AMY GOODMAN: Our guest is Eric Lichtblau. He won the 2006 Pulitzer Prize for his reporting on the NSA’s warrantless wiretapping program. His new book is called Bush’s Law: The Remaking of American Justice. Eric, lay out this warrantless wiretapping program.

ERIC LICHTBLAU: Well, this was a program that started within weeks of the 9/11 attacks. The NSA historically, traditionally, legally has been restricted from surveilling, from eavesdropping on American citizens. There’s sort of a written and unwritten understanding in intelligence circles that the NSA does not spy on Americans, it does not train its satellites on Americans to eavesdrop on their communications, their emails, their cell phone conversations, etc.

What happened after 9/11 was that President Bush authorized a radical shift in this interpretation and allowed the NSA, within weeks of the 9/11 attacks, to intercept international communications of Americans, meaning a call from Detroit to Kuala Lumpur, for instance, or an email from Riyadh to Los Angeles, without going to the court that was specifically designed to handle cases like that, a court called the Foreign Intelligence Surveillance Act court, the FISA court, which was set up in the 1970s in the wake of the Watergate abuses. This was a court that was set up specifically to guard against the abuses of presidential authority and to have some checks and balances. And President Bush authorized the NSA to, on its own authority, establish when Americans might be involved in suspect terrorist activities.

And this was a program that, as I lay out in the book, from the very beginning caused really tremors of nervousness and angst throughout the government, particularly in the law enforcement branches of government, at the Justice Department, at the FBI. I lay out scenes at the FBI where FBI agents stumbled onto this program accidentally within about twelve hours of its inception, and there was a firestorm of anxiety: “What the hell is going on here?” was the reaction literally of one official. This went up the fire poll to senior officials who said, “What is going on here? The NSA is not supposed to be in the business of spying on Americans.”

It was quickly determined that it’s OK, the President has personally approved this, but it was kept to such a small circle of officials, which was really at Cheney’s doing. It was because of Cheney and his counsel, David Addington, that there was an unusually tight, even for a secret covert program, an unusually tight circle of people who even knew about this program, both within the executive branch and in Congress. In Congress, the intelligence committees normally would have been and should have been legally informed of this program. Instead, it was kept to the members of the so-called Gang of Eight, the top four members of each branch, because of, again, this, as I describe in the book, almost paranoia about leaks.

And there was a real downside to this: because of that secretive nature, that intense secretive nature that was surrounded this program, it bred a nervousness and suspicion within the government itself. There were people within the government who had reason to know about this, because their jobs depended on knowing about intelligence programs, who either stumbled onto it accidentally or who heard rumors about the program or what’s going on, and immediately came to suspect “Is something illegal going on here?”

I lay out, for instance, that within days of the program beginning, the Deputy Attorney General at that time, Larry Thompson, was brought a bundle of wiretap applications for the FISA court to sign. They required his signature. And some of these wiretaps had grown out of the NSA program. In other words, some of the things that the NSA was doing without a warrant, there was then a determination that the Justice Department would go back and try and get a warrant in order to perhaps try and build a criminal case. Thompson was one of the many people who was not read into this program, who didn’t know what was going on, and he sees that there is this mystery program out there. And he asks an aide to write up a memo: “What am I supposed to do with these applications?” And the aide and Thompson came to the conclusion: “I’m not signing these things. I don’t know what these are.” And he refused to sign off on these wiretaps, because they’re of such suspect origin. That’s just one of many examples of kind of the anxiety that surrounded this program even from the very first few hours and days.

And that led to an even higher level even, what’s now become even more public, a revolt, really, in 2004, if you speed up a couple years, when at the bedside of Attorney General John Ashcroft, at that point, there was a whole new cast of characters in the Justice Department, including Jack Goldsmith, who was the head of the Office of Legal Counsel, who looked at aspects of this program and determined that they were potentially illegal. He thought that the legal authorization given to this in the early days, which was sort of an afterthought, as I lay out in the book, was shoddy, slipshod, really just very a cursory review. He went back at it and refused to give his sign-off to the program, because he thought this was unconstitutional.

