Balkinization  

Wednesday, May 16, 2007

Can You Even Imagine How Bad it Must Have Been?

Marty Lederman

I want to put yesterday's incredible Comey testimony in some context, to demonstrate just how otherworldly this story is -- and what an extraordinary tale it tells about the nature of the officials who are running our government.

In March 2004, the NSA surveillance program had been operational for two-and-a-half years. According to the President and NSA, it had produced extraordinarily valuable intelligence against potential terrorist actions. (At the very least, it's fair to assume that the folks in DOJ understood this to be the case.) The NSA and the phone companies had been going full-steam ahead on the program, even though on its face it would be a crime to do so under FISA. See 18 U.S.C. 1809. Presumably they did so only because OLC had written one or more legal opinions concluding that the President had Article II authority to disregard the statute in wartime -- a legal theory not only critical to the operation of the program, but also at the very heart of the Vice President's passionately held philosophy of Executive prerogatives.

Jack Goldsmith was confirmed to be head of OLC in October 2003. He was a loyal Republican and supporter of the President. And yet almost as soon as he took office, he began reviewing much of John Yoo's handiwork, and found it lacking. Barely two months into his new job, for instance, Goldsmith called the Pentagon and told them that they must immediately cease relying on the critical Yoo Opinion that formed the basis for the Department of Defense's absuive interrogation policies in Iraq and elsewhere. (I've reviewed this fascinating story in detail here.)

According to Comey, "there were a number of issues that [Goldsmith] was looking at" as part of his "reevaluation" of past OLC advice, and the NSA program "was among those issues" under OLC review. "Demanding that the White House stop using what they saw as farfetched rationales for riding rough-shod over the law and the Constitution, Goldsmith and the others fought to bring government spying and interrogation methods within the law. They did so at their peril." (The quotation from the best account yet of this basic story -- the article in Newsweek in February 2006 by Daniel Klaidman, Stuart Taylor and Evan Thomas. That article obviously owes a great deal of debt to partial accounts published earlier by, e.g., the New York Times and this blog. Nevertheless, it is a taut, comprehensive and compelling account of what might be the most revealing aspect of the legal crisis within the Executive branch during the past six years. It is well worth reading.)

By early March 2004, OLC apparently concluded that the NSA electronic surveillance program could not be defended on the basis of OLC's prior legal opinions, and had convinced the Attorney General and DAG that DOJ had to refuse to sign off on the program -- i.e., they were compelled to inform the President that the program violated FISA and could not legally be continued in its present form. Ashcroft and Comey agreed -- or at the very least, they deferred to Goldsmith's legal judgment, which is what happens in 99% of all cases once OLC speaks.

It is extremely rare for OLC to reverse its own opinions within an Administration. And that unusual course would be especially disfavored in this case, because all the relevant DOJ officials -- e.g., Ashcroft, Comey, and Goldsmith -- undoubtedly understood that repudiation of this particular OLC advice would mean shutting down the very program that the President had described as the most important intelligence program in the war on terror. Moreover, the theory that OLC was repudiating appears to have been one to which the Vice President and his counsel were deeply committed, and one that appears to have formed the basis for the Administration's decision to disobey other important statutory constraints. Obviously, then, there were profound disincentives to such repudiation.

And yet repudiate it they did. Can you imagine the reaction from the White House and the Vice President's office when that happened? After all, as one friend remarked today, it's not as if Nadine Strossen or Ramsey Clark was the Attorney General. This was John Ashcroft -- and he would not sign off on the prior OLC legal Opinion, even though:

1. It was the sole legal basis for a critically important intelligence program that was purported to have saved many lives. Newsweek:
The rebels were not whistle-blowers in the traditional sense. They did not want—indeed avoided—publicity. They were not downtrodden career civil servants. Rather, they were conservative political appointees who had been friends and close colleagues of some of the true believers they were fighting against. They did not see the struggle in terms of black and white but in shades of gray—as painfully close calls with unavoidable pitfalls. They worried deeply about whether their principles might put Americans at home and abroad at risk. . . . Goldsmith was not unmoved by Addington's arguments, say his friends and colleagues. He told colleagues he openly worried that he might be putting soldiers and CIA officers in legal jeopardy. He did not want to weaken America's defenses against another terrorist attack. But he also wanted to uphold the law.
2. Repudiation of the theory would mean that the NSA and phone companies had been committing crimes for more than two years.

