Balkinization  

Wednesday, May 16, 2007

What Was the President's Role?

Marty Lederman

Josh Marshall is absolutely correct here that the implication that the President was on DOJ's side of the dispute, as against Card and Gonzales, is fundamentally mistaken. For one thing, the President (probably) took the extraordinary step of calling the AG's wife to try to convince her to allow two White House officials to visit her husband, in intensive care, to try to convince him to overrule the Acting AG . . . .

Three other things are important to note, as well:

1. The President personally tried to convince Comey to change his judgment, even after DOJ had gone to such lengths to repudiate OLC's prior legal advice.

2. The President signed the directive himself, and allowed the NSA program to continue for at least two weeks, even though DOJ had concluded that it was legally indefensible, i.e., that it violated a criminal statute. (This is the big story that few are focusing on.)

3. Yes, the President eventually agreed that the program could be "modified" if that's what it would take to get DOJ buy-in. But that isn't a case of "siding" with DOJ over the VP and White House Counsel. He really had no choice, because the alternative was a full-scale resignation of the entire top tier of the Justice Department. Imagine how that would have played in Congress and the public --they're doing something so egregiously and transparently unlawful that even John Ashcroft resigned over it! It most certainly would have meant the end (and the revelation) of the NSA program, at the very least -- and it might even have been viewed as the equivalent of the Saturday Night Massacre. So really, the President was backed into a corner -- Ashcroft, Comey and Goldsmith did the right thing under enormous pressure, and they forced the President and the Vice President to back down.

Comments:

Via Think Progress. See this excerpt from the January 2006 Newsweek article on this same incident:

"On one day in the spring of 2004, White House chief of staff Andy Card and the then White House Counsel Alberto Gonzales made a bedside visit to John Ashcroft, attorney general at the time, who was stricken with a rare and painful pancreatic disease, to try–without success–to get him to reverse his deputy, Acting Attorney General James Comey, who was balking at the warrantless eavesdropping. Miffed that Comey, a straitlaced, by-the-book former U.S. attorney from New York, was not a “team player” on this and other issues, President George W. Bush dubbed him with a derisive nickname, “Cuomo,” after Mario Cuomo, the New York governor who vacillated over running for president in the 1980s."
 

Professor Lederman, fellow Balkinites:

Gerald Ford famously said "high crimes and misdemeanors" are whatever Congress says they are, and while Ford might not be my pick of the litter for Constitutional scholarship the GOP witch-hunt over Clinton's blow job seems to prove the point. Still, as a student, I'd be much obliged for a pointer or two to material which might be controlling with regards to whether or not the President's acting with disregard for legality suffices as an impeachable offense. To me it seems "self-evident." But I have this little red-flag that flies whenever I hear myself thinking, "To me X seems 'self-evident'."

Many thanks.
 

Thank you, thank you, thank you, for getting this right -- in spite of the press coverage.
 

I shouldn't be amazed, but I *am* amazed that testimony as stunning as Comey's can be neutralized with such miserable press coverage.

OF COURSE Bush backed down to avoid having the issue explode during Campaign 2004.
 

I happened to glance at Jess Bravin's piece today in
the WSJ, Old Episode Could Haunt Gonzales" and got a
reminder of just how powerful the MSM can be in
shaping people's perceptions of the news.

Bravin's piece audaciously buried facts and lied in
order to downplay the fact that John Ashcroft did not
have the power to certify the program. Comey was the
acting - AG.

The key lie comes in the second paragraph;

"Mr. Comey recounted how then - Attorney General John
Ashcroft, weakened by illness, roused himself long
enough to sternly repeat his refusal to sign off on
the plan."

The lie here is obviously Comey was the acting AG.

I think the unusual use of the hyphen is to give
plausible deniability to the claim that it is used in
the broad sense of that moment in time and not how it
is intended to be perceived as suggesting that
Ashcroft was AG THEN, if you know what I mean.

Ignored is Ashcroft's acknowledgment that Comey was
acting AG.

Ignored was the fact that Ashcoft had been in an ICU
for six days and was taking NO calls and NO visitors
and only after a call from the PRESIDENT was this
meeting arranged. Ashcroft was disoriented when Comey
got there.

[I was interested to learn that the seemed to have
been pre-planned by Schumer's office, but back to the
muck]

Ignored was the fact that in addition to Comey's
resignation, Mueller, Ashcroft and some high ranking
aids would resign as well.

Another lie comes when Bravin quotes Comey as saying,

"I was concerned that given how ill I knew the
attorney general was, that there might be an effort to
ask him to over rule me when he was in no condition to
do that," Mr. Comey said.

I have reviewed the entire transcript and here are the
two passages that come closest and they convey a much
richer picture.

COMEY: I was very upset. I was angry. I thought I just
witnessed an effort to take advantage of a very sick
man, who did not have the powers of the attorney
general because they had been transferred to me.

Or, this,

COMEY: I was concerned that this was an effort to do
an end-run around the acting attorney general [ie.
Comey] and to get a very sick man to approve something
that the Department of Justice had already concluded
-- the department as a whole -- was unable to be
certified as to its legality. And that was my concern.

The use of quotes here is deliberately deceptive as it
suggests that Comey could be over-ruled by a man who
had relinquished his authority due to extreme illness.

Bravin again blurrs the picture badly by making full
use of Comey's description of a stern Ashcroft in full
possession of his faculties refusing to sign off, but,
in this case even more blatantly ommits, the very next
sentence out of Ashcroft's mouth and of key
importance, even Ashcroft knew he did not have the
authority to grant the WH's wish.

Of course everything that follows this stunning
tableau, Olson, meeting with the President, Mueller,
[in fact there is mention of Mueller telling FBI
agents Comey was not to be removed from the room by
Gonzales and Card.]

This deliberate ommission again is done to minimize
the SHOCKING abuse of power and contemptile conduct of
this admininstration.

"Unable to obtain approval, the WH continued the
program without Mr. Ashcroft's signature, Mr. Comey
said."

