Sunday, May 20, 2007
One of the things that both Marty Lederman and Doug Kmiec agree on is that the President is authorized to disagree with--and thus, presumably, to "override"--OLC opinons that he/she objects to. The President is being treated as a defacto "supreme court" within the Executive Branch, who has the last word. We are discussing this now within the context of the Comey "hospital visit" and the interpretation of FISA. But another notable example is when President George H.W. Bush ordered the Solicitor General to change the argument being made by the US with regard to remedying the existence of historically black colleges in Mississippi, the result, obviously, of constitutionally illegitimate segregation by Mississippi over a period of many decades. (This might have involved the Fordice case, but I'm not sure.) The US had submitted a brief, I believe, for restructuring Mississippi higher eduction according to the principle of Green v. New Kent County, which requires, at least as a formal matter, the eradication, if at all possible, of "racially identifiable" schools in favor of "just schools." A number of presidents of historically black colleges protested, and, of course, there is a good argument, made most eloquently by Justice Thomas, that historically black schools have played an extremely valuable role within the African-American community. In any event, President Bush ordered a change of argument and, as I recall, the ultimate brief submitted by Lawrence Wallace for the Solicitor General took cognizance of the change of position.
"Article II Section 1. The executive power shall be vested in a President of the United States of America." The president must be a natural born citizen and 35 years old, but there is nothing in the Constitution that says he has to be a lawyer. Nor is there anything transferring "the executive power of the United States" to the OLC, SG, or AG on matters of legal interpretation.
That said, there is nothing in this story that claims the dispute was over a matter of constitutional interpretation. We don't know what the dispute was about. We know the program had been running for years, that it was subsequently reauthorized, and that the FISA court eventually approved it. We know that there were changes to the legal documents and eventually the court warrants that permitted the program, but we do not know if the program itself ever changed. It may have been conducted in a way that met all the versions of the authorization all the time.
Which points to the special status of the President. The NSA reports to him. He may have been the only one in this story outside the NSA who actually knew how the program operated, where and how the communications were collected. One presumes there are lawyers in the NSA, and since they spend all their time studying intelligence law they would know a lot more about it than someone with a general focus. But reauthorization required an option from specific departments outside the NSA. The President may have been relying on better advice from people who had access to more information when he allowed the program to continue.
The NSA reports to him.
A minor hair to split... NSA/CSS reports to the DNI. The DNI reports to the president. Prior to December 2004 it was the DCI who reported to the president. NSA/CSS was a component of the DoD.
Should we also perhaps second guess Presidents who didn't serve in the military when they second guess generals in their commander-in-chief role?
The bottom line is that many simply don't trust the judgment of this President. Thus, the fact Comey and Ashcroft, sheesh, thought something wrong sent a lousy message. In a different situation, the calculus might be different.
[Signing statements can be addressed in a somewhat similar fashion. They aren't in all forms bad ... it is just the nature of these, including the at times laughable interpretation of what the laws mean.]
As to originalism and Madison, Madison was an important (place that in caps, if you like) player, but (esp. in a political role) was not the only one. In fact, see for instance his broad interpretation of the 1A, arguably he shouldn't be the last word.
In fact, for textualists, G. Morris or whomever was key in the committee of style in writing the final draft might be as important. Or, in various cases, those key in the ratification of certain major phrases or sections.
Of course, this at some pt gets rather arbitrary, which makes heavy handed originalism problematic.
I'd add ... the political comment is meant to mean that sometimes politically, he made questionable moves in a constitutional sense. In fact, he himself said as much regarding accepting congressional chaplains.
We know the program had been running for years, that it was subsequently reauthorized, and that the FISA court eventually approved it. We know that there were changes to the legal documents and eventually the court warrants that permitted the program, but we do not know if the program itself ever changed. It may have been conducted in a way that met all the versions of the authorization all the time.
Unfortunately, this is less clear than we could wish. Comey took great care not to identify which "program" he was referring to. We all assume it involved the same "program" identified in the NY Times in December 2005. The problem with that assumption is that (a) it doesn't explain the involvement of the FBI in Comey's recitation; and (b) it seems to be inconsistent with Gonzales' testimony at a couple of points (e.g., Gonzales' assertion, recently reaffirmed, that Comey never had a problem with "that (i.e., the NY Times) program". Given this uncertainty, we also don't know which "program" needed or was getting authorization, how often that authorization occurred, and on what basis.
That leaves it hard to judge the various actors here. One thing we can say, though, is that it's VERY unlikely the DOJ would have been asked to authorize a "program" for which it lacked relevant and material details. If that were the case, any "authorization" would be worthless, probably even fraudulent.
Definately put me in the second camp: After comparing what the legal system takes the Constitution to mean with what it says, I find inescapable the conclusion that a great deal of legal education is devoted to pounding sophistries into future lawyers' heads until, at long last, repetition makes them seem reasonable.
Brett... Definately put me in the second camp: After comparing what the legal system takes the Constitution to mean with what it says...
What does it say? As legal documents go it is extaordinarily vague and ambiguous in many areas. Perhaps you can see into the framer's heads and tell us why these careful men did that?
Once again, this may be a layperson's bias, but I agree with Brett. First of all, the framers of the Constitution were heirs to the Protestant tradition of the "priesthood of the believer" and the right to interpret scripture. Many no longer viewed the Bible as the ultimate source of authority, but they were still sympathetic with that sort of Protestant philosophy.
Second, they prepared a Constitution remarkably free of legalese, one the general public could read and understand. It seems reasonable to assume that this was intentional, that they wanted the general public to read the Constitution and have opinions on it. And, as Professor Levinson says, non-lawyers since George Washington have been doing just that.
That being said, there is a difference between telling the Solicitor General to modify the argument he makes to the Supreme Court and authorizing secret violations of a federal statute. One presents the executive's official interpretation of the law but acknowledges that the Supreme Court's has the final word. The other makes the President's secret determinations of his own power final. And we all know what Madison said about acting as a judge in one's own case.
