What Would Woodward and Bernstein Do?

(7) Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that— [my emphasis]

So the only people who may give telecoms the authorization that their eavesdropping is legal are: the AG, the DAG, the AAG, and any principal prosecuting attorney, such as a USA [Actually, maybe this means a State AG].

Yet, as the report informs us, for a period of time (a period of time, I might add, at some remove from 9/11), none of those people had signed off on the wiretapping program. After the Deputy Attorney General, as the Acting Attorney General refused to endorse the legality of the program, Alberto Gonzales authorized it.

The Committee can say, however, that beginning soon after September 11, 2001, the Executive branch provided written requests or directives to U.S. electronic communication service providers to obtain their assistance with communications intelligence activities that had been authorized by the President.

The Committee has reviewed all of the relevant correspondence. The letters were provided to electronic communication service providers at regular intervals. All of the letters stated that the activities had been authorized by the President. All of the letters also stated that the activities had been determined to be lawful by the Attorney General, except for one letter that covered a period of less than sixty days. That letter, which like all the others stated that the activities had been authorized by the President, stated that the activities had been determined to be lawful by the Counsel to the President. [my emphasis]

But Alberto Gonzales was not then one of the named people who could authorize such wiretaps. He was an attorney, but not a prosecuting attorney. In fact, at the time, he was not a law enforcement officer at all (unless you count someone enforcing Cheney's law as a law enforcement officer).

As I pointed out above, the committee tries to get around this inconvenient legal fact by waving around purposely vague language, using the phrase "certain other officers" to hide the fact that only specific other officers have the authority to authorize such wiretaps. They do it again in their final justification for extending immunity to the telecoms--replacing the titles of the very specific officers who can authorize wiretapping with another vague phrase, "high-level Government officials."

On the basis of the representations in the communications to providers, the Committee concluded that the providers, in the unique historical circumstances of the aftermath of September 11, 2001, had a good faith basis for responding to the requests for assistance they received. Section 202 makes no assessment about the legality of the President's program. It simply recognizes that, in the specific historical circumstances here, if the private sector relied on written representations that high-level Government officials had assessed the program to be legal, they acted in good faith and should be entitled to protection from civil suit. [my emphasis]

Effectively, the committee has rewritten the law to accommodate Bush's actions when he deliberately bypassed his own DOJ.

So, in addition to giving the Administration carte blanche to hide its own wrong-doing by invoking State Secrets and thereby depriving its accomplices of any defense, the committee has effectively rewritten the law. Where the law very clearly specifies that only a senior law enforcement officer may authorize wiretaps, they've inserted vague language that extends that authority to any hack who is willing to do the President's Vice President's bidding.