Actually, the program continued despite the fact the
entire DOJ said it was illegal.

Much, much more....

Jess "Brazen" Bravin a true culture warrior for the
right.
 

2. The President signed the directive himself, and allowed the NSA program to continue for at least two weeks, even though DOJ had concluded that it was legally indefensible, i.e., that it violated a criminal statute. (This is the big story that few are focusing on.)


I agree with this general point.

But in the context of the dramatic incident Comey describes from 2004, I think it is a mistake to refer to "the NSA program."

There were no NSA officials involved in Comey's narrative. But FBI Director Robert Mueller was a key player. He was among those who threatened to resign, and it was he who actually met with President Bush and conveyed word to Comey that the President agreed to modify the program.

This strongly suggests that, whatever was going on before (and presumably continued to be authorized during the two-week period), it involved not just the NSA but the FBI. This could have been purely domestic unwarranted surveillance, unwarranted black-bag jobs, or similar misconduct.

It is time for a special counsel.
 

Why hasn't any enterprising mainstream reporter contacted Mrs. Ashcroft yet to ask her who maded the call? With all the articles about James Comey's testimony today, you'd think someone would have contacted the Ashcrofts for their version.
 

Ashcroft has declined to comment, and I suspect that Mrs. Ashcroft is the deferential type -- tho if anyone knows otherwise, please share.
 

No "enterprising mainstream reporter" has followed up on this mess because no such creature exists anymore. The smartly groomed, well dressed puppets and wingnuts paraded before a voluntarily deaf, dumb and blind American public hear only their master's voices, which more and more come from society's richest.
 

JoA is right here.

This hospital visit was NOT about the NSA wiretapping but about a differnt program.

There is no other sound explanation for FBI's Mueller heavy involvement here.

Gonzales in his testimony said there was no dispute about the NSA program but about some other "operational issue"

More :
http://www.moonofalabama.org/2007/05/why_was_fbi_dir.html
 

Thanks, Marty. I'd also point out something that's obvious even to us uninformed observers. The Prez couldn't have been too offended by the mission to the bedside, since he later promoted one of its principals to AG. He could then do what he wanted to do before, but "under the law."
 

Professor Lederman:

2. The President signed the directive himself, and allowed the NSA program to continue for at least two weeks, even though DOJ had concluded that it was legally indefensible, i.e., that it violated a criminal statute. (This is the big story that few are focusing on.)

How do you arrive at the conclusion that Justice believed that the program violated the FISA warrant requirement?

Prior to this confrontation, Justice had signed off on this program on multiple occasions without requiring it to seek FISA warrants.

After this confrontation, Justice compelled some undisclosed changes in the program, but did not require it to seek FISA warrants before signing off on the program again.

Months later, Justice successfully negotiated with the FISC to bring the program under FISC supervision in exchange for rolling warrants which appear to cover all or large portions of the program without requiring individual probable cause.

Justice's motive to obtain FISA warrants is pretty clear because they would need warrants to admit most evidence gained under the program in criminal court.

I am speculating here, but were these demanded changes part of Justice's effort to negotiate a compromise between the White House and the FISC to bring the program under FISA and gain the warrants Justice needed for prosecutions?

That would explain the sequence of events and Justice's motives here.

Comments?
 

Still, as a student, I'd be much obliged for a pointer or two to material which might be controlling with regards to whether or not the President's acting with disregard for legality suffices as an impeachable offense. To me it seems "self-evident." But I have this little red-flag that flies whenever I hear myself thinking, "To me X seems 'self-evident'."

Robert, try this site.
 

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

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

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

I'm curious about what Gonzales, Card, and probably the President thought they could accomplish in getting Ashcroft's signature on the reauthorization. Ashcroft was cogent enough to be able to tell the White House delegation that he wasn't at that moment the Attorney General, and Comey was there at his side to be point out as the Attorney General; but what if those facts had not been the case? What if Gonzales and Card had succeeded in their mission and had obtained Ashcroft's signature? What legal use could the signature of a then unauthorized civilian have been? Isn't this just another example of the Bush administration seeking superficial political cover to carry out actions without a sound legal basis?
 

@Mark Field: Great link, and many thanks. Certainly seems to argue that if lying about a blowjob counts then acting with a reckless disregard for legality counts.
 

Robert:

If the Commander-in-Chief certifies "the program" as necessary and legal, I think Comey testified that reasonable people COULD conclude DoJ was bound to follow that Presidential Directive. Comey never testified it was "illegal" but that conflict of interest was why he was going to resign. You do realize we are at war, right? Bush has done nothing worse than FDR or Truman when it comes to domestic spying.
 

"a full-scale resignation of the entire top tier of the Justice Department. Imagine how that would have played in Congress and the public"

Especially on the eve of the 2004 election.
 

Marty:

ost of this "story" was reported by Newsweek long ago: http://www.msnbc.msn.com/id/11079547/site/newsweek/
 

Anderson wrote: Ashcroft has declined to comment, and I suspect that Mrs. Ashcroft is the deferential type -- tho if anyone knows otherwise, please share.

You're right. The NY Times contacted a spokesperson for John Ashcroft who declined to comment. My mistake.

I suppose, then, that it is time for Mr. Ashcroft to appear before the Senate Committee. (Or at the least provide a written statement confirming or denying John Comey's account and indicating who made the call from the White House.)
 

"If the Commander-in-Chief certifies "the program" as necessary and legal, I think Comey testified that reasonable people COULD conclude DoJ was bound to follow that Presidential Directive." - Charles

And by "reasonable people" I presume you are referring to Dick Cheney, David Addington, Alberto Gonzales, John Yoo and KKKarl Rove?
 

Charles: You do realize we are at war, right?

Nice try. Take a look here for an introduction to the illegitimacy of your position.

