Balkinization  

Sunday, May 20, 2007

Douglas Kmiec Responds to Marty Lederman

Guest Blogger

Douglas Kmiec

From: Kmiec, Douglas
To: marty.lederman@comcast.net
Sent: Saturday, May 19, 2007 6:31 PM
Subject: Former DAG Comey

Marty

I tried to post the comment somewhere on the Bakinization site, but not sure whether I did so successfully. In any event, my respect for your work prompts me to send this to you directly. If you are so inclined, you may post it on the site if I have sent it into cyberspace.

I am old fashioned enough not to know the etiquette of how best to respond in gratitude to so many readers who have taken the time to write here or to me personally, either agreeing or disagreeing with my commentary. Thank you for taking the time to share your thoughts.

First, let me reaffirm my description of Mr. Comey as an admirable fellow. I especially admire Mr. Comey's forthrightness and genuine concern for his professional responsibility; though I think it important that good men like him not feel the necessity to resign over interpretative disagreement. With much respect for and agreement with Professor Tamanaha's insights on the need to avoid opportunistic indeterminacy, I still believe the President's authority for the terrorist surveillance program is a closer question than he apparently does. In part, this is premised upon the OLC analysis or "white paper" that Mr. Gonzales and the Department have since relied upon in public testimony, but it is also because of older, unaddressed constitutional concerns raised by Griffen Bell with regard to application to FISA in war time.

Instrumentally, were it not a close question for Mr. Comey as well, I do not understand how, after meeting with the President, he could modify the surveillance program to eliminate his stated legal objection. Were the "exclusivity" language in FISA as absolute as Marty's reference to the criminal liability under section 1809 implies, mere tinkering with a program that, until recently, was not operating with a FISA warrant or some other as yet publicly unidentified approval or order of the FISA court, would not be capable of obviating the legitimate statutory concerns.

Mr. Comey was especially to be applauded for his unwillingness in testimony to transmute his disagreement with Mr. Gonzales over the scope of the President's authority to undertake war-time surveillance without the particular certification in issue into a claim of "illegality."

What outrages many was the seeming nefariousness of the hospital visit. Here, I did think Mr. Comey's testimony was "histrionic" -- that is, "of a theatrical quality." This does not mean I disbelieve his recounting of the scene, I just think the sirened arrival at the hospital, breathless rush up the stairs, and Ashcroft's rising from the bed, and so forth, was vividly re-told. It is fair to say, I believe, that Mr. Comey saw no justification for the "hospital visit." As I indicated in the essay, I too am "mystified" by what on the surface appears to be an "ethically dubious" attempt to pursue a futile certification from a man recused and critically ill in the hospital. (Please note, as one of your astute readers observed, this terminology was not aimed at Mr. Comey as Professor Lederman suggested. I apologize that my late night sentence construction misled Marty in this regard.). I speculate, but do not know, that Mr. Gonzales had reached the conclusion that this extraordinary contact with Mr. Ashcroft was necessary because an interruption in the on-going terrorist surveillance effort would seriously jeopardize the security of the nation and he intended to ascertain whether Mr. Ashcroft concurred and was well enough to rescind his recusal in light of that possible concurrence. Marty's reference to section 2511(2)(a)(ii)does not alter my supposition; rather, it bolsters the view that the program could well have been interrupted in a fashion that those concerned with gaps in terrorist intercepts would find to be an unacceptable risk for the country.

Overall, the purpose of my commentary was largely to raise a caution about the undifferentiated likening of a dispute over the extent of the president's war powers to distortions of the rule of law we know as Watergate. To disagree over the interpretation of Constitution or statute, especially where that disagreement is consequential to the nation's well-being, is not to indulge in corrupt or venal behavior. Of course, to be open to that view one does need to see the FISA authority question as not, to pick a regrettable phrase employed elsewhere a "slam dunk" against such authority.

Unfortunately, one of the now regrettable realities is that, for some, the dislike and distrust of either the President or Mr. Gonzales or both has become so intense, that it is difficult to outline legal argument without partisanship obstructing constructive dialog. Goodness knows, I myself have been highly critical of unnecessarily gratuitous and indeterminate presidential power claims in signing statements and the closed-mindedness -- revealed only after profound damage has been done to Iraq and the moral footing of the United States -- but, in good faith, I am holding onto the belief that it is possible to defend the separation of powers, including its presidential dimensions, without being understood only as a Bush apologist.

