John Birch Society was secretly targeted by the feds. If the current rulers are using 1960s standards, practically any opponent of the Bush administration could be targeted for illegal surveillance.

What other presidential orders have been issued since 2001 that explicitly exempt U.S. government agencies from federal law and the Constitution? Bush has surrounded himself with people who continually assure him that his power is absolute during wartime. Newsweek reported that Steven Bradbury, head of the Justice Department’s Office of Legal Counsel, recently informed the Senate Intelligence Committee that Bush could order killings of suspected terrorists within the U.S. Considering the administration’s dismal record in identifying bona fide versus bogus terrorists since 9/11, this license to kill could wreak havoc on the nation’s convenience stores and taxi companies.
Some wearisome Washington platitudes creep into State of War. Risen declares, “Bush does deserve credit for making the spread of democracy in the Middle East a centerpiece of his agenda for his second term.” But Bush deserves no credit for recycling idealist rhetoric while perpetuating policies that breed hatred, violence, and chaos across a large part of the globe. Risen judiciously notes, “It sometimes seems as if the Bush administration is fighting the birthrate of the entire Arab world.”

Risen’s revelations are propelling congressional and media investigations into the NSA warrantless wiretapping. The actual abuses will very likely prove to be far more widespread and shocking than what has been disclosed so far. Perhaps the best epithet for Bush’s civil liberties record is the saying of Lily Tomlin: “No matter how cynical you become, it’s never enough to keep up.”
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James Bovard is author of the just published Attention Deficit Democracy (St. Martin’s/Palgrave) and 8 other books.