"it's VERY unlikely the DOJ would have been asked to authorize a 'program' for which it lacked relevant and material details" Since this discussion has demonstrated that the DOJ signoff on the reauthorization was not required by statue, it is also unlikely that the NSA would have released information on the sources and methods of intelligence to people who, by definition, had no "need to know". The DOJ didn't need to know if the conversations were intercepted in NJ, SF, or Cornwall England, in a switching facility or at a satellite dish. Nothing in the reauthorization or approval discussed this matter. Instead, it established rules such as "only international phone calls" and "only when the foreign person was reasonably believed to be a member of al Qaeda". Some details may be relevant, but only because certain methods of collecting the conversation bypass FISA entirely and make the program legal on its face. The DOJ would have to be told anything that might tend to cause the program to be illegal, but it would not need to be disclosed facts that would prove the program was legal. Intelligence includes disinformation, and the best way to confuse your enemies is to have everyone arguing about the wrong thing in the wrong place.
Howard, I found your last comment internally contradictory and don't understand it.
Count me among those who subscribe to the Protestant view. We all get to decide what the Constitution means. Every single day. That's what "living Constitutionalism" is all about.
Howard writes,"The President may have been relying on better advice from people who had access to more information when he allowed the program to continue." My point, though, is what precisely does it mean for a layperson to "rely" on professional advice when, according to many, the layperson (and this is not Bush-specific) is without the professional training to know what constitutes "better advice."
If Bush (and now I will be Bush-specific) relies on outlier scientists for the proposition that global warming is not a serious problem and ignores the "advice" of most mainstream scientists, do we accept this because we believe that Bush is competent to make such judgments or simply because he is indeed "the decider" and gets to make policy decisions on whatever basis he wishes?
I'm also wondering, apropos Howard's post, what makes the President all that special, beyond hierarchical authority. When Frank Hague, the former mayor of Jersey City in the 1930's, trumpeted "I am the law" (as against claims, ultimately upheld by the Supreme Court, that he was trouncing on peoples' First Amendment rights of free speech), is that substantially different from a President making the same claim. Does "the law" not really apply to the President because whatever the President says IS the law just "is" the law. That can't be right, if, at least, we accept the legitimacy of, say, the Steel Seizure Case and its conclusion that Harry Truman did not in fact have the right he proclaimed to seize the steel mills.
As for Joe, it's certainly true that I have no trust at all in the judgment of this particular President. But what sparked my posting is the AGREEMENT between Marty Lederman and Doug Kmiec about the authority of the President to come to an independent conclusion from that reached by the OC (or the SG's office). And what I still want to know is precisely what kind of thought process a President engaging in such "overrides" must go through. (Consider two possibilities: 1) Karl Rove (or Dick Morris, during his service to Clinton) says, "If you follow that advice, you'll lose votes in the next election." 2) David Addington says, "Mr. President, the Constitution, correctly interpreted, gives you the authority to do whatever you believe serves the national security interests of the United States, regardless of any congressional legislation to the contrary." Would anyone participating in this discussion believe that the President could properly override OLC (or the SG or the Supreme Court) on the basis of Rove's advice?
I don't quite know what sense I should take the word "proper." Two negative options are given. One is partisan. The other is something many here think shoddy theory.
Shoddy theory btw accepted by various type legal minds in the administration, including apparently in some sense the current AG. BTW, the current SG (Ted Olson), who some think a possible "compromise" (sic) replacement was key in arguing Bush v. Gore.
So, the fact the theory is shoddy doesn't quite help me. Nor,honestly, does partisan moves. Presidents have made several over the years. Some might argue very rightly so in various cases given the nature of our political system.
If you mean "proper" as "authority" or "legal," yes, I don't see why not. Under our system of gov't, presidents (as much as swing justices in areas of the law where they know little about or act in dubious ways) have the power to make such decisions.
If you mean if the choice is "sound" or "proper" in a broader sense, sure, I see where you are coming from. But, let's end with someone else.
Abraham Lincoln. McClellan, twice the top general in the field, made various questionable moves. He had supporters in the army to the end. Ultimately, Abe got rid of him. He put his judgment, though his military service amounted to the same as Bush, if that, over M.
Also, Abe made military moves, some in some ways strategically questionable, with partisan concerns in mind. Namely, to the detriment of the military effort in some ways, he put 'political' generals, newbies in effect, in key commands to retain political support for his war policies.
Bush, in a fashion, similarly makes partisan choices. To add a bit, Lincoln stocked his Cabinet with various former political foes of his to wise political effect. But, sometimes this involved putting incompetents like Camerson in charge of key positions. Was this "proper?"
Yes. It is not because I share his constitutional theory (many, including DS dissenter Curtis opposed it in many ways) per se. Or, because he never -- or rarily -- took partisan moves into account.
Why? Because he did so -- even when he used partisan reasons and override those who were more expert than he -- in a sound matter. You are quite right to focus on the great power we assume our presidents will use wisely.
Something to keep in mind when we have that 2nd constitutional convention, perhaps.
The People's elected representatives and senators who write the law and the president tasked with enforcing the law are expected to be able to understand the requirements of the Constitution's basic law. Yet, the Constitution does not require that the holder of any federal elected office, or indeed a member of the Supreme Court, be an attorney. Consequently, there is no legal requirement that the President be an attorney to read and interpret the Constitution in the execution of his duties.
Indeed, it is more than a little arrogant and presumptuous for attorneys to argue that only they have the wisdom to read and interpret the Constitution as if they were some ruling priesthood. The Government and its Constitution belong to the People. All citizens as free men and women have the ability to read and interpret the basic law of the land for themselves.
Professor Levinson's use of the term "protestant" for those who share this opinion with me is very apt. A basic tenet of Christian Protestants is that the faithful have the right and the ability to read the Scriptures for themselves. In this spirit, color me a radical Martin Luther style protestant in maintaining that, not only the President has the right to read and interpret the Constitution for him or herself, but all citizens have this right.
BTW, in our system the civil is superior to the military power ... the civil is also superior to the "experts."
Nonlawyers in Congress should give due deference to lawyers when legal matters arise, but a majority rules. A jury can ignore experts they find wrong. And so forth.
We have every right to be concerned when the skilled are ignored esp. for shoddy reasons. It comes up in many areas in our system, doesn't it?
It's not surprising, to me at least, that there is no mention of, or requirement for, a law degree or legal training in the constitution. Most of the teaching at institutions of higher learning was religious in nature and the first law professor in America wasn't even appointed until 1779, and even he dropped out of William and Mary because he couldn't afford the fees. I'm not suggesting it should be a requirement. I believe there are still seven states where one can "read the law" (apprentice) and be admitted to the bar without a degree program.