One of your readers asked about my own work in OLC. It is somewhat off-topic, so I will not dwell on it, other than to note that my career in OLC ended shortly after I issued a legal opinion that interpreted the Rehabilitation Act and related statutes as protecting those with asymptomatic HIV against discrimination in the administration of government programs. At the time, more than one person in the White House and in OLC, itself, told me that was either a politically imprudent thing to do or was not obviously sustained by the legislative history of the Act. The first concern, political acceptability, should have no bearing on OLC's work. The latter consideration, whether I correctly grasped the textual meaning of Congress' intent was perhaps arguable, but if President Reagan or then- campaigning George H.W. Bush had disagreed with my exercise of legal judgment, I would have conceded their authority to override my conclusion without thinking I needed to resign. Of course, if the President seldom found my advice useful, that would be a different matter. As it was, the politics of elections allowed President-elect Bush to make his own unfettered choice of who should and should not be removed from a presidential appointment without explaining himself to me – but then, I may be wandering into another topic that involves Mr. Gonzales.

As always, I have benefitted greatly from the commentary on this site, and of course, I am most grateful for your charitable efforts to give me a different view of matters.

Respectfully,

Douglas Kmiec

Comments:

I interpret Prof. Kmiec's email to indicate his support for kicking puppies, and his eagerness to cheat on his wife whenever he sees fit.

He may disagree, but if so, it's merely a matter of disagreement over interpretation.

Because judging from his email, he would agree with me that there's really no sense in discussion whether competing interpretations are more or less well-founded.

Differences are differences, all views are equally valid, and the truth is merely a tale agreed upon.
 

Elvis, thank you for your excellent comment.

kmiec: "I tried to post the comment somewhere on the Bakinization site, but not sure whether I did so successfully"

Kmiec's first attempt did indeed appear successfully, here.

I'm going to take the liberty of responding to his repost with a repost of my response to his first post. Clear?

Prof. Kmiec,

"I think it important that good men like him not feel the necessity to resign over interpretative disagreement"

What's your basis for claiming that all that was at issue here was an "interpretative disagreement?" We know almost nothing about the program that Comey rejected, or why he rejected it. Is your claim based on knowledge of facts that are not available to the rest of us?

Comey presumably had detailed information about the program he rejected. You presumably do not. His behavior is not the behavior of a person troubled by a mere "interpretative disagreement" (or "spat," as you called it in your column, which means "petty quarrel"). His behavior is the behavior of a person troubled by something larger than that. He was close to the facts (regarding the specific program he rejected). You're not, as far as I can tell. Therefore, how can you know what motivated him, and how can you know that what motivated him was merely an "interpretative disagreement?"

"I still believe the President's authority for the terrorist surveillance program is a closer question than he [Tamanaha] apparently does."

Same problem. Comey knew what Bush was doing for those first 30 months (pre-pancreatitis). The rest of us (including you, presumably) do not. Therefore what's your basis for making claims about the 'closeness' of the question? Your claim seems to be essentially this: I know it's legal, even though I don't know what "it" is.

"were it not a close question for Mr. Comey as well, I do not understand how, after meeting with the President, he could modify the surveillance program to eliminate his stated legal objection … mere tinkering … would not be capable of obviating the legitimate statutory concerns."

You're raising a very interesting question, which is this: what was done to satisfy Comey's concerns? Was there just some "tinkering," or was the old program scrapped and a new one created in its place? The answer, obviously, is the latter. That's plain from Gonzales' testimony (2/6/06): "I do not believe that these DOJ officials that you're identifying had concerns about this program" (excerpt, full transcript). He also said "there has not been any serious disagreement about the program that the president has confirmed."

If the program "the president has confirmed" was the same program Comey had rejected, but simply with some "tinkering" applied to it (and this is essentially the scenario you promote in your writings), then Gonzales was plainly lying to claim that "there has not been any serious disagreement" about this program. Gonzales' statement can be considered truthful only if we understand that the old program was scrapped and replaced by a new one. And this is at odds with your claim that all that was at stake was a minor "interpretative disagreement."