3. It meant DOJ doing a remarkable about-face and acknowledging profound error.

4. It was a rejection of the principal constitutional theory at the heart of the Vice President's program for executive aggrandizement (and was presumably the basis for several other practices and policies as well) -- and so it could be expected to be met with the considerable wrath of Cheney/Addington, to the point where one of the messengers of the bad news, Associate DAG (and former OLC Deputy) Patrick Philbin, had an expected promotion blocked (according to Comey's testimony). Newsweek: "It is almost unheard-of for an administration to overturn its own OLC opinions. Addington was beside himself [when Goldsmith repudiated the Yoo DoD Torture memo in late 2003]. Later, in frequent face-to-face confrontations, he attacked Goldsmith for changing the rules in the middle of the game and putting brave men at risk, according to three former government officials, who declined to speak on the record given the sensitivity of the subject."

5. The President demonstrated his profound committment to the program by personally calling the Attorney General's wife and urging her to allow the White House Counsel and Chief of Staff to cajole the AG in intensive care, where she had not been allowing visitors.

and

6. The White House told the DOJ officials that it was going to go forward with the program anyway, even after DOJ had opined that it was unlawful.

And yet not only would Ashcroft, et al., not budge -- they were prepared to resign their offices if the President allowed this program of vital importance to go forward in the teeth of their legal objections.

In light of all these considerations, just try to imagine how legally dubious the Yoo justification must have been that John Ashcroft was so profoundly committed to its repudiation. It's staggering, really -- almost unimaginable that anything such as this could have happened, especially where the stakes were so high.

And recall this, as well: These are hardly officials who were unwilling to push the legal envelope, or who were disdainful of the objectives or need for the NSA program. Two or three weeks later, OLC did develop an alternative legal theory that permitted a narrower version of the surveillance program to go forward. By all accounts, that legal theory is some version of the argument that the 2001 Authorization for the Use of Military Force against Al Qaeda authorized this form of electronic surveillance, notwithstanding FISA. That is a theory that I and many others have harshly criticized (see, for example, the letters collected here). It is, to say the least, an extremely creative reading of the relevant statutes -- a reading that not a single member of Congress who voted for the AUMF could possibly have imagined, and one that (to my knowledge) not a single member of Congress has approved once reading of it in DOJ's "White Paper."

These DOJ officials were willing to sign off on that very tenuous legal theory. What does that tell us about the OLC theory that they inisted upon repudiating?

Moreover, the "revised" NSA program that OLC and DOJ approved some weeks after the March incident apparently was narrower in some fundamental respects than the program that had been authorized under the previous OLC advice. And yet, according to AG Gonzales, that new program still allowed electronic surveillance of communications as long as the NSA had a "reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda." Presumably this extremely generous guideline was required by the need to bring the program under the aegis of the AUMF, which authorized the President to use "necessary and appropriate" force against "those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."

If that's the narrow version of the NSA program, just how broad and indiscriminate was the surveillance under the program that Ashcroft, et al. would not approve? [For more along these lines, see this terrific post by Orin Kerr. Here's one speculation just suggested to me by a fellow B'zation blogger: Perhaps under the Yoo-approved program, once a U.S. person received any phone calls or e-mails from a "covered" person overseas, the NSA was authorized to intercept all of that U.S. person's future phone calls. (After all, what the Administration was most interested in would not be overseas calls, but instead calls that might reveal activity of Al Qaeda cells here in the U.S.) Under the Goldsmith-approved, AUMF-based program, however, only international calls with actual persons covered by the AUMF could be intercepted. Who knows? -- this is only speculation.]

This is the real heart of the Comey story -- What happened between September 2001 and October 2003, before Comey and Goldmsith came aboard? Just how radical were the Administration's legal judgments? How extreme were the programs they implemented? How egregious was the lawbreaking?

It is imperative now that the Senate do all it can to obtain and investigate the entire paper trail that led up to the events described yesterday. There is no longer any excuse for the legislature to be denied the OLC opinions, at least pre-Goldsmith, that were the basis for the Executive branch's regime of extra-legal conduct. Not only the OLC Opinions and the Executive orders on the NSA program, but also the all-important Yoo Opinion signed on March 14, 2003, the day after Jay Bybee left OLC, which was the genesis for the terrible abuse that occurred in the Department of Defense during the remainder of 2003. (More on this in the last few paragraphs of this post.)