But even if your position were tenable, the fact remains, the President ran with a program the legality of which no reasonable person could fail to question, with blatant disregard for it's legality, they ran with it legal or not. That is a dereliction of Presidential duty, an impeachable abuse of power which you can't wish away. I'll copy-and-paste it as often as need be for those of you who are literacy challenged.
 

quitealarmed:

Some of us take our duty under applicable privilege(s) seriously, so I doubt Ashcroft will reveal internal deliberations like that.
 

Garth and Robert:

Do you consider yesterday's witness, Comey, as "reasonable"?
 

Yes. And he testified he would resign rather than continue to participate in what he regarded as simply wrong.

Implicit in the argument that the reasonable person makes when supporting Bush's power to make this decision is the assumption that it's not a crime if the President does it.

Bush clearly authorized the program despite the fact that the DOJ said it was illegal. To get around it you have to say, well, it's not a crime when the president does it.

That dog don't hunt.

This is not the rule of law.
 

Bart DePalma: How do you arrive at the conclusion that Justice believed that the program violated the FISA warrant requirement?

The clear import of James Comey's testimony is that the program could not legally proceed without changes. (Comey refused to identify the program, but earlier coverage creates a fair inference that the program involves NSA domestic surveillance.) You are correct that the Justice Department apparently concluded that, under appropriate conditions, the program could proceed without FISA warrants. Those conditions, however, were not being met, otherwise the program would have been reauthorized without incident.
 

charles wrote: Some of us take our duty under applicable privilege(s) seriously, so I doubt Ashcroft will reveal internal deliberations like that.

John Ashcroft was not the Attorney General at that time. The executive privilege covers only communications of high government officials and those who assist them in the performance of their duties. Neither Mr. Ashcroft nor his wife fell within that category at the time of this incident.

(Even if that were not the case, the executive privilege is not absolute.)
 

Bart: I am speculating here, but were these demanded changes part of Justice's effort to negotiate a compromise between the White House and the FISC to bring the program under FISA and gain the warrants Justice needed for prosecutions?

That would explain the sequence of events and Justice's motives here.

Comments?


RFLMAO
 

jao:

I have given you the basis for my speculation. If you do not want to engage my reasoning like an adult nevertheless an attorney, so be it. I will not act likewise towards your speculation.

You have yet to provide the basis for your speculation that Comey is referring to a program other than the Terrorist Surveillance Program.

Exactly what kind of program would require rolling approval by Justice?

An ongoing surveillance of captured al Qaeda telephone numbers would meet this criteria.

Black bag operations and the like are discrete events and would not require ongoing monitoring by Justice.

Moreover, the FBI does not perform systemic electronic surveillance for intelligence gathering. That is the purview of NSA. The FBI performs discrete wiretaps to gather criminal evidence. These would require individual approvals.
 

What changed? Domestic spying program had been going for about two years already. It seems like Ashcroft and Cromey had not objected for the first two years of the program. Had they been signing of on approvals previously? Certainly had not been threatening to resign over it previously. So what changed?
 

Bart,

Your "speculation" is beyond risible. It deserves nothing but a rasberry.

There is nothing in Comey's narrative that remotely suggests that the reason he, the attorney general and the FBI director were prepared to face down the President and resign because they thought it would be a nice legal tactic to get FISC approval to bolster criminal cases. Comey never mentioned the court at all, and there would be no reason to omit that angle from his testimony if it were true. You are just making stuff up.

Your statement that the FBI does not routinely engage in surveillance is simply false. That is absolutely part of the traditional mission of the FBI within the United States, for both intelligence-gathering and criminal cases. The NSA's mission traditionally has been surveillance outside the country.
 

So what changed?

As I did at ObWi & Volokh, here's Charlie Savage:

In early 2004, several Justice officials who were not in office at the launch of the NSA program began questioning whether it violated civil liberties. Jack Goldsmith , the new head of the Justice Department's Office of Legal Counsel, said he doubted that the program was lawful. After listening to Goldsmith, Comey and Ashcroft agreed, Comey said.

A fresh pair of eyes, that's what changed.
 

"Bart" DePalma:

I am speculating here....

You misspelled "dissembling and blathering".

Why bother? Let's just have an investigation and get to the bottom of it, so there will be no such apologe... -- umm, sorry, "speculating"....

Cheers,
 

Charles:

If the Commander-in-Chief certifies "the program" as necessary and legal, I think Comey testified that reasonable people COULD conclude DoJ was bound to follow that Presidential Directive.

Not if it was illegal. You know, like Nuremburg?

Cheers,
 

Bart:
You have yet to provide the basis for your speculation that Comey is referring to a program other than the Terrorist Surveillance Program.


Comey said so. He said the program that existed from 2001 through March of 2004 was then modified because of the objections he and others raised.

The "Terrorist Surveillance Program" is the PR name given in early 2006 to the modified program announced by Gonzales, Hayden and the President after the NYT disclosed the NSA surveillance in December 2005.

In any case, the name given to "the program" is immaterial. What Comey indisputably said in his testimony is that the program was different after March 2004. Gonzales has confirmed that much in his own testimony, FWIW.
 

No doubt, arne, if anyone in the Bush Administration is ever tried for "war crimes" -- although it might influence a reasonable sentencing authority to lessen the penalty. You and garth do realize that Comey REFUSED to testify that the President authorized anything illegal, right?
 

Bush has done nothing worse than FDR or Truman when it comes to domestic spying.

This, of course, is utterly nonsensical on at least two counts. First, the technology today permits far greater scope for domestic spying than it did in the 1930s and 40s. Second, it was abuses by previous administrations, including Truman and FDR, which led to FISA. Since FISA makes such conduct felonious, Bush's violations of FISA are necessarily much worse than anything Truman or FDR did.

Finally, doesn't the right ever get tired of these variations on the "Clinton did it too" defense? It's not very persuasive if your best argument is the one my little brother used to make when he was 5.
 

You and garth do realize that Comey REFUSED to testify that the President authorized anything illegal, right?

It wasn't illegal -- it just wasn't legal!

Try that the next time you're pulled over. Let us know how you fare.
 

Let us know how you fare.