Mark Field: One thing we can say, though, is that it's VERY unlikely the DOJ would have been asked to authorize a "program" for which it lacked relevant and material details. If that were the case, any "authorization" would be worthless, probably even fraudulent.
Perhaps not as unlikely as you think. Consider this quote from the January 1, 2006 NY Times article on the hospital visit:
At its outset in 2002, the surveillance operation was so highly classified that even Larry Thompson, the deputy attorney general to Mr. Ashcroft, who was active in most of the government's most classified counterterrorism operations, was not given access to the program.
That led to uncertainties about the chain of command in overseeing law enforcement activities connected to the program, officials said, and it appears to have spurred concerns within the Justice Department over its use. Mr. Thompson's successor, Mr. Comey, was eventually authorized to take part in the program and to review intelligence material that grew out of it, and officials said he played a part in overseeing the reforms that were put in place in 2004.
James Comey was confirmed as DAG on December 11, 2003. Thus, from the program’s initiation in 2002 until sometime after December 11, 2003, DOJ was regularly asked to reauthorize a program without the DAG having full access to operational details.
(This also likely explains why DOJ objected to reauthorization for the first time in March 2004; that was the end of the 45 day period following their first ability to fully review the program.)
I think Prof. Lederman identified the key point in his post this morning. Let me just add a couple of thoughts.
The reason why the Founders adopted a single executive, instead of a council as many advocated, was that they wanted to hold the President responsible. Making the President responsible serves as a check; the voters can decide not to return him to office or Congress can decide to impeach him. Having a multi-headed executive would dilute that responsibility.
Hamilton explained the basic idea in Federalist 70:
"But one of the weightiest objections to a plurality in the Executive … is that it tends to conceal faults and destroy responsibility. … It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall."
This ties in to the question of Presidential expertise. We have to allow Presidents to make decisions even when they lack expertise. They do it all the time, and not just on legal issues. Most Presidents aren't expert economists, yet they make profoundly important economic choices. The same is true of military decisions as Joe noted. If we allow Presidents to sub-contract those decisions to others, even experts, we lose accountability because the President is no longer responsible for them. We need Presidents to make the final decisions in order to maintain their responsibility.
The real problem here and since WWII generally is secrecy (Prof. Lederman's point). Secrecy and responsibility are antithetical. Anyone with children knows this -- they hide their misbehavior so they won't get caught.
The problem with the surveillance scandal is less that Bush accepted one bit of legal advice rather than another, and more that all his actions were secret and therefore uncheckable by the other branches or the public. His conduct fundamentally undercut the whole Constitutional system.
What we need here, in the specific case of a legal issue, is what JaO has consistently demanded: for the President to tell it to the judge.
Thus, from the program’s initiation in 2002 until sometime after December 11, 2003, DOJ was regularly asked to reauthorize a program without the DAG having full access to operational details.
QA, you've made an excellent point, but there's one problem with it. The Administration's claims about "authorization" of "the program" are ambiguous. Gonzales carefully used a present tense verb in describing it ("the program" is being certified every 45 days). Other statements leave it very unclear when the "authorization" process began.
It may very well be that no authorization at all took place before March 11, 2004. That, in fact, would be consistent with the Art. II argument. In any case, for now at least, I'm giving DOJ the benefit of the doubt that it wouldn't certify a legal issue without knowledge of the facts.
If the Administration were to claim such a certification without having made full disclosure, well, that would be a real problem. Until the Administration gets asked more specific questions, it's hard to know who to blame.
Professor Levinson recurs to methodologies of textual interpretation in religious traditions to very good effect in this debate, and it challenges the participants to review as carefully hermeneutic thinking in that area as they have reviewed it in the legal domain. Martin Luther was immersed in the approaches that previous theologians had taken to interpreting scripture. His exegesis is not based on disregard for tradition, let alone ignorance of it. Over and above the traditional education, Reformers of his time took on the additional burdens of learning Hebrew and other languages that had not necessarily been part of exegetes' equipment to that time, and added many new sources of information which were brought to bear on their understanding of traditional texts. The question that Levinson raises is not whether one should restrict the number or kinds of people who have the 'right' to make consitutional interpretations, it is rather to challenge us to define the exegetical processes that we believe are necessary and useful in arriving at interpretations and then to ask what we can do to maximize the chances that these techniques will actually be employed by the people who are in position to make the decisions. Asking after academic credentials is only a proxy for these broader questions.
The American legal system makes decisions every day on matters that judges are not professionally qualified to understand. There is no tyrany in our government more dangerous than a Federal District Court that understands nothing about the case in front of it but imagines that it knows exactly what it is doing. When the question is of enormous public significance, the results can be disasterous.
The Microsoft anti-trust case is a good example. A judge who knew nothing about computers, let along software engineering and development, decided that the case was really about a conspiracy he deduced from randomly selected e-mail messages introduced into evidence. He then adopted a theory of the computer industry that had no basis in reality, and intended to seriously damage a major industry. Some people are not good at math. Some people are tone deaf. But the judicial system doesn't have a way to recover when a Federal judge who clearly understands nothing about the case in front of him nevertheless hands down a decision based on complete nonsense.
Mark Field writes: It may very well be that no authorization at all took place before March 11, 2004. That, in fact, would be consistent with the Art. II argument. In any case, for now at least, I'm giving DOJ the benefit of the doubt that it wouldn't certify a legal issue without knowledge of the facts.
We know from James Comey's testimony that the program he was discussing had been previously authorized by the Attorney General.
COMEY: In the early part of 2004, the Department of Justice was engaged -- the Office of Legal Counsel, under my supervision -- in a reevaluation both factually and legally ofa particular classified program. And it was a program that was renewed on a regular basis, and required signature by the attorney general certifying its legality.
And the -- and I remember the precise date. The program had to be renewed by March the 11th, which was a Thursday, of 2004. And we were engaged in a very intensive reevaluation of the matter.
The NY Times may have confused different programs in its January 1, 2006 article. That possibility, though, is belied by the great extent to which James Comey's testimony confirms the accuracy of the Times' reporting. I think it more likely that Alberto Gonzales is splitting hairs (i.e., treating the program with the 2004 revisions as a whole new program).
