11

The George W. Bush Administration

The Global War on Terror and Privacy in the Post-9/11 World

[A]t just this moment [of fanatical, state-induced jingoism] it had been announced that Oceania was not after all at war with Eurasia. Oceania was at war with Eastasia. Eurasia was an ally.^*

—GEORGE ORWELL

On September 11th 2001, bin Laden, al Qaeda, and his co-conspirators attacked the United States. During these attacks, suicide bombers struck the famous Twin Towers of the World Trade Center and the Pentagon, killing nearly three thousand people on American soil.¹ It was hailed as a second Pearl Harbor, except the kamikaze pilots came at the start of the war rather than the end. America would react much like it did after Pearl Harbor. War hysteria reared its ugly head as freedom vanilla replaced French vanilla in cafeterias in the style of Wilsonesque-nomenclature propaganda.2 Civil rights and natural rights would be openly assaulted by a government sworn to protect them in one of the longest wars in American history. Randolph Bourne’s decried jingoism would return to the sounds of trumpets blaring and the sight of flags waving. The familiar phrase “Remember the Lusitania,” which became “Remember Pearl Harbor,” became “Remember 9/11.” Anti-Muslim and anti-Arab sentiment filled the country as America waxed hysterical, crying for “us” to “get those towelheads.”

Unlike what happened after Pearl Harbor, however, the Bush administration would not order a “review of how they could have been so badly surprised” because the results would have shown “a colossal bureaucratic failure, combined with inattention and a lack of political will at the top.”³ However, the endemic bureaucratic problems with counterterrorism strategy were remnants of the Clinton administration. Clinton left his successor with years of unresolved tangles between the CIA, FBI, State Department, and NSA over information sharing and had failed to develop a successful strategy against bin Laden for eight years.⁴ Nonetheless, the Bush administration’s home-front execution of the war was characterized by “warrantless wiretapping, mass arrests of Arabs, Pakistanis, and other Muslim immigrants[, inhumane torture programs,] and a prodigious rollback of the civil liberties of American citizens.”⁵ The executive branch, through the use of the noble lie and the organs of state powers, would abjure liberties in creating a modern police state under the guise of fighting a War on Terror, starting with our ostensible enemy, then moving on to personal vendetta and perpetual, aimless war.

Bush’s Wars: Congress, the Authorization for Use of Military Force of 2001, and H. J. Res. 114

After September 11th, the Bush administration was clear in its terms of surrender: The Afghanistan government had to extradite bin Laden and his top associates and shut down terrorism within its borders.⁶ Before the diplomacy began, however, Bush was supplied with what he needed from Congress: Authority to use his power as commander in chief over the entire globe to conduct a War on Terror, a war without a stated goal, a war without end.

On September 14th, Congress passed the Authorization for Use of Military Force (AUMF), giving the president specific statutory authorization within the meaning of the 1973 War Powers Resolution to carry out military operations against whom or whatever the president determined perpetrated or harbored persons who perpetrated the 9/11 attack, but not a declaration of war. The AUMF notably left out any geographical or legal restrictions on who or where the president may pursue anyone or anything he determines to be affiliated with 9/11 terrorists. Bush’s quagmires and policies in conducting his authorized war would prove to be an affront to constitutional and natural liberties. Under the guise of wartime necessity and the AUMF, President Bush would commence the largest expansion of executive reach since President Wilson, inching toward the zenith of power of the imperial or unitary executive.⁷

The Afghanistan Theatre Under the AUMF

On September 18th, President Bush communicated his surrender terms to the Taliban via Pakistani back channels, and they were received somewhat warmly.⁸ However, the Taliban’s control of Afghanistan was loose after years of civil war, and al Qaeda was for all intents and purposes its standing army with the country serving as the flagship of the sixty-seven-nation organization.⁹ Bush prepared for war, signing the AUMF that had been passed four days earlier.10 On September 20th, an Ulema^* of more than a thousand Afghan imams^** gave a more tepid response than what was received via back channels, calling for independent U.N. investigation, urging bin Laden to leave the country, and declaring that if America attacked Afghanistan to reach the al Qaeda forces there, there would be a world war in the form of jihad.¹¹ That night, addressing a joint session of Congress, President Bush demanded that bin Laden be extradited to the United States and that all terrorist camps in Afghanistan be destroyed.¹²

The Taliban toughened their stance with saber-rattling rhetoric. On September 21st, their envoy gave what was described as their final answer: “No, no, no!” with a deputy adding, “[M]ake no mistake: Afghanistan, as it was in the past—the Great Britain, he came, the Red Army, he came—Afghanistan is a swamp. People enter here laughing, are exiting injured.”¹³ The Taliban left open the option for cooperation if evidence was presented to them demonstrating bin Laden’s complicity.¹⁴

The Taliban reached out on October 5th, offering to try bin Laden in an Afghani court and reiterating the condition precedent of evidence.¹⁵ The Bush administration confirmed such evidence existed on a confidential basis via third-party Pakistani back channels that same day,¹⁶ presumably because of the sensitive intelligence nature of the findings and the administration’s desire to avoid the embarrassment of revealing that its intelligence evidence pre-dated September 11th.¹⁷ In 2006, a federal court would admit as evidence a summary of testimony given by co-conspirator Khalid Sheikh Mohammed affirming al Qaeda’s involvement in 9/11.¹⁸

However, the United States rejected the Afghani offer around noon on October 7th.¹⁹ Bush was intent on bin Laden being turned over to the United States unconditionally²⁰ and causing such destruction in its pursuit of him that all eyes—including history’s—would focus on what Bush did after 9/11, not what he failed to do before 9/11. America began its bombing campaign that night. On October 14th, the Taliban offered to turn over bin Laden to a neutral country if the bombing stopped and evidence was presented.21 Bush rejected it.²² On October 16th, they offered to turn him over to a third country without the evidence.²³ Bush rejected it.²⁴ He would countenance no embarrassment; intelligence secrets must be kept, and bin Laden was due in U.S. court. Congress had already given Bush the go-ahead, so they were powerless to press him to accept a deal. By December 2001, Operation Enduring Freedom resulted in U.S. ground forces in control of Afghanistan, and al Qaeda had fled the country to Waziristan/Pakistan and the southern Afghan mountain regions.²⁵

It seemed as though victory was decisively won quickly; however, the Afghanistan front would turn into a Vietnam-like, stalemated quagmire, lasting well into the second term of Bush’s successor, and only apparently later, in 2013, would the United States leave (as the Taliban caused civilian casualties to rise 23 percent).²⁶ Bin Laden escaped to Pakistan and survived until his murder on May 2nd 2011.²⁷ And as far as creating “enduring freedom” through nation building, the New York Times reported in August 2013 that even though Facebook and Twitter have reached the Afghani youth, they are “bound to their society’s conservative ways.”²⁸ U.S. troops had now been fighting directly in Middle Eastern wars for almost a decade and will probably be there for at least another.

In retrospect, the AUMF did not give a president the power to stamp out global terrorism. Such a feat cannot be accomplished so long as there are radicals in the world and American imperial impulses, but the power to mire U.S. forces anywhere in the world so long as a connection could be made to 9/11. This is an unprecedented power given to the executive to conduct war anywhere, at any time at all, with whomever crosses his pursuit of “justice.”

Essentially, Congress delegated its power to declare war to the president—an action contrary to two hundred years of separation of powers principles regarding warfare,²⁹ and repugnant to the social compact which guarantees a specific form of government. Congress cannot pass the buck for deciding to go to war onto the executive branch by granting it absurdly broad discretion which swallows the rule of allocating that decision to Congress in the first place. It did, however, learn to declare war by not declaring war, but “authorizing” military force, thereby reducing its own political accountability. Even assuming that the Afghanistan part of the Global War on Terror was just because al Qaeda was a state actor, nothing can justify the Bush administration’s personality-driven, militarily unnecessary, and morally unjustifiable entrance into its endless, bellicose quagmire.

The Iraq Theatre: The Noble Liars

Like the presidents before him, and most closely in image to Wilson, Bush decided to use the noble lie to create a second theatre in the Terror War that was neither necessary nor just. According to Gen. Hugh Sheldon, then chairman of the Joint Chiefs of Staff, from the night of 9/11, Defense Secretary Donald Rumsfeld and Deputy Defense Secretary Paul Wolfowitz were gunning for an invasion of Iraq, despite there not being “one iota” of evidence demonstrating Iraq had any responsibility in 9/11.³⁰ Involvement in 9/11 was the one requirement the AUMF would impose on Bush before he could unleash the U.S. military on any target in the globe besides invoking constitutional self-defense. He needed something else.

