How Bush’s Bumbling Saved Our Civil Liberties

books spirogonz3h How Bushs Bumbling Saved Our Civil LibertiesBUSH’S LAW: THE REMAKING OF AMERICAN JUSTICE
By Eric Lichtblau
Pantheon Books, 334 pages, $26.95

Back in another world, my undergraduate days in the early 1980’s, a roommate of mine loved the tidbit (gleaned from my Washington childhood) that if you uttered certain words on a long-distance call, a transcript might end up on the desk of some spy catcher at the National Security Agency. “Hey, Pete, got those I … C … B … M’s for me today?” became a sort of punch line. “The briefcase with cash will be in the phone booth!”

I doubt college kids today are playing the same sort of game, just as the rest of us know better than to joke about explosives in front of T.S.A. inspectors. You might actually get yourself in trouble.

But that’s perhaps the extent of it. For all the talk of post-9/11 government repression, everyday constraints on most of us are pretty minimal. Even those who speak out against the Bush administration don’t have much to fear. Given their druthers, the enforcers in Washington would have muffled all dissent and locked down every suspect, no matter how unlikely. If only they’d been competent. If only the rest of us had given way.

And therein lies the challenge for New York Times reporter Eric Lichtblau in Bush’s Law: The Remaking of American Justice. Conventional wisdom has it that the Bush administration has trampled civil liberties at every turn, and that’s clearly the premise going in. At the back end, however, one is left confident that the law has stood up pretty well.

 

BUSH’S LAW PRESENTS a genre problem: Is it tragedy? Horror? Comedy? Farce? That’s not to ignore the bodies, metaphorical and otherwise, that mark the passage of the Bush years. Some people have suffered injustice, and Mr. Lichtblau tells their stories well: the thousand or so noncitizen Middle Easterners rounded up in the days immediately following 9/11 on minor immigration violations who faced lengthy detentions incommunicado without any due process, none of whom shown to have any connection to terrorism; the veteran F.B.I. analyst driven to suicide by middle-of-the-night CYA calls relating to President Bush’s morning intelligence briefing, not to mention the many whose government careers were derailed because they tried to blow the whistle; the young Portland lawyer, Brandon Mayfield, who had the misfortune to have his fingerprints mistakenly traced from a baggie of fuses used in the 2004 Madrid bombings and to be a Muslim convert.

Mr. Mayfield had his life turned upside down. But the error was acknowledged soon enough, and he got a $2 million settlement for his troubles. The noncitizen detainees were eventually all released. Others may not have been adequately compensated, but that kind of accident may be within life’s standard deviation.

Which leaves the centerpiece of Mr. Lichtblau’s “remaking”: the expanded use of surveillance by the National Security Agency to include communications with a domestic component. Before 9/11, the N.S.A. was mostly a spy-to-spy operation, on U.S. soil anyway, targeting foreign diplomatic communications. (Woe to those countries that didn’t closely supervise the construction of diplomatic facilities in Washington.) After the WTC attacks, Mr. Bush expanded the agency’s brief to include the warrantless intercept of any international communication, even if ordinary Americans were on both ends of the line.

As if that weren’t bad enough, the expanded eavesdropping program was adopted on an extremely close-hold basis. Only a very few were kept in the loop, not including, for instance, the No. 2 official at the Justice Department (who was otherwise responsible for signing off on all wiretaps). The administration also informed a few cowed members of Congress and one lone federal judge.

They all kept mum in the face of the administration’s wartime logics. Only Senator Jay Rockefeller registered his objections in writing. Even The Times knuckled under to the secrecy imperative, sitting on the news for more than a year. When the story did break, in December 2005, Mr. Lichtblau shared the byline with intelligence affairs reporter James Risen, and Bush’s Law coughs up a behind-the-scenes account of the decision to spike and then unspike the eavesdropping scoop.