In case my earlier post was misleading, the NY Times doesn't report that no attorney at DOJ had access to full operational details about the program. The article states only that the DAG didn't have them (and that he normally would be given them).
I think it more likely that Alberto Gonzales is splitting hairs (i.e., treating the program with the 2004 revisions as a whole new program).
This is very likely true. It would be good if Congress could nail that down.
As I see it, there are two alternatives:
1. DOJ issued certification without knowing sufficient details. For the Administration to use such certification would be fraudulent.
2. There's more than one program involved here and Gonzales is misleading us as to which one got certified and how often.
Neither option casts Gonzales in a very good light.
All citizens as free men and women have the ability to read and interpret the basic law of the land for themselves.
And to believe in the Tooth Fairy or UFOs. Such belief is not tantamout to causing such to actually exist.....
... In this spirit, color me a radical Martin Luther style protestant in maintaining that, not only the President has the right to read and interpret the Constitution for him or herself, but all citizens have this right.
I believe I have a right to my own opinion of the Constitution as well (disclosure: IANAL, but I did stay at a Holiday Inn a couple weeks ago).
The difference is whether one has a right to one's own belief, and whether one has a right to enforce that belief on others. I, as a citizen, can choose to conduct myself in a way that comports with my view of the Constitution and the laws ... but I would be foolish to think that the gummint, should they disagree, could not lock me up for doing so. The preznit, as well, is entitled to his own opinion, but he's not entitled to act on that when the co-ordinate branches -- in particular the one entrusted with "saying what the law is" -- decide against him. Claiming that the preznit has an independent power to determine constitutionality absent the agreement of at least the judiciary: That way lies madness.
The Microsoft anti-trust case is a good example. A judge who knew nothing about computers, let along software engineering and development, decided that the case was really about a conspiracy he deduced from randomly selected e-mail messages introduced into evidence. He then adopted a theory of the computer industry that had no basis in reality, and intended to seriously damage a major industry.
MIcro$oft's anti-competitive practises were well known. I think you do the judge a disservive to claim he was technologically ignorant.
A. Whether you believe that the president has the authority to override the judgment of the OLC and DOJ on a question like this, the Wiretapping Act is really quite clear that a telecom company needs (1) a warrant or (2) certification from the AG that a warrant is not required. Congress did not provide that a presidential override of the AG would work (which may be a big reason why Fredo and Card tried to arm Ashcroft into signing).
b. Kmiec really is grasping in postulating that perhaps those helpful White House functionaries were merely trying to assay whether Aschcroft was well enough to resume his duites. As an initial matter, the fact that he was in intensive care would provide a big clue, but never mind that. Fredo and Card showed up with one piece of paper and only one: a document certifying the program. No account has indicated that they also brought with them a second piece of paper -- to wit, a document in which Ashcroft rescinds his appoitnment of Comey to act in his place -- which would be necessary before Ashcroft could non-fraudulently certify the program.
A) Please re-read the Unitary Executive Theory.
B) How do you KNOW that "Fredo" and Card showed up with one piece of paper and only one? There was NO PAPER anywhere else in the room? More importantly, if he was no longer incapacitated, what would have prevented John Ashcroft from simply handwriting the sentence "I am able to, and effective immediately, resume the the powers and duties of the Office of Attorney General of the United States" on the envelope, prior to signing that AND then the recertification?
"MIcro$oft's anti-competitive practises were well known. I think you do the judge a disservive to claim he was technologically ignorant."
Engineers know how to build a bridge. There are certain materials, support, tension, stress, and so on. Hours and hours go into analysis of normal and abnormal patterns. At the end, you get a few loose items such as color. During the design and building of the bridge, the engineers may exchange emails. One may comment on the increased traffic at one end. One may talk about the noise the bridge will generate when the wind blows just right. If enough lawyers go over enough emails, they will find them, and then they might go into court and argue that the bridge was specifically designed for the purpose of increasing traffic in a neighborhood or making a funny noise. If you get a judge who knows nothing and can learn nothing about engineering, he may believe the email and ignore not just the hundreds of thousands of hours of design and analysis but also the entire underlying mathematics, materials science, and physics that went into it.
The Microsoft case produced findings of fact that claimed that software and systems worked in a particular way. Microsoft was supposed to be protecting its operating system by ensuring that applications were written in its propritetary non-portable system API (what is called the WIN32 program interface).
So the government argued, and the judge accepted, that Microsoft tried to undermine the acceptance of Netscape and Java because they provided a new portable programming interface. Programs written to this interface could run on any system, eliminating an "applications barrier" that prevented new systems from entering the market.
Then the case was forgotten about, except for the hundreds of billions of dollars that changed hands as a result. However, if anyone bothers to remember what the case found and not who won or lost, they may note a few interesting things.
Today Netscape itself may be a minor player, but its Mozilla spinoff is still around along with Opera and a lot of other players. You can write a web page that works only on IE, but you can write one that is portable. In fact, the lastest Web 2.0 technologies (AJAX) make it almost impossible to become browser dependent, and Microsoft has as much support for that as anyone.
But the real point is that as the judge was building his crazy theory, Microsoft was abandoning the WIN32 API that the judge claimed they were so agressively defending. Instead, every application tool, support, and development is based on .NET, a kind of super Java that supports Java but also supports all the other languages programmers use.
Again, if you want to write a program that will only run on Windows, it is simple enough to do. However, the .NET framwork runs on Linux, the Mac, and other systems using Mono or any of the other open source versions of the technology.
Everything Microsoft has been doing for the last six years is the exact opposite of what the judge claimed to be their design and intent. Their entire software effort has been targeted to destroying the one software feature the judge decided they were using anticompetitive measures to protect. Yet Microsoft is just as big today as it was, because the judge's software theory was complete, total bullshit. Nobody before or after has ever believed this nonsense.
There were, however, a few speeches and emails about "polluted Java" and the like. Microsoft has a young staff and they often sound like a college football pep rally. Nobody actually expects your team to go out and "murder" the other side. Except if you get enough lawyers and a dumb judge.