The Bush administration was relentless in its pursuit of a pretense for linking Iraq to 9/11. Wolfowitz and Rumsfeld had been pressing for a full topple of Saddam since they were advising in the Gulf War.³¹ As part of the perversion of Clinton’s rendition program, discussed in chapter 10, Vice President Dick Cheney ordered the CIA to render extraordinarily and brutally torture enemy combatants formerly being interrogated by the FBI.³² These interrogation sessions resulted in clearly unreliable information, but the victims of CIA rendition and torture programs would admit, under duress, to such erroneous things as “al Qaeda and Saddam working together on WMDs.”^*33 Nevertheless, it would take “ ‘unrelenting pressure’ ” and “more than a dozen visits to the CIA by Cheney and his chief of staff, Scooter Libby—to produce enough [questionable] ‘evidence’ of an active Iraqi WMD program to pull off their plans for an Iraq invasion.”34 Secretary of State Colin Powell used torture evidence that was later recanted in petitioning the U.N. on February 5th 2003 for sanctioning an anticipated assault on Iraq.³⁵

On October 2nd 2002, clear victims of terror war hysteria Speaker John D. Hastert (R-IL) and House Minority Leader Richard A. Gephardt (D-MO) introduced House Joint Resolution 114, also known as the Iraq War Resolution: A separate AUMF (but not a declaration) authorizing military action against Hussein because he had weapons of mass destruction, and he was “harboring terrorist organizations,” and “members of al Qaida . . . are known to be in Iraq.”³⁶ Congress passed it on October 10 and 11th 2002.³⁷ After failing to build a broad or robust international coalition into 2003, and after U.N. Inspector Hans Blix’s February 14th 2003 report directly refuted Colin Powell’s February 5th case to the U.N. that Hussein had WMDs, the United States declared war on Iraq on March 19th.³⁸

After eight years of nation building in Bush’s second quagmire, the Iraq Theatre finally closed on December 18th 2011, costing 655,000 lives, 5,000 of them Americans, and the American people 2.2 trillion borrowed-and-not-yet-repaid dollars on the whim of a callous, naive president and his controlling, neocon advisors.³⁹ But Bush’s largest blunder was his home front assault on personal freedom.

The Right to Privacy in the Global War on Terror

After lying about Iraq and WMDs, the Bush administration’s biggest lie was that 9/11 justified or somehow compelled the creation of a vast, unprecedented, and almost unimaginable in scope NSA spying program. The First, Fourth, and Fifth Amendment protections in the Constitution render such a program illegal per se. Additionally, the administration lied about when it started domestic spying—domestic spying programs were active before 9/11.⁴⁰ It did not stop 9/11 or the Boston bombing eleven years later, and thus is as repugnant to good policy as it is to civil liberties. The full extent of domestic spying during the Bush administration is unknown to the public even today, but as reports roll out, it appears more and more expansive and oppressive.

The President’s Surveillance Programs

In the wake of September 11th, Bush’s first move was to broaden the authority granted to the NSA director under Executive Order 12333. Gen. Michael V. Hayden, then director of the National Security Agency, declared on September 26th 2001, “[A]ny Afghan telephone number in contact with a U.S. telephone number on or after 26 September was presumed to be of foreign intelligence value and could be disseminated to the FBI.”⁴¹ However, the “targeting of communication links with one end in the United States was a more aggressive use of E.O. 12333 authority than that exercised by former Directors.”⁴² The real action began in October.

On October 2nd, Hayden and Cheney communicated by passing messages via CIA Director George Tenet.⁴³ Cheney was interested in seeing what more the NSA could do to prevent terrorism. Hayden, replying with “a wink and a nod,” said “ ‘[n]ot with my current authorities.’ ”⁴⁴ Cheney was also unhappy because the FBI had “to get [warrants]” before it could engage in “domestic eavesdropping.”⁴⁵ The Bush administration, not willing to be hampered by a lack of legal authority, quickly put its monarchist lawyer, John C. Yoo, on the case.⁴⁶ Yoo responded speedily, drafting a memo almost overnight which outlined “the president’s inherent surveillance powers”—powers never granted in the Constitution or by statute, powers never before claimed, and powers that were never intended to be granted to an unchecked executive.⁴⁷

Following Yoo’s indefensible advice, Bush signed an order on October 4th 2001 that was drafted by Cheney’s legal counsel, David Addington.⁴⁸ That order created the President’s Surveillance Program, known publicly as Terrorism Surveillance Program, and to the NSA as code name STELLARWIND.⁴⁹ It was known more aptly as “ ‘the vice president’s special program.’ ”⁵⁰ Regardless of the name, as the program name has changed frequently over the course of the war, it refers to the unconstitutional fishing expedition that is the NSA’s warrantless dragneting of telephony and Internet metadata and content, generally known to the public at the time of this writing.

From the outset, the Justice Department expressed unease about the program,51 even though one of its own endorsed its legal underpinnings. Pursuant to the program, the NSA was permitted to collect telephony and Internet metadata and content—even that which was purely domestic.⁵² Attorney General John Ashcroft signed off on the program without assessing its constitutionality or lawfulness. He asked Yoo to do that assessment three weeks later.⁵³

This was the broadest known expansion of presidential spying powers in history.⁵⁴ Between October and November 2001, telecommunications companies (save for Qwest, discussed hereafter) began voluntarily and secretly sharing data about their customers with the federal government.⁵⁵ In 2002, these disclosures would become part of formal agreements between the government and telecommunications providers.⁵⁶ It also set off one of the biggest almost-scandals in the Bush presidency later in 2004.

The PATRIOT Act of 2001: Offensive Portions of the Act

During Congress’s war hysteria phase, it passed the USA PATRIOT Act of 2001,⁵⁷ an act that civil libertarians have railed against for the better part of thirteen years. “One of the most striking features of the USA PATRIOT Act is the lack of debate surrounding its introduction.”⁵⁸ Despite the fact that “many provisions of the Act relating to electronic surveillance” had been debated and rejected in previous congressional sessions, and even though House members were given a mere fifteen minutes to read this three-hundred-plus-page bill, the PATRIOT Act passed the House by a vote of 357 to 66.⁵⁹ This was not unlike its predecessor, the 1938 Congress, which created a Special Un-American Activities Committee after rejecting a similar legislative attempt to create one the previous year, before hysteria set in; or, unlike the 1950 Congress, which passed the McCarran Act after rejecting the 1948 Mundt-Nixon bill.60

The heading of this section of this work, “Offensive Portions of the Act,” is a bit of a misnomer. In fact, every section of the Act is offensive to the Constitution for some reason or another. This discussion is limited to the most relevant provisions, determined by the demonstrable impact they have had on society (this is not to say the other provisions have had no impact, just that they relate less to privacy and more to other rights). Specifically, this discussion relates to selected portions of Title II of the Act, which purports to give the government unnatural, unconstitutional, and illegal authority to perform electronic surveillance. And it relates to the creation of the material support for terrorism offense created under Title VIII.⁶¹

As much as one would like to read the PATRIOT Act to understand the nuances of it,^* that would prove a fruitless endeavor. Many portions of the offensive portions of the Act are simply listing modifications to the Foreign Intelligence Surveillance Act (FISA) or other various provisions of the U.S. Code without context; for example, Section 201 of the PATRIOT Act reads:

(2) by inserting after paragraph (p), as so redesignated by section 201(3) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 110 Stat. 3009–565), the following new paragraph:

“(q) any criminal violation of section 229 (relating to chemical weapons); or sections 2332, 2332a, 2332b, 2332d, 2339A, or 2339B of this title (relating to terrorism); or.”⁶²

As an attorney, a former judge, and a law professor, I have absolutely no way to comprehend what this actually does without looking up eight different provisions of the U.S. Code. But I have done so. Looking up that one section of the bill took more than fifteen minutes. To read the entire Act—including the statutes it amends so as to understand it—consumes at least twenty hours. I have done so.

