Pruning Shears

No Associated Press content was harmed in the writing of this post

After September 11th George Bush authorized warrantless wiretapping called the Terrorist Surveillance Program (TSP) and for several years it went on under (at best) arguably legal circumstances. On March 4th, 2004 then-Attorney General John Ashcroft was briefed on a review of the program by the Department of Justice (DOJ) Office of Legal Counsel (OLC); he indicated changes needed to be made. Six days later the dubious authorization expired, leaving not so much as a fig leaf of legal cover. Bush then reauthorized the TSP the next day without a DOJ certificate of legality, and it continued (pdf) “for a period of several weeks following March 11, 2004.” Details are fuzzy - we do not know exactly when it was re-certified (as far as I know), but the key point is that as of then there was not even the flimsiest legal cover for warrantless wiretapping.

On that very day Wendell Belew, a Washington D.C. lawyer, was wiretapped by the government without a warrant. He represented a Saudi Arabian charity under federal suspicion and the government was listening in. Then, as Ryan Singel reported, in an epic bureaucratic failure the details the wiretapping were delivered to him. When it was discovered agents seized the documents back and basically told Belew he should forget he had ever seen anything. When he realized what it might have meant he sued.

For those of us already persuaded of the organized criminality of the Bush White House this represents a nearly miraculous confluence of events. The Bush OLC threw sand into the gears of justice by issuing memos known as “Golden Shields” because they can be used to claim innocence on anything they cover. Any charges against high ranking officials can be disputed by their pointing to the lawyers and saying they believed it was legal. Forget whether it is a legally valid strategy or whether it ultimately would prevail; all that matters is that it would be used to contest any charges and make the legal waters murky. This particular case, though, occurred when no Golden Shields were in effect and the TSP had not yet been reauthorized. It happened during that tiny window when the administration was completely legally exposed.

Another remarkable aspect is the implication of the wiretapping disclosure. As Singel pointed out the main hurdle to litigating the TSP the circular logic of “standing.” You need legal standing - the ability to show direct harm to you - in order to contest it, but since no one knew they were being tapped they could not know they were being harmed! (Presumably the government could find some other way to explain how the harm occurred.)

The stars then seemed to align: A mistake with microscopic probability happens during a short window of opportunity to provide a legal argument that is otherwise essentially foreclosed. What are the odds? It sets up a case where the usual obfuscation does not apply, and instead is basically straightforward and crystal clear. It does not involve a bewildering cast of characters or Byzantine skullduggery. On the face of it, it is the kind of case that would seem to be tailor made for a conviction; all we needed was an indictment.

On Tuesday its statute of limitations expired.

The case could arguably still be litigated, but it is just that - arguable. Whether there was a conspiracy that resets the statute, other surveillance that might be uncovered during discovery, etc., are all issues that good lawyers will strenuously contest. Whatever else happens now, the best, clearest and easiest case to make has just passed from the law’s reach.

This is the first glimpse of what to expect as time goes on. As Glenn Greenwald pointed out last Saturday the Bush administration delayed, switched legal theories midstream and generally played games with the justice system in order to do what it wanted and minimize the opportunities for courts to rule. The human cost to these theories - having people languishing for years at a time without ever being charged or brought into any kind of system - is obviously the most compelling reason to stop indulging such transparent contempt for the law. However, as time goes on we also lose the opportunity to track down what has happened and if necessary bring the wrongdoers to justice. Statutes of limitation expire, memories fade, key players leave the scene, evidence degrades - time passes, and with it the chances for the stories of this era to be told. There has been plenty of talk about doing something but precious little action. Those now in Washington are turning into conspirators after the fact, and increasingly the deeds of the prior leadership become those of the current one. And the rest of ours as well.