P.S. - Don't waste your one phone call on us, though.
 

quitealarmed:

Neither Mr. nor Mrs. Ashcroft have to be the Attorney General for executive privilege to apply. You do realize that this topic implicates the national security dicta in US v. Nixon, right? If executive privilege applies to PRIVATE oil company executives, then I think we can find some way to cover the Ashcrofts (maybe there's a spousal communication privilege as well).
 

Charles:

You and garth do realize that Comey REFUSED to testify that the President authorized anything illegal, right?

Comey doens't get to rule on whether it's illegal (but he can, and did offer his educated opinion, which was "no"). Neither does the president. Let's get it in court, and not dance around with disputes about "standing" and "state secrets privilege".

As for Nuremburg and "war crimes": While Nuremburg stands for the proposition that there's some thigns that are crimes no matter what your own "laws" say, it also stands for the proposition that orders from superiors do not convey legality. That is what I was adverting to.

And yes, there ought to be war crimes trials for the thugs in the maladministration. I await the day.

Cheers,
 

Mark Field:

WHAT abuses by FDR and Truman?! Advancements in technology are going to have to get much better before they pass actual interment camps. BTW: the FISA was enacted over 30 years after World War II (in 1978) after separate Senate investigations led by Sam Ervin and Frank Church looking into NIXON. Read a history book next time, why doncha?
 

Say, Charles:

Neither Mr. nor Mrs. Ashcroft have to be the Attorney General for executive privilege to apply. You do realize that this topic implicates the national security dicta in US v. Nixon, right? If executive privilege applies to PRIVATE oil company executives, then I think we can find some way to cover the Ashcrofts (maybe there's a spousal communication privilege as well).

Why do you want them not to testify? ;-)

Cheers,
 

anderson and arne:

What you two are missing is that, with the stroke of a pen, the President can indeed make things legal. Sorry, but I've got to go now. Had fun while it lasted.
 

Because, arne, FUTURE Presidents will be ill-advised if there is no executive privilege.
 

This whole "scandal" is an utter joke.

I'm quite amazed that the professors blogging here are continuing with this nonsense.

Here are the core issues. (I am assuming that Comey's testimony is correct.)

1. The DOJ's approval was NOT required by statute or regulation for the continuation of the program. The approval was a matter of custom. As Comey himself stated, not getting this approval does not mean the program was illegal or that the program could not lawfully be reauthorized by the President.

2. The fact that the AG thinks a program is not lawful does not mean the program is in FACT unlawful. If the professor's and other commentators were correct, then the law would be whatever the AG says it is. This OBVIOUSLY isn't correct. Of course, it should cause those in charge to relook at what is going on, since doubts about the legality of the program were raised, but this hardly means reauthorizing was de facto illegal.

3. The reauthorization of the program on the day before the President met with Comey was notan illegal action. As stated, Comey's agreement was not a legal requirement. And once again, the fact that Comey thought that the program as it was being run (without the new changes) was not legally sufficient in his opinion does NOT mean that the reauthorization was a felony or otherwise illegal.

So, no there is no illegal action on anyone's part.

The attempt to throw up smoke to make it look like there is a fire is exposed for all it is--smoke.
 

Charles:

BTW: the FISA was enacted over 30 years after World War II (in 1978) after separate Senate investigations led by Sam Ervin and Frank Church looking into NIXON. Read a history book next time, why doncha?

Hope you like your a$$ handed to you. Your knowledge as exhibited here is like a sand grain on the beach compared to the other folks on this blog (including even "Bart", who for all his lies, illogic, and false statements, still manages to get a cite right on occasion). You won't make friends or allies by presuming to lecture them on the obvious.

Cheers,
 

to quote Donny Rumsfeld, the absence of evidence is not evidence

comey made clear he thought the program was illegal. that staying in his position would implicate him in breaking the law, thus he was prepared to resign.

comey also made clear that Cheney, Alberto and gang asserted that it's not a crime if the president does it because his commander in chief powers give him the power to ignore law as he sees fit.

that is the "reasonable people" argument.

as for legality, who you gonna believe DOJ or Dickkk and KKKarl.

i readily admit that this gang will say anything to justify their actions, and that there are a whole lot of authority freaks who will rush to support Commandant Booosh, but that don't make it legal.

i bet there are a whole lot of worms in this can.
 

Charles:

What you two are missing is that, with the stroke of a pen, the President can indeed make things legal. Sorry, but I've got to go now. Had fun while it lasted.

OIC. A "hit'n'run" troll. How lovely.

Cheers,
 

JaO said...

There is nothing in Comey's narrative that remotely suggests that the reason he, the attorney general and the FBI director were prepared to face down the President and resign because they thought it would be a nice legal tactic to get FISC approval to bolster criminal cases.

As opposed to some black bag program which you have conjured? I would suggest that the Terrorist Surveillance Program is far more important than some black bag job ala Watergate.

Comey never mentioned the court at all, and there would be no reason to omit that angle from his testimony if it were true. You are just making stuff up.

Please. Comey pointedly avoided referring to the program and the laws which might apply to the program to maintain the program's secrecy. There is no way he was going to identify the FISC under those circumstances. Comey has a sense of responsibility unlike the NYT.

Your statement that the FBI does not routinely engage in surveillance is simply false.

Try reading for my post for content. I stated that the FBI does not perform system wide surveillance for intelligence gathering purposes and instead does individualized surveillance for criminal evidence gathering. Hell, I have not seen any evidence that FBI even has the capability to conduct systemic electronic surveillance, which would usually require a super computer to monitor. Individualized surveillance of the type FBI performs requires individualized approval, not the regularly scheduled oversight to which Comey referred.

The NSA's mission traditionally has been surveillance outside the country.

Based on what? NSA's targets are foreign. There is no reason this mission cannot and has not extended to communications into and out of the United States by agents of foreign powers or groups. The fact is that we have very little knowledge of what NSA is doing.

Bart: You have yet to provide the basis for your speculation that Comey is referring to a program other than the Terrorist Surveillance Program.