However, as the Electronic Privacy Information Center concisely explains: “Section 201 added crimes of terrorism or production/dissemination of chemical weapons as predicate offenses under Title III, suspicion of which enable the government to obtain a wiretap of a party’s communications. Because the government already had substantial authority under FISA to obtain a wiretap of a suspected terrorist, the real effect of this amendment is to permit wiretapping of a United States person suspected of domestic terrorism.”63

Moreover, this section is particularly invidious because the government is getting the typically more-difficult-to-get wiretap warrants rather than basic search warrants. Thus, the descriptions of the various provisions may not flow directly from the Act itself, but from interpretation of its sinews that stretch deep into various other acts at fifteen different titles of the U.S. Code.⁶⁴

Section 206 of the Act—a portion that reads just as opaquely as Section 201—relates to “roving surveillance authority.”⁶⁵ This has been nicknamed the “roving wiretaps” provision. Section 206 gives the federal government the authority to “intercept . . . any communications made to or by an intelligence target without specifying” the particular places or things to be searched.⁶⁶ The Fourth Amendment to the Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”⁶⁷

Clearly, there is a misalignment between the requirements which Section 206 purports to make law and the supreme law of the land.⁶⁸ This provision affects more youth-oriented Web traffic, such as “libraries, university computer labs and cybercafes.”69

The more invidious attack on individual rights came in the form of secrecy. The previous incarnation of FISA required third parties (such as common carriers and others) “ ‘specified in court-ordered surveillance’ to provide assistance necessary to accomplish the surveillance.”⁷⁰ After the enation of Section 206, the government did not need to specify from what third party it was compelling data disclosure.⁷¹ For instance, the government could (and later it was revealed it did) compel Internet and telephone carriers to turn over all the “business records” that the government requires, such as the metadata and content of hundreds of millions of innocent telecommunication transactions that occurred in the United States in the last few years—and compel them to do it pursuant to an operation of law.

Relatedly, Section 210 of the Act enabled the government to access the duration of a call and the time it was placed and ended, any “telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address,” and “any credit card or bank account number” paying for the provided service.⁷²

The key phrase “pursuant to an operation of law” is standard, boilerplate content of every contract agreement. It is used to create an exception to the obligation of a party to a contract to keep secret the contents or workings of the agreement. Thus, when that phrase appears in almost every Internet company’s contract, it permits Section 206 disclosure, in addition to what is specified in a valid warrant. This is a key distinction that has become more and more relevant in the wake of Edward Snowden’s 2013 revelations about NSA spying.

Section 204, which is just as opaquely written as Sections 210 and 206 (you can see a theme developing here), permitted the government to obtain “stored voice-mail communications, like e-mail . . . through a search warrant rather than through more stringent wiretap orders.”⁷³ This works in tandem with Section 209 of the Act, which permits nationwide warrants to issue from federal courts. Essentially, an administration-friendly judge in the Circuit for the District of Columbia could issue a secret search warrant for a San Diego resident’s voice mails.

One of the more invidious portions of the Act is Section 213, the “sneak and peek” warrant provision. Law enforcement must provide notice to the person whose place or things have been searched. This requirement flows from the Fourth Amendment’s consideration of the reasonableness of a search or seizure. Under Section 213, warrants issued pursuant to this section or “any other rule of law to search for and seize any property or material that constitutes evidence of a criminal offense in violation of the laws of the United States” may be executed by sneaking and peeking.74 So really what sort of notice does Section 213 require? What government officials determine is “within a reasonable period of [the warrant’s] execution.”⁷⁵ Obviously this section is unconstitutional on its face and has since been somewhat abrogated.

Sections 214 and 216 work in tandem as well. “Section 214 removes the pre-existing statutory requirement that the government prove the surveillance target is ‘an agent of a foreign power’ before obtaining a pen register/trap and trace order under the FISA.”⁷⁶ Broadly, the government can track with whom you communicate under the FISA, without making any showing of the “foreign” part of the Act. Essentially, it puts all persons in the United States, citizens and non-citizens, on the same legal footing as foreign spies.

Section 216 expands the traditional definition of a pen register. The term pen register originates in old telegram and telephone company practices and referred to the outgoing call log a telephone company kept on customers for billing purposes. After Section 216, it means a lot more: “[A] device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted” but for the actual content.⁷⁷ This expanded definition broadly includes telephony and Internet data.

Section 215, aka the library records provision or the business records provision, has drawn the attention of intense media scrutiny in recent days. If one were to pinpoint the most offensive, abhorrent portion of the PATRIOT Act, it would be Section 215. Section 215 permits the government to access “business records, medical records, educational records and library records without a showing of ‘probable cause.’ . . . [T]he government only needs to claim that the records may be related to an ongoing investigation related to terrorism or intelligence activities.”78 These “business records” include all the data maintained or kept by all third-party custodians—it refers quite literally to every business record, including what would appear on a monthly phone or Internet or credit card bill. Finally, Section 218 of the Act changed the requirement for seeking FISA warrants, lowering the bar from obtaining foreign intelligence being “the purpose” to “a significant purpose.”⁷⁹

The PATRIOT Act, Title V, §505, aka the National Security Letter provision, permits the federal agents, on their own and without any warrant, to compel a third party like a service provider to turn over stored electronic communications without notice to the owner of the communications; except, rather than under FISA’s standard of demonstrating the communicator is an “agent of a foreign power,” the government merely needs to meet the “broad standard of relevance [of the sought material]” to investigations of “terrorism or clandestine intelligence activities.”⁸⁰ This marks a return to the practice of writs of assistance, whereby British soldiers could use general warrant authority to authorize themselves to enter the home of any colonist in the pre-Revolutionary War era.⁸¹

As Randolph Bourne lamented in 1918, with the swing of war hysteria, the criminalization of ideas comes in tow. In the quasi-war with France, it was criticism of the government in the Alien and Sedition Acts; in World War I, it was the disaffection of patriotism provision of the Espionage and Sedition Acts of 1917 and 1918; in World War II and the Cold War, it was the Smith Act’s criminalization of sedition; and in the War in the Middle East, it was the material support for terrorism crime.⁸²

Title VIII, §805 of the PATRIOT Act gave the government authority and broad power to punish any “service [that would in some manner help terrorists], including . . . expert advice or assistance . . . except medicine or religious materials.”83 Denying priests and doctors to the enemy goes against hundreds of years of battlefield and treaty law and common decency on behalf of clerics and doctors serving in uniform.

Moreover, assistance is an incredibly broad term. Does the New Jersey gas attendant who unwittingly pumps a few gallons into a jihadist’s car heading for New York City provide assistance? What about the bank tellers who handle many customers a day and unknowingly cash a check for a terrorist? Do they provide material, “expert” aid? What about the TSA agent who stamps a suicide bomber’s passport—that certainly would be a specialized, material form of assistance. What about doctors who provide the directly criminalized “expert medical” assistance to the wounded or attorneys who defend them?⁸⁴ This statute, just like the many Sedition Acts that preceded it, contains a potential fifteen-year prison sentence!⁸⁵

The statute is broad enough so that even a cleric who gives an unrelated religious message to a jihadist provides material support through religious comfort. Analogizing to Catholicism, it is broad enough to criminalize a priest giving confession or last rites to an enemy soldier. It does not merely criminalize urging them on to crusade or jihad by bellowing battle cries of “Deus vult.”^* Certainly this criminalizes more behavior than imminent, lawless action as per the First Amendment standard set by the Supreme Court in the 1969 case Brandenburg v. Ohio and its progeny. Therefore, it circumscribes too many behaviors across too many classes of people to be a valid law.

Unsurprisingly, as America enters its second decade of Middle Eastern wars (at this writing, an entire generation of people under age twenty-one has seen nothing but war after emerging from infancy—at least thirteen years by the time you read this), the PATRIOT Act is by and large still good law with minor modifications and will be such until at least 2015,86 despite its facial unconstitutionality and invalidity under the Natural Law.

Total Information Awareness and the 2004 FBI-Justice Department Mutiny

By January 2002, with the PATRIOT Act and the President’s Surveillance Program in tow, the Bush administration made its final moves toward achieving the Orwellian horror state. In a hidden subsector of a project of the Department of Defense, President Bush, Vice President Cheney, and project director Vice Adm. John M. Poindexter sought to achieve “Total Information Awareness” by “constructing a computer system that could create a vast electronic dragnet, searching for personal information as part of the hunt for terrorists around the globe—including the United States.”⁸⁷ Poindexter was a disgraced naval officer whom Congress took down in the 1980s Iran-contra scandal.⁸⁸ This particular task of creating Total Information Awareness was to be carried out by the Information Awareness Office.⁸⁹

This program’s mission was to

. . . provide intelligence analysts and law enforcement officials with instant access to information from Internet mail and calling records to credit card and banking transactions and travel documents, without a search warrant.

Historically, military and intelligence agencies have not been permitted to spy on Americans without extraordinary legal authorization. But Admiral Poindexter, the former national security adviser in the Reagan administration, has argued that the government needs broad new powers to process, store and mine billions of minute details of electronic life in the United States.⁹⁰

Obviously, this “Orwellian” program, hidden far from the disinfecting sunlight of congressional and judicial review, never really disappeared.91 As the 2013 revelations about PRISM and the FISA Court orders have demonstrated, Total Information Awareness has been achieved. Big Brother continues to maintain a treasure trove of personal data on all persons in America since circa 2009.

