Bush's Garroting of Democracy
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By Robert Parry
May 24, 2006
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On May 21, Attorney General Alberto Gonzales told ABC's "This Week" that news organizations like the New York Times could be prosecuted for publishing classified information about the "war on terror," such as the disclosure of Bush's secret program of warrantless wiretapping inside the United States.
The night before that TV interview, the FBI conducted an extraordinary raid on the Capitol Hill office of Democratic Rep. William J. Jefferson of Louisiana as part of a bribery investigation, raising bipartisan concerns about the Executive Branch trampling congressional rights and intimidating members of Congress.
"The actions of the Justice Department in seeking and executing this warrant raise important Constitutional issues that go well beyond the specifics of this case," House Speaker Dennis Hastert, R-Ill., said in a statement.
"Insofar as I am aware, since the founding of our Republic 219 years ago, the Justice Department has never found it necessary to do what it did Saturday night crossing this Separations of Powers line, in order to successfully prosecute corruption by members of Congress," Hastert said. [Washington Post, May 23, 2006]
The FBI appears to have strong evidence against Jefferson - including allegedly finding $90,000 in bribe money hidden in his home freezer - but the Capitol Hill raid sent a message that the President and his Attorney General will cross any line when dealing with allegations of wrongdoing that might apply to members of Congress from both parties.
The implicit chilling effect on congressmen and senators, who might otherwise consider holding Bush accountable for his own abuses, could not be missed.
Gonzales delivered a similar warning to the news media, that the administration is dusting off the 89-year-old Espionage Act as a legal justification for prosecuting journalists and their sources when stories appear citing classified information, such as the New York Times article about Bush authorizing wiretaps of some American communications without court warrants.
"We are engaged now in an investigation about what would be the appropriate course of action in that particular case, so I'm not going to talk about it specifically," Gonzales said. But he cited "some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility."
Though Gonzales did not mention a specific statute, he apparently was referring to the Espionage Act, which was passed in 1917 during World War I and bars an unauthorized person from receiving defense information and passing it on to others.
The rarely used statute generally has been interpreted as applying to spies for other nations, but the Justice Department is relying on it to prosecute two ex-lobbyists for the American Israel Public Affairs Committee who received classified information from a Defense Department employee, who has pleaded guilty and got a 12-year sentence.
Besides the Times wiretap story in December 2005, administration officials have complained about a Washington Post story on secret overseas CIA prisons where suspected terrorists are allegedly tortured and about a USA Today story about a Bush-approved plan to build a vast database of phone calls in the United States.
While some experts doubt the administration would bring Espionage Act charges against journalists, it appears the Justice Department at least will examine phone records of reporters involved in the stories as part of investigations to identify government leakers.
Plame Case
Even if not prosecuted directly, journalists could face jail time if they are hauled before grand juries and refuse to identify their sources.
Special prosecutor Patrick Fitzgerald used that hardball tactic in the investigation of who leaked the identity of CIA officer Valerie Plame, a probe that has revealed that the leak was part of a "concerted" White House effort to "discredit, punish or seek revenge against" Plame's husband and Iraq War critic, former Ambassador Joseph Wilson.
Fitzgerald sent New York Times reporter Judith Miller to jail for 85 days on contempt charges until she relented and agreed to testify about one of her sources on Plame's identity, Vice President Dick Cheney's chief of staff I. Lewis Libby.
In October 2005, Fitzgerald indicted Libby on charges of perjury, obstruction of justice and lying to federal investigators. Court filings also have connected Cheney and Bush at least to the broader White House effort to release classified information to counter Wilson's accusation that the administration "twisted" intelligence to justify the Iraq War.
Though the Plame Affair has revealed the White House leaking a sensitive secret - the identity of an undercover CIA officer - the Bush administration is now turning the case to its own advantage, as a precedent to go after reporters and sources who reveal possible criminal actions by Bush, such as the warrantless wiretaps and the torture of detainees.
Bush and his supporters have claimed that disclosure of the warrantless wiretaps did serious damage to U.S. national security by alerting al-Qaeda and other terrorists to the U.S. capability to electronically intercept communications.
However, skeptics of this argument cite evidence that al-Qaeda has long been aware that its phone calls were targeted by U.S. electronic surveillance. Even Gonzales conceded that point under questioning before the Senate Judiciary Committee in February 2006. [See Consortiumnews.com's "Torture Boy Signals More Spying."]
As for the secret "black site" prisons where torture allegedly occurred, administration officials say the Washington Post article makes it less likely that U.S. allies will cooperate with such projects in the future - even though the Post withheld the names of East European countries where the prisons were located.
'Plenary' Powers
Though it's arguable whether "secrets" like the U.S. capability to do electronic spying are really secrets, the Bush administration apparently has decided to use their disclosure to advance a broader strategy for building an authoritarian system inside the United States.