Of course, before the OLC opinions are made public, they should be redacted so as not to reveal important but secret NSA capabilities. But those redactions shouldn't be extensive, and should not obscure the basic legal analysis that is the critical basis for the conduct of the Executive branch in some of its most dubious activities. (OLC memos that say "no" -- that tell the President that he cannot do something, such as, presumably, Goldsmith's memo(s) in early 2004 -- are a much harder call. My basic view is that those are the sorts of OLC memos that presumptively remain confidential, at least until they are only of historical interest, for two basic reasons: (i) because they did not form the basis for any Executive branch conduct that occurred; and (ii) because those are the very most important memos that OLC issues, and nothing should be done to deter Executive officials from asking OLC about the legality of questionable proposals, or to deter OLC from feeling free to candidly tell the President "no." As my colleagues and I wrote here: "Ordinarily, OLC should honor a requestor’s desire to keep confidential any OLC advice that the proposed executive action would be unlawful, where the requestor then does not take the action. For OLC routinely to release the details of all contemplated action of dubious legality might deter executive branch actors from seeking OLC advice at sufficiently early stages in policy formation."

On the other hand, in this case the President went ahead with the conduct in the teeth of DOJ advice that it would be unlawful, and so this ordinary guideline is not quite on point. Moreover, here the Goldsmith Opinion rejecting OLC's prior advice (assuming it exists) is likely to be critical to a full understanding of the development of the Executive's programs and their legal justifications -- and therefore perhaps it, too, should be shared with Congress.

[DISCLOSURE: I worked at OLC, including for a time with Pat Philbin, until November 2002, and I have gotten to know Jack Goldsmith since he and I both left OLC (our tenures there did not overlap). Nothing in this or any of my other posts on these sensitive matters, however, reflects any information I learned while at OLC -- I was not aware of any of the programs discussed in these blogposts while I worked there -- and neither Pat nor Jack (nor anyone else) has ever revealed any classified or otherwise confidential information to me about these programs -- in the best OLC tradition, they have to my knowledge been scrupulous about preserving all confidences. All the information herein is taken or extrapolated from public sources.]

[UPDATE: Just noticed that Glenn Greenwald is singing from the same hymnal -- doing his usual bang-up, comprehensive job. Sorry I didn't link it earlier, Glenn -- that firewall, alas, discourages frequent forays over to Salon. But readers should take the trouble on this one, for sure.]

Comments:

Marty:

Do you know Douglas Kmiec?
 

Professor Lederman,

If you get the chance can you speak to my argument that what Comey gave yesterday is clear evidence of a willful disregard of legality and that this in itself is arguably an impeachable offense, regardless the specifics of the legality of the program in question and/or the need or lack thereof for AG sign off?

Many thanks.
 

Professor Lederman:

What repudiation?

Justice demanded and received some changes in the TSP, which were minor enough to be accomplished in about 2 weeks. The NYT had sources telling them about this program before and after the changes. None of their sources claimed that the program changed in any fundamental way and the NYT articles on the TSP did not even mention the changes.

For the past three years since this confrontation, Justice has signed off on the current version of the TSP reported by the NYT which you believe is illegal.

Some repudiation.

2. Repudiation of the theory would mean that the NSA and phone companies had been committing crimes for more than two years.

Once again, Justice does not get to decide whether or not the TSP is illegal otherwise their current arguments before the courts that the TSP is legal would have decided the issue.

Do you really want to make an argument that Justice decides what is legal and illegal? Under that argument, you will be compelled to admit that the TSP is perfectly legal because Justice currently says its legal.

3. It meant DOJ doing a remarkable about-face and acknowledging profound error.

When did Comey admit that Justice made a "profound error" in signing off on the TSP before and after this confrontation?

4. It was a rejection of the principal constitutional theory at the heart of the Vice President's program for executive aggrandizement.

Where is are you getting this from? Justice is currently arguing this very same theory in defense of the TSP before the courts.

5. The President demonstrated his profound committment to the program by personally calling the Attorney General's wife and urging her to allow the White House Counsel and Chief of Staff to cajole the AG in intensive care, where she had not been allowing visitors.

This is the least example of the President's belief that this program is vital to our national security. He has fought this battle in Congress and in the courts without backing down.
 

Bart, you cowardly, lying cheat, today is _still_ not the day you will get to slip away from the thread where you are taking a beating and start fresh with your nonsense on a new one.

The President ran with a program the legality of which no reasonable person could fail to question---because the AGs, acting and appointed, explicitly questioned that legality. Tell me, Bart, does reckless indifference for law or consequences sound like a familiar criterion? Say, in the context of drunk driving? "Officely, Mr. Honester, I didn't mean to run that stop sign and kill that little kid. Them three martwonies didn't make me as think as you drunk I am."