The media picked up this story on November 14th 2002—despite earlier reports^*—when the late William Safire of the New York Times wrote a not-so-incendiary-but-rather-true piece about the project in 2002.⁹² Responding in 2003, the wartime Congress feigned making a fuss over this mass intrusion on the personal information of Americans. Mark Williams wrote,

Washington’s lawmakers ostensibly killed the TIA project in Section 8131 of the Department of Defense Appropriations Act for fiscal 2004. But legislators wrote a classified annex to that document which preserved funding for TIA’s component technologies, if they were transferred to other government agencies, say sources who have seen the document, according to reports first published in The National Journal. Congress did stipulate that those technologies should only be used for military or foreign intelligence purposes against non-U.S. citizens. Still, while those component projects’ names were changed, their funding remained intact, sometimes under the same contracts.⁹³

The motto of Admiral Poindexter’s office was Scientia est Potentia, “Knowledge is power.”⁹⁴ The government hid its aim in plain sight: Strengthening the health of the state by acquiring power. Knowledge is power, and total knowledge in the hands of the state’s imperial president is almost total, monarchical power over the individual. There are no secrets in the post-9/11 world. Financial, medical, or just personal, they are available to the government at a keystroke.* “War is the health of the state” because it provides the executive branch with the political capital to advance its powers and to reach deeper into the depths of jingoist fear and manufacture that fear into honed rage. PATRIOT Acts and Freedom Fries provide the executive the powers to do what it wishes while the people sign away their liberties to the state. They both assign and alienate their rightful and natural powers to the state, engrossing the state and strengthening its power over the individual and his liberty through manipulation and deception: Noble lies.

The Information Awareness Office was just one subset of the President’s Surveillance Program; the PSP included many items under code name STELLARWIND, such as the Terrorist Surveillance Program.

In the fall of 2003, James B. Comey Jr. “arrived at the Justice Department . . . as Justice’s number two [under Attorney General John Ashcroft],” replacing Jay S. Bybee, who became a federal appellate judge.⁹⁵ Then Office of Legal Counsel (OLC) head Jack Goldsmith brought Comey “into the loop” on February 19th 2004 on the scope of the President’s Surveillance Program. On March 4th 2004, “Comey met with Ashcroft for an hour to raise the legal team’s myriad concerns.”⁹⁶ Comey “believed there had clearly been at least two felony violations of surveillance law.”⁹⁷

“Senior officials . . . usually received their briefing from [the vice president’s counsel David S.] Addington or from Vice President Cheney himself—an odd situation, given that the vice president’s office didn’t legally have any surveillance oversight.”98 Two days after the March 4th meeting with Ashcroft, “the Justice Department first presented its concerns to the White House. Addington was furious.”⁹⁹ The Justice Department told the vice president’s office to drop its concerns, stating, “Bush was ‘free to overrule [us] if he wants.’ ”¹⁰⁰ They were finished with the criminal, illegal, and unconstitutional actions of the vice president’s office that served to do nothing but aggrandize the power of the president at the expense of constitutionally guaranteed individual privacy.

The situation continued to escalate. Cheney called in the CIA and the NSA to badger Comey and the Justice Department into line.¹⁰¹ The intelligence community pressed Comey, claiming “[i]f the program didn’t continue, thousands would die, and it would be all Jim Comey’s fault.”¹⁰² The meeting was a tense moment in the Bush White House:

At one point, Comey said he couldn’t find a legal basis for the program. Yoo’s original memo, he explained, was specious on its face. “Others see it differently,” a scowling Cheney replied.

“The analysis is flawed—in fact, fatally flawed. No lawyer reading that could reasonably rely on it,” Comey said, his hand sweeping across the table dismissively.

Addington, standing in the back of the room, spoke up. “Well I’m a lawyer,” he snapped, “and I did.”

Responded Comey, “No good lawyer.”

The room went silent.¹⁰³

In the wake of this meeting, FBI Director Robert S. Mueller III reviewed the legal arguments and joined the side of his Justice Department bosses Goldsmith, Comey, and Ashcroft.¹⁰⁴

The situation came to a head when the senior officials in charge of the Justice Department and FBI had a showdown with the White House Office of Legal Counsel and the president himself in “an uprising of epic proportions.”¹⁰⁵

Attorney General John Ashcroft was hospitalized shortly after his March 4th meeting with Comey, leaving Deputy Attorney General Comey as acting attorney general.106 Ashcroft was medicated for severe pain and kept under heavy sedation during his stay in a Washington, DC, hospital. His wife, his medical proxy, requested that no one be allowed to speak to him. David Ayres, the chief of staff to John Ashcroft, interrupted Comey on his drive home to inform him that the president had personally violated Ashcroft’s wife’s wishes that he not be disturbed by telephone calls and had sent his chief counsel, Alberto R. Gonzales, and his chief of staff, Andrew H. Card Jr., to visit Ashcroft and demand that he reauthorize the STELLARWIND program, per the legal FISA/PATRIOT Act requirement(s).¹⁰⁷ Comey immediately got in touch with Mueller, and the two sped to the George Washington University Hospital to intervene.¹⁰⁸ Mueller “ordered his agents [guarding Ashcroft] to use force, if necessary, to prevent the Secret Service and the White House from removing Justice Department officials from the hospital room,” anticipating Gonzales and Card’s “likely” move to have Secret Service agents ready to assist them.¹⁰⁹

Mueller, Goldsmith, and Comey arrived first and were waiting by Ashcroft’s hospital bed when Gonzales and Card arrived shortly afterward.¹¹⁰ Ashcroft “chided” the administration officials for their misleading behavior earlier and Yoo’s unethical memorandum: “You drew the circle so tight I couldn’t get the advice I needed” and indicated that the signature would need to come from acting Attorney General Comey, not him.¹¹¹ Gonzales and Card and their colleagues departed, defeated.

Mueller and Comey had enough—attempting to go behind Comey’s back to manipulate the infirm Ashcroft was a bridge too far. They began the mutiny: “Across the upper ranks of the Justice Department and the Bureau, letters of resignation were drafted.”¹¹² The officials were prepared to engage in a walkout on a president—“one of the most explosive Washington scandals in recent memory”¹¹³—because “they would not tolerate having the president continue a program that was illegal.”¹¹⁴

Ashcroft’s chief of staff delayed the walkout on Thursday, March 11th 2004, the final day to reauthorize the program, citing the attorney general’s health and the effect on it of the planned resignations.115 This bought the Cheney team enough time to maneuver until the delay expired on Monday.¹¹⁶ “The crisis was never mentioned [to Bush].”¹¹⁷

At the Friday morning briefing, the Mueller-Comey team discovered that “Addington had rewritten [the PSP] authorization . . . so that it no longer had to be signed by the attorney general and instead was okayed by Gonzales’s signature.”¹¹⁸ President Bush pulled Comey aside for a personal meeting.¹¹⁹

Comey and the president dined, and the president argued that Comey should let Bush handle the PSP “burden.”¹²⁰ Comey retorted that morally he could not do it.¹²¹ “Bush knew so little of what had transpired that week; his advisors had never let on.”¹²² Comey first relayed to President Bush that his FBI director was about to resign over the illegal program, and Bush flinched.¹²³ Mueller and Bush met thereafter, and Bush gave the final word: “The commander in chief told the FBI director at the end of their discussion, ‘Tell Jim [Comey] to do what Justice thinks needs to be done.’ ”¹²⁴

Of course, this was a temporary victory: “Some of the questions about the [NSA]’s new powers led the administration to temporarily suspend the [PSP] operation [in 2004] and impose more restrictions.”¹²⁵ Almost a decade later and with the benefit of hindsight, Ashcroft, Comey, and Mueller’s efforts to preserve lawful and constitutional government were for naught.

Political Prosecutions in the Bush Era: The IT CEO and the Notre Dame Professor

As Bourne described, with the tide of war hysteria comes the persecution of different viewpoints and dissenters. This work takes specific focus on two of these cases: The “insider trading” prosecution of former Qwest CEO and vice chairman and then later chairman of the National Security Telecommunications Advisory Committee, Joseph P. Nacchio, and the refusal to permit Professor Tariq Ramadan to enter the United States to take up a teaching post at my alma mater, the University of Notre Dame.

Nacchio was indicted for insider trading, and according to Scott Shane of the New York Times:

As part of his defense, Mr. Nacchio claimed that he had knowledge of top secret contracts with the N.S.A. and other government agencies that made the company’s financial prospects brighter than was publicly known. Prosecutors denied the claims[, and objected to the defense].

