The talk at the White House in the days and weeks after 9/11 was all about suitcase nukes and germ warfare and surprise decapitation strikes. Every morning, as they crossed West Executive Drive on their way to work in the West Wing, Bush administration staffers recall seeing a plain white truck with a galvanized metal chimney. Sensors sniffing for pathogens or radioactivity, they guessed, though they couldn't be sure. Like just about everything else at that spooky time, the purpose of the truck was a secret.
Such chilling sights are not likely to inspire thoughtful ruminations about the separation of powers or the true meaning of the Fourth Amendment's ban on unreasonable searches and seizures. The message to White House lawyers from their commander in chief, recalls one who was deeply involved at the time, was clear enough: find a way to exercise the full panoply of powers granted the president by Congress and the Constitution. If that meant pushing the boundaries of the law, so be it. The Bush ad--ministration did not throw away the Bill of Rights in the months and years that followed; indeed, NEWSWEEK has learned, ferocious behind-the-scenes infighting stalled for a time the administration's ambitious program of electronic spying on U.S. citizens at home and abroad.
On one day in the spring of 2004, White House chief of staff Andy Card and the then White House Counsel Alberto Gonzales made a bedside visit to John Ashcroft, attorney general at the time, who was stricken with a rare and painful pancreatic disease, to try--without success--to get him to reverse his deputy, Acting Attorney General James Comey, who was balking at the warrantless eavesdropping. Miffed that Comey, a straitlaced, by-the-book former U.S. attorney from New York, was not a "team player" on this and other issues, President George W. Bush dubbed him with a derisive nickname, "Cuomo," after Mario Cuomo, the New York governor who vacillated over running for president in the 1980s. (The White House denies this; Comey declined to comment.)
In a perfect democracy trying to strike a balance between civil liberties and national security, there would be reasoned, open debate between representatives of the different branches of government. But human nature and politics rarely work in neat and orderly ways. In moments of crisis, presidents, if they believe in executive power (and most inevitably do), will do almost anything to protect the country. Only after the crisis ebbs does the debate begin over the proper means and ends, and by then the people and their representatives are often shocked to find what the president has done in the name of protecting them. More than four years after September 11, America finds itself debating some of the oldest issues in our history: how to balance liberty and security, how much power we should cede to the White House and whether what the historian Arthur Schlesinger Jr. dubbed "The Imperial Presidency" amid Watergate is a good thing, a bad thing or something in between. That the war on terror is unconventional and seemingly endless adds to the difficulty and raises the stakes.
After 9/11, President Bush and his top advisers faced, they believed, a mortal yet invisible enemy. The mightiest armed forces in the world were not effective against such a shadowy foe. Nor were human spies much help. Movies and novels notwithstanding, the CIA had rarely (if --ever) penetrated a terrorist cell. America's one true weapon was technology. Spy satellites and the massive computers of the National Security Agency (so secret it was nicknamed "No Such Agency") were able to pluck telephone and e-mail conversations out of the air and ether. The NSA could cock a giant ear to America's enemies--and, ideally, overhear their plots.
As communications were increasingly digitized and encrypted, intelligence experts sometimes warned that the NSA was going deaf. Rare public statements by top NSA officials seemed to give credence to that worry. It appears, however, that the NSA was secretly working on sophisticated "data mining," computer programs that could sift through vast amounts of information searching for patterns and connections--in effect, "Googling" America's enemies. After 9/11, the government was criticized for not "connecting the dots," linking and following up on clues, like phone calls from hijackers hiding in the United States to their terror masters abroad. With the NSA's computers fully cranked up, Bush administration officials hoped, they would find other terrorist "sleeper cells" before they could strike again.
Still, there was a catch. In 1978, Congress passed the Foreign Intelligence Surveillance Act. FISA required intelligence agencies to obtain a warrant before eavesdropping on communications involving "U.S. persons." A reaction to CIA and FBI snooping on Americans at home and abroad, FISA was written for the cold war. It contemplated eavesdropping on telephone calls from, say, a KGB agent posing as a diplomat in Eastern Europe and a traveling American businessman. It was not meant for the instantaneous data mining of thousands of phone calls or e-mails as they flashed through the switches of American telecommunications companies. A secret court, set up by FISA, almost never turned down a government application for a warrant. But applying for one could require scores of pages of documents, several signatures, up to the attorney general's, and precious time. The law did allow for retroactive approval (within 72 hours). But as the NSA's computers tracked phone calls from Afghanistan and Pakistan to possible Qaeda sympathizers in America in those fevered days after 9/11, any red tape seemed like an unpardonable snare.
