Saturday, December 31, 2005
Prosecutorial Discretion, Continued -- A Special Counsel?
In his post below, Jack implicitly raises some interesting questions about what a DOJ or NSA employee should do if she is privy to a classified program that appears to her to be unlawful. I don't really know the answer to this question. I come from a culture (OLC) where leaking even attorney-client information is unheard of, and where leaking classified information is unthinkable. If one has already gone all the way up the chain of command, and the President and the AG have rejected the argument of illegality -- and the secrecy is preventing the courts and the legislature from overseeing the Executive -- what is one to do, if firmly convinced that gross illegality is occurring? Hard question. My inclination is to say that employees just have to grin and bear it, and refrain from revealing classified information (that's what I would do -- but again, I come from a culture of confidentiality); but then again, if the classified information is being kept from the legislature (or revealed only to eight legislators who in turn can't reveal it to anyone else, including staff and legal counsel), and all employees abided by the rules not to disclose classified information, there would never be any way of checking an unlawful Executive. What's the solution here?
In case the connection's not obvious, Felt comes to mind because one theory about his motive for leaking in Watergate is over domestic spying and executive control. Felt participated in domestic spying (for which he was prosecuted and pardoned under Reagan), although I've read in news reports around the Deep Throat revelation that he strongly objected and even obstructed this activity at the time--and he became a leaker around when Nixon made what seems to have been an unusual appointment of what seems to have been a personal loyalist from outside the FBI to head that Bureau, instead of Felt (who as next in line might well have been expecting to keep Nixon's domestic spying ambitions in check, until thwarted by Nixon's surprise appointment).
A day later, and now in the news there is current Lockheed executive Comey, depicted in ardent opposition to even the Ashcroft era continuation order approving extension of the 45-day review of the blanket wiretaps.Post a Comment
Comey gave us Fitzgerald before transferring his employ to the defense contractor arena.
One supposes Gonzales will depose Comey in the search for the Felt-equivalent.
It is striking that in both matters: the one which Fitzgerald is investigating now in his 2nd grand jury term, and the case of the as yet unrevealed leaker of the wiretap policy, such inordinate criticism is being mounded upon the media. Since neither mystery is yet as solved as the matter in which Felt was involved, the anti-media stance may be nominal; but, at first impression it seems telltale, and unfortunately, fits the pattern of the headstrong executive prodrome.
Which arrives at Marty Lederman's endpoint, seemingly: congress.
Now that congress has sunsetted the independent counsel, perhaps the ensuing hearings, if any actually is held in the matter of the wiretaps and further phase-two hearings in the case which Fitzgerald is pursuing, will inform a more cognizant congress that an adjustment is needed to restructure this kind of investigation's launch so a fact finding can have some legal teeth and substantive effects.
January 13 in private chambers at the Supreme Court a rule 26 plea is being heard on habeas and possibly torture related matters involving a case which the fourth district court last week tossed to the Supreme Court. Much like the impression of disenfranchisement in the wiretap policy, the request for rulemaking or rule interpretation in secret session at the Supreme Court also evokes the potential for sidelining two branches out of the checking and balancing process of governance.
In a redundant manner, these tacks both lead to a similar perceived architecture of the condition of government approaching some form of martial law, albeit a limited rendition.
That would be rendition in the music terminological sense, rather than the new spy jargon phrase which has become currency.