Wednesday, January 31, 2007

Crime and No Punishment

James Bamford, author of The Puzzle Palace and Body of Secrets, wonders in a New York Times op-ed today why a judicial determination last summer that President Bush had broken the law by authorizing warrantless surveillance of American citizens has not been accompanied by any enforcement activity:

Laws are broken, the federal government investigates, and the individuals involved--even if they’re presidents--are tried and, if found guilty, punished. That is the way it is supposed to work under our system of government. But not this time.

Last Aug. 17, Judge Anna Diggs Taylor of the United States District Court in Detroit issued her ruling in the A.C.L.U. case. The president, she wrote, had “undisputedly violated” not only the First and Fourth Amendments of the Constitution, but also statutory law, the Foreign Intelligence Surveillance Act. Enacted by a bipartisan Congress in 1978, the FISA statute was a response to revelations that the National Security Agency had conducted warrantless eavesdropping on Americans. To deter future administrations from similar actions, the law made a violation a felony punishable by a $10,000 fine and five years in prison.

Yet despite this ruling, the Bush Justice Department never opened an F.B.I. investigation, no special prosecutor was named, and there was no talk of impeachment in the Republican-controlled Congress.

The Bush administration has, of course, changed the policy at issue, but Bamford still questions the absence of punishment. An argument by the Bush administration that the case should be thrown out because the issue has been mooted by the new policy is, Bamford contends, "like a bank robber coming into court and arguing that, although he has been sticking up banks for the past half-decade, he has agreed to a temporary halt and therefore he shouldn’t be prosecuted."

The complete essay is here.