Comey said so. He said the program that existed from 2001 through March of 2004 was then modified because of the objections he and others raised. The "Terrorist Surveillance Program" is the PR name given in early 2006 to the modified program announced by Gonzales, Hayden and the President after the NYT disclosed the NSA surveillance in December 2005. What Comey indisputably said in his testimony is that the program was different after March 2004.


That is not a proof in support of your alternative black bag program theory, it is an argument concerning the TSP.

As to the TSP, while the name TSP may have a recent origin, the program which it describes went operational shortly after 9/11. You have absolutely no idea when and how often the TSP was modified since that time. Nothing in Comey's testimony rules the TSP out as the program which was modified at Justice's request.

Folks who build glass house arguments shouldn't be throwing around words like risible.
 

Charles:

Because, arne, FUTURE Presidents will be ill-advised if there is no executive privilege.

"We know where they are. They’re in the area around Tikrit and Baghdad and east, west, south and north somewhat."

Yeah, that worked well (hey, hit the 3400 milestone today! Yippee!). (For the sarcasm-impaired, that was ... well ... you know ....)

Cheers,
 

Charles: What you two are missing is that, with the stroke of a pen, the President can indeed make things legal.

Yes, I would be quitting the thread too, had I written that.

Someone: you are missing the point, accidentally I'm sure. Of course, only a court decides what's legal. The POINT is that the DOJ was unable to find a plausible basis to argue for the program's legality in court.

I'm a lawyer, and I do not answer my client's inquiry as to whether X is legal by shrugging and saying, "only until a court decides otherwise."

Bush, it appears, was more willing to rely on the one lawyer* in the White House inner circle -- Addington, an ideologue on the subject of executive power -- than on DOJ. He made concessions to avoid a campaign-year scandal.

*I don't count Gonzales, tho Bush may've been so mistaken.
 

Someone:

So, no there is no illegal action on anyone's part.

Well, outside of the fact that they were violating FISA (and possibly the Fourth Amendment), no.

It's not the failure to sign (or whatever), it's the snooping that was being done.

Cheers,
 

no one should be fooled when Bart posts as Someone. The ludicrous reality denying aspect of the posts and poorly reasoned analysis give it away.

The DOJ's opinion was that the program was illegal.

KKKarl and Dickkk said it was legal.

Who you gonna believe?
 

Anderson,

Okay, your argument is much more reasonable. But, others (I think Prof. Lederman) were trying to argue in other threads that the conduct was illegal. There was nothing illegal. At most, it was nasty inside political manuevering. Its more interesting than indicative of anything nefarious.

I should note that the DOJ had previously found the program to be legal 19 out of 19 times. So, surely, it is hardly troublesome when it raises eyebrows that suddenly something repeatedly found to be legal is determined to be questionable.
 

Anderson:

I really have to go, but I will note that I'm a lawyer too. As just one example, President Bush could sign a blanket pardon today and every single illegal alien in the country would be LEGAL. See how it works?
 

And now the Senate is on the case.

Cheers,
 

Bart: Try reading for my post for content. I stated that the FBI does not perform system wide surveillance for intelligence gathering purposes and instead does individualized surveillance for criminal evidence gathering.

You conveniently omit the fact that the FBI also does surveillance for intelligence-gathering.

As for whether or not such surveillance is "system wide," that is immaterial. Whatever was going on, it could be equally illegal whether it was "system wide" or not. If there was some presidential authorization for unwarranted surveillance or physical black-bag jobs included in the pre-2004 "program," that is what would matter.

And whatever was going on, FBI Director Mueller obviously had a pretty serious interest in the matter. According to Comey, Mueller apparently planned to resign over the issue, and it was he who met one-on-one with President Bush and emerged with the news that the President had agreed to modify the "program" to meet the objections Comey, Ashcroft and he were raising. If the program involved only the NSA, not the FBI, Mueller's key role would be nothing short of bizarre.
 

Charles: so the President can pardon people. And your point is?

Someone: what I think Lederman et al. are saying is:

(1) the program in question was illegal;

(2) that's why DOJ wouldn't sign off on it; and

(3) it was thus illegal for the President to authorize the program.

It didn't START being illegal when DOJ wouldn't sign off -- and it seems that Jack Goldsmith's accession, not any change in the program, may've been why DOJ got off the bus.

But Bush could not be particularly blamed for authorizing it UNTIL he knew that DOJ wouldn't certify it.

As someone noted on another blog, the issue is IMMUNITY -- they wanted DOJ's signoff, *not* because anyone in the White House honestly gave a damn what DOJ thought, but so that they could assert qualified immunity. Cf. the similar acrobatics re: torture.
 

Arne,

That's grand but hardly what we are arguing. Do we really have to launch into a seperate argument about the legality of the snooping?--i'm just not in the mood. Or can we please stay more to the point?
 

Someone:

That's grand but hardly what we are arguing. Do we really have to launch into a seperate argument about the legality of the snooping?--i'm just not in the mood. Or can we please stay more to the point?

The legality of the snooping is the core issue here (much as you might like it to be [or would try to make it] otherwise).

Cheers,
 

JaO:

You conveniently omit the fact that the FBI also does surveillance for intelligence-gathering.

Indeed. In fact, the FBI is the primary domestic counter-intelligence organisation, responsible for tracking down and locking up (or expelling) spies for well over half a century.

Cheers,
 

Charles:

the President can't pardon himself. Look it up.

Someone:

We don't know enough about the program to know if it was legal or illegal. The AG, Deputy AG, the head of the OLC, and the FBI Director, who did know about the program, thought they could not certify that it was legal. To me, that suggests the program was illegal. What does it suggest to you when career DOJ Republicans (Ashcroft is just a career Republican) think they can't approve of a program's legality, that it is legal?
 

Anderson,

I appreciate your post. That certainly is a reasonable argument, but that isn't what I understood the argument to be (at least in regards to this current hoopla).

