Legislation Procured Through Deceit

The Washington Post's four-part series on the inner workings of the Cheney administration is so chocked-full of interesting details that many of them are not getting the attention they deserve. This particular passage from Part One of the series is one of them:

Flanigan, with advice from Yoo, drafted the authorization for use of military force that Congress approved on Sept. 18. Yoo said they used the broadest possible language because "this war was so different, you can't predict what might come up."

In fact, the triumvirate knew very well what would come next: the interception -- without a warrant -- of communications to and from the United States. Forbidden by federal law since 1978, the surveillance would soon be justified, in secret, as "incident to" the authority Congress had just granted. Yoo was already working on that memo, completing it on Sept. 25.

We've known for some time that Yoo authored the memo that served as the legal basis for the NSA program, but this is the first time we've known the exact date. And it's significant, for reasons I'll explain momentarily.

First, though, it's worth pointing out that Gellman and Becker leave out an important part of the story. Flanigan and Yoo did indeed attempt to use the "broadest possible language" in drafting the AUMF. Their initial draft sought to authorize the use of military force not only abroad, but also "within the United States." That language was rejected by Congress (no doubt forcing Yoo to edit his memo).

Gellman and Becker continue:

It was an extraordinary step, bypassing Congress and the courts, and its authors kept it secret from officials who were likely to object. Among the excluded was John B. Bellinger III, a man for whom Cheney's attorney had "open contempt," according to a senior government lawyer who saw them often. The eavesdropping program was directly within Bellinger's purview as ranking national security lawyer in the White House, reporting to Rice. Addington had no line responsibility. But he had Cheney's proxy, and more than once he accused Bellinger, to his face, of selling out presidential authority for good "public relations" or bureaucratic consensus. . . .

On Oct. 25, 2001, the chairmen and ranking minority members of the intelligence committees were summoned to the White House for their first briefing on the eavesdropping and were told that it was one of the government's most closely compartmented secrets.

This is the second important date, the date when the ranking members of the Intelligence Committees were first informed that the administration was conducting warrantless surveillance.

Why are these dates significant? Well, between September 25, 2001 (the date the program was first authorized) and October 25, 2001 (the date the first members of Congress were informed), something very important was happening up on Capitol Hill; the Patriot Act was being debated, amended, and eventually enacted by Congress. In fact, the Patriot Act was finally approved by the Senate on October 25 and sent to the President for his signature (it had passed the House the day before).

This is important, of course, because the Patriot Act largely consisted of amendments to the Foreign Intelligence Surveillance Act (FISA), the very law that John Yoo had concluded--in a memo dated a full month prior to passage of the Patriot Act--could be disregarded at will by the president.

There is no doubt in my mind that the administration delayed informing the ranking members of the Intelligence Committees (and kept people like Condoleezza Rice and her staff in the dark) because they knew that if word of their warrantless program reached the ears of anyone in Congress, it would jeopardize passage of the Patriot Act. They wanted Congress to legislate in the dark.

Moreover, though administration officials asked Congress for a number of significant amendments to FISA, they did not ask for any amendments that would have permitted the sort of surveillance that they had clearly already resolved to conduct (if not implemented). As Alberto Gonzales conceded in a rare moment of candor on December 19, 2005, the Bush administration did not try to amend FISA to permit the NSA program because it knew that “it was not something we could likely get.”

There is simply no way that Congress would have authorized warrantless surveillance, and there is no way it would have passed the amendments to FISA that it did pass had it known the Bush administration did not consider itself bound by that law.

What Gellman and Becker confirm is that the Patriot Act was procured through deception. The Bush administration pretended, for the purposes of negotiating broad new statutory powers, that it considered itself bound by the laws Congress was agreeing to amend. The truth, however, was that the administration had already drafted opinions declaring itself free to disregard the very laws it was seeking to amend. Members of Congress (as well as key members of the administration) were kept completely in the dark.