At the time of the claimed meeting at the N.S.A.’s Fort Meade, Md., headquarters on Feb. 27, 2001, Mr. Nacchio was chairman of the National Security Telecommunications Advisory Committee, whose members included top executives of most of the major communications companies. Like nearly every chief executive in the industry, he had been granted a security clearance to work with the government on secret projects.

In the court papers, Mr. Nacchio’s lawyers said he and James F. X. Payne, then Qwest’s head of government business, spoke with N.S.A. officials about the agency’s Groundbreaker project, in which the agency’s non-secret information technology would be contracted to private companies.

At the same meeting, N.S.A. officials made an additional proposal, whose exact nature is not made clear in the censored documents.

“The court has prohibited Mr. Nacchio from eliciting testimony regarding what also occurred at that meeting,” one of the documents states. Another passage says: “The court has also refused to allow Mr. Nacchio to demonstrate that the agency retaliated for this refusal by denying the Groundbreaker and perhaps other work to Qwest.”126

Joe Nacchio’s testimony goes into more detail. In the spring of 2000 and spanning into 2001, he met Gen. Harry D. Rutledge Jr., manager of the National Communication Systems, and James F. X. Payne.¹²⁷ The two planned to have Qwest build fiber optic intranet facilities for overseas and domestic military installations, potentially a very lucrative long-term contract (especially considering the long-term deployment of the U.S. military overseas).128 Joe Nacchio relied on those business opportunities, which Qwest was uniquely capable of handling, in signing his company’s SEC guidance filings and conducting his business trades during 2000 and 2001.¹²⁹

However, in February 2001, Nacchio refused to comply with a government demand to become part of a “potentially illegal surveillance program—and when he declined, [the NSA] punished the company by dropping a contract worth hundreds of millions of dollars.”¹³⁰ His colleagues in telecommunications and his new so-called friends in government tried to talk him into staying with the program. To this day, Nacchio is prohibited from saying what the NSA demanded of Qwest. But Joe Nacchio believed in his heart that he was being asked by the government to break federal law.

Thereafter, in the spring, Qwest’s classified contracts dried up. The Bush administration, through the SEC and the Justice Department, then decided to discredit the dissenter and deter other CEOs from following suit. Like William Pelley during World War II, he was maliciously prosecuted. The administration accused him of pumping and dumping his investors—trading based on material inside information because he didn’t have any solid long-term investments on his books for fiber optics business opportunities.¹³¹

Refusing to sacrifice the privacy of millions of clients landed Nacchio seventy months in prison.¹³² He was released on September 21st 2013 and is writing a book about the terrors of justice.¹³³ Joe Nacchio is not bitter. But he is busting with awful truths he cannot reveal.

Nacchio was not alone in being persecuted—scholars, with all the trappings of the First Amendment attached to their work, were no safer than businessmen.

Engaging in a “McCarthy-like attempt to keep prickly ideas out of the country,” the Bush administration State Department refused to give a Swiss citizen and anti-jihadist Islam scholar, Professor Tariq Ramadan, a visa whereby he could accept a teaching post at Notre Dame.¹³⁴ The INS claimed that he had “used a ‘position of prominence within any country to endorse or espouse terrorist activity.’ ”135

In the 2006 case American Academy of Religion v. Chertoff (American Academy of Religion I), a federal court in the Southern District of New York heard the suit of Professor Tariq Ramadan against the Department of Homeland Security and the State Department for his “continued exclusion . . . from the United States.”¹³⁶ He challenged both the statute under which his temporary visa was cancelled (one of the many portions of the PATRIOT Act which pertains to aliens) and the validity of the government’s actions under the First Amendment.

Professor Ramadan was not some radical terrorist imam; he was an incredibly renowned scholar of peace in Islam:

Ramadan is a Swiss-born scholar of Arab descent. He holds Masters Degrees in Philosophy and French Literature and a Ph.D. in Islamic Studies, all from the University of Geneva. After receiving his Ph.D., Ramadan taught Islamic Studies and Philosophy at the University of Fribourg in Switzerland. Since July 2005, Ramadan has served as a Senior Research Fellow at the Loahi Foundation in London and a Visiting Fellow at Oxford University.

Ramadan is a well-known scholar of the Muslim world. He has published more than 20 books, 700 articles, and 170 audio tapes, most of which focus on the subject of Muslim identity and the practice of Islam in the Western world, particularly Europe. Ramadan is perhaps best known for his vision of an independent European Islam. Specifically, Ramadan encourages Europe’s Muslims to “reject both isolation and assimilation,” and instead explore “the possibility of a ‘third path’ that would allow European Muslims to be both fully European and fully Muslim.” Ramadan also advocates the development of an Islamic feminism and condemns the harsh penalties prescribed by the Islamic penal code. He shuns violence as a form of activism and has consistently spoken out against terrorism and radical Islamists.¹³⁷

Professor Ramadan spoke at conferences and gave lectures in the United States several times from 2000 to 2003, once even delivering a speech at the State Department in 2003.138 Professor Ramadan accepted “a dual appointment as the Henry R. Luce Professor of Religion, Conflict and Peacebuilding and [as] Professor of Islamic Studies in the Classics Department” at the University of Notre Dame and applied for an appropriate visa.¹³⁹ Initially, the visa was approved, but a month later the Department of Homeland Security “cancel[ed] [the] visa.”¹⁴⁰ The government curiously argued in court that Professor Ramadan “ ‘has never had a visa revoked, a visa application denied, or any other adverse action taken against him.’ ”¹⁴¹

As a result of the government’s action, Ramadan had to decline the Notre Dame position in December 2004 and was unconstitutionally blocked from entering the United States to give lectures.¹⁴² Applying for a second visa, he was literally told that his application “ ‘would take at least two days but no more than two years.’ ”¹⁴³ His First Amendment rights were completely violated, and his natural right to speak the ideas he had studied and researched over a lifetime had been revoked behind the cloak of a bureaucratic game.

The Court was faced with a technical issue: The government had not granted him a visa, but it also had not actually denied Professor Ramadan a visa, thus the issue was not ripe for decision. So, the judge issued a writ of mandamus, ordering the Departments of State and of Homeland Security to make a decision within ninety days:¹⁴⁴

If the Government has a legitimate and bona fide reason for excluding Ramadan, then it may exclude him, but it must do so by acting on the pending visa application, not by studying Ramadan’s application indefinitely, while hoping for more supportive evidence to appear in the future. Ramadan’s voluminous books, articles and speeches provide more than an adequate basis for review. His frequent visits to the United States, including a visit to the State Department in October 2003, provide ample first-hand insight into Ramadan’s views.¹⁴⁵

This set the stage for American Academy of Religion v. Chertoff (American Academy of Religion II) in 2007.146

In American Academy of Religion II, the district court faced the same claims with a final agency determination, which eliminated the ripeness issue. The government “officially denied the visa and gave its reason: Professor Ramadan had contributed money to an organization which provided material support to Hamas, a terrorist group.”¹⁴⁷ In a deplorable decision, the district court granted summary judgment to the government on both the First Amendment claim and the constitutionality of the portion of the PATRIOT Act that rendered Professor Ramadan inadmissible to the United States.¹⁴⁸ The court cited the typical excuses: Institutional competency and deference to the executive on political questions.¹⁴⁹

However, even this was not the end of the issue. The plaintiffs appealed the decision in the 2009 case, American Academy of Religion v. Napolitano (American Academy of Religion III).¹⁵⁰ The Second Circuit Court of Appeals overturned the district court’s decision, holding that the State Department should have given Professor Ramadan a “reasonable opportunity to demonstrate, by clear and convincing evidence, that he did not know, and should not have reasonably known” that his money ended up in the hands of Hamas.¹⁵¹ The court vacated the district court’s decision and remanded for further proceedings.¹⁵² The issue became moot, however, in 2010, when “Secretary of State Hilary Clinton issued Ramadan his visa.”¹⁵³

Other Battles in the Courts 2004–7: Declarations of Unconstitutionality with Respect to the PATRIOT Act

Several federal district courts recognized the unconstitutionality of various provisions of the PATRIOT Act. The decisions relating to Fourth Amendment rights were largely overturned by more cowed circuit courts, but the judiciary attacked the material support for terrorism charge.