It does not appear that President Bush--determined to stand tall in the war on terror--or Vice President Cheney, a staunch believer in executive power, hesitated to circumvent FISA. Asserting the broad warmaking powers conferred on the president by Article 2 of the Constitution and by a post-9/11 congressional resolution authorizing the use of force to combat global terror, Bush repeatedly approved of what the NSA calls a "special collection program" that eavesdropped--without warrants--on about 500 Americans a day.
When the story of the NSA's program broke in The New York Times on Dec. 16, there was an immediate uproar in the press and on Capitol Hill. The reaction was predictably partisan. Most Republicans and conservatives defended Bush for safeguarding the country (though warrantless spying gave libertarians some pause). Most Democrats and liberals cited the eavesdropping program as more damning evidence that Bush and Cheney, already caught countenancing torture and jailing detainees without any legal rights, were running roughshod over civil liberties.
For all its histrionics, the debate was narrow and somewhat vacuous. It is still hard to know if America has not been attacked for the past four years because (1) the Bush administration has waged an effective war on terror or (2) the threat is not as severe as originally thought. The answer may be a bit of both. Likewise, it is unclear whether the eavesdropping has done much to thwart terrorist plots or, on the other hand, whether it has truly --robbed Americans of their privacy. Much of the eavesdropping is by a computer searching for key words, not a human being listening to a private conversation.
One thing is certain. The current debate over national security and civil liberties is not new. It follows a predictable pattern of a democracy in wartime. Through two centuries, the reactions and overreactions of American presidents to enemies at home and abroad have caused some sickening lurches, but the ship of state seems to have a self-righting mechanism. To understand the current struggle--and judge how seriously to take the Bush and Cheney bids for power--it is useful to compare this battle to all the balancing acts that have come before. The facts change, but the pattern varies little:
IN NATIONAL CRISES, PRESIDENTS REACH FOR POWER. Though the choice is rarely stated--or perhaps even conscious--a president will almost always choose to violate individual rights over the risk of losing a war. When the French threatened American sovereignty on the high seas in 1798, John Adams supported the Alien and Sedition Acts, blatantly punishing free speech as traitorous. When the Civil War broke out in 1861, Abraham Lincoln suspended habeas corpus (the rule giving citizens a right to take their grievances to court). During World War I, Woodrow Wilson allowed officials to prosecute anyone for criticizing the government. During World War II, Franklin Roosevelt allowed FBI Director J. Edgar Hoover to promiscuously wiretap, and ordered Japanese-Americans placed in internment camps. As the Vietnam War dragged on and domestic dissent arose, Richard Nixon--citing his Demo-cratic predecessors FDR and Lyndon Johnson--authorized bugging and wiretapping against domestic "subversives." None of these steps, it should be pointed out, made the nation appreciably safer.
It is still not clear how far President Bush went after 9/11 to ramp up the national-security machine. Clearly the president wanted to unleash the intelligence services as well as the military, which had grown cautious after Vietnam and Watergate. The full dimensions of this secret program have only slowly leaked out. The legal justification, in addition to the commander in chief's warmaking power under the Constitution, was a congressional resolution that was shouted through in September 2001, three days after the attacks. Most members of Congress seem to have assumed they were voting to authorize an attack on Al Qaeda and the Taliban in Afghanistan. But a former White House official involved in the drafting, who did not wish to be identified discussing internal matters, said the understanding in the administration was that the president was seeking "an express grant of authority from Congress to maximize the power that could be used"--meaning all kinds of power to seek out, detain and kill terrorists.
CONGRESS LIES LOW AND GOES ALONG. Typically, in times of national peril, Congress gets swept along on a wave of patriotism. During the Korean and Vietnam wars, presidents did not even bother to get Congress to pass a formal declaration of war. After Vietnam and Watergate, Capitol Hill briefly reasserted itself with the War --Powers Act--but no Congress and no president has ever wanted to put the act to the test. In the first and second gulf wars, Bush father and son relied on less-stringent congressional resolutions. The White House official involved in the September 2001 resolution authorizing force against terrorism recalls very little push back from the Hill. Senate Judiciary Committee chairman Arlen Specter wanted to limit the scope of the measure, but he was successfully rolled.
Given Congress's pliability, several commentators have wondered why the White House did not ask Congress to amend FISA to allow the sort of warrantless data mining and eavesdropping that has set off the current flap. A White House official who declined to be identified discussing internal deliberations says that the administration feared a congressional debate would have tipped off the terrorists to secret "sources and methods" used by the NSA and other spy services.
A more subtle factor is also at work. The executive branch is always reluctant to ask Congress for permission if, by the very asking, that means conceding that the legislative branch has the power to say no. Presidents prefer to keep warmaking powers general--and unquestioned. By the same token, congressmen often do not wish to know exactly what the spooks are up to in the name of national security. Allen Dulles, the legendary CIA director in the 1950s, once said that he always "told the truth" to Senate Armed Services Committee chairman Richard Russell; "that is," Dulles added with a wink, "if Dick wants to know!"