His decision had a much greater economic impact than many natural disasters. Although the appeals court could override the findings of law, the findings of fact were not subject to review, and thanks to a completely stupid rule called Collateral Estoppel the mistake cannot be corrected unless a judge were to find that no reasonable person could come to the same conclusion given the same evidence. Anyone who knows anything about software knows that this decision was completely wrong, more so since we now know how things worked out. But an ordinary "reasonable person" juror could certainly have made the same mistake the judge made. So the incorrect findings were introduced in hundreds of other cases and could not be challenged.
So the American judicial system created its own unnatural disaster out of sheer hubris and can't fix it. That is a model for decision making?
The Constitution gives executive authority to the President and does not make him a slave to anyone with a law degree. In this increasingly government of the lawyers, by the lawyers, and for the lawyers the courts have decided to replace their judgement for that of every subject matter expert. There is a check and balance system on everyone, except when an incompetent judge issues a finding of fact that is objectively and clearly wrong, but only to people who understand the subject. So if you think that the opinion of lawyers should have more authority, be prepared for others to disagree. Fix your own system, then come around asking for more respect.
Good points, Howard. Keep in mind that Judge Jackson was eventually removal from the case by the United States Court of Appeals and WAS always subject to impeachment. I'm not sure if you can disbar judges. But, short of those extraordinary remedies, you are absolutely correct.
Umm, Howard, do you doubt that the engineering at MS may have even been partially affected by that ruling, and the follow-up rulings in the EU?
Are you also of the school that proprietary formats for Word were just an "engineering" decision, and the current move towards open formats hasn't been affected by both those cases, and political demands for open systems?
Are you really trying to tell us that MS is too incompetent to recognize that their medium term profitability didn't depend on controlling access to their architecture, just like IBM and AT&T before them?
Really? Never heard of the problems that WINE had in trying to build replacement APIs, because a great deal of the Word underpinnings make unpublished calls?
It's always interesting the cultural tie between political authoritarianism and corporate apologetics - and both so often combine an apparent cynicism with a deeper naivete. Interesting, ain't it? And people say that class warfare is passe...
[Sorry, this is a bit off topic relative to the subject of the original post]
"Are you really trying to tell us that MS is too incompetent to recognize that their medium term profitability didn't depend on controlling access to their architecture, just like IBM and AT&T before them?"
Microsoft's success came by taking control and leadership of the industry away from IBM. So yes, MS did know that they could optimize medium term profitablity by duplicating IBM's mistakes, and so they did the exact opposite.
Microsoft's first concern has always been for the other guy who is going to come along and take leadership away from them like they did from IBM. MS constantly looks for any technology that could undermine their dominance. Then they never, ever try to fight the new technology. They dominate the new technology even if that completely undermines their current market share. Microsoft is quite happy when their market postion is completely overturned, as long as they are doing it to themselves. If they don't do it to themselves, someone else will do it to them.
Microsoft was never stupid enough to be the kind of monopoly you want to accuse them of being. IBM lost its dominance trying to protect an old product line. You can no more fight technology than you can keep the tide from coming in.
Microsoft is a new monopoly. It happens that anti-trust law doesn't make it illegal to be a monopoly the way Microsoft does it. That is a simple statement of law and fact. It has nothing to do with liberal or conservative theory. It is basic Sherman Act.
Yes, earlier versions of Windows used unpublished interfaces. That caused problems for WINE, but also for all the customers and Microsoft itself. They made mistakes in the early days, like assuming that security didn't matter in a Personal Computer. That is what .NET is supposed to fix once and for all.
The point is that every one of these decisions can be perfectly well explained by software engineering and technology. Making correct decisions is also good business and tends to improve profitability. So here is the deal. If you want to accuse Microsoft of acting in an anti-competitive manner, show something they did that was a bad decision. Something that wasn't based on best technology, emerging standards, or market demand. Hey, IBM did that all the time. IBM's entire corporate structure was designed to make technologically bad decisions to maximize medium term profit. If all Microsoft has done recently is make right decisions, I don't see the problem, and neither does current anti-trust law.
Howard, it's not about the brains of the guys on top. It's about how large organizations work.
See MS. See the internet. See MS ignore the internet for 15 years. See MS finally playing catch-up when they've clearly been behind the curve.
I recall that still in '97 MS was having problems with their IP stack. This is five (5!) years after Mosaic, and this is twenty years after the development of the IP stack. And you're telling me they were more forward looking than IBM? No, they're just like IBM for the very same reasons. They have massive investments in the current technological status quo. They want to delay technological change as long as possible, and then use their massive capitalization to buy up or crush the innovators in their way.
That's what IBM did until they took just a little too long - and even in the late 80s were trying to absorb MS via OS2. They got outsmarted, that's all. It happens if you go to that trough too long. MS is having a bit of that problem with Google - if Google succeeds, they too will start to play just like MS, IBM and AT&T did before them.
It's not about being smart or dumb, progressive or reactionary. It's about being a big organization. You're political blinders are blocking you from the most obvious laws of scale.
Microsoft was supposed to be protecting its operating system by ensuring that applications were written in its propritetary non-portable system API (what is called the WIN32 program interface).
They'd do a better job of "protecting" their OS by not tying their applications into the friggin' middle of it. You know, like Unix.... I saw once that a Micro$oft response to a bug that crashed their system after 40 days or so up was: "You're lucky if you haven't BSODed for forty days. Shut up and sit down." I've had Unix boxes up for years.
This idea of "protecting" their OS was a transparent lie.
So the government argued, and the judge accepted, that Microsoft tried to undermine the acceptance of Netscape and Java because they provided a new portable programming interface.
Huh? WTF does Java have to do with a "portable API"?!?!?
The claim was that Micro$oft was:
a). Bondling software non-competitively
b). Restricting information on their API, so that even if people wanted to use it (i.e., Netscape), they would find it difficult.
c). Changing their API to frustrate people that tried to use it.
d). Tying their own applications deep into the API/OS.
All true. All anti-competitive.
The Java bit was a different matter. They "hijacked" Java and tried to force their own non-standard implemenation. Sun didn't prevent them from using their own proprietary Java; Sun just got them to stop with the proprietary twists and still call it "Java". WIser head saw where that one was going, and Micro$oft buckled (but I don't know of any sane person that accepts M$ "Java"; we insist that people load up Sun Java).
HOward is deluded:
Then they [Micro$oft] never, ever try to fight the new technology.