In defending the warrantless wiretaps earlier this year, Gonzales and other administration lawyers asserted that the "war on terror" justified Bush using his "plenary" - or unlimited - powers as Commander in Chief to override laws and constitutional safeguards.
Bush also has claimed that he has powers as the "unitary executive," meaning that he alone can decide what laws and regulations to enforce. Through so-called "signing statements," Bush has announced that he has the authority to ignore hundreds of laws, including many that he's signed.
For instance, after evidence surfaced about abuse of detainees in U.S. custody, Congress enacted a law in December 2005 barring degrading and inhumane treatment of these terrorism suspects. After first opposing the legislation, Bush signed the law, but he then declared in a "signing statement" that he would not be bound by the law.
A similar theory applies to Bush's claim to "plenary" powers, which supposedly let him as Commander in Chief brush aside constitutional provisions, including the Fourth Amendment requirement of a court warrant based on "probable cause" to justify government searches and the constitutional right to habeas corpus, a fair trial.
In regard to national security wiretaps, the 1978 Foreign Intelligence Surveillance Act also spells out procedures for the Executive to obtain secret warrants for eavesdropping on the communications of suspected enemy agents.
Though the FISA law even lets the Executive start the wiretaps before seeking a court warrant, Bush not only ignored those provisions but lied to the American people about his continued need to get warrants. In a speech in Buffalo, N.Y., on April 20, 2004 - more than two years after signing an order for warrantless wiretaps - Bush said:
"By the way, any time you hear the United States government talking about wiretap, it requires - a wiretap requires a court order," Bush said. "Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."
Later that year, before Election 2004, Bush managed to keep his new authority - and his lie - hidden by persuading the New York Times to withhold the warrantless-wiretap story. Only after the Times finally ran the article on Dec. 16, 2005, did Bush admit that he had authorized wiretaps without a court order.
Under his "plenary" powers, Bush also has asserted the right to jail without trial people he calls "enemy combatants," including U.S. citizens. [For details, see Consortiumnews.com's "Bush's Grimmer Vision" and "The End of Unalienable Rights."]
Presidential Excesses
While Lyndon Johnson, Richard Nixon and other previous presidents have used lies and claims of national security to conceal embarrassing or controversial decisions before, Bush may have gone further than any of his predecessors in institutionalizing these powers.
By mixing in his control over government secrecy - with the "plenary" powers and the concept of "unitary executive" - Bush also is extending to himself the power to limit the free press and thus manage what Americans see and hear.
The administration's position seems to be that if Bush classifies his abrogation of laws and the Constitution - as in warrantless spying on Americans and torturing detainees - he can then have his Justice Department investigate, prosecute and jail the whistleblowers who expose these controversies.
As part of this trend, the Bush administration also has moved to reclassify historical information previously released and stored at the National Archives. Plus, his CIA has clamped down on what former CIA officials can write and the FBI is even trying to seize old documents from the estate of the late investigative reporter Jack Anderson.
In what could be almost an enunciation of an Official Secrets Act, FBI spokesman Bill Carter declared about the Anderson case, "no private person may possess classified documents that were illegally provided to them." [NYT, April 30, 2006]
While that prohibition may seem reasonable to some Americans, the clinker is that Bush gets to decide what is secret and what isn't, which means that he can make selective disclosures of sensitive information to help himself and punish the exposure of innocuous secrets that might embarrass him.
In the ABC-TV interview, Gonzales made clear that the administration believes government secrecy supercedes the First Amendment.
"I understand very much the role that the press plays in our society, the protection under the First Amendment we want to promote and respect," Gonzales said, "but it can't be the case that that right trumps over the right that Americans would like to see, the ability of the federal government to go after criminal activity. ... We have an obligation to enforce the law and to prosecute those who engage in criminal activity."
In many of these cases, however, Gonzales appears determined to prosecute people involved in exposing what might be considered "criminal activity" by himself, President Bush and other senior administration officials.
Gonzales's message to both government whistleblowers and the press corps is hard to escape. If you disclose apparent misconduct by the Bush administration in areas of national security, you will be hunted down and punished.
As Bush said after a meeting with the four top congressional leaders on Dec. 18, 2000, "I told all four that there were going to be some times where we don't agree with each other. But that's OK. If this were a dictatorship, it'd be a heck of a lot easier, just so long as I'm the dictator."
If Bush's theories of unlimited presidential power are carried much further, his dictatorship comment might end up looking less like a joke and more like evidence of premeditation.
There will be little left of traditional American democracy, beyond perhaps periodic elections in which a thoroughly deceived or uninformed electorate traipses to the polls and pushes buttons on electronic voting machines that may or may not record the votes.
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