The White House ran with a program with blatant disregard for it's legality, they ran with it legal or not. That is a dereliction of Presidential duty, an impeachable abuse of power which you can't wish away.

Actually it's not even something you can address, apparently, so I'll cut-and-paste as need be. And you might note I've invited Professor Lederman to correct my argument if it is flawed. That's called intellectual honesty, where you ask your superiors and peers to vet your thinking in effort to make it better. You might try it sometime, rather than just repeating whatever you hear on the GOP debates.

To my hosts and fellow balkinization fans, apologies for the level of acrimony today. But this issue, described by Professor Lederman as, "...just about the most dramatic testimony I can recall in a congressional committee since John Dean" is commanding a little more of my attention than usual, and it seems all the more important to counter the disingenuous dodges of the Cheney/Rove noise machine as directly and swiftly as possible.
 

Thank you so much for following this story. Fantastic reporting.
 

Bart,

Justice's certification as to the legality of the program was presumably designed to give assurances to the NSA officers and the telephone companies engaged in the surveillance, and the President and various aides who ordered this program, that they were not committing felonies under FISA (50 US C 1809). That is why it was and is important. When Justice's OLC repudiated the prior advice by John Yoo, it meant that the very department of the federal government charged with prosecuting all federal crimes in the US thought that the program may be violating federal law, and thus that the federal government employees involved in it may be committing felonies. This is pretty serious stuff.

Obviously, the DOJ is not the final arbiter as to whether a program is legal or illegal; that authority remains with the Courts. But I for one would not want to participate in conduct that the AG concluded was illegal.

As to whether the changes were "minor" because they were done in about 2 weeks, we have no way of knowing whether the changes were minor or major. The changes could have been that whole areas of surveilled communications were no longer subject to warrantless surveillance and now had to be done under FISA (e.g., stop spying on everyone within the US, without getting approval from the FISC). That change could be accomplished quickly, but would be a big change in terms of the scope of communications covered by the program and how they were treated.
 

Justice's certification as to the legality of the program was presumably designed to give assurances to the NSA officers and the telephone companies engaged in the surveillance, and the President and various aides who ordered this program, that they were not committing felonies under FISA (50 US C 1809). That is why it was and is important.

Bingo -- "It's the Immunity, Stupid" is a good watchword for this administration.

I wonder now whether or not notice of the 45-day authorization was forwarded to the phone companies ... *that* would help explain why Card and Gonzales were jumping up & down to get the imprimatur ASAP ... anyone know anything on that score?

I can well imagine that at 12:01 a.m., the day after the authorization period expired w/out renewal, Big Phone would've flipped the "off" switch for its own good.
 

Christopher: But I for one would not want to participate in conduct that the AG concluded was illegal.

I think it bears mention that Comey did not get cornered into saying whether or not the acts were deemed illegal, and that it doesn't really matter. Once the AG/OLC questioned the legality, declined to say positively that they thought the undisclosed program was legal, that in itself bars any claim by the White House that the program was conducted with a reasonable belief in its legality. This is important because if the Executive has a reasonable claim to belief in the legality of an act then the position on going to court is fairly strong. But absent this reasonableness criterion there is no supporting the claim that the Executive was faithfully fulfilling the duties of his office, which include, without a shadow of a doubt, acting within the law and upholding the Constitution. This administration is now on record as having willfully acted with reckless disregard of the legality of its acts, which in itself is an impeachable abuse of power and failure of duty.
 

Robert:

Comey hedged on the "legal" vs. "illegal" issue. In his testimony, he said he wouldn't certify it was legal and but refused to say (to the Committee) that the program was illegal because he was "no President scholar." By that, I inferred he meant that, if FISA was unconstitutional (as an encroachment on the President's Article II powers), then the program was legal but otherwise, the DOJ thought it was illegal.

I agree with you, no one had any immunity once the DOJ refused to certify. That is why they needed Comey and, when he refused, they went to Ashcroft at the hospital to get him to okay it.
 

Christopher: Comey hedged on the "legal" vs. "illegal" issue.

Indeed. I'm inclined to think he would have said "illegal" if somehow forced, but in the end he dodged it.

And, hey, thanks for taking a chance and taking my words kindly. I know I've been a little strident with you-know-who (ah, understatement) so I appreciate all the more that you'd take a chance to address my comments. In that spirit let me say that I could be talking out of my hat, and am eagerly awaiting input from one of our hosts or one of the other ConLaw profs/practitioners I've floated this argument with. So far no one has been able to gainsay this notion that Comey's dodging notwithstanding we now have official testimony that the Bush administration on at least one occasion went ahead with a program with a reckless indifference for the legality of same. I can't for a second imagine this is can fail to qualify as impeachable and in the end grounds for removal from office.

