Bush After 9/11

While George W. Bush's connections with industry sometimes led to charges of corrupt practices during his time in the White House, his presidency became swiftly and indelibly associated with efforts, often open, to evade and erode laws protecting the civil liberties of U.S. citizens in an effort to combat terrorism. The administration's response to charges of such misconduct, which has become its enduring legacy for the institution of the presidency, amounted in the end to the crafting of new legal justifications superseding older, and sometimes fundamental, law.  

Surveillance of U.S. Citizens

The Bush administration's most public forms of misconduct arose from its responses to the terrorist attacks on New York City and Washington, D.C., on September 11, 2001. Among those responses was an increased surveillance effort within the United States. In seeking to prevent further attacks, the White House expanded its programs for intelligence gathering beyond what the law allowed, while also seeking to expand the law to accommodate the scope of the administration's ambitions. 

The New York Times reported on December 16, 2005, that the administration had authorized the National Security Agency (NSA) to conduct surveillance of Americans' private communications without seeking the judicial warrants required by the Foreign Intelligence Surveillance Act (FISA) of 1978. FISA created special procedures designed to permit surveillance with minimal judicial review. Its secret court had a history of accommodating requests for electronic eavesdropping, and between its creation in 1978 and 2004, it rejected only five requests as against the 18,761 it granted.

The USA PATRIOT Act of 2001 expanded intelligence-gathering capacity in response to the terrorist attacks that year without overturning the legal provisions requiring FISA warrants for domestic surveillance. Contrary to the FISA law, the President had ordered the NSA to gather information within the United States shortly after the September 11 terrorist attacks, and he continued to reauthorize this surveillance periodically over the next several years.

Under the president's order, the NSA gained access to the switches of private telecommunications firms so it could intercept information streams routed through those switches. The information collected came from throughout the world but also included information streams originating from Americans talking to their fellow citizens solely within the United States. Having collected the information, the NSA shared it with other law enforcement and intelligence-gathering agencies.

Once the New York Times revealed the existence of the program, administration officials publicly acknowledged using such means to listen, without warrant, to communications they thought might be going to, or coming from, a terrorist organization, and they referred to the operation as the “Terrorist Surveillance Program.” In addition, the administration did not acknowledge and did not disclose other forms of surveillance undertaken by the NSA under the same set of orders. 

In 2006, after the New York Times story led to increased public scrutiny of the administration's intelligence gathering on Americans, the Bush administration sought an authorization from the FISA court for its surveillance. In 2008, Congress amended FISA to accommodate the surveillance program and render its previous illegality ineffectual. Telecommunications companies thereby gained immunity from legal responsibility for cooperating with the government in breaking the law, and the government was permitted to destroy records relating to the program.

A 2009 internal analysis of the President's Surveillance Program, as it came to be called, concluded that it had yielded little information of use in combating terrorism. This report, declassified in 2015, also detailed the administration's responses to charges, both internal and external, that its surveillance program was unlawful. When urged by legal opinions or by press revelations, the administration sought fresh legal justifications and new procedures that would permit it to continue its program of surveillance within the United States under the thus changed color of law.

Justification for War and Exposing Valerie Plame 

In 2003, Bush administration officials faced accusations that they had exposed the identity of a covert CIA operative to punish her husband for criticizing the war in Iraq. 

Valerie E. Plame, a longtime CIA employee, had worked for the agency's Weapons Intelligence, Non-Proliferation and Arms Control Center. Although much of her career remains classified, she apparently served the CIA in Europe under nonofficial cover—in other words, as a covert operative pretending to be a private businessperson. Unlike spies who serve in official governmental positions, agents with nonofficial cover are not covered by diplomatic immunity and are therefore more vulnerable to prosecution and retaliation by foreign governments if they are exposed. 

Plame moved to Washington in 1997 to work at the CIA's headquarters in Langley, Virginia, and in 2002 she was working as part of a team of CIA operatives charged with investigating accusations that Iraq's President, Saddam Hussein, had sought to buy uranium from the country of Niger as part of his alleged program to build nuclear weapons. The CIA decided to send an investigator to Niger to verify the claims. PIame suggested that the agency use her husband, Joseph C. Wilson IV, a former Ambassador to Gabon and a career Foreign Service officer, for that purpose. 

During his trip to Niger, Wilson decided that there was little evidence to support the charge that Iraq had tried to buy uranium there. He filed a report of his findings to the CIA and the White House. Two other official U.S. investigations came to similar conclusions.