But, if you are correct, then the current outrage seems misplaced. From the President's perspective, the program had been reauthorized and approved some 19 times. Then suddenly, a few days before reauthorization is required, the DOJ under an interm AG suddenly says they won't sign off on it. The President signs it and the very next day gives Comey a free hand to bring the program into what Comey thinks are the proper legal guidelines. Hardly troublesome. Perhaps the President should have delayed reauthorization a day, but not doing so was hardly illegal.

Of course, Gonzales hardly comes across as clean, though he didn't engage in any legal behavior that I'm aware of.
 

Arne,

My point is that the debate over whether the program was actually illegal isn't the point of this hoopla. Sure, it is related, but the issue here seems to primarily concern the process.
 

What I find particularly illuminating here is all of those quaint Washington "customs" that are now hindering our Executive's GWOT.

Customarily, the DOJ would determine whether or not a given surveillance plan was constitutional.

Customarily, the DOJ experienced some latitude and was not viewed merely as a partisan appendage to the party in power.

Customarily, signing statements did not contradict the expressed goals of the legislation it authorized, reserving the right to enforce it or not or how to the president's discretion.

Customarily, Senators were consulted on AG picks for their state and granted a voice in this key appointment.

Customarily, captives of the US were accorded a due process consistent with American notions of freedom and justice, not the lowest common denominator.

Customarily, our bureaucracies are not meant to be staffed with partisan ideologues who satisfy a questionable morality test.

Customarily, the CIA and other existing agencies are responsnible for building the case for or against war.

Customarily, the Executive Branch takes great care in the treatment of vital intelligence assets and will forbear leaking classified information to settle a political score.

Who knew so many customs would have to go to keep America safe in the Bush Autocracy.
 

"And yes, there ought to be war crimes trials for the thugs in the maladministration. I await the day."


I couldn't agree more. Bart suggested to me a couple of days ago that I need to "grow up", or something to that effect...and added the famous dictum that "war is hell". Funny how that keeps getting quoted by the sorts who want to justify mass murder and rapine. No doubt the Japanese soldiers at Nanking in 1937 could comfort themselves with the notion "War is hell!", as they cheerfully butchered some 300,000 Chinese civilians in the most unspeakable ways imaginable (and some quite frankly unimaginable...I have no idea who could have thought of making prisoners drink gasoline, and then shoot them with tracer rounds to watch them explode).

In this thread and others, Bart always manages to set up a two tiered system of legal observance. We, being the good guys, get to set aside the rule of law whenever it suits us in order to get things done...get the nebulous bad guys...make them talk...conduct surveillance or whatever seems pressing at the moment. We can do whatever we want. After all, we are the good guys.

The "bad guys", of course, get to be held to whatever standard of law we wish to observe or is the most convenient at the time. Bart thinks I need to "grow up", and accept this is the way things have to be to get things done.

I have no idea how old Bart is, or really just how old he thinks I am. I turn 40 this year, and I have seen and read enough to know that setting aside the rule of law...in warfare or any other situation... for mere expediancy is asking for disaster. This is how crimes are committed and covered up. This is how tyranny starts. This is how we stop being a nation of law and become a nation of differential justice and privilage for the fortunate few.

Bart seems to think that somehow, against all odds, that "good" men will not really abuse the extraordiary powerts unwisely bestowed upon them, and that generally only "bad" people get spied on, arrested, subjected to rendition, have hard ojects shoved in their rectums and so forth.

Any "innocent" people caught in this are liars, or collarteral damage, and need to shut up and stop damaging the war effort.

Maybe this doesn't really reflect his beliefs, but I think I'm pretty close. In a way, Bart seems to be an idealist, since he can't seem to admit that the power vested in the administration has been seriously and criminally abused. One of us does need to grow up, but it isn't me. Expediancy is never an excuse, but it always seems to serve as the refuge of scoundrels.
 

Well, Someone, we can agree to disagree. Once Bush had DOJ refusing to sign off, he had no further basis for qualified immunity, as I understand it. Maybe he fell for Addington's arguments for his absolute immunity ...

though he didn't engage in any legal behavior that I'm aware of.

Trust your unconscious, Someone!

As for hoopla & actual legality, I think that *is* what the hoopla's about. The resident bloggers were all over the surveillance issue from Day One, and that -- not some procedural nicety -- is what energizes them.
 

JaO said...

Bart: Try reading for my post for content. I stated that the FBI does not perform system wide surveillance for intelligence gathering purposes and instead does individualized surveillance for criminal evidence gathering.

As for whether or not such surveillance is "system wide," that is immaterial.


It is completely material to the timing of Justice's approvals of the program at issue. You use regularly scheduled approvals for large ongoing surveillance efforts which do not change much. You get individualized approvals for individually targetted surveillance.

Give it up already. You are about the only one who is going down this rabbit hole. The paper of record for Bush haters, the NYT, has a blaring headline that this is about the TSP.

Whatever was going on, it could be equally illegal whether it was "system wide" or not.

I will defer to the others here who have noted that Justice does not determine what is and what is not illegal. If that was the case, the courts would have deferred the Justice's opinion that the current iteration of the TSP is perfectly legal.

And whatever was going on, FBI Director Mueller obviously had a pretty serious interest in the matter. According to Comey, Mueller apparently planned to resign over the issue, and it was he who met one-on-one with President Bush and emerged with the news that the President had agreed to modify the "program" to meet the objections Comey, Ashcroft and he were raising.

This only reinforces my suspicion that these changes involved gaining warrants for law enforcement purposes. Everyone pushing for these changes is involved in law enforcement.

Once again, we can only speculate as to the motivations of the parties here. However, the NYT reported that this program was being used to successfully identify enemy inside the United States and supposedly broke up two attacks. However, none or very little of the evidence gathered by the TSP could be used in court by the FBI and Justice against these suspects without warrants under the Truong line of cases. I would think that would be driving the FBI and Justice crazy if they could not make cases against these terrorists. THAT would be worth resigning over to a cop or a prosecutor.
 

