Obama's new FBI chief approved Bush's NSA warrantless wiretapping scheme, leading advocate for Bush's denial of the most basic due process.

Obama's new FBI chief approved Bush's NSA warrantless wiretapping scheme, leading advocate for Bush's denial of the most basic due process. HT: Guardian.By Glenn Greenwald.

One of the biggest scandals of the Bush administration (which is really saying something) began on December 16, 2005. That was when the New York Times' James Risen and Eric Lichtblau were finally allowed to reveal what they had learned more than a year earlier: namely, that President Bush, in 2002, had ordered the National Security Agency to eavesdrop on the electronic communications of US citizens without first obtaining warrants from the FISA court as required by 30-year-old criminal law. For the next three years, they reported, the NSA "monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants." The two NYT reporters won the Pulitzer Prize for that story.

To say that progressives and liberals bellowed sustained outrage over that revelation is to understate the case. That NSA program was revealed less than two months after I first began writing about political issues, and I spent the next full year overwhelmingly focused on that story, and also wrote my first book on it. In progressive circles, the NSA warrantless eavesdropping program was the pure symbol of Bush/Cheney radicalism and lawlessness: they secretly decided that they were empowered to break the law, to commit what US statutes classified as felonies, based on extremist theories of executive power that held that the President, as Commander-in-Chief, was entitled under Article II of the Constitution to eavesdrop however he wanted in the name of national security, even if it meant doing exactly that which the law forbade.

The FISA law provided that anyone who eavesdrops without the required warrants - exactly what Bush officials did - is committing a felony "punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both" - for each offense. Moreover, all three federal judges who actually ruled on the merits of the Bush NSA warrantless eavesdropping program concluded that it violated the law.

So why, then, was there no accountability for this systematic illegal spying? That happened for two reasons. First, both the Bush DOJ and then the Obama DOJ successfully convinced obsequious federal courts that the eavesdropping program was so secretive that national security would be harmed if courts were to adjudicate its legality - in other words, top government officials should be placed above and beyond the rule of law because doing so is necessary to Keep Us Safe™. Second, the Bush DOJ's most senior lawyers - Attorney General John Ashcroft, Deputy Attorney General James Comey and OLC chief Jack Goldsmith - approved a legal memorandum in 2004 endorsing radical executive power theories and warped statutory interpretations, concluding that the Bush NSA warrantless eavesdropping program was legal, thus making it more difficult to prosecute the Bush officials who ordered it (even if the Obama DOJ were inclined to prosecute, which they were not).

Another of the most controversial acts of the Bush administration was the due-process-free imprisonment of US citizen Jose Padilla, who was arrested in 2002 on US soil, then put in a military brig, without charges, for 3 1/2 years. During that time, he was denied a lawyer, held incommunicado, and tortured. That was the incident that, more than any other, really motivated me to begin writing about politics: back then, it actually shocked me that the US government would claim the power to imprison US citizens on US soil without charges of any kind. As Charles Davis recalls, it was James Comey who took a leading role in the Bush administration in defending that lawless imprisonment, arguing in 2004:

"Had we tried to make a case against Jose Padilla through our criminal justice system, something that I, as the United States attorney in New York, could not do at that time without jeopardizing intelligence sources, he would very likely have followed his lawyer's advice and said nothing, which would have been his constitutional right.

"He would likely have ended up a free man, with our only hope being to try to follow him 24 hours a day, seven days a week, and hope -- pray, really -- that we didn't lose him. . . .

"Two years ago, the president of the United States faced a very difficult choice. After a careful process, he decided to declare Jose Padilla for what he was: an enemy combatant, a member of a terrorist army bent on waging war against innocent civilians. And the president's decision was to hold him to protect the American people and to find out what he knows.

"We now know much of what Jose Padilla knows, and what we have learned confirms that the president of the United States made the right call, and that that call saved lives."

Indeed, when the Bush administration declared Padilla to be an "enemy combatant" and thus removed him from the civilian court system and imprisoned him without charges, Comey was the US Attorney in New York, where Padilla's case was contested. He then became a leading advocate for Bush's denial of the most basic due process to this US citizen. That is who Obama-loyal progressives today are hailing. And that is who is about to lead the FBI, thanks to President Obama.

On Monday, when I wrote about Obama's terrorism speech, I noted the gushing editorial from the New York Times that was published very shortly after the speech was over, and suggested that its length and detailed discussion of the speech meant that the editors had been given an advanced preview by the White House. The paper's editorial page editor, Andy Rosenthal, did acknowledge yesterday that at least part of the praise for Obama's speech was unwarranted. Furthermore, Charlie Savage did preview the speech in the NYT the day before it was delivered. But the NYT editorial page editors insist to me that they did not themselves receive any advanced review, but rather wrote the editorial based on the speech as it was delivered. I take them at their word that this is true.

The ACLU today issued a statement on Comey's nomination which, among other things, pointed out that "as the second-highest ranked Justice Department official under John Ashcroft, Comey approved some of the worst abuses committed by the Bush administration." In other words, he's the ideal choice for President Obama to run the FBI. Anyway, as the president taught us long ago, it's really unproductive - and more than a little crass - to Look Backward when it comes to our most powerful political officials. It's just not a nice thing to do. What's a little illegal warrantless eavesdropping, torture, and lawless imprisonment of US citizens among friends? We all make mistakes. Just keep Looking Forward.Hmmmm........'I'm not a Dictator'.Read the full story here.