"One word for you, Ben. One word. Are you listening? Java....."
So here is the deal. If you want to accuse Microsoft of acting in an anti-competitive manner, show something they did that was a bad decision.
Why do you assume (contrary to fact) that the sine qua non of a anti-competitive act is a "bad decision"?
But if you want "bad decisions" by Micro$oft, if you've got a couple weeks, I've got plenty..... ;-)
The best decision they made was encoding the text string for the "checking disks" message after a BSOD, so that I couldn't easily go "edit" the executable, "TO AVOID THIS PROBLEM IN THE FUTURE, PLEASE START USING A REAL OPERATING SYSTEM...." That mod woudl have been a great hit on the freeware boards.
I don't want to hijack a thread to cover a completely different subject.
randomsequence: even if MS is a very big, very stupid company as you say, none of your complaints is a violation of anti-trust law.
arne: although you list complaints against Microsoft in the EU courts (with different anti-trust law), these were not the basis of the US case. The US case had two points: tying (putting a browser in an OS) and monopoly maintenance (trying to undermine the Netscape and Java programming interface). If you want a detailed criticism point by point, look at Technical Perspective on US v. Microsoft
As to what happened with Java, it is too big a question to deal with here. If you want, look at The Tragedy of Microsoft and Java
Both are old, but everything that has happened since they were written reinforces the original arguments.
The blind will not see. How about the tying of OS operations to the graphics? Not only had they not done that before the threat of Dr. DOS, but they had both decades of experience with Unix on one side, where that separation already allowed network-centric graphical programs, but the experience of Apple which had languished in the development of software for that very reason (in part).
With OSX, Apple split that connection to a certain extent and --- voila, software development for OSX flourishes. MS is still trying to develop a simple, working shell for administrative work and simple software. They still have server functionality tied to functioning graphics! Crazy, absurd, stupid, irrational in an engineering design sense - and yet, strangely the facts of the matter. How long has Monad been worked on, so we can get back to 1975 unix?
So, Howard, where before your complaint was that the judge didn't understand technical aspects, now your complaint is the law? I see wiggling.
Ask anyone who worked with MS in the 90s about predation. I knew several companies that got the ultimatum - sell out or die. The old mafia statement - we can give you a "good" deal, or you will disappear.
They didn't even start to look at MS predation. There are too many small companies to even begin the cases, and most reasonably sold out. The ones that didn't couldn't invest a decade of their life in an anti-trust suit that would sink any ability for them to work for anyone actively during that period.
charles: "if he was no longer incapacitated, what would have prevented John Ashcroft from simply handwriting the sentence"
I already answered this, here.
In short: Comey's account indicates that Gonzales made no serious attempt to find out whether or not Ashcroft was incapacitated, and no serious attempt to transfer authority from Comey back to Ashcroft. Both those things needed to happen first. Instead, Gonzales launched right in, making a pitch to get Ashcroft's signature to certify the program.
Of course, if no one had made any serious attempt to find out whether or not Ashcroft was incapacitated, and no serious attempt to transfer authority from Comey back to Ashcroft, then any signature woould have no legal purchase.
Of course, if no one had made any serious attempt to find out whether or not Ashcroft was incapacitated, and no serious attempt to transfer authority from Comey back to Ashcroft, then any signature woould have no legal purchase.
I think the only possible response to this is Doh.
Just to follow up on whether the White House knew about the transfer of authority, here's what MSNBC reports:
"Comey didn't tell the Senate panel that the bad feelings were stoked even more the next morning when White House officials explained the hospital visit by saying Gonzales and Card were unaware that Comey was acting A.G. (and therefore the only person authorized to sign off on the surveillance program), according to a former senior DOJ official who requested anonymity talking about internal matters. Top DOJ officials were furious, the source said. Just days earlier, Justice's chief spokesman had publicly said Comey would serve as 'head of the Justice Department' while Ashcroft was ill. Justice officials had also faxed over a document to the White House informing officials of this. When a Gonzales aide claimed the counsel's office could find no record of it, DOJ officials dug out a receipt showing the fax had been received. 'People were disgusted as much as livid,' said the DOJ official. 'It was just the dishonesty of it.'" Link.
A. Charles at 6:43 seems to believe that invocation of the words "Unitary Executive Theory" works some kind of talismanic magic juju that obviates the need to actually reason out a position. In answer to the observation that the Wiretapping Act exposes private parties to civil and criminal liability for eavesdropping without (1) a court order, or (2) a certification from the attorney general that no court order is required and that all legal requirements are met, Charles replies "Please re-read the Unitary Executive Theory." That is simply no anwser at all. Even if you believe that the "Unitary Executive" idea means that the President has the ultimate authority to make judgments binding within the Executive Branch, that authority does not override a statute, enacted by Congress and signed by the President, which prescribes civil or criminal penalties for private parties that assist the government in eavesdropping unless one of the two requirements is not met. The President, as head of the "Unitary Executive Branch," certainly seems to have the authority to ignore the advice of his attorney general (foolish though it may be), and order the Executive deprartments to follow his own interpretation of the law. But, in the face of a statute specifying that a certification by a particular constitutional officer is required, and a refusal by that constitutional officer to make the certification, he lacks the power to effect a certification binding on the other branches of the government. Of course if he could do so, and if producing a document that says "the warrantless wiretapping program is lawful because I say so" would satisfy the telecoms that they are not going to be hit with massive judgments and or criminal sanctions, then query why the White House engaged in such over-the-top unseemly efforts to procure a fraudulent authorization from an incapacitated officer under duress. Now, the President has a remedy if he has an attorney general who will not certify as lawful eavesdropping that the President believes lawful: he can sack the recalcitrant AG and replace him with one who is more pliant (which Bush of course eventually did).