Bart: You get individualized approvals for individually targetted surveillance.

Only if everyone follows the law, which is rather besides the point if the President directs his subordinates not to.
 

Charles: You and garth do realize that Comey REFUSED to testify that the President authorized anything illegal, right?

You do realize, don't you Chuck, that it's immaterial. Either way the White House went ahead with a callous disregard for the legal status of the program in question. Such a disregard is a violation of Presidential duty and will suffice for impeachment. No matter how many times you try to drag the topic elsewhere, this is what Comey stuck to, because it's far far more than enough.
 

Wow. I mean wow. Bart, you believe that these folks were willing to resign because they could not get prosecutions? That is unreal.

Given this administration's priorities post-9/11, Justice would not give a rat's butt if they could not prosecute terrorists, because it was only about making everyone safe. The notion that large numbers of DOJ officials would resign because they could not obtain prosecutions is laughable on its face.

I can't actually believe that you can post that line with a straight face--ESPECIALLY when Comey is stating that he would not sign off on the LEGALITY of the program. The ability to obtain a conviction using certain information is not even close to being co-terminous with the legality of how the information was obtained.

Amazing. Truly amazing.
 

someone (who may or may not be my old pal "Humble Law Student") said: So, no there is no illegal action on anyone's part.

Nonsense. As I apparently can't say often enough, Comey didn't need to reach the issue of legality of the program in question nor the legality of acting without AG signature. Regardless the status of those two matters Comey incontroverably testifies that the White House went ahead with a reckless disregard for the legality of both counts despite non-trivial dissent from an office politically beholden to the good will of the administration. Such reckless disregard of legality is itself an abuse of power sufficient to impeach and remove from office. Address that, please, rather than chasing diversionary smoke screens.
 

Hey, Bart, still waiting. Text from the MCA? Or maybe a statement showing how when the C-in-C swears in with an oath to protect the Constitution he somehow ends up not being subject to it? Or how acting with reckless disregard for the legality of a program fits within that oath? If you can't address those then what good are you? How many months have I been waiting for text from the MCA?
 

mike: Bart, you believe that these folks were willing to resign because they could not get prosecutions? That is unreal.

More than likely it isn't a matter of belief, so much as the last thing he heard on his favorite AM hate radio. Parrots don't actually think about the noises they make, and it is a common error to mistake those noises for language or indication of underlying cognition. Perhaps you missed Bart's change of course after the GOP debates on another thread?
 

"Someone" is your old pal, Humble Law Student.

Bart is easy to explain. If Hillary were in the White House with Dem majorities in Congress, he would be working towards repeal of all these measures and all congressional and executive power. He would be back to the complete anti-statist schtick. It's nothing personal, it's just business and the business is politics.

Someone, OTOH, can only be too you young to remember the Cold War and why we fought Stalinism. There were many reasons, some better than others, but most people knew they didn't want the government snooping into their private business. How any old "Cold Warrior" could countenance any of this is beyond me. Perhaps that's why most neocons are reformed leftists. Bart has finally become an apologist for Stalin. It'd nothing short of miraculous. Such is the totalitarian mindset, it is the Right Wing Authoritarian. Left wing authoritarians are as rare as "hen's teeth".
 

WHAT abuses by FDR and Truman?! Advancements in technology are going to have to get much better before they pass actual interment camps. BTW: the FISA was enacted over 30 years after World War II (in 1978) after separate Senate investigations led by Sam Ervin and Frank Church looking into NIXON. Read a history book next time, why doncha?

I'm not surprised that you'd run away from the substantive argument. I'm a little surprised that your attempt to justify your "Waaaah! He did it first." defense is so unimaginative.

If you're really looking for a lowest common denominator to bolster Bush, Andrew Jackson would be a much better example. Here's a guy who (1) owned slaves; (2) killed a man in a duel; (3) held an entire city under martial law illegally; (4) seized and imprisoned the federal judge who ruled it illegal; (5) personally executed civilians in wartime under dubious charges; (6) violated treaties by invading foreign soil; and (7) sent the Cherokee nation off to its destruction without batting an eye.

I guess we should all be grateful our current Glorious Leader has shown us such moderation.

As for the history, perhaps you could suggest some reading to get me started. If I struggle with it, can you be available for some tutoring?
 

Robert,

I doubt very many legal scholars would agree that "reckless disregard for legal advice" satisfies the "high crimes and dismeanor" requirement for impeachment. You may think so, but you are quite alone.
 

Someone,

You do know that impeachment is not subject to judicial review? So anything that you can argue Congress into is "high crimes and misdemeanors". If it looks like the Prez knowingly and intentionally violated the law, and the opposition can get their 2/3s - baby, it's firin' time. It's just gotta be bad, not even technically a crime.
 

Someone, "recklessly disregarding legal advice" from the career professionals about the legality of a surveillance program could very well be grounds for impeachment.

The president would be banking that the advice of David Addington was in fact more sound than that of his A.G., Deputy A.G. and others at Justice. Part of the president's difficult is that he circumvented the Congress in gaining above-board recognition of the program's legality. That's placing an even higher burden on Addington's legal opinion. That's a risky gamble in my view.

I would agree with you though that the President would not need to worry about "high crimes and misdemeanors" if he were to recklessly disregard the advice of one attorney over another in a personal matter.

The first example seems like the proper analogy in reference to this incident, not the second example. I disagree with the application of your understanding in this situation.

I also find it a little odd that I am agreeing with Bart. What Bart says is actually a fair point regarding Comey's testimony. We really don't know what the grounds were for Comey et al's objection to the renewal of "the program". Where I disagree with Bart is in reference to the statement where he essentially says: "because we don't know the grounds for the objection, we can naturally assume it was an innocent, and innocuous one." People don't generally threaten to resign en masse over trivialities.

Either way, this is a can of worms that won't be going away any time soon.

Finally, in reference to Charles's point about "What you two are missing is that, with the stroke of a pen, the President can indeed make things legal." I love the echoes of Nixon's "If the president does it, it's legal".

