Over the past weekend, George W. Bush and his
Justice Department signaled to the U.S. press corps and Congress that
they are not beyond the reach of Bush’s “plenary” – or unlimited –
powers as Commander in Chief or his authority as “unitary executive,”
deciding what laws to enforce and how.
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
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.
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
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
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.
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
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.”]
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
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
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
“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.
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
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