NY Times Book Review of "Bush's Law"

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NY Times Book Review of "Bush's Law: The Remaking of American Justice"
By Eric Lichtblau (Pantheon 4/1/2008)
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NY Times - April 3, 2008
Behind the Scenes of Secret Surveillance and Its Public Unmasking
Reviewed By Jeffrey Rosen (Law Professor at George Washington University and legal affairs columnist for The New Republic)

Eric Lichtblau is used to being cast as a hero or a villain for his reporting about the war on terror. This year Mike McConnell, the director of national intelligence, predicted that “some Americans are going to die” because of the public debate that resulted when Mr. Lichtblau and his New York Times colleague James Risen disclosed the existence of the Bush administration’s secret surveillance program; for the same articles Mr. Lichtblau and Mr. Risen won the 2006 Pulitzer Prize for national reporting.

Now Mr. Lichtblau has produced a book about his experiences, “Bush’s Law.” It is a gripping account of Mr. Lichtblau’s efforts to expose various forms of secret surveillance and the Bush administration’s Nixonian efforts to retaliate against him and other critics: “All the President’s Men” for an age of terror. But this book offers much more than a journalist’s well-earned victory lap. Mr. Lichtblau also documents, with scrupulous detail, the broader costs of the Bush administration’s excesses for innocent victims and for the rule of law.

Mr. Lichtblau has especially memorable accounts of some of the 2,700 men locked up after 9/11 by American authorities; most of those men were never shown to have connections to terrorism.

There is Taj Bhatti, an elderly Pakistani doctor in Virginia whose house and computer discs were surreptitiously ransacked and who was secretly imprisoned in the county jail as a “material witness.” He was freed only after his son sent a press release to a local reporter; the federal magistrate who signed the arrest warrant (and prohibited Mr. Bhatti from talking about his imprisonment) then threatened the reporter with contempt.

There is Brandon Mayfield, the lawyer and former Army lieutenant from Kansas whose house was secretly searched and who was arrested after being linked to the Madrid bombings by an F.B.I. agent’s mistaken fingerprint match. (He got an apology and $2 million from the government.)

Mr. Lichtblau also describes the many innocent victims whose e-mail messages, phone calls and political activities were secretly surveilled. More than 180 peaceful groups opposed to the Iraq war ended up in the Pentagon’s Talon database, which was designed to collect leads that might be related to terrorism. (It included the names of people at antiwar rallies.) And by Mr. Lichtblau’s estimate “several thousand” people in the United States had their phone calls and e-mail messages secretly surveilled without warrants because of suspected ties to terrorism.

They included an Iranian-American doctor in Kentucky suspected of possibly helping Osama bin Laden with his kidney ailments simply because he was a nephrologist. Mr. Lichtblau identifies another possible victim: a teenage student at the Horace Mann School in New York who sent e-mail messages to India about parking spots in Manhattan, which led F.B.I. agents to show up at his door. (It turned out he wanted to rent the spots to out-of-towners.)

In addition to sweeping up innocent people in dragnets, the Bush administration, according to Mr. Lichtblau, was ruthless in retaliating against its critics, in and out of government. He describes the many government officials who committed “career suicide” by questioning President Bush’s policies, including James Ziglar, the commissioner of the Immigration and Naturalization Service, who questioned sweeps and arrests in Muslim neighborhoods in Dearborn, Mich., and an F.B.I. whistle-blower who was frozen out of government after complaining about a bungled terrorism investigation and ended up working for the American Civil Liberties Union. After reporting about the F.B.I.’s interest in antiwar demonstrators, Mr. Lichtblau himself saw his press pass canceled by the Justice Department’s director of public affairs.

That was just a warm-up for the titanic battle to come, pitting President Bush and his top advisers against the editors of The Times, as the journalists decided whether to publish the article by Mr. Lichtblau and Mr. Risen that disclosed the secret surveillance program. In a series of meetings that lasted 14 months, beginning weeks before the 2004 presidential elections, President Bush and 10 senior advisers made personal appeals to The Times not to run the article. In mid-December 2004 the editors initially decided not to run it because of concerns about national security.

But in the fall of 2005 Mr. Risen told the editors that he was thinking of including the story in his own forthcoming book, and they began to reconsider. It was now clear, Mr. Lichtblau writes, that the administration had lied to The Times in describing the scope of the program and in claiming that administration lawyers unanimously supported it. Mr. Lichtblau’s reporting revealed that there were deep divisions about the program’s legality at the highest levels of the administration. And when Mr. Lichtblau learned that administration officials had discussed seeking an injunction against The Times, just as President Richard M. Nixon had tried to enjoin the publication of the Pentagon Papers, the Nixonian tactic helped seal The Times’s decision to publish the article and to post it first on the Web, so that the presses literally couldn’t be stopped.

Mr. Lichtblau argues that the administration’s national security arguments were overblown. The government had already pledged to eavesdrop on Al Qaeda, he notes. Therefore it wasn’t news to anyone that it was making good on the pledge; the news was that it was refusing to get court orders to do so, despite President Bush’s public claims to the contrary.

Nevertheless, Jack Goldsmith, the conservative lawyer who led an internal revolt in the Bush Justice Department against the original warrantless wiretapping program, which he believed may have been illegal, has said that he agreed with President Bush that the disclosure of the program did “great harm to the nation.” More discussion of what those harms might possibly have involved would have strengthened Mr. Lichtblau’s argument that they were ultimately outweighed by the public interest in disclosure.

The public benefits are now obvious. Thanks to the reporting by Mr. Lichtblau and Mr. Risen we know that the president and his aides approved a secret eavesdropping program that many of his own top lawyers thought was illegal, lied about it to the press and the public and then attacked the journalists who disclosed it. Mr. Lichtblau also reveals that, because the program was on such shaky legal ground, administration officials feared it would taint other terrorist prosecutions. Far from disbanding the program after it was disclosed, as administration officials had initially threatened to do, they were forced instead to ask Congress to put it on sounder legal footing.

At a time when the press’s role in American democracy is being hotly contested, this book provides an inspiring example of reporters doing what they do best: checking claims of unlimited governmental power and protecting the public’s right to know.