If all that was at stake was a minor "interpretative disagreement," then a sober professional like Comey (along with Ashcroft, Goldsmith, Mueller and others, apparently) would not have threatened to resign. Likewise, if all that was at stake was a minor "interpretative disagreement," it would not have been necessary to scrap the old program and create a new one, which is apparently what was done, according to Gonzales' testimony.

"I speculate, but do not know, that Mr. Gonzales had reached the conclusion that this extraordinary contact with Mr. Ashcroft was necessary because an interruption in the on-going terrorist surveillance effort would seriously jeopardize the security of the nation"

Are you claiming that the FISA court was expected to refuse to grant warrants to support this "on-going terrorist surveillance effort," even though an interruption "would seriously jeopardize the security of the nation?" Was there a concern that whatever offended Comey, Ashcroft, Goldsmith and Mueller would equally offend the FISA court? Are you suggesting that doing things the old-fashioned way, with warrants, "would seriously jeopardize the security of the nation" even if it was done only for a few days, or long enough for Ashcroft to come out of his post-surgical sedation?

"he intended to ascertain whether Mr. Ashcroft concurred"

If Gonzales' problem was that he didn't know whether Comey had Ashcroft's support, then why not simply ask Comey? If Comey was considered trustworthy enough to be DAG, wouldn't he also be considered trustworthy enough to provide a straight answer to such a question?

"the program could well have been interrupted in a fashion that those concerned with gaps in terrorist intercepts would find to be an unacceptable risk for the country"

It's hard to imagine why anything would need to be "interrupted," unless the FISA court would refuse to grant warrants. Why would they do so? I guess the answer to that question would also answer this question: what was being done that was so egregious that it motivated Comey et al to threaten to head for the exits?

"it is difficult to outline legal argument without partisanship obstructing constructive dialog"

In my opinion, here's what "constructive dialog" would look like: serious answers to the questions I've raised (which I am not alone in raising, needless to say). Such answers are pointedly absent from your writings on this subject, and similar writings.
 

Sorry, but my eyes glaze over when I begin reading the almost Talmudic hairsplitting engaged in by apologists for some nefarious deed or other. Where's Nancy Grace when you need her?

In this case, the medium really does become the message, if by "medium" one means the convoluted form of the message.

This isn't moot court, Prof. Kmiec. Please say what you mean plainly.
 

"he intended to ascertain whether Mr. Ashcroft concurred"

If Gonzales' problem was that he didn't know whether Comey had Ashcroft's support, then why not simply ask Comey? If Comey was considered trustworthy enough to be DAG, wouldn't he also be considered trustworthy enough to provide a straight answer to such a question?


Let me just add to this a point jukeboxgrad has made elsewhere: Gonzales manifestly did NOT merely want to know if Ashcroft agreed. Gonzales came to the hospital with a document and a pen. He intended to get a signature. That signature, of course, would have been obtained from a person who was not the Attorney General at that point in time. And it would have been obtained under duress. That's appalling.
 

Here, I did think Mr. Comey's testimony was "histrionic" -- that is, "of a theatrical quality." This does not mean I disbelieve his recounting of the scene, I just think the sirened arrival at the hospital, breathless rush up the stairs, and Ashcroft's rising from the bed, and so forth, was vividly re-told.

Excuse me, but so what? The narrative is undisputed, and the facts were inherently dramatic. So recounting those facts was, too. I actually found Comey's delivery to be measured, deliberate and unemotional.

Yes, it made for compelling testimony. This is a good thing, and we should be glad that the telling has grabbed the attention of some part of the lay public that has been lulled by the complex but enormously important legal issues at stake: The president has ordered what was facially a large-scale violation of criminal statutes, and the only justification ever offered has been his lawyers' argument that the statue didn't really apply. It turns out even that disinegenous excuse is not so clear-cut. (We don't even know the scope of whatever egregious acts occurred before March 2004 and apparently then were discontinued upon threat of resignation of the whole top tier of DOJ and the FBI.)