Wilson was therefore surprised to hear President Bush declare in his 2003 State of the Union Address that Iraq had attempted to purchase radioactive material from Niger. “The British government, the president said, “has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.” Bush also linked Hussein with the terrorist group Al Qaeda and suggested that Iraq might pass nuclear material to the group: “Secretly, and without fingerprints, he could provide one of his hidden weapons to terrorists, or help them develop their own.”

Knowing that the president had received two other reports besides his own discounting the uranium purchase from Niger, Wilson assumed that Bush must be referring to a different African country. But a few weeks later, on March 7, 2003, Mohamed M. ElBaradei, the Director General of the International Atomic Energy Agency, told the United Nations Security Council that the Bush administration had based its claims on forged documents about a nonexistent Iraq-Niger uranium deal. Indeed, one member of ElBaradei's staff told the New Yorker that the forgeries were shockingly obvious: “These documents are so bad that I cannot imagine that they came from a serious intelligence agency," he said. “It depresses me, given the low quality of the documents, that it was not stopped.”

The State Department said it had been deceived by the forgeries. Nevertheless, the United States invaded Iraq on March 20, and President Bush cited Iraq's alleged weapons of mass destruction as a major part of the case for the invasion.

Wilson knew that the Bush administration had not been deceived: it had deliberately ignored three different reports on the Iraq-Niger link and had manipulated intelligence to exaggerate the Iraqi threat. In July 2003, he decided to go public with his experience. In an op-ed published in the New York Times and headlined “What I Didn't Find in Africa," Wilson described his investigation and his findings and concluded that the Bush administration had twisted intelligence to justify its war. “A legitimate argument can be made,” Wilson wrote, “that we went under false pretenses." 

Torture 

In late April 2004, the CBS News show 60 Minutes aired a segment about abuse and torture at the Abu Ghraib U.S. detention center in Iraq. TV viewers saw deeply disturbing photos of U.S. soldiers abusing and humiliating prisoners and even one picture of a detainee who appeared to have died from a beating. The next week, the New Yorker magazine published an article on Abu Ghraib by reporter Seymour M. Hersh that disclosed more photos of prisoner abuse and included quotations from an official U.S. Army inquiry into the torture.

Torture was illegal under U.S. and international law. The United States had signed the Geneva Conventions and the UN Convention Against Torture. In addition, Congress in 1996 passed the War Crimes Act, which made it possible to prosecute grave violations of the Geneva Conventions in U.S. courts. However, in the aftermath of the September 11 terrorist attacks, some military officers and administration officials had become convinced that it might be necessary to use torture to obtain information to stop future attacks. 

Military spokesmen insisted that the Abu Ghraib abuses were the actions of a few bad actors who broke the rules. Indeed, eleven American soldiers were convicted of various crimes related to the abuse, including dereliction of duty, abuse of detainees, assault, and committing indecent acts. But Americans soon learned that the torture of detainees had been authorized at the highest levels. Beginning in June 2004, shortly after Hersh's exposé, a series of Bush administration legal documents, soon known as the “torture memos,' were leaked to the press.

President Bush responded to the charges by attributing the Abu Ghraib scandal to “disgraceful conduct by a few American troops who dishonored our country and disregarded our values” and by denying that U.S. interrogators routinely used torture. Bush also supported Vice President Cheney's efforts to try to block a new congressional ban on torture sponsored by Senator John S. McCain III, a victim of torture during the Vietnam War.

Cheney, who had memorably stated five days after the September 11 attacks that the United States needed “to work sort of the dark side, if you will” to combat terrorism, wanted to stop Congress from passing the law or at least to modify it to exempt the CIA. When Congress did pass the ban, Bush issued a signing statement insisting that he could bypass the law if he thought its prohibitions endangered the nation's security.

When Barack Obama became president, he formally revoked the torture memos, ended the use of harsh interrogation practices, and closed the CIA's black sites (though not the prison at Guantánamo). Yet while the Obama administration also released four more of the Bush-era memos on interrogation guidelines, it declined to press charges against those who relied on their reasoning. “It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department,” said Attorney General Eric H. Holder, Jr.

Copyright © 2019 by The New Press. Adapted from a longer essay which originally appeared in Presidential Misconduct: From George Washington to Today, edited by James M. Banner, Jr. Published by The New Press. Reprinted here with permission.