CYA in the White House
July 11, 2009 | George Bush and Dick Cheney told us over and over again that it was necessary to violate our rights to protect our rights and our freedom. Under cover of The War on Terror they scanned our email, listened in on our phone calls, and — well, we don't actually know the full extent of what they did because it's all "highly classified." But the bits we do know are scary enough. And all the while they told us it was all perfectly legal. Yeah, right!
The Offices of the Inspectors General of several government departments and agencies — Department of Defense, Department of Justice, Central Intelligence Agency, National Security Agency, and Office of the Director of National Intelligence — have released the unclassified version of their report looking into the question of whether all this spying was actually useful in thwarting terrorist plots.
That's an important question because many Americans, it seems, are willing to put up with being spied on, being searched at airports, and so forth, "if it keeps us safe." Put the words "for your security" in front of the order, and Americans will dutifully take off their shoes and allow themselves to be scanned and patted down in all their private places, suffer all manner of indignity. They've bought into the argument that it's a worthwhile trade-off: safety for rights. But what if the surveillance has not made us safe?
The bottom line of the OIG report is that there may have been some value in the programs, but it is impossible to really tell because some of the most important people involved wouldn't participate in the investigation of the question and because the extreme secrecy with which the programs were conducted prevents actually identifying and tracking information that came from the programs.
That's hardly surprising or noteworthy. But what is noteworthy about the report is the glaring spotlight it shines on how one man single-handedly built the foundation for this legal house of cards. That would be John Yoo, at the time a Deputy Assistant Attorney General in the DOJ Office of Legal Counsel. The Office of Legal Cousel "provides authoritative legal advice to the President and all the Executive Branch agencies" (usdoj.gov). In simple terms, this is the office that tells the president and the rest of the executive branch whether or not something is legal. Yoo is now comfortably tenured at the Berkeley School of Law (Boalt Hall).
John Yoo was "the only OLC official 'read into' [ie given access]" the Presidential Surveillance Program from its inception in 2001 until Yoo left the DOJ in 2003 (OIG report, p14, emphasis added). Not even his nominal boss Jay Bybee was in the loop. Among other gems, Yoo opined that the 4th Amendment (illegal search and seizure) did not apply in case of "direct support of military operations" and that the president's Article II powers as commander in chief trump everything else. It was only when other lawyers were finally "read-in" to the program that they discovered Yoo had conveniently ignored rulings and law to the contrary. They also discovered that Yoo had not correctly described the scope of activities he was giving his opinion on.
When DOJ officials finally refused to certify the "form and legality" of the president's periodic re-authorizations of the program, leading to a face-off in John Ashcroft's hospital room, White House Counsel, our old friend Alberto Gonzales stepped in to do the certifying. He then went on to inform Jack Goldsmith, who replaced Bybee as Yoo's supervisor, that "the President, in issuing the Authorization, had made an interpretation of law concerning his authorities and that DOJ should not act in contradiction of the President's determinations" (OIG report, p30, emphasis added).
Hello! The president's role is not to interpet law — that's the job of the courts. And we've heard this argument before: "If the president does it, it's not a crime" (Richard M Nixon). It wasn't true then, it's not true now.
Periodically, the intelligence community would prepare a threat assessment for the president. The Director of Central Intelligence's chief of staff, responsible for preparing the report, then added a paragraph at the end declaring that the individuals and organizations discussed in the report "possessed the capability and intention to undertake further terrorist attacks within the United States." The president then, reassured of the clear and present danger, would re-authorize the surveillance program. That paragraph, providing the ultimate justification for the program, "was provided to him [the DCI's chief of staff] initially by a senior White House official" (OIG report, p7, emphasis added).
The circle is complete: the White House yes-man in the DOJ, John Yoo, assures the president that his surveillance program is perfectly legal; the president directs the intelligence agencies to carry out the program; the intelligence agencies then find threats, even though no one knows if discovery of the threats can be attributed to the surveillance program; and then the intelligence community uses boilerplate furnished by the White House to justify the president's reauthorizing this essential program.
In the end, this whole sordid episode can be traced back to John Yoo who willingly provided the White House with a CYA justification for a wholesale assault on our rights. And he got away with it for so long because too many people who should have known better allowed the secrecy to continue. No wonder Bush and Cheney wanted to keep everything so secret — no way would their activities withstand the light of day.
And where did John Yoo get his right-wing ideas? Could it have anything to do with the fact that he clerked for Supreme Court Justice Clarence Thomas?
The list of former officials who "declined" to respond for the OIG report is quite impressive: Counsel to the Vice President David Addington, White House Chief of Staff Andrew Card, Attorney General John Ashcroft, DOJ Office of Legal Counsel Deputy Assistant Attorney General John Yoo, and former Director of Central Intelligence George Tenet" (OIG report, p8). That is to say, all the president's yes-men. Somewhat surprisingly, Alberto Gonzales allowed himself to be interviewed.
In the words of the immortal Pogo, "We have met the enemy, and he is us."
Last updated on Apr 13, 2018