And this led to a dramatic, dramatic standoff at the bedside of John Ashcroft, because Ashcroft was in the hospital after pancreatic surgery. His deputy was refusing to sign off on the program. Alberto Gonzales, who was then the White House counsel, and Andy Card, who was the Chief of Staff, go to Ashcroft’s bedside to try and get Ashcroft to basically overrule his deputy and determine that this program is legal so they can continue doing it.

So you see, as I try and lay out in the book, I mean, this was really, from its earliest beginnings, a constitutional crisis in the making over this program, because of what some people saw as just a power grab in terms of the executive branch, in the view of some people, running roughshod over checks and balances in the name of executive power.

AMY GOODMAN: Eric Lichtblau, Democratic Congressmember Jane Harman of California was one of the members of Congress who tried to stop you from publishing the article. Can you describe what she said?

ERIC LICHTBLAU: Well, what I lay out in the book and what I can say is that there was a period during the hiatus, as I call it, when the story was on hold, when the paper decided it was not going to run the story, when I was covering a hearing sort of in my day job covering the PATRIOT Act, and Harman had given a fairly eloquent defense of civil liberties and a call for more checks and balances. And I didn’t plan to ask her about the NSA program. I knew that she knew about it. I had the sense that she was a defender of it. And sort of impromptu, I asked her in the hallway how what she had just said at this hearing squared with her views on the program.

And she was quite alarmed that I was asking her about this program in a Capitol hallway, and she shooed away her aides and said, “They don’t even know about this. You shouldn’t be talking about this here,” and very quickly made clear that she thought that the paper had done the right thing by not publishing this story, would not get into any of the details. I tried to ask her why she thought publication would harm national security, and what about the legal ramifications here, and all she would say was that this was a story that should not be publicized.

AMY GOODMAN: Now, though she doesn’t dispute the account, she did take issue with you saying her views on the program’s legality changed after the story went public. She said, quote, "My views on this subject have not undergone a ‘dramatic transformation.’ I have said all along that we must protect the operational details of programs designed to learn the plans of foreign terrorists—in order to prevent and disrupt those plans. At the same time, Congress must insist on iron-clad protections of the Constitutional and legal rights of all Americans.” Your response, Eric?

ERIC LICHTBLAU: Well, I do say in the book that her views underwent a fairly dramatic transformation. Look, I’m not looking to beat up Jane Harman personally here. I think that she was in a difficult spot, as were the few members of Congress who knew about this, because they were given such limited access by the White House about this program. What was interesting to me and says a lot about the ways of the Capitol Hill in some ways was that immediately after the program became public, Harman, who, as she says in her posting yesterday, was pretty much a defender of the program, quickly became a very outspoken opponent. So when I talk about her dramatic transformation, she went from someone who thought this was a critical program that should not be publicized to someone who attacked President Bush very aggressively and was raising all sorts of legal and constitutional questions. So I found that shift fairly significant.

AMY GOODMAN: Eric Lichtblau, Congress recently held a secret session. They have rarely done this. I think it was the sixth time that they did this. It was around the issue of wiretapping. What do you understand about what happened? And then talk about the showdown now in Congress, the standoff over telecom immunity.

ERIC LICHTBLAU: Yeah, the secret session was, I think, the first one since 1983, since the vote on Contra funding. I don’t know that there’s a whole lot in the way of substance that went on in that secret session. It was, in some ways, I think, a chance for the Republicans to beat up on Speaker Pelosi, who at one point was one of the members who was given access to the program early on, although Pelosi did raise concerns about it and has since released a letter that was once classified raising concerns about what the NSA was doing. So my understanding is that the secret session, as far as it went, did not produce a whole lot in the way of new disclosures, even to members in a classified setting.

We’re really at a standstill. I think everyone is amazed that there has not been a resolution on the whole NSA issue this late in the game. You know, it’s now been almost two-and-a-half years since we first disclosed the program in the paper. We’ve had two-and-a-half years of almost constant debate on the government’s spy powers.

