..out of the dark

What is going on here, though? The basics are as following: at an early point after September the 11th, the President of the United States would issue a series of executive orders, allowing this and that anti- terrorism effort to be approved, continued, or adjusted. This is not the first time the Bush- administration and the President have done so under the executive branch's very special authority to act independently. And neither are they the first administration to exercise their authority in this manner. Nor are they the first administration to have been caught up in the curious overlap between the "national security sphere" and the "domestic law enforcement sphere".

But let's stop at the first point - most of these programs are unproblematic when approved, and the process is something along these lines: a push towards taking such and such action is suggested. If this is from the administration itself, then the White House legal counsel will make a suggestion on whether this is within the law, or whether new law must then be approved by Congress. If it requires extensive assessments and bureaucratic work, it is referred to the DOJ before anything else. And eventually returned with the proper paper- work and possibly the needed adjustments.

What has happened in this case is the reverse. The administration approved a controversial program presumably based on White House counsel mr. Addington's advice, under the idea that the president would be able to - in this case - order surveillance domestically as well as internationally under existing law. Due to the national security threats being targeted. While officially the administration went even further, and proclaimed that even if the program was not legal under existing law, it would still be covered by the executive branch's "unitary executive power". The program then went ahead, and has apparently been operating since.

Later, much later, the DOJ would end up challenging this theory. Why officials at the DOJ would arrive at this new conclusion, whether they knew about the program on beforehand, etc, is not known. But.. one can speculate that the leak to the NYtimes about how the administration was spying on americans without warrants, may very well have been the reason why the issue was even raised at the DOJ at all.

Now, the attorney general at the time, John Ashcroft, would be required under the statutes in place to regularly sign off on the surveillance the executive branch would order when it comes to the national security aspect. This is nothing new, and is accepted under FISA. And the only limitation to this kind of surveillance in the national security sphere is that evidence of this sort cannot be used to prosecute anyone in an american court. If such prosecution is the goal, then there are other statutes in common law that must be followed. And in fact, any spying domestically that does not conform with this common law is illegal, and explicitly so. Meaning that any incidental spying without a warrant has legal implications when it comes to american law, even if the president believes he is only using his perfectly legal means, according to american law, to spy on everyone he wishes. As we know, the Foreign Intelligence Surveillance Act (FISA) was written to rebuff the president's assumed powers to conduct such surveillance, because of this conflict between the domestic and foreign intelligence- gathering that for instance Nixon had a problem with.

Presumably, Ashcroft's assistant had an epiphany at one point and discovered this, and later convinced Ashcroft that another justification than the current one in place had to be engineered. In order to "bring the program under the law". And here is where the various unconvincing rationales show up, as the now gallantly posing mr. Comey scurried to find some way to accommodate the White House.

Now, these rationales that keep turning up - such as the extended authorisation for use of force in Afghanistan that includes imposing limited martial law anywhere in the world, including the USA, or the curious circumventions of the geneva conventions - all have something in common. And it is that they are thought up after the fact. In order to give what was already done a shine of legitimacy. And this is what the struggle internally at the White House consists of: Whether or not to formally declare that the president is above the law.

Just consider the attitude at the leadership in the DOJ - their task, it appears, is to accommodate the law to fit with the president's wishes. Not to challenge the White House and offer suggestions as to what is legal, in other words.

And contrast this fight with the repeated (and successful) attempts to have the Congress sign off on anything the president wishes for. Once again, the evidence that the President approved illegal programs and only later sought a way to make the program legal under the law is glaring. When Congress suspended habeas corpus and abrogated the lawmaking responsibilities on determining who would lose that status to the president, for instance, it was evidently done so in order to manufacture a justification for the very controversial practices on Guantanamo bay, as well as in the various "black sites" that were discovered at the time.

The question is this: now that we know, beyond a shadow of a doubt, that the administration is willing to do these things - to approve programs in secret that are flatly illegal, and then seek justification for them in retrospect. As well as then embrace semantic and unconvincing rationales in order to give their actions a shine of legitimacy. Given that, can it really be doubted that the administration and their advisers truly believe the president is above the law, or that anything the president signs must be legal?

And if so, is it not a concern that there is no way to quite know what the various justifications concocted at the DOJ really is a symptom of? What about the projects we do not know about, and which did not cause controversy in for instance Ashcroft's DOJ?


Of course - meanwhile, let's just all be thankful that the White House is arrogant enough to claim their actions are legal, and therefore are forced to eventually disclose at least some of their actions in some way. A more clever administration would simply have kept quiet, after all. But not being able to do so, the administration is now buying time enough to make it all die down again.

And I am sorry that I cannot say with any confidence that they will not succeed in doing exactly that.