The first judicial strike at the constitutionality of a provision of the PATRIOT Act came in 2004, in the case Humanitarian Law Project et al. v. Ashcroft.154 The district court for the Central District of California ruled that the material support provision of the PATRIOT Act was unconstitutional because it was “impermissibly vague.”¹⁵⁵

In 1997, Madeleine Albright designated the Kurdistan Workers Party (PKK) a foreign terrorist organization.¹⁵⁶ The PKK is “the leading political organization representing the interests of the Kurds in Turkey, [and] was formed approximately 25 years ago with the goal of achieving self-determination for the Kurds in Southeastern Turkey. It is comprised primarily of Turkish Kurds.”¹⁵⁷ The PKK engages in political advocacy and grassroots organization to assist Turkish Kurds in their seventy-five-year struggle against human rights abuses.¹⁵⁸ The plaintiffs in this case were “five organizations and two United States citizens” who sought to “support [only] the lawful, nonviolent activities of the PKK.”¹⁵⁹ The plaintiffs in Humanitarian Law Project sought to have the court enjoin the federal government from criminally charging them under the material support statute because it is impermissibly vague,¹⁶⁰ a facial challenge (as opposed to an as-applied one) which would render a law unconstitutional in all applicable circumstances.

The void for vagueness doctrine holds that a law must be written “sufficiently clear so as not to cause persons of common intelligence . . . necessarily [to] guess at its meaning and [to] differ as to its application.”¹⁶¹ Thus, a criminal statute which purports to make gang assemblies illegal, but is written so broadly as essentially to prevent more than a few people from assembling together in public, is written too vaguely to be a valid law.

The Humanitarian Law Project team won this victory under that doctrine, on the grounds that the law itself proscribed more behavior than intended or may lawfully be proscribed, and that protected First Amendment activity was infringed by this statute:

[T]he Court concludes that the term “expert advice or assistance,” like the terms “training” and “personnel,” is not “sufficiently clear so as to allow persons of ‘ordinary intelligence a reasonable opportunity to know what is prohibited.’ ”

. . . The “expert advice or assistance” Plaintiffs seek to offer includes advocacy and associational activities protected by the First Amendment, which Defendants concede are not prohibited under the USA PATRIOT Act. Despite this, the USA PATRIOT Act places no limitation on the type of expert advice and assistance which is prohibited, and instead bans the provision of all expert advice and assistance regardless of its nature. Thus, like the terms “personnel” and “training,” “expert advice or assistance” “could be construed to include unequivocally pure speech and advocacy protected by the First Amendment” or to “encompass First Amendment protected activities.”162

As it stood at the end of the Bush years, Humanitarian Law Project was a modest success for liberty.

In 2004, in Doe v. Ashcroft (Doe I), a federal court in the Southern District of New York found that the “compulsory, secret, and unreviewable production of information required by the FBI’s application of [National Security Letters] violates the Fourth [and First] Amendment[s].”¹⁶³ This effectively invalidated the power of federal agents to authorize themselves to seize records.

The court first decided not to view the statute in a vacuum, recognizing the perils of the overlapping provisions of the PATRIOT Act: “[The NSL provision] does not represent a discrete, stand-alone instance of legislation. Rather, it is but one point in a constellation of other laws, a part and pattern of a larger congressional design generally interrelated by the common purpose of facilitating various forms of investigations and law enforcement proceedings.”¹⁶⁴ The court held that the NSL provision was an unconstitutional restraint on free speech, reasoning that the “blanket rule swearing everyone concerned to secrecy forever” could not survive First Amendment review.¹⁶⁵

In 2005, a federal court in the District of Connecticut heard a similar case over an NSL request for library records in Doe v. Gonzales (Doe II).¹⁶⁶ This district court, reasoning along now familiar lines, granted a preliminary injunction that prevented the government from enforcing the NSL provision against the plaintiff recipient of such request.167

In light of the legal setbacks of Doe I in 2004 and Doe II in 2005, Congress and President Bush nominally modified the material support crime and the NSL provision.

In the Intelligence Reform and Terrorism Prevention Act of 2004, Congress added some fluff to the definition of material support, purporting to winnow the class of activity proscribed by the “ambiguous expert advice or assistance” language.¹⁶⁸ In reality, however, the new language merely ensured that the expert advice would be derived from “scientific, technical, or other specialized knowledge,” which in no meaningful way modified or narrowed the term expert.

When Congress and President Bush reauthorized the PATRIOT Act in 2005, it contained an illusory modification to the NSL provision.¹⁶⁹ Accordingly, in the 2006 case Doe v. Gonzalez (Doe III), the Second Circuit Court of Appeals overturned Doe I and II because the modifications to the statute rendered the Doe decisions moot and remanded the matter back to the district court.¹⁷⁰

When the district court received the case again in 2007, it held that the illusory changes did not make the law constitutionally valid. “Instead of [creating] a categorical, blanket prohibition on disclosure with respect to the issuance of any NSL, . . . [it] now calls for a case-by-case determination of the need for a nondisclosure order to accompany an NSL.”¹⁷¹ The Doe IV decision found that “[s]pecifically, the statute provides that a recipient of an NSL is barred from disclosing that the FBI ‘has sought or obtained access to information or records’ . . . if the Director of the FBI, or his designee, ‘certifies’ that disclosure ‘may result’ in ‘a danger to . . . national security . . .’ ‘is unconstitutional . . . because it functions as a licensing scheme that does not afford adequate procedural safeguards.’ ”¹⁷²

In simple terms, the court held that in America the FBI may not decide who can lawfully speak about its clandestine domestic spying operations. The Second Circuit affirmed this decision in part in Doe V.¹⁷³ The Second Circuit “modif[ied] the District Court’s injunction by limiting it to enjoining FBI officials from enforcing the nondisclosure requirement of [the NSL provision] in the absence of Government-initiated judicial review,” which means review by a trial judge in secret, without counsel present, thus not full and open proceedings.174 Effectively, the Second Circuit gutted the decision while “affirming” parts of it.

In the 2007 case Mayfield v. United States (Mayfield I), a completely innocent man was stalked by the awesome mechanisms of the PATRIOT Act’s Fourth Amendment legal machinery.¹⁷⁵ He filed suit in a federal court in the District of Oregon seeking a declaratory judgment that the FBI had violated his Fourth Amendment rights:

. . . Mayfield is an American citizen born in Oregon and reared in Kansas. He [was] liv[ing at the time] with his wife and three children in Aloha, Oregon, a suburb of Portland. Mayfield [wa]s 38 years old, a former Army officer with an honorable discharge, and a practicing Oregon lawyer. Prior to his arrest, he had not traveled outside the United States since 1994, and he had never been arrested for a crime. [His suit against the federal government] allege[d] that FBI examiners were aware of Mayfield’s Muslim faith and that this knowledge influenced their examination of Mayfield’s fingerprints.¹⁷⁶

The FBI received a fingerprint from the Spanish police after the Madrid train bombing in 2004, in which “terrorists’ bombs exploded on commuter trains, murdering 191 persons, and injuring another 1600 persons, including three United States citizens.”¹⁷⁷ The fingerprint was misidentified under questionable circumstances by an FBI agent and also by an independent contractor (who had been “reprimanded on at least three occasions for erroneously ‘identifying’ fingerprints”).¹⁷⁸ An FBI senior agent then verified the questionable match in view of the fact that “Mayfield is Muslim.”¹⁷⁹

The FBI proceeded to turn Mayfield’s life into Winston Smith’s vision of the world in 1984:

[They placed] electronic listening devices (“bugs”) in the “shared and intimate” rooms of the Mayfield family home; executed repeated “sneak and peek” searches of the Mayfield family home, occurring when the family was away from the home and performed “so incompetently that the FBI left traces of their searches behind, causing the Mayfield family to be frightened and believe that they had been burglarized;” obtained private and protected information about the Mayfields from third parties; executed “sneak and peek” searches of the law office of Brandon Mayfield; and placed wiretaps on Mayfield’s office and home phones.180

They took everything including his children’s homework¹⁸¹—what relevance that could possibly have to a terrorist plot is beyond fathoming. The Spanish police cleared Mayfield of any involvement, arrested several Moroccan suspects, and “ ‘refused to validate’ ” the FBI’s results.¹⁸² The FBI was more prejudicially focused on the fact that Mayfield “attended a mosque” and “advertised his legal services in . . . the ‘Muslim Yellow Pages.’ ”¹⁸³

Mayfield was arrested and held incommunicado from his family on May 6th 2004.¹⁸⁴ His family was told Mayfield was “being held as a primary suspect on offenses punishable by death, and that the FBI had made a 100% match of his fingerprint with the Madrid train bombing fingerprint.”¹⁸⁵ The FBI stated this after Spanish authorities had stated definitively that the fingerprint in question was not Mayfield’s. The FBI disgraced him publicly by leaking his alleged (and bogus) involvement in the Madrid train bombing.¹⁸⁶ However, following Spanish authorities properly identifying the fingerprint as that of an Algerian suspect, he was released on May 20th 2004.¹⁸⁷