Peace.
 

Christopher said...

When Justice's OLC repudiated the prior advice by John Yoo...

But did they? The theory of "repudiation" does not match the time line.

Justice had the Yoo opinion when it signed off on the program several times over a period of nearly 3 years before suddenly refusing to sign off again. The issues are not so complex that it would have taken that long to decide. There is no allegation that the facts which formed the basis for prior signings had changed in any way.

Rather, it appears that Justice simply wanted some changes in the TSP and refused to sign off until it got what it wanted. There is no evidence that the TSP was changed in any fundamental way as a result which would repudiate the prior legal basis for the TSP.

Indeed, Justice is using the same Article II arguments today to justify this iteration of the TSP.

...it meant that the very department of the federal government charged with prosecuting all federal crimes in the US thought that the program may be violating federal law, and thus that the federal government employees involved in it may be committing felonies. This is pretty serious stuff.

The fact that Justice took no action at all while the program was being modified shows you that they did not think that any serious crimes were being committed in the interim. This was a power play to get changes made in the program, not a repudiation of the program.
 

Christopher said...

I agree with you, no one had any immunity once the DOJ refused to certify. That is why they needed Comey and, when he refused, they went to Ashcroft at the hospital to get him to okay it.

How exactly does Justice grant immunity to the executive for felony crimes?

Justice was effectively offering its legal opinion as to the legality of the TSP which has no more weight under the law than an amicus brief. It is only an opinion.
 

If only President Bush had the foresight to appoint Bart DePalma as Attorney General, he wouldn't have had to deal with all this skepticism.

I must say, it takes an amazing mind to concoct the theory that John Ashcroft, lying in his hospital bed, insisted on playing hardball with the President's closest advisors simply as a bargaining chip to secure arbitrary changes in a wholly legal program that was vital for national security.
 

Bart: This was a power play to get changes made in the program, not a repudiation of the program.

Still here, still waiting. For text from the MCA. For a comment about reckless disregard of legality. For something that represents an argument rather than a conclusory polemic. Do they require you to know the difference on the Colorado bar? Or does repeating GOP talking points work there?
 

Steve: ...it takes an amazing mind to concoct the theory...

In all fairness, I can no longer accept the assumption that Bart comes up with these on his own. If he was thinking it just seems he'd be more engaged with the thoughts of his interlocutors. No, especially after his "change of course" following the GOP debates, I am instead increasingly convinced that Bart is channeling/parroting various voices from the GOP noise machine, be it AM hate radio or "whirlednuts" as some like to call it or some other source. But there is increasingly less reason to believe he's actually engaged in any creative thought, just a thuggish repetition of his "heroes."

What a waste.
 

"Addington was beside himself [when Goldsmith repudiated the Yoo DoD Torture memo in late 2003]. Later, in frequent face-to-face confrontations, he attacked Goldsmith for changing the rules in the middle of the game and putting brave men at risk, according to three former government officials, who declined to speak on the record given the sensitivity of the subject."

When I read this I felt that Addington doth protest too much on behalf of the people below. What I really think is his worry was about putting himself at risk. That is why he is so intense about this. Without the Yoo Article II the thing he put in place become bare naked crimes.

Also, on the reasonableness argument just because the Justice Department (in a corrupted form) signs off on something does not make it reasonable.

Even if the Justice Department person says they honestly held in good faith their position, at some level I think it may be said that a given position could not be held in good faith.

Also, for the AUMF basis the Justice Department (as the ED -Michigan has said) got that wrong.

On either basis (Article II or AUMF), I think the point should be that even under the reasonableness standard - these bases were not reasonable.

Let us not look for heroes where there are only small degrees of quibble in an environment of great indifference to the privacy rights of Americans.

Best,
Ben
 

Robert,

I bet we can get an answer out of Bart if we waterboard him. It may not be the truth but I bet we can get any answer we like.
 

Bart was a college Republican from Florida. Currently located near the Air Force Academy at Colorado Springs (Wingnut Central). He's wired in.
 

In all fairness, I can no longer accept the assumption that Bart comes up with these on his own.

To be even fairer, I never said that the amazing mind at issue had to be Bart's!

Truly, though, at some point you have to step outside it all and just marvel at the message machine we're dealing with. I mean, how does Tony Snow keep coming up with lines like "Because he had an appendectomy, his brain doesn't work?" Would a lesser human even come close to devising that argument?
 