B. Charles also sepculates that it is perfectly reasonable to suppose that Gonzales and Card were just trying to see if Ashcroft was well enough to resume his duties (despite the fact that Ashcroft's delegation to Comey was still in effect (and the ink had just barely dired on it), despite their knowledge that Ashcroft was in an ICU, and despite the fact that they could only talk to his wife on the phone). That's just plain amusing. Equally amusing is Charles' retort "How do you KNOW that 'Fredo' and Card showed up with one piece of paper and only one?" What we all know is the testimony of Comey that Gonzales and Card showed up with a document certifying the program, which they attempt to inveigle Ashcroft to sign. As you acknowledge, such a document has no "legal purchase" (in other words, is a fraud) unless Aschcroft has already rescinded the delegation of his powers. We also know from Comey's testimony that Gonzales and Card simply urged Aschcroft to sign the certification, not to rescind his delegation. Indeed, if you find the Nesweek account of the day after credible, you will find that Card offered the lame excuse that the White House didn't know that Ashcroft had ceded his authority to comey (notwithstanding that the White House was the first to know -- for crying out loud, I knew from the news reporting). Needless to say, that excuse is not consistent with Charles's attempt to speculate his way into defending Gonzales and Card on the ground that, gee, maybe they were just trying to find out whether Ashcroft could resume his duties (from his bed in ICU ad the GW hospital).
Thanks for playing, please accept our consolation prize, Charles, a home version of the game and a year's supply of Kal-Kan.
Mark Field (quoting Newsweek via MSNBC) writes: When a Gonzales aide claimed the counsel's office could find no record of it, DOJ officials dug out a receipt showing the fax had been received.
We should take a moment to admire Alberto Gonzales' foresight. He has already built a record to establish that, even if the fax was received, he would have forgotten about it by the time he visited the hospital. He's a chessmaster, I tell you!
Maybe someday, if it is safe, we will all find out if Gonzales and/or Card were aware that Comey was acting A.G. or not. For now, we don't know that for sure.
Mr. Comey testified that there was NO statute requiring a certification by a particular constitutional officer for this program. He also refused to say that the President's continuation, while DoJ brought the program up to snuff, was illegal. You need to get your speculations straight.
Chessmaster, indeed. Also note that I asked Marty last week if he knew Doug Kmiec BEFORE the Op Ed was even released ; )
Charles: The wiretapping Act, at (a)(ii), makes it a crime, and provides a civil damages remedy, for private parties to assist the government in wiretapping, unless they are "provided with ... a court order" or "a certification in writing by ... the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required." This is not speculation, this is the U.S. Code. Whatever Comey was talking about when he said, according to you, that there is no "statute requiring certification by a particular consitutional officer" (and frankly, I'd like the verbatim transcript, with context, on this), is beside the point. By the way there is a sense in which it is true to say that a particular certification is not "required" of the government; however, under the Wiretapping Act, such a certification is necessary if private parties who assist the federal government's wiretapping wish to avoid civil and criminal penalties. I notice that you are no longer defending on the ground of the "Unitary Executive" juju; indeed, you now seem to think that the legal judgment of a private citizen, Comey, is determinative of what the law is. Interesting new twist.
Oops, I flubbed part of the citation. the relevant provisions of the Wiretapping Act are at 18 U.S.C. section 2511(2).
LOL! As I've said several times now, my purpose here is not to defend anything -- BTW: Comey was not a private citizen when he made the legal call that "the program" did not require A.G. certification -- better luck with the next canard.
Let me know if this is not enough context for you: http://www.washingtonpost.com/wp-dyn/content/article/2007/05/15/AR2007051501060.html
SPECTER: Was the program reauthorized without the requisite certification by the attorney general or acting attorney general?
SPECTER: So it went forward illegally.
COMEY: Well, that's a complicated question. It went forward without certification from the Department of Justice as to its legality.
SPECTER: But the certification by the Department of Justice as to legality was indispensable as a matter of law for the program to go forward, correct?
COMEY: I believed so.
SPECTER: Then it was going forward illegally.
COMEY: Well, the only reason I hesitate is that I'm no presidential scholar.
But if a determination was made by the head of the executive branch that some conduct was appropriate, that determination -- and lawful -- that determination was binding upon me, even though I was the acting attorney general, as I understand the law.
And so, I either had to go along with that or leave. And I believed that I couldn't stay -- and I think others felt this way as well -- that given that something was going forward that we had said we could not certify as to its legality.
SPECTER: Well, I can understand why you would feel compelled to resign in that context, once there had been made a decision by the executive branch, presumably by the president or by the president, because he was personally involved in the conversations, that you would resign because something was going forward which was illegal.
The point that I'm trying to determine here is that it was going forward even though it was illegal.
COMEY: And I know I sound like I'm splitting hairs, but...
SPECTER: No, I don't think there's a hair there.
COMEY: Well, something was going forward without the Department of Justice's certification as to its legality. It's a very complicated matter, and I'm not going to go into what the program was or what the dimensions of the program...
SPECTER: Well, you don't have to.
If the certification by the Department of Justice as to legality is required as a matter of law, and that is not done, and the program goes forward, it's illegal. How can you -- how can you contest that, Mr. Comey?
COMEY: The reason I hesitate is I don't know that the Department of Justice's certification was required by statute -- in fact, it was not, as far as I know -- or by regulation, but that it was the practice in this particular program, when it was renewed, that the attorney general sign off as to its legality.
There was a signature line for that. And that was the signature line on which was adopted for me, as the acting attorney general, and that I would not sign.
So it wasn't going forward in violation of any -- so far as I know -- statutory requirement that I sign off. But it was going forward even though I had communicated, "I cannot approve this as to its legality."
And given that, I just -- I couldn't, in good conscience, stay.
SPECTER: Well, Mr. Comey, on a matter of this importance, didn't you feel it necessary to find out if there was a statute which required your certification or a regulation which required your certification or something more than just a custom?
COMEY: Yes, Senator. And I...
SPECTER: Did you make that determination?
COMEY: Yes, and I may have understated my knowledge. I'm quite certain that there wasn't a statute or regulation that required it, but that it was the way in which this matter had operated since the beginning.
I don't -- I think the administration had sought the Department of Justice, the attorney general's certification as to form and legality, but that I didn't know, and still don't know, the source for that required in statute or regulation.
SPECTER: OK. Then it wasn't illegal.
COMEY: That's why I hesitated when you used the word "illegal."
SPECTER: Well, well, OK.
Now I want your legal judgment. You are not testifying that it was illegal. Now, as you've explained that there's no statute or regulation, but only a matter of custom, the conclusion is that even though it violated custom, it is not illegal.
It's not illegal to violate custom, is it?
COMEY: Not so far as I'm aware.
SPECTER: OK. So what the administration, executive branch of the president, did was not illegal.
