Bush's Law: The Remaking of American Justice

In his new book on the Justice Department under George Bush, New York Times reporter Eric Lichtblau, who, along with James Risen, broke the warrantless wiretapping story, sheds more light on this episode (while leaving plenty unexplained). But putting Lichtblau's telling together with recently reported details about the National Security Agency's data driftnet, it's possible to come to a fuller understanding of what was going on.

Shortly after 9/11, the administration began a much more aggressive surveillance program, a program that had two main components: an aggressive data mining program led by the National Security Agency and wiretapping done without a warrant that stemmed from leads generated by the data mining.

While that program was ongoing, the FISA court was still approving warrants submitted by the Justice Department like normal. But sometimes the two processes crossed. Sometimes the Justice Department would want a wiretap for someone who had already been wiretapped without a warrant. Lichtblau reports that "some 10 to 20 percent of all court warrants fell into this area of 'double coverage.'" Department lawyers had a clear reason for wanting to go through the court if possible: they could not build a legal case against a suspect if the surveillance was illegal.

In that case, the Department, with the consent of the chief judge of the FISA court, set up a system where only the chief judge would handle such applications -- since none of the other judges were privy to the program. It was a dicey process. James Baker, the Justice Department official in charge of intelligence issues, set up a process where any Department lawyers working under him could "opt out," if he or she didn't feel comfortable forwarding such a wiretap application to the court, Lichtblau reports. "Several lawyers" took him up on that offer.

But about that data mining. The NSA's driftnet spat out leads that FBI agents found largely useless. Lichtblau explains:

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From Amazon.com

Book Description
In the aftermath of 9/11, President Bush and his top advisors declared that the struggle against terrorism would be nothing less than a war–a new kind of war that would require new tactics, new tools, and a new mind-set. Bush’s Law is the unprecedented account of how the Bush administration employed its “war on terror” to mask the most radical remaking of American justice in generations.

On orders from the highest levels of the administration, counterterrorism officials at the FBI, the NSA, and the CIA were asked to play roles they had never played before. But with that unprecedented power, administration officials butted up against–or disregarded altogether–the legal restrictions meant to safeguard Americans’ rights, as they gave legal sanction to covert programs and secret interrogation tactics, a swept up thousands of suspects in the drift net.

Eric Lichtblau, who has covered the Justice Department and national security issues for the duration of the Bush administration, details not only the development of the NSA’s warrantless wiretapping program–initiated by the vice president’s office in the weeks after 9/11–but also the intense pressure that the White House brought to bear on The New York Times to thwart his story on the program.

Bush’s Law is an unparalleled and authoritative investigative report on the hidden internal struggles over secret programs and policies that tore at the constitutional fabric of the country and, ultimately, brought down an attorney general.

About the Author
Eric Lichtblau received the 2006 Pulitzer Prize for national reporting, for his stories on the NSA's wiretapping program. He has worked in the Washington bureau of The New York Times, covering the Justice Department, since 2002. From 1999 to 2002 he covered the Justice Department for the Los Angeles Times. He is a graduate of Cornell University and lives in the Washington, D.C., area.