Ben: On either basis (Article II or AUMF), I think the point should be that even under the reasonableness standard - these bases were not reasonable.

I agree these are not reasonable arguments, but they are arguable. It is not in any way arguable that the White House acted reasonably in failing to question the legality of the matter once the AGs refused to sign off. That's the difference that makes the difference, imo. But, as said elsewhere, I could be wrong. No one has really tried too hard to convince me yet. ;)

anonymous bosch: He's wired in.

Not news, actually, and my knowledge of his off-blog life is part of my choice of illustration for "reckless disregard" with respect to establishment of intent where intent is part of the definition of a crime. I've even been on the brink of emailing him, almost sent him a Christmas card, you know, as "the loyal opposition." But I have come to think that credits him with too much. I've invited private email a half-dozen times or so, he's never taken me up on it. So I suspect your phrase is the most apt, he's wired in, and it's a fools game to think one can get a non-wired response from him.

Steve: To be even fairer, I never said that the amazing mind at issue had to be Bart's!

Heh. I wasn't going to go there.

Peace.
 

If you want to see what Bart's "thought" processes are like when he doesn't have a program: Bart's Thinkin!
 

Can someone please enlighten a layperson about this. From the very start there was a statute known as FISA that prohibited any such wiretaps without a warrant. No one seriously disputes that the Administration was engaged in wiretaps without a warrant, contrary to FISA. That looks like a slam dunk to me; they were breaking the law. And before we get too carried away praising Ashcroft, Comey or Goldsmith for their integrity, they approved some variant on the program that still involved wiretapping without a warrant, so it still broke the law. What supersubtle permutation am I missing here?

And Bart, spare me the crap about the President's inherent Article II powers. If the President truly believes FISA unconstitutionally restricts his authority, instead of secretly breaking it, he should be trying to get it struck down. Yes, he has made this Article II argument in many contexts, but never in court where it could actually overturn FISA. Every time his warrantless surveillance is challenged in court, the Administration runs from the Article II argument that could give them their ultimate victory once and for all and relies instead on standing and state secrets. Care to explain why?
 

In all fairness, I can no longer accept the assumption that Bart comes up with these on his own. If he was thinking it just seems he'd be more engaged with the thoughts of his interlocutors.

Be fair, Robert. I don't know of anyone whose every thought is original. That's why blogs contain links; so you can see who influences the poster.
 

Bart

I guess you are correct, I was loose in saying no one had "immunity" once the DOJ refused to certify the program. A more precise answer is that the officials running the program no longer cpuld not assert an advice of counsel defense to any claim that they willfully violated FISA, and therefore committed a felony, if they didn't have the DOJ's blessing for the program.

As for why the DOJ didn't prosecute anyone before, the answer is that the OLC, under John Yoo, had certified the program's legality, under his view of the "all powerful" Executive.
 

One missing part of the story is what happened between the time that DOJ told the WH that they would not sign the re-authorize and the big event at the hospital. A week before this, the AG had a meeting with Comey. Decisions were made. Then Ash is out, so badly that not even Comey had a chance to talk to him. A six day gap then we have this big late night gangster play. Others have questioned why everyone was ready for this event. My question is more specific: did the WH try to get Comey to sign the papers?

Also, it seems more clear now: we don't even know if this is the same program as the TSP, or the scaled down version. Maybe this was completely different.
 

A more precise answer is that the officials running the program no longer cpuld not assert an advice of counsel defense to any claim that they willfully violated FISA, and therefore committed a felony, if they didn't have the DOJ's blessing for the program.

Advice of counsel is NOT a defense under CA law. Is it under federal law?
 

Slightly aside: I am too young to recall any details from Watergate. To what extent were there outside political hacks who claimed that Nixon's acts, if true were legal (instead of arguing that he did not do such acts)? I am curious if there is an element of politicization made apparent by such advocacy for Bush that was absent now.
 

Enlighted Layperson,

Your argument (at 7:56) isn't as good as you think. There is another statute, the War Powers Act, that almost all Presidents have considered questionable at best or flatly unconstitutional. As well, many legal scholars agree that it (or at least portions) is at best very questionable Constitutionally. Yet, the issue has never been forced. Presidents generally go along with it, because it has never been worth challenging it for a myriad of reasons (some context dependent). So, your argument doesn't get you very far.
 