Kmiec would have us think this is all just an "interpretive" dispute in good faith among lawyers, and suggests that FISA's constitutional foundation is flawed.

If the president wants to make that case, let him make it in court, and get this mess settled. But Bush's entire strategy has been to avoid judicial review, while political surrogates blow smoke outside of court. That strategy continues to this day. So I lost all respect for that posturing a long time ago.

When Kmiec signs an op-ed calling on the president to seek forthright judicial review of the legal merits of warrantless surveillance, I will take his "good-faith" plea seriously. Until then, his apologetic shows him to be no better than a partisan tool.
 

Staggering-
Causing great astonishment, amazement, or dismay; overwhelming

Histrionic-
1. Of or relating to actors or acting.
2. Excessively dramatic or emotional; affected.
or
characteristic of acting or a stage performance; often affected; "histrionic gestures"; "an attitude of melodramatic despair"; "a theatrical pose"

Exaggerate-
v.tr.
1. To represent as greater than is actually the case; overstate
2. To enlarge or increase to an abnormal degree
v.intr.
To make overstatements.

-----------------------------

"dislike and distrust of either the President or Mr. Gonzales or both has become so intense, that it is difficult to outline legal argument without partisanship obstructing constructive dialog."

Whether the President and Mr. Gonzales are honest is an important part of the discussion. Many arguments defending the administration make every assumption in favor of the administration when history has shown that administration officials have repeatedly mislead the public.

In a similar vein, it is hard to "outline legal argument" when one must "suspect" what it is our government is doing that would make Republican partisans consider resigning. Mr. Kmiec "suspects" the best, despite acknowledging "gratuitous and indeterminate presidential power claims." Whether the administration is honest is necessarily at the center of any debate over these secret programs.

Bush administration apologists often trot out the argument that somehow personal dislike clouds the reasoning abilities of critics. Mr. Kmiec might hope his overly polite response shows what a rational person he is in comparison to the angry blogger. (And I hope he and his loved one's - surely kind and warmhearted people - live long happy lives.)


---------------------


"To disagree over the interpretation of Constitution or statute, especially where that disagreement is consequential to the nation's well-being, is not to indulge in corrupt or venal behavior."

Unless, of course, one's course of conduct is decided prior to the "interpretation." Legal reasoning in this administration appears to start with a conclusion and work backwards to an "arguable" position. Such conduct -- from officials bound to faithfully execute the laws -- is corrupt and venal.
 

Douglas Kmiec writes: Overall, the purpose of my commentary was largely to raise a caution about the undifferentiated likening of a dispute over the extent of the president's war powers to distortions of the rule of law we know as Watergate. To disagree over the interpretation of Constitution or statute, especially where that disagreement is consequential to the nation's well-being, is not to indulge in corrupt or venal behavior.

This is the heart of Douglas Kmiec's original essay, and its the point on which I disagree with him most strongly. How exactly is the executive power grab orchestrated by this Administration different from that of the Nixon Administration in a way that should comfort the citizens of this country?
 

Douglas Kmiec writes: To disagree over the interpretation of Constitution or statute … is not to indulge in corrupt or venal behavior.

As I mentioned over at VC: it is indeed "corrupt or venal behavior" to promote a particular "interpretation of Constitution or statute" if that interpretation is patently bogus. The fact that lots of credible Republicans were ready to quit tends to create the impression that they were objecting to just such an interpretation.

This is essentially the point that many others have made, perhaps best of all by the appropriately acerbic elvis, the first commenter above.
 

I finally agree with jukeboxgrad. It is "corrupt or venal behavior" if that interpretation is patently bogus. Arguing infringement of the President's legitimate warpowers as unconstitutional (IMO) is not patently bogus.
 

Charles said: Arguing infringement of the President's legitimate warpowers as unconstitutional (IMO) is not patently bogus.

Charles,

Do you mean to argue that FISA is unconstitutional? Not even the Bush Admin has gone that far. In fact, President Bush asked for and signed legislation amending FISA as part of the Patriot Act and thanked Congress for giving the Exec the tools necessary to gather intelligence on terrorists.
 

