December 29, 2008 -- As the clock winds down on the Bush administration, historians and critics are coming to grips with how little they know about some of the scandals which helped make the president one of the least popular leaders in modern U.S. history.
From the secret wiretapping program to the so-called "enhanced interrogation techniques" to the firing of a number of U.S. Attorneys, the question remains of how high up administration officials were involved in authorizing many of these scandals.
"The biggest question in all of these scandals is what is the source," said Allan Lichtman, a presidential historian at American University and authority of "White Protestant Nation: Rise of the American Conservative Movement." "We don't know how systematic it was at the highest levels of the Bush administration. Where did the orders come from? How systematic were they? And were these disparate areas tied together?"
Torture and Detention
High among those is the question of who authorized the coercive – many say torturous – interrogation techniques and whether they yielded important information.
"I think it's essential to ensure that America doesn't repeat this chapter, that someone tells the story of putting together all the pieces -- the question of what was actually obtained through these tactics, could the information have been obtained elsewhere, did it ultimately make America safer and what were the side effects of America's torture," said Jennifer Daskal, chief counterterrorism counsel for Human Rights Watch.
But a recent report by the Senate Armed Services Committee went a long way documenting the role of top Defense Department and military officials in signing off on the use of the coercive interrogation techniques. "Senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees," the report found.
Officials Knew of Interrogation Techniques
It showed how top officials knew of the specific techniques -- including waterboarding -- and how top officials in the Defense Department, including General Council Jim Haynes and Secretary Donald Rumsfeld, defended these techniques. Top officials haven't been shy in defending them even today, despite the fact that many experts have raised questions about the legality of the many of the so-called enhanced interrogation techniques. Just this month Vice President Cheney defended his approval of the coercive interrogation tactics in an interview with ABC News.
There hasn't been a similar accounting for the CIA's detention and rendition program, no complete report on who approved the techniques, when they were used and which detainees they were used on. What's more is many of the legal memos and executive orders authorizing this treatment remain classified.
The revelation that President Bush authorized taps on phone calls and emails inside the United States was itself shocking to many people. But more than seven years after Bush gave the green light for the practice -- and nearly three years since the New York Times revealed the program's existence -- it is still unclear how broadly the warrantless wiretapping was used.
"The powers that Bush took are so broad and there has been no oversight mechanism so it's really unclear whether they actually used the powers inappropriately," said Caroline Fredrickson, legislative director for the American Civil Liberties Union.
The Bush administration has said that it has done nothing illegal, arguing that the constitution gives the president this power for the sake of national security. What's more, the administration argues that Congress essentially gave the president this power by authorizing him to use all necessary force against al Qaeda shortly after the attacks of Sept. 11, 2001.
But it has since rescinded the program and gone to Congress to get authorization for a more restricted wiretapping program that Bush administration officials say does not involve listening in to Americans' calls without a warrant.
NSA Wiretapping Program Declared Unconstitutional, Then Overturned
Legal challenges have faced problems too. Many plaintiffs have filed suit alleging that the government should disclose if they were wiretapped. But few have any proof that they were targeted. The ACLU led the biggest challenge to the NSA wiretapping program, which was declared unconstitutional by a district court judge. But an appeals court overturned that decision.
There is one case that may bear fruit for opponents of the NSA program: the Al-Haramain Islamic Foundation, a now-defunct Islamic charity which the Treasury Department designated as a terrorist front and tried to freeze its assets. Attorneys for the charity claim that documents turned over to them (apparently mistakrenly) during a legal challenge to the group's desination as a terrorist front were from an nsa wiretap of the organization and two of its attorneys. In July, a federal judge held that getting this information with out a warrant was against the law, a ruling now on appeal.
The U.S. Attorney Scandal
The firing of at least eight U.S. Attorneys in 2006 for apparently political reasons led to the departure of Attorney General Alberto Gonzales, and placed a dark cloud over the integrity of Justice Department that officials are still working to dispel. Despite the damage, the White House has blocked efforts by Congress and the courts to obtain documents and testimony that might help the country understand what had happened.
The central unanswered question is this: what role, if any, White House officials played in the development and approval of the firings and the inappropriate political hires at the Department of Justice and whether they played any role in overturning case decisions in the civil rights division that career attorneys opposed. E-mails released to Congress indicate that White House officials played a role in these discussions but top officials -- including White House Chief of Staff Josh Bolten, former White House Counsel Harriet Miers and former advisor Karl Rove -- have refused to testify or turn over documents.
The legal saga still continues. A federal judge has ordered Miers and Bolten -- who the House of Representatives held in contempt for defying congressional subpoenas -- begin working with Congress, but the ruling has been appealed. Meanwhile, a criminal investigation into the hirings and case decisions at the civil rights division continues.