I don't blame Charles for cutting and running after that guffaw. Maybe we'll be privileged with a second rebuttal that includes an invocation of the Divine Right of Kings as a justification for the president's action?
 

You folks keep using the word "President" when it should be clear the word is "Cheney" or, possibly, "Rove". It has been the cherished wish of Rove, et al., since the Nixon Administration's attempt that became Watergate, to spy on the Democrats with the goal of creating a one-party State.

The Warrantless Eavesdropping was not, or is not, about "terrorism". It dovetails with the USA firings, the voter suppression and "unitary presidency" and it's only goal is one-party rule in the United States.
 

someone, possibly aka, HLS: You may think so, but you are quite alone.

You could be right. I forget how far ahead of me you may be scholastically, but until someone provides a cogent counter-argument your observation that I am alone is insufficient to dissuade me. You know I value your input, I believe you to be a bona fide good-faith interlocutor, but your conclusory remarks regarding my solitude do not persuade. Instead of calling on social forces, why not tell me where my argument falls apart? Do you deny the parallel to crim. law where reckless disregard suffices to satisfy a "intent" requirement?
 

911wasaninsidejob: It has been the cherished wish of Rove, et al., since the Nixon Administration's attempt that became Watergate, to spy on the Democrats with the goal of creating a one-party State.

I am not unsympathetic to your stated views nor those implied by your choice of moniker. Nonetheless, for now, for me, it suffices that the White House is on record as recklessly disregarding the potential illegality of the program in question. I'm with you in spirit, but pragmatically feel we are all best served to keep our eye on this particular ball.
 

"Bart" DePalma:

You use regularly scheduled approvals for large ongoing surveillance efforts which do not change much. You get individualized approvals for individually targetted surveillance.

"[R]egularly scheduled approvals" for massive sweeps? You mean like a "Go get 'em" from the Deciderator-in-Chief and a nod and a wink from the AG? That's not the "approval" that the FISA law specifies. Any other kind of "approval" is immaterial.

Cheers,
 

charles: Neither Mr. nor Mrs. Ashcroft have to be the Attorney General for executive privilege to apply. You do realize that this topic implicates the national security dicta in US v. Nixon, right? If executive privilege applies to PRIVATE oil company executives, then I think we can find some way to cover the Ashcrofts (maybe there's a spousal communication privilege as well).

So asking Mrs. Ashcroft whether President Bush telephoned her at the hospital implicates a sensitive national security secret.

...

...

Ok. How could I have forgotten our national security interest in protecting the President from Congressional oversight?

I can't begin to tell you how readily I would welcome that fact pattern as a test case for the U.S. v. Nixon dicta.
 

One and all: I apologize for not having more than THREE hours to dedicate on-line yesterday. Hopefully, I won't similarly disappoint today. On to the questions . . .

Christopher: I was NOT aware that the President cannot pardon himself -- do you have a cite for that?

quitealarmed: I never said there's a national security interest in protecting the President from Congressional oversight. Your new "hero" Comey, however, declined to testify on both national security AND executive privilege grounds -- that was O.K. for Schumer -- why not you? As for Mrs. Ashcroft, I'm more concerned about questions directed at the CONTENT of what Bush had to tell her to convince her to grant access to her husband.
 

How could I have forgotten our national security interest in protecting the President from Congressional oversight?

Senility is my guess. Article VIII clearly states that "the President shall from time to time give to the Congress such information of his actions as he shall judge necessary and expedient; he may, on extraordinary occasions, answer questions directly or make his policies known to Congress at such time as he shall think proper; he shall take care that the laws seem to be faithfully executed or find appropriate officers of the United States to be removed from office in his stead."
 

PMS_Chicago:

He may also "on extraordinary occasions" (perhaps when they refuse to fund troops in harms way?) "convene both Houses, or either of them" and in case of disagreement "with respect to the time of adjournment, he may adjourn them to such time as he shall think proper." Sounds like two very good ideas to me.
 

(That's in Article II, Section 3)
 

This comment has been removed by the author.
 

charles wrote: quitealarmed: I never said there's a national security interest in protecting the President from Congressional oversight. Your new "hero" Comey, however, declined to testify on both national security AND executive privilege grounds -- that was O.K. for Schumer -- why not you? As for Mrs. Ashcroft, I'm more concerned about questions directed at the CONTENT of what Bush had to tell her to convince her to grant access to her husband.

Mr. and Mrs. Ashcroft’s testimony would have a two-fold purpose. The first is to confirm the account already provided by James Comey. No one questions his credibility, but Tony Snow has suggested that the Administration has a different version of the events. The second is to answer the question posed by this thread: What was the President’s Role? Both purposes can be accomplished without discussion of program details (as Comey did in his testimony). Unless one asserts a national security interest in protecting the President from Congressional oversight (an assertion you thankfully disavow), I see no colorable argument for claiming executing privilege to bar this testimony.

While “hero” is overly strong, I agree that James Comey acquitted himself most admirably. He behaved in the way that I once, idealistically, trusted that all high government officials, save the corrupt, would behave, regardless of party affiliation. I can fashion no greater indictment of this Administration than to observe that it cannot abide the company of those who cleave to their integrity.
 

I will trust the President's judgment on that. For instance, if the President called Mrs. Ashcroft and said: "I'm going to reveal the following classified details to you so you can make up your own mind how important it is that we speak to John tonight . . ." then the President's Role is not only covered under Executive Privilege but also classified information. BTW: I believe Congressional "oversight" of the President HIMSELF is very limited.
 

Charles: I think this thread has run its course. I will simply repeat that I would relish the facts you describe as a test case for the limits of executive privilege.
 

For the recrod, then, I stayed here more than four hours this time. I hope that was enough, Arne.
 

Charles: "I will trust the President's judgment on that."

Ha

HaHa

Hahahahahahahahahahahahahahahaha!
Hahahaahhahahahahahahahahahahahaha!
Hahahahahaha!