COMEY: I'm not saying -- again, that's why I kept avoiding using that term. I had not reached a conclusion that it was.
The only conclusion I reached is that I could not, after a whole lot of hard work, find an adequate legal basis for the program.
Well, now I understand why you didn't say it was illegal. What I don't understand is why you now won't say it was legal.
COMEY: Well, I suppose there's an argument -- as I said, I'm not a presidential scholar -- that because the head of the executive branch determined that it was appropriate to do, that that meant for purposes of those in the executive branch it was legal.
I disagreed with that conclusion. Our legal analysis was that we couldn't find an adequate legal basis for aspects of this matter. And for that reason, I couldn't certify it to its legality.
I will not ask you -- I have a rule never to ask the same question more than four times...
... so I will not ask you again whether necessarily from your testimony the conclusion is that what the president did was legal -- not illegal.
Let me move on. I only have 35 minutes left.
How long did you continue to serve as deputy attorney general after this incident?
COMEY: Until August of 2005, so almost a year and a half, 16 months.
SPECTER: And during the course of that continued service, you got along OK with the president and the vice president and Card and Addington and all the rest of those fellows in the White House?
COMEY: I think so. I mean, we didn't have much contact with them other than professional matters. But I think so.
SPECTER: But they weren't out to get you because you stood out to them?
COMEY: I hope not. I don't have any reason to believe...
SPECTER: Well, never mind hoping. They didn't do anything to be out to get you or to make your life uncomfortable, or make it difficult for you to perform your duties as deputy attorney general?
SPECTER: There was some speculation that -- well, I'll eliminate the word "speculation."
Did you have any sense that you were not considered to be permanent attorney general on Mr. Ashcroft's departure because of your having stood up to the White House on this issue?
And I don't have any reason to believe I was ever considered. But I certainly have no reason to believe that there was any connection between consideration of who would be the next attorney general and this matter.
SPECTER: Well, on this issue, Mr. Comey, I commend you again. You did exactly the right thing.
SPECTER: And I think the president did the right thing. In effect, he overruled Card and he overruled Vice President Cheney and he overruled Addington and he overruled Gonzales. And when it came to him -- came to the president's desk where the buck stops he said to Mueller to tell you, "Follow your conscience. Do the right thing." And that was that.
Mr. Comey, it's my hope that we will have a closed session with you to pursue the substance of this matter further. Because your standing up to them is very important, but it's also very important what you found on the legal issue on this unnamed subject, which I infer was the terrorist surveillance program. And you're not going to comment about it. I think you could.
I think you could even tell us what the legalisms were. Doesn't involve a matter of your advice or what the president told you, et cetera.
But I'm going to discuss it with Senator Leahy later and see about pursuing that question to try to find out about it.
Now, Mr. Comey, on to the subject of the hearing . . .
I see, it's not your "purpose" to defend, it's mere coincidence that your observations happen to be in lock-step with talking points defending the White House generally and Gonzales and Card specifically.
Not exactly "coincidence" -- I am playing the part of devil's advocate in this regard -- QuiteAlarmed is Wormwood.
"certification is necessary if private parties who assist the federal government's wiretapping wish to avoid civil and criminal penalties" Again this shows much has been said and assumed and how little is actually known about how conversations were collected. Critics have repeated nonsense so often they just assume it, but there is no plausible technical scenario in which private parties would assist or even be aware of NSA wiretapping. The nation's telephone network is, well, a network. The NSA simply sends a command through the network to equipment and the equipment responds. If the NSA has a warrant, this is legal. The system would almost certainly be set up to avoid telling anyone who did not need to know what surveillance is being conducted. Whatever the companies may have done to aid the NSA in setting up the network in preparation for legal wiretaps cannot be held against them if the NSA abuses the system. However, all the lawyers in all the civil rights organizations in all the cases currently in court have still not come up with a rational explanation why any telecom employee even had to go so far as to flip a light switch to turn the program on.
I thought the big conspiracy theory was all these secret NSA rooms at the major telephone companies?
I believe there are secret rooms with NSA equipment. I believe they are connected to the telephone switches, and are(according to the diagrams) continuously be fed a copy of all the international traffic to or from the US.
All this was set up years ago. It may be used with a FISA warrant. It may be used under FISA without a warrant during the first 15 days after a declaration of war. It has to be set up in advance because we never know when we will be attacked and go to war.
There is no switch that turns it on, nor does the phone company have to decide what data to send to the room. It is on all the time and every phone call into or out of the US goes through the rooms all the time. The NSA decides when and what conversations it will collect. The phone company helped create the room. After that, it would be a violation of operational security to tell phone company employees about national security programs. Even if the NSA has a FISA warrant, there is no reason to tell the phone company who is being monitored.
If course I could be wrong. There could be a big red button on the wall of a room with a thousand secretaries marked "push this button to turn on the super secret NSA room". There could be forms in triplicate that go to every employee in the phone company notifying them of every intercept. Just because some lawyer wants to sue AT&T, however, doesn't mean that I am inclined to believe that the system is designed that stupidly.
MS is still trying to develop a simple, working shell for administrative work and simple software.
Oh, but they have VBS scripting! I even had to enable it (briefly) so that the customisation for a Cisco VPN setup could run so I could access a corporate VPN (could have done the mods by hand, but then their IT would have given me grief if I called with support issues).
VBS beats perl, ksh, bash, Tcl, and those type things hands down ... for security holes. ;-)
Howard (citing apparently his own article):
As to what happened with Java, it is too big a question to deal with here. If you want, look at The Tragedy of Microsoft and Java.
From the article:
"By bridging the closed Java runtime environment to the rest of the operating system, Microsoft had completely upset that calculation."
Typo: Tried to hijack Java so that it would work only (or best) with Micro$ux software.
Sun said (and I repeat): You can do anything you damn well please, but don't call it "Java" (and parenthetically, don't pretend that it's open-source/open-system).
Howard says:Post a Comment
Critics have repeated nonsense so often they just assume it, but there is no plausible technical scenario in which private parties would assist or even be aware of NSA wiretapping. The nation's telephone network is, well, a network. The NSA simply sends a command through the network to equipment and the equipment responds. If the NSA has a warrant, this is legal.
You don't know what you're talking about. I do. And I say you're full'o'it.