Any purported law (FISA included, even if Bush signed a change but later it was used as) infringing the President's legitimate warpowers, it is unconstitutional as applied. That may be based on changed circumstances and the President's best judgment at the time, relying of course on OLC, NSC, and everything else at his disposal. During war, especially, I don't think it is incumbant upon the President to voluntarily "test" his constitutional judgment or even comply with the Supreme Court -- Lincoln didn't -- does that answer your question?
 

It is refreshing, and of course a little scary, to read Charles' candid comment. In his view, bayonets simply trump the rule of law.

He is wrong. Which is why Kmiec's attempt to paint this as a gentlemen's legal disagreement is so dangerous.
 

I call 'em like I see 'em -- and, I never said "bayonets simply trump the rule of law" -- perhaps the gentlemen's legal disagreement relates to what warpowers are "legitimate" then?
 

Charles: ...perhaps the gentlemen's legal disagreement relates to what warpowers are "legitimate" then?

Since you deny the necessity, and even the ultimate legitimacy, of judicial review, and claim an absolute right for presidents even to defy the Supreme Court, the precise nature of the question matters little.
 

ou seem to forget that I was fine with Clinton being impeached and removed from office for perjury -- rule of law, and everything ; )
 

ou = You
 

...but not fine with Scooter Libby being convicted for perjury and obstruction of justice.

The rule of law is not a matter of political convenience.
 

Agreed. There no legitimate argument to be made that Clinton "honestly forgot" touching Lewinsky's breasts.
 

...and a jury of his peers found beyond a reasonable doubt that Scooter Libby did not honestly forget.

By the way, I don't recall President Clinton ever claiming that he forgot anything. My recollection is that his defense was based on parsing language in a way that was strained, but probably sufficient to avoid a perjury conviction.

Perhaps, during the Clinton years, I should have been more concerned about protecting the rule of law even when the misleading answer arose from a question that ought never have been asked. I suspect that I argued positions during that time that may now embarrass me by conflicting with my current positions.

If so, I suggest that there is a lesson in my failures for you. The end of this Administration is on the horizon, and I have cause to be optimistic about the results of the next Presidential election. You may wish to take care that your current positions do not conflict with those you may wish to take in the near future.

Regardless, as we agree, protecting the rule of law ought to transcend partisan politics. The same should be said for protecting the appropriate checks and balances in our government. We should be able to agree that Congress ought not make tactical or strategic decisions about the conduct of ongoing military operations but Congress, as the most democratic branch of government, ought to make broad policy decisions about the conduct of war and the extent to which the government should be able to invade our personal lives in the interests of national security or otherwise. We also ought to agree that, in order to ensure this balance, the Executive Branch needs to be vigilantly overseen by the Legislative Branch with conflicts decided by the Judicial.
 

Charles:

Any purported law (FISA included, even if Bush signed a change but later it was used as) infringing the President's legitimate warpowers, it is unconstitutional as applied.

Youngstown says differently. Youngstown is still the law.

Cheers,
 

Oh, I love Youngstown Sheet & Tube Co. v. Sawyer. That being said, I also loved Scalia and Thomas's dissent in Hamdi v. Rumsfeld pointing out that President Bush's decision to try Hamdan before a military commission "is entitled to a heavy measure of deference," inasmuch as Congress had authorized the President to use all necessary and appropriate force to prevent future acts of terrorism when it passed the Authorization for Use of Military Force. Nonetheless, Congress closed that particular loophole. Checkmate.
 

This comment has been removed by the author.
 

Charles:

Checkmate.

Huh?

Say, Don, don't you have some windmills to tilt at?

Cheers,
 

Who is "Don"? I also meant Hamdan, obviously not Hamdi above.
 

This comment has been removed by the author.
 

Ouch -- good thing I didn't point out your typo.
 

Okay, my last comment was too snarky even for Charles. I deleted it.
 

Charles:

Why, Senor Quixote, of course. To the tilt now with you, there's fair maidens to rescue....

Cheers,
 

charles: "Arguing infringement of the President's legitimate warpowers as unconstitutional (IMO) is not patently bogus."