The Mayfield I court found that two provisions of FISA, which were modified by the PATRIOT Act, were unconstitutional.¹⁸⁸ When the government seeks to search a criminal suspect’s home or place of business, it must get a warrant and demonstrate probable cause before a neutral magistrate. The FISA Act, however, “contains a ‘foreign intelligence standard’ of probable cause which requires a showing that the target may be an agent of a foreign government and the place or facility to be searched is being used in furtherance of espionage or terrorist activities.”189 As modified by the PATRIOT Act Section 218, however, the FISA standard is now the amorphous “significant purpose” standard, which broadly would permit spying on Americans for domestic terrorism, clearly not the purpose of FISA and under the purview of the more exacting Fourth Amendment standard.¹⁹⁰

The court recognized this, striking down the provisions of law modified by Section 218 of the Patriot Act, noting that for “over 200 years, this Nation has adhered to the rule of law—with unparalleled success. A shift to a Nation based on extra-constitutional authority is prohibited, as well as ill-advised.”¹⁹¹

However, in 2010 in Mayfield II, after successful settlement of all but one issue, the Ninth Circuit Court of Appeals vacated the Mayfield I decision, restoring those two provisions touched by Section 218 to law.¹⁹² The court stated that because Mayfield had reached a settlement with the government, he no longer had standing to sue. The reasoning? His settlement with the government made after Mayfield I, which specifically left open his ability to pursue his Fourth Amendment claims, somehow meant that “his [Fourth Amendment privacy] injuries already have been substantially redressed by the Settlement Agreement.”¹⁹³

Secrets for Some: Alteration of Declassification Procedure, Executive Order 13292, and the New York Times Sits On and Then Releases Data Collection Information

In 1995, President Clinton adopted information procedures that took a brave step toward government transparency. Executive Order 12958 created information declassification procedures aimed at revealing the secrets the U.S. government had been keeping under the veil of state secrecy.¹⁹⁴ According to Clinton’s fourth chief of staff, John D. Podesta, discussing the “unprecedented effort” to open government documents to researchers:

[T]he notion of open government—the fundamental tenets of the Freedom of Information Act—are really part and parcel of our First Amendment rights. And I think it’s worth going back and reminding you just exactly what those tenets really are that form the basis of that Act: that disclosure is the general rule, not the exception; that all individuals have equal right of access; that the burden is on the government to justify the withholding of a document, not on the person requesting it; and that individuals improperly denied access to documents have the right to seek injunctive relief in the courts.195

After making playful references to the search for aliens in government documents (Podesta was after all speaking at a National Press Club meeting sponsored by the Sci Fi Channel), Podesta got to the meat of what Executive Order 12958 did: “Before President Clinton signed that executive order, a tiny minority of classified documents—only 5%—had a fixed classification date. Since the signing of that order, more than 50% of those documents are now marked for declassification in ten years or less.”¹⁹⁶ This was an amazing achievement against the bulwark of the entrenched defense bureaucracy.

“But even more significantly: during the five years that the executive order was in place, its policies resulted in the declassification of over 800 million pages of historically valuable records, with . . . hundreds of millions more pages to be declassified in the next few years.”¹⁹⁷ The order contained an automatic declassification procedure after twenty-five years,¹⁹⁸ thus setting a minimum bar of eventual transparency.

One of the “[s]cholars, historians, journalists, [or] everyday researchers around the world” Podesta foretold would use these declassified revealed documents acquired through the Freedom of Information Act (FOIA) was a previously cited author, Robert B. Stinnett.¹⁹⁹ Stinnett’s work, Day of Deceit, proved a legitimate and convincing case based on released government documents that the FDR administration actively engaged in a cold war with Japan during 1940 and 1941, intending to lead to the predicted attack on Pearl Harbor.²⁰⁰ Stinnett thanked “Congressman John [E.] Moss [(D-UT)], the author of America’s Freedom of Information Act (FOIA)” in his dedication because of the significance of the FOIA.201

The FOIA was carried out in a manner not meant to obfuscate its purpose, per Clinton’s order—a president being transparent. Despite the fact that “[m]ainstream TV has not been forthcoming,” legitimate sources in the “mainstream print media [have] given Day Of Deceit very fine reviews. That includes The New York Times, The Wall Street Journal, San Francisco Chronicle, et al.”²⁰²

This story is relevant for two reasons. First, because the mainstream media kept ideas that would change the image Americans have adopted of FDR out of the mainstream media. This repression of unpalatable thoughts about the propriety of war actions is similar to how the New York Times manipulated the American people between 2004 and 2005. The paper, badgered by the federal government, kept stories about abuses of the Orwellian President’s Surveillance Program from publication.²⁰³ Second, that era of open, transparent government was abruptly slammed closed in 2003 when President Bush revoked Executive Order 12598 and replaced it with Executive Order 13292.²⁰⁴

Executive state secrets and classification orders have existed since 1863. Gen. Ambrose Burnside issued General Order No. 38 in 1863, criminalizing communication with the enemy.²⁰⁵ FDR gave secret classification the presidential imprimatur in 1940 with Executive Order 8381, preventing “general dissemination of information relative” to “Certain Vital Military and Naval Installations and Equipment.”²⁰⁶ Using their executive order power, several presidents modified the control of public information, waxing and waning the manipulation of the marketplace of ideas. President Eisenhower, after initially expanding the class of materials that came under classification procedure, narrowed it slightly in 1953.²⁰⁷ President Carter in 1978 limited what could be classified, but President Reagan reversed that trend in 1982.²⁰⁸ In 1993, the Government Accounting Office realized it could save hundreds of millions of dollars by declassifying material,²⁰⁹ and thus Clinton’s executive transparency order was born.

According to a Congressional Research Service Report from 2009, Bush’s Executive Order 13292

• eliminate[s] the Clinton order’s standard that information should not be classified if there is “significant doubt” about the need to do so;

• treats information obtained in confidence from foreign governments as classified;

• authorizes the Vice President, “in the performance of executive duties,” to classify information originally;

• adds “infrastructures” and “protection services” to the categories of classifiable information;

• eases the reclassification of declassified records;

• postpones the starting date for automatic declassification of protected records 25 or more years old from April 17, 2003, to December 31, 2006;

• eliminates the requirement that agencies prepare plans for declassifying records;

• cancels the order requiring the Archivist to create a “government wide database of information that has been declassified,” and instead requires the “Director of the Information Security Oversight Office [ISCAP]. . . [to] coordinate the linkage and effective utilization of existing agency databases of records that have been declassified and publicly released”; and

• permits the Director of Central Intelligence to block declassification actions of the ISCAP, unless overruled by the President.210

This manipulation of the marketplace of ideas has existed since President Wilson set the precedent of noble lies in the First World War.²¹¹ Since then, almost every president has taken up the mantle of keeping secrets and the American exceptionalism narrative without question. This is another form of manipulation of the marketplace of ideas, whereby the executive even created Rumsfeld’s famed “known unknowns”212 by removing information from the complete set of what is known to exist, if the content is known or not, in the marketplace of ideas.

Moreover, Vice President Cheney himself described this specific expansion of the vice president’s powers as creating a secret, unilateral classification authority.²¹³ And why did the vice president need so much authority for declassification procedures? Surely the person of the president, embodied in his imperial executive, was enough authority. Vice President Cheney could not get access to classified information he wanted because of the constrictions on Executive Order 12598. He needed the president to create an exception to his own rules for the vice president!

Private entities also manipulate the marketplace of ideas in times of war. Many recollect that William Randolph Hearst used yellow journalism to sensationalize the internal Spanish colonial problems in Cuba and push the United States into the Spanish-American War, for the paper’s profit.²¹⁴ More narrowly, the media cannot withhold vital information from the marketplace of ideas that underlies the basis for which people make informed political decisions, while claiming First Amendment protection at the same time. The Fourth Estate exists to do the opposite of that.

Eight years before the Guardian dropped the Edward Snowden bombshell in 2013, the New York Times shocked the world by revealing that the NSA, “[u]nder a presidential order signed in 2002, . . . has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible ‘dirty numbers’ linked to Al Qaeda.”²¹⁵ The article referenced a “temporary suspen[sion],” of the program in 2004,²¹⁶ undoubtedly due to the FBI-Justice 2004 James Comey–led Mutiny that was hushed up until the summer of 2007.²¹⁷

However, the New York Times had created its own “known unknown” about the War on Terror and the powers of the government: “The White House asked the New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.”218

The Times editors held the story for an entire year because the president’s men asked them to do so, and during that year, George W. Bush was reelected to the presidency.