And it looked almost certain six months or so ago that the White House would succeed, as it has done on any number of other national security issues, in getting the type of legislation that it wanted. It got a plan through the Senate that would not only broaden the government’s surveillance powers, give them the ability to get broader what they call basket warrants, rather than having to establish individual probable cause to look at broad groups of people at one time—it not only did that, but it also gave the key factor of retroactive immunity for the phone companies, meaning that those phone carriers—AT&T, etc.—that took part in the program after 9/11 would be protected from the lawsuits that are now pending against them. There are some forty or so lawsuits. That has been a key priority for President Bush and his administration, is protecting the companies from legal liability. So it got that through the Senate. The House has held its ground, which has surprised a lot of people who—especially on the left, who have criticized the Democrats for, in their view, caving to the White House on national security issues, on any number of national security issues. And so, we’re at a standstill. And there’s no sign at this point as to which side is going to blink first.

AMY GOODMAN: Eric Lichtblau, explain how you lost your press pass.

ERIC LICHTBLAU: How I lost my press pass—that actually predated the whole NSA story. That was when I was just covering routine Justice Department issues, and there had been a number of run-ins with the Justice Department during Attorney General John Ashcroft’s tenure over stories that the department felt were too critical. And there was one in particular, when I wrote a story about the FBI gathering intelligence on antiwar demonstrations, anti-—over Iraq antiwar demonstrations, and that was a story put on the front page. It was an exclusive involving some internal memos that had gone out, an alert that had gone out to field officers describing tactics, many of them lawful tactics, that antiwar demonstrators were using. And the Justice Department and the FBI were not at all happy with that story and let me know it. And I showed up for an interview a few days later—there had been some back-and-forth with my bureau chief, heated exchanges between Ashcroft’s aides and my bureau chief. I showed up for an interview, and my press pass had been confiscated by the Justice Department. And at that same time, the FBI had put out an internal memo to its people advising them not to talk to me anymore.

AMY GOODMAN: In the stories, you expose the spying on, well, groups like the Quakers and the Truth Project, dealing with issues like taking on military recruiters in schools.

ERIC LICHTBLAU: Right, right. Yeah, it’s part of what I describe in that chapter of the book as a—as really just sort of a general paranoia, I think, of anyone who could be considered a threat. And this had really bled down from the highest ranks of the government, that whether it was the person—whether it’s the person getting on the plane, whether it’s the protester at the corner, whether it’s the person at the college campus, if there’s any sign that someone could be considered a threat, they have to be treated as a threat—the One Percent Doctrine, Ron Suskind called it, in attributing it to Dick Cheney. I think this was an attitude that really bled down even to the local cops who were part of the joint terrorism task forces that work with the FBI.

Before, someone might have gotten—you know, might have gotten an odd look from a police officer and thought nothing of it. Now, they will be entered into a database. And in the case of the military database, they collected upwards of 280 files on peaceful antiwar groups. And these were files on groups that had done nothing more than protest against the war.

AMY GOODMAN: You also write about how the tensions increased over your piece in June 2003, when you wrote a story raising questions about the role of Mike Chertoff, who is now the Homeland Security secretary, playing in the decision not to give John Walker Lindh access to a lawyer in Afghanistan.

ERIC LICHTBLAU: Right, right. That was sort of the beginning of the end of my troubles with the Justice Department. I wrote a story about an internal whistleblower, I would call her, at the Justice Department, Jesselyn Radack, who had raised concerns about whether or not Lindh’s due process rights had been violated. And Chertoff, who was at the Justice Department as the head of the Criminal Division, was directly involved in this, in having to testify before Congress about what went on in this case. Radack had raised concerns about whether or not Lindh should be entitled to a lawyer, whether or not his family in San Francisco had gotten him a lawyer, whether or not he could be questioned in Afghanistan without a lawyer present. And, of course, he made some very incriminating statements for—in days in captivity without a lawyer present.

You know, who was right and who was wrong is a matter of some debate, but, you know, Radack raised some serious issues and was essentially persona non grata at the Justice Department for a long time because of it.

AMY GOODMAN: Eric, we have ten seconds. What have you been most shocked by in what you’ve learned since you first broke the NSA wiretapping story?

ERIC LICHTBLAU: I guess kind of the punishment of those who dissent. I mean, as a segue from Jesselyn Radack and others, the fact that people who dare to question some of these policies are often penalized for it.

AMY GOODMAN: Eric Lichtblau, we have to leave it there. Thank you very much. His book is Bush’s Law. 

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