Obama Should Seize on New Revelations of Illegal Spying

For the first time, we are learning that the Bush administration built an unprecedented surveillance operation to collect vast amounts of information from Americans far beyond the warrantless wiretapping previously acknowledged, according to a new report released last Friday by five inspectors general from the Justice Department, CIA, Pentagon, National Security Agency and the director of National Intelligence.

Now that these revelations have been made public, the Obama administration can no longer avoid its constitutional duty to immediately open criminal investigations into the extent to which Bush officials violated the law and, if warranted, to prosecute them to the full extent of the law.

The report reveals for the first time that what Bush termed the "Terrorist Surveillance Program" (the interception of international communications into the U.S. by suspected al-Qaida operatives) was only one of the warrantless surveillance programs that Bush authorized without seeking permission under the Foreign Intelligence Surveillance Act, as required by law. The inspectors general report labels all of Bush's other warrantless programs under the rubric "Other Intelligence Activities." Together the Terrorist Surveillance Program and the other activities are termed the "President's Surveillance Program."

Several top Bush administration officials, who would most likely be targets of criminal investigations, refused to be interviewed for this congressionally mandated report, including Andrew Card, Bush's chief of staff; David Addington,Vice President Dick Cheney's chief of staff and counsel; John Ashcroft, former attorney general; John Yoo, former deputy attorney general in the Office of Legal Counsel and George Tenet, former CIA director.

Alberto Gonzales, another former attorney general, told the inspectors that the Justice Department certifying the President's Surveillance Program every 45 days was important because it helped convince private telecoms to go along with programs (that otherwise violated the Foreign Intelligence Surveillance Act) and that for "purely political considerations" the approval would have value "prospectively" if the program came under congressional or inspector general reviews.

The report finds that it was "extraordinary and inappropriate" that from 2001 to May 2003 Yoo was the only person at the Office of Legal Counsel, and one of only three non-FBI personnel at the Justice Department, to be read into the warrantless surveillance programs. Yoo's nominal supervisor at the Office of Legal Counsel, Jay Bybee, was kept out of the loop and had "no idea" how his young deputy drafted the memos that, according to Gonzales, gave "a sense of legitimacy" to the programs. Indeed, it's not clear to the inspectors general that even Ashcroft knew that Yoo was acting as the department's legal voice on the President's Surveillance Program.

The report confirms what many have suspected: Yoo issued his first official opinion supporting the legality of the programs on Nov. 2, 2001, after Bush had already begun authorizing them in October 2001. Even the National Security Agency lawyers were only advised after the fact, at which point they compliantly "supported the lawfulness of the resulting program."

The report points out that in discussing the president's wartime powers, Yoo completely omitted any discussion of Youngstown Sheet & Tube Co v. Sawyer, 343 U.S. 579 (1952), the "leading case on the distribution of government powers between the Executive and Legislative Branches." Also, Yoo's discussion of the recently disclosed program "did not accurately describe the scope of these activities," which was later found by his successors as "insufficient and presenting a serious impediment to recertification of the program as to form and legality."

In late 2003 and early 2004, the Justice Department "determined that aspects of the PSP were not supported by law." Among other issues, the new lawyers at the Justice Department were concerned that Yoo had claimed that Congress did not intend the Foreign Intelligence Surveillance Act to apply to wartime operations, yet Yoo totally ignored that fact that under 50 U.S.C. Section 1811, Congress had expressly allowed the interception of electronic communications without warrant for a period of 15 days following a declaration of war.

The Justice Department's inspector general found that Gonzales' testimony about the warrantless surveillance programs before the Senate Judiciary Committee was "confusing, inaccurate, and had the effect of misleading" those who had not been read into the program. Gonzales falsely told the committee that the March 2004 dispute between the Justice Department and the White House was unrelated to the Terrorist Surveillance Program and that Justice Department lawyers had no concerns about that program's legality.

In truth, after Yoo left, lawyers at the Justice Department refused to continue backing the surveillance programs. In a White House meeting after deputy Attorney General James Comey specifically voiced concerns about the legality of some aspects of the President's Surveillance Program, Cheney suggested that the president reauthorize the program without the consent of the JusticeDepartment , which outraged FBI Director Robert Mueller, who told Cheney that he would remove the FBI from participation in the programs President Bush recertified the program anyway, leading to resignation threats from senior Justice Department officials.

Apparently, the secret intelligence programs did not produce very much intelligence. In 2006 the Justice Department's inspector general investigated the value to the FBI of the intelligence generated by the warrantless surveillance program and found that it produced lots of useless "leads" of relatively little value, concluding that although President's Surveillance Program-derived information had value in some counterterrorism investigations, "it generally played a limited role in the FBI's overall counterterrorism efforts."

The CIA's inspector general found that the agency was not tracking the information it received in such a way as to be able to substantiate later claims about its importance. CIA officials admitted that much of the President's Surveillance Program-derived information was "vague or without context," rendering it of little use.

Whatever hopes President Obama and Attorney General Eric Holder may have harbored to sweep the crimes of the Bush administration under the rug in the name of "moving ahead," have been dashed by the new report. Our nation will never heal the deep wounds inflicted over the last eight years until they are exposed to the cleansing disinfectant of the light and air of open scrutiny.

Obama should seize on the new revelations of illegal spying to announce that his administration will in fact truly uphold the rule of law and ensure that every person who has broken the law will be held fully accountable.

Stephen Rohde, a constitutional lawyer and author of "American Words of Freedom" and "Freedom of Assembly," is chair of the ACLU Foundation of Southern California.