The editors of the Times knew since 2004 that “the number monitored in this country may have reached into the thousands over the past three years”²¹⁹—a modest revelation compared to the hundred-million-plus bombshell the Guardian would drop a few years later during the Obama administration. However, as one of the authors, Eric Lichtblau, later admitted in 2008, he and his colleagues received the same scare tactics as those that were used on Comey in the Justice-FBI Mutiny: “The clichés did their work; the message was unmistakable: If the New York Times went ahead and published this story, we would share the blame for the next terrorist attack.”²²⁰

PRISM Takes the Torch: The Protect America Act of 2007 and the 2008 FISA Court Amendments

By September 2006, the Bush administration was in bad shape. Its own Justice Department and FBI had mutinied in 2004; the New York Times discredited the administration’s surveillance program in December 2005; Doe I–IV was in consideration from 2004 to 2007; Mayfield was an ongoing public embarrassment between 2004 and 2007; Rasul, Padilla, and Hamdan—major Supreme Court blows to the Guantanamo rendition and torture regime—were all handed down between 2004 and 2006; Abu Ghraib was a public scandal between 2003 and 2004; “Scooter” Libby was indicted for leaking classified information in October 2005 (which Cheney authorized under his new Executive Order 13292 powers);²²¹ the House of Representatives fell to the Democrats in 2006; and Bush fired Rumsfeld the following day and replaced him with Robert Gates, the best friend of Bush’s father. Bush and Cheney did not have the political capital to maintain their vast data and military empire that dug into every aspect of American lives.

The executive could no longer be answerable for such a program as the PSP—the American people wouldn’t stand for it.222 Thus, President Bush “decided not to reauthorize these activities and the final Presidential Authorization expired on February 1, 2007” in order to “work on the transition of authority” to a body that can’t be held accountable: The judiciary.²²³ And thereby, “[c]ertain activities that were originally authorized as part of the PSP have subsequently been authorized under orders issued by the Foreign Intelligence Surveillance Court (FISC).”²²⁴

The picture wasn’t that simple, however. The president needed Congress to approve the shift of accountability; FISA and the power to modify federal court jurisdiction belonged expressly to a Congress which has always jealously guarded those prerogatives. Thus, through two acts of Congress, political accountability shifted away from the executive to the judiciary through the collusion of the political branches. This was accomplished through the Protect America Act of 2007 and the FISA Amendments Act of 2008, which bridged the gap from unconstitutional executive program to executive program with the imprimatur of a secret Article III court.²²⁵

The Protect America Act of 2007 was one of the many totalitarian acts that Bush signed into law. The Act modified FISA to permit the “acquisition” of information, so long as “reasonable” procedures were in place for gaining electronic intelligence information on people “reasonably believed to be located outside the United States” with a “significant purpose” of acquiring foreign intelligence information, regardless of citizenship, and pursuant to the directive of the Director of National Intelligence and the Attorney General.²²⁶ The Fourth Amendment certainly had a different bar for governmental interference with private communications. Moreover, it conscripted the assistance of “service provider, custodian, or other person (including any officer, employee, agent, or other specified person of such service provider, custodian, or other person) who has access to communications, either as they are transmitted or while they are stored” in complying with the executive directives.227

The Protect America Act included an “appeals” mechanism, however: “The court’s review [would] be limited to whether the Government’s determination is clearly erroneous.” Moreover, that determination was limited to whether the Justice Department and NSA’s “procedures are reasonably designed to ensure that acquisitions conducted . . . do not constitute electronic surveillance.”²²⁸ The Act passed in the Senate in a vote of 60 to 28, and in the House in a vote of 227 to 183.

The FISA Amendment Acts of 2008 added a new Title VII to the FISA.²²⁹ The Act iterated the same compulsory requirements of the Protect America Act; however, it contained a new, invidious twist in Section 702 that continued the deepest data mining of the now-defunct PSP:

(h) DIRECTIVES AND JUDICIAL REVIEW OF DIRECTIVES.—

(1) AUTHORITY.—With respect to an acquisition authorized . . .[by] the Attorney General and the Director of National Intelligence . . . , in writing, an electronic communication service provider to—

(A) immediately provide the Government with all information, facilities, or assistance necessary to accomplish the acquisition in a manner that will protect the secrecy of the acquisition and produce a minimum of interference with the services that such electronic communication service provider is providing to the target of the acquisition; and

(B) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the acquisition or the aid furnished that such electronic communication service provider wishes to maintain.

(2) COMPENSATION.—The Government shall compensate, at the prevailing rate, an electronic communication service provider for providing information, facilities, or assistance in accordance with a directive issued pursuant to paragraph (1).

(3) RELEASE FROM LIABILITY.—No cause of action shall lie in any court against any electronic communication service provider for providing any information, facilities, or assistance in accordance with a directive issued pursuant to paragraph (1).230

Not only was the government going to compensate the telecommunications and Internet companies for their betrayal of essentially all American data they had while keeping their mouths shut, it also released them from criminal and civil liability. The FISA Court merely had the power to review for some vague unlawfulness and whether the conduct was “electronic surveillance,” whatever that amorphous term means.²³¹

The new Acts accomplished the PSP’s goals and practical effects under the secret eye of the FISA Court, which later revelations would show had significant trouble dealing with the NSA’s brazen lawlessness. The new NSA program created pursuant to this accountability-shifting Section 702 of the FISA Amendments Act, the Protect America Act of 2007, and Section 215 of the PATRIOT Act was entitled PRISM and would be continued into the presidency of Barack H. Obama.²³² On the day the FISA Amendments Act was signed into law, the ACLU filed suit in what would become Clapper v. Amnesty International.²³³

The record of the George W. Bush administration for protection of fundamental liberties is as poor as those of John Adams, Lincoln, and Wilson. Yet most Americans went along—until they learned about torture. Remember torture? It was the use of it by Saddam Hussein that Bush claimed justified invading Iraq—until he, too, used it, as we shall now see.

* George Orwell, 1984 (New York: Signet Classics, 1950), 180.

* “Grand Council of Clerics.”

** “Clerics.”

* “Weapons of Mass Destruction,” as in those possessed by the U.S. government.

* For example, the Fox television show Arrested Development made a rather humorous reference to this in an episode where a defense attorney for the Bluth family, Wayne Jarvis, was now prosecuting them for the same crimes for which he was previously defending them. What was the excuse for the lawyer’s clearly illegal and unethical behavior? Michael Hurwitz, Arrested Development, produced by Ron Howard, Culver City, CA: Fox Television Broadcast, 2004.

* Deus vult, “God wills it,” was the rallying cry of the First Crusade. Pope Urban II bellowed it out at a sermon at the Council of Clermont, bringing the kings of Europe into a long and bloody struggle in the Middle East. “Medieval Sourcebook: Urban II: Speech at Clermont 1095 (Robert the Monk version),” in James Harvey Robinson, ed., Readings in European History, vol. 1 (Boston: Ginn and Co., 1904), 312–16, http://www.fordham.edu/halsall/source/urban2a.html.

* John Markoff had been writing about it since February and right up until a few days before Safire wrote his article. John Markoff, “Chief Takes Over New Agency to Thwart Attacks on U.S.,” New York Times, February 13, 2002, http://www.nytimes.com/2002/02/13/us/chief-takes-over-at-agency-to-thwart-attacks-on-us.html; see endnote 87.

* In fact, some government officials or subcontractors have been using this power to spy on love interests, with the practice garnering its own intelligence community shorthand acronym, LOVEINT. The Atlantic noted that there have been thousands of individuals affected by unreported NSA compliance incidents. Conor Friedersdorf, “Lawbreaking at the NSA: Bring On a New Church Committee,” Atlantic, August 16, 2013, http://www.theatlantic.com/politics/archive/2013/08/lawbreaking-at-the-nsa-bring-on-a-new-churchcommittee/278750/; Mike Masnick, “NSA Admits Okay, Okay, There Have Been a Bunch of Intentional Abuses, Including Spying on Love Interests,” Tech Dirt, August 23, 2013, http://www.techdirt.com/articles/20130823/18432024301/nsa-admits-okay-okay-there-have-been-bunch-intentional-abuses-including-spying-loved-ones.shtml; Siobhan Gorman, “NSA Officers Spy on Love Interests,” Wall Street Journal, August 23, 2013, http://blogs.wsj.com/washwire/2013/08/23/nsa-officers-sometimes-spy-on-love-interests/.