You (and the rest of the gang, like Kmiec) tediously avoid the central question, which is this: what were Comey et al so upset about? Bush was doing something they thought he shouldn't do. They felt so strongly about this that they threatened to resign, to get him to stop. So he stopped. But stopped what?

Let's say all he had been doing was exercise "legitimate warpowers." That's your claim. Do Comey, Ashcroft and Mueller strike you as the kind of commie moonbats who would threaten to resign in order to prevent POTUS from exercising "legitimate warpowers?" Sorry, that makes no sense.

And if Bush was just exercising "legitimate warpowers," then why did he stop? He should have let the moonbats resign. Just imagine the long-term damage he has done to the power of the CinC, by folding the way he did. He has established the following precedent: moonbats working for the president who object to his right to exercise "legitimate warpowers" can pressure him to stop exercising those "legitimate warpowers" simply by threatening to resign.

And if he didn't want them to resign, and he also wanted to continue to exercise his "legitimate warpowers," he had other solutions: either use warrants, or change the law. Let's assume (although we don't know for sure) that FISA was the law that Comey was insisting be respected. But let's say Bush couldn't abide the constraints of FISA, and still keep our remaining skyscrapers upright. Then the answer is to change or repeal FISA. Bush's party was in control of congress. If the law is getting in the way of "legitimate warpowers," then why not fix the law? Or repeal it?

Let's review the four major choices Bush had in this dilemma:

A) Let the cowards resign. Full speed ahead. POTUS has a duty to exercise "legitimate warpowers," and to ignore laws he deems unconstitutional. Our safety demands no less.

B) There's no need for them to resign, and there's no need for POTUS to endanger us by failing to exercise his "legitimate warpowers." The solution is to do things the old-fashioned way, and get warrants from the highly-compliant FISA court.

C) There's no need for them to resign, and there's no need for POTUS to endanger us by failing to exercise his "legitimate warpowers." And there's no need to bother with warrants. The solution is for congress to change the law. Surely a GOP congress can and will swiftly crush any such unconstitutional law that seems clearly designed to help no one but terrorists.

D) Congress is resting, and we don't want to disturb their nap. We also don't want to bother the FISA court, since the weather today is perfect for golf. We also don't want Comey to resign. Therefore the best solution is to endanger the nation by neglecting to exercise our "legitimate warpowers." This POTUS doesn't mind submitting to an "infringement" of those powers. After all, so what if we lose a few more tall buildings? We can always build some more.

Once he realized that a bunch of people were about to resign, Bush chose D. Why?

Let's be clear about this: for roughly 30 months (we assume), Bush had been doing something he felt was necesary to protect us. He felt it was an exercise of "legitimate warpowers." He felt no one had a right to infringe on those powers. Yet he willingly gave some of those powers away, presumably exposing us to needless danger, even though A, B and C were all available to allow him to continue to protect us properly. This is pretty stunning.

Rejecting B and C tends to create the impression that Bush feared that FISA judges and GOP legislators would react to his "legitimate warpowers" the same way Comey did. This, in turn, tends to create the impression that Bush's "legitimate warpowers" weren't legitimate.
 

Several good questions, jukeboxgrad. Maybe someday, when it's safe, we will both KNOW what really happened.
 

You know, Charles, it doesn't work "well" that way. Finding out "after we are safe," that is. Being several years removed from Con Law, I will let the those more versed than me banter back and forth with you. Rather, I will present real world examples of why it is not opportune to hope that today's secrecy will not destroy tomorrow's freedom. As a child, I often visited Poland back in the 70s. Being a child, I didn't understand the import of the men in the dark sedans pacing us several times during our trips. I also didn't understand the import of why my father didn't travel with us when his last remaining parent passed away. I also didn't realize why they almost never called Poland, and when they did, they never said much other than they miss the food. I also didn't understand why the few letters we would receive were taped shut, and the few we sent never contained cash or anything other than season greetings.

Hysterical, perhaps you are thinking. Well, it actually happened. It won't happen here, you think? Why not? What makes you think that power does not affect people here just as much as it did in the Eastern Bloc.

Oh, by the way, in the past year my mom refuses to talk politics on the phone anymore, and shushes me if I mention "President Bush."

Beware tyranny. My ancient mother sees it taking root again...here.
 

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