When the NSA eavesdropping story leaked, the Bush administration immediately claimed that it had briefed congressional leaders on several occasions. But the briefings appear to have been sketchy and ultra-secretive. Sen. Tom Daschle, the Senate Democratic leader at the time, recalled being briefed in 2002 and again in 2004. Interviewed by NEWSWEEK, he was reluctant to get into classified details, but he did say, "The presentation was quite different from what is now being reported in the press. I would argue that there were omissions of consequence." At his briefing in the White House Situation Room, Daschle was for-bidden to take notes, bring staff or speak with anyone about what he had been told. "You're so disadvantaged," Daschle says. "They know so much more than you do. You don't even know what questions to ask."
THE BUREAUCRACY PUSHES BACK. During Bush's tenure, decisions on the rules of spying and interrogation have been exceptionally closely held, generally the work of a small group of White House and Justice Department lawyers with an expansive view of presidential power. For the most part, lawyers from the State Department and uniformed military services have been cut out. But as the rules were implemented--permitting, for example, the "water boarding" or indefinite secret detention of a terror suspect--other government law-yers sometimes protested. At the outset, at least, the complaints were private and handled within channels. Though "bureaucrat" can be a bad name, government careerists are sometimes the only ones who will uphold standards of fairness or decency. They know, too, that they can be left holding the bag if later congressional hearings look into dubious secret operations.
At the Justice Department, it was a former prosecutor, James Comey, who forced the White House to back away from the so-called Torture Memo, which appeared to give intelligence agencies a license to use any interrogation method that did not cause the extreme pain associated with organ failure. Comey was the No. 2 man at the department at the time. Although the details are unclear, it appears that Comey's objections were also key to slowing the warrantless-eavesdropping program in 2004 for a time. According to several officials who would not be identified talking about still-classified --matters, Comey (among other government lawyers) argued that the authority for the program--the 2001 "use of force" resolution--had grown stale. It was time to audit the program before proceeding in any case, Comey said.
But in March 2004, White House chief of staff Card and White House Counsel Gonzales visited Ashcroft, the seriously ill attorney general, to try to get him to overrule Comey, who was officially acting as A.G. while Ashcroft was incapacitated. Ashcroft refused, and a battle over what to do broke out in the Justice Department and at the White House. Finally, sometime in the summer of 2004, a compromise was reached, with Comey onboard: according to an account in The New York Times, Justice and the NSA refined a checklist to follow in deciding whether "probable cause" existed to start monitoring someone's conversations.
Bureaucrats frustrated by their political bosses have one time-honored weap-on: the leak. Though it is unclear exactly how the NSA eavesdropping story made its way to The New York Times (last week, the Justice Department launched a formal leak investigation), the sources were probably officials disgruntled for reasons of morality and public-mindedness and possibly less-noble motivations (turf battles, score settling).
THE PUBLIC AND THE POLITICIANS REACT--AND OVERREACT. Historically, wartime encroachments on civil liberties have spawned backlashes. Lincoln was accused of dictatorship and his Republican Party lost seats in the congressional elections of 1862 and 1864. Wilsonian excesses during and after World War I helped provoke the modern civil-liberties movement, and Nixon's abuses of power spawned a host of Watergate reforms--including FISA.
This winter, Capitol Hill will without question see a debate over Bush administration infringements on civil liberties. As 9/11 recedes in public memory and Bush has slipped in the polls, public attitudes are shifting. Still, Bush does not show any sign of backing down from any of his covert programs.
There is a risk that Bush will overplay his hand. Some White House insiders have been urging the hard-liners to take a less confrontational stance, if only for tactical reasons. The courts generally give great deference to the executive branch on national-security questions, but there have been signs of restiveness lately even among the president's staunchest supporters on the federal bench. The Supreme Court is signaling in subtle and complex ways that it may rein in the Bush team's absolutists by, for instance, requiring that detainees be afforded more legal rights.
The American public may be less than sympathetic to the targets of the Bush antiterror crackdown. But if the administration is shown to have violated the civil liberties of mainstream peace groups or (heaven forbid!) members of the press, the outcry could produce an overreaction. After the reformers got through with the intelligence community post-Watergate, Richard Nixon acerbically commented, "They cut the balls off the CIA." He was not entirely exaggerating. The investigations and reforms of the 1970s and 1980s unquestionably made CIA officials in the 1990s more risk averse.
As young up-and-comers, Donald Rumsfeld and Richard Cheney were back-to-back White House chiefs of staff in the Ford administration. They got their hands on power just as the "Imperial President" was being cut down to size. For the past 25 years, both men have wanted to restore executive power. When 9/11 came along, they seized the moment. It would be the height of irony if, by taking too hard-line a stance now, they ended up undermining the power of the president.