Can someone please enlighten a layperson about this. From the very start there was a statute known as FISA that prohibited any such wiretaps without a warrant. No one seriously disputes that the Administration was engaged in wiretaps without a warrant, contrary to FISA. That looks like a slam dunk to me; they were breaking the law. And before we get too carried away praising Ashcroft, Comey or Goldsmith for their integrity, they approved some variant on the program that still involved wiretapping without a warrant, so it still broke the law. What supersubtle permutation am I missing here?

The plausible speculation is that OLC first approved the wiretapping under the Art. II theory. The suggestion is that the new OLC head didn't find that theory plausible and replaced it with the AUMF argument.

Neither argument is particularly persuasive.

There is another statute, the War Powers Act, that almost all Presidents have considered questionable at best or flatly unconstitutional. As well, many legal scholars agree that it (or at least portions) is at best very questionable Constitutionally. Yet, the issue has never been forced. Presidents generally go along with it, because it has never been worth challenging it for a myriad of reasons (some context dependent). So, your argument doesn't get you very far.

Sure, but it's not clear how a test of the War Powers Act might arise. The wiretapping, in contrast, presents multiple options for judicial resolution. The fact that the Administration has ducked those opportunities is curious, to say the least, if they really believe them.
 

Advice of counsel is NOT a defense under CA law. Is it under federal law?

Doesn't it go to qualified immunity? I'm frankly not up on the issue.
 

I'll take another stab in the dark. Isn't there qualified immunity regarding a program later determined to be illegal, as long as the executive acted on reasonable legal advice telling him it was legal/Constitutional? I thought I remembered that from Conlaw, but heck my mind sometimes mass dumps info after the final.
 

Mark,

Btw, I responded in our discussion over affirmative action.
 

This comment has been removed by the author.
 

I'm sure it's been said here previously, but this is clearly about spying on the dems.
 

Btw, I responded in our discussion over affirmative action.

Thanks, I might have missed it otherwise. I replied, but I think that with that I've said pretty much all I can say. I'll let you have the final word.
 

What makes you think that Comey's testimony was about the NSA program?

Why was FBI Director Mueller involved -at the hospital bed, - threatening resignation and - converting Bush?

Why do you think the legal reasoning changed when it well may have been that the program had changed?

"factual and legaly" are Comey's words for the review and the facts of the program probably didn't fit the legal reasoning anymore.
 

qualified immunity exists in a civil lawsuit for government officials who operate under a good faith, but mistaken, belief that their actions were lawful. It is frequently asserted in Section 1983 lawsuits filed against the police, for example.

I do not know of its application in the criminal law context.
 

Mark Field:

I believe advice from an attorney that your actions are lawful under FISA would go to negate the mens rea requirement that, under 50 USC 1809, requires the government to prove you acted intentionally in intercepting communications contrary to that statute. I am a securities law expert, not a FISA expert, but the advice of counsel defense is often asserted in that context.
 

Christopher said: I believe advice from an attorney that your actions are lawful under FISA would go to negate the mens rea requirement that, under 50 USC 1809, requires the government to prove you acted intentionally in intercepting communications contrary to that statute.

It seems to me that there is no question that the intercepts were illegal under FISA, which requires a warrant--the Administration admits that it ordered the surveillance to proceed without getting a warrant. On the basis of the Admin's legal arguments justifying the program after the NSA program came to light, the DOJ probably cerified that the program (after modification) was legal under the 4th A and was consistent with the President's Article II powers, notwithstanding FISA.
 

qualified immunity exists in a civil lawsuit

Which presumably isn't too far from these thugs' minds.

But thanks Christopher for clarifying -- advice of counsel would go to intent, particularly with a court reluctant to see the President brought up on criminal charges ...
 

I am somewhat amused by those who wish to conclude that since Comey did not state that the program was illegal, that it must have been legal.

As a legal layperson, I have almost never heard an attorney come out and state that an action is illegal--there are always qualifiers, especially if the person asking is the client of the attorney. They will use language like Comey's, or say that it would be "difficult to defend such actions" or that "there is not much precedent for approving such a course". Hell, even when someone asks about something that is blatantly illegal, the attorney will state that "[they] could not recommend that course of action".

About the only attorneys who make such statements are prosecutors charging individuals with crimes.
 

I believe advice from an attorney that your actions are lawful under FISA would go to negate the mens rea requirement that, under 50 USC 1809, requires the government to prove you acted intentionally in intercepting communications contrary to that statute. I am a securities law expert, not a FISA expert, but the advice of counsel defense is often asserted in that context.

This is an interesting theory and would make sense, but I'm not sure the language of Sec. 1809 supports it. Here's the language:

"A person is guilty... if he intentionally --

(1) engages in electronic surveillance under color of law except as authorized by statute..."

The intent here would be the intent to engage in surveillance under color of law, etc. If someone thought, wrongly but in good faith, that he was "authorized by statute", then that would negate the required intent.

However, I'm not sure that reliance on advice of counsel can be used to show that good faith belief. That's the very circumstance which CA courts reject as the basis for a defense. See People v. Vineberg, 125 Cal. App. 3d 127, 137 (1981).

I don't practice criminal law and I may be missing some nuance to this. Also, I don't know what federal law is and don't have the time to look it up right now. Christopher's suggestion is plausible, but I'm still not sure it's a true defense. Anderson's point about judicial reluctance is also a good one.
 

I'm not sure that the DOJ certification need is primarily legal. It's political cover - Bush was trying to justify to Congress that sufficient oversight was ongoing, since the DOJ, whose leadership was independently confirmed by the Senate, had approved of their actions.

If he had just been doing this by fiat, the political repercussions would have been much more severe. But by involving a committee, political responsibility is dispersed. Bush claims that Ashcroft and others had approved it - if you still claim that it was illegal, you are claiming that not only is Bush committing a crime, but that a conspiracy of well-trained lawyers is in on it, or are in fact incompetent. Neither one is quite palatable in the MSM.

Chasing far-sighted planning by this gang is unlikely to be fruitful. Bush is a seat-of-the-pants kind of guy who surrounds himself with sycophants. The only long-term planning is by Cheney, who hasn't shown great competence in anything but self-aggrandizement, and feeding at the trough.

The underlying reality is not legal, but political.
 

I'm not sure that the DOJ certification need is primarily legal. It's political cover

But don't forget the point of, I think it was Christopher -- that the telcom companies probably took the DOJ certification much more seriously than Bush did.

Card and Gonzales were clearly frantic not to let the witching hour strike without someone's name on the dotted line. Why the urgency?
 

Mark Field:

The issue you pose is what does "intentionally" mean in 50 USC Section 1809? Does it mean that the defendant must have acted with a guilty mind (mens rea) or simply have meant to engage in the conduct constituting the crime?

I do not have time to look it up but my guess, based on other federal criminal statutes, is that it incorporates a mens rea requirement, which would make this statute consistent with other federal criminal statutes, e.g., 18 USC Section 1001 (the false statements statute). Probably the answer would lie in cases construing the federal wiretap statute, on which this portion of FISA was likely based.

Also, as others have noted, there is the possibility of civil liability under FISA (Section 1810), so the DOJ's certification may have been necessary to assuage fears of the telcos cooperating with the NSA in this program. Presumably, these companies would try to argue for qualified immunity from liability by citing to the DOJ's certification, if anyone found out about the program, and sued them (and got past the state secrets arguments to dismiss).
 

Christopher: I believe advice from an attorney that your actions are lawful under FISA would go to negate the mens rea requirement...

Yes. So when your attorney tells you, "I can't sign of on _that_" and you do it anyway then you display reckless disregard or indifference for legality, which in a criminal context can often serve to fulfill a mens rea requirement.

Thus, given the President is sworn to uphold and defend the Constitution, given the Constitution does in fact limit the President to acting within the law (the disgusting, disingenuous and---in any sane political environment---untenable claims of the John Yoo's of the world notwithstanding), and then given this incident of disregard for legality, the best conclusion certainly seems to be that this President failed to fulfill his duties of office faithfully, which, in turn, must be at least as egregious as prevaricating about a blowjob, that being the recently set low bar for "high crimes and misdemeanors".

It is vital as well to get to the bottom of whatever the actual program was. There are hints and rumors of all manner of malfeasance and possibly even crimes by this President, his handlers, and their cronies. Impeaching and removing the man from office should turn over many of those stones.
 

Christopher those are both good points. One of these days maybe I can actually, you know, look stuff up.
 

"Slightly aside: I am too young to recall any details from Watergate. To what extent were there outside political hacks who claimed that Nixon's acts, if true were legal (instead of arguing that he did not do such acts)? I am curious if there is an element of politicization made apparent by such advocacy for Bush that was absent now."

"# posted by Zathras : 8:59 PM"

The only difference is the extremism of the Bush defenders -- traditionally termed "lunatic fringe" -- and their volume. Volume as in loudness.

Then, though Agnew and Nixon had their defenders, they had a "weakness": they were sufficiently honest, intellectually, that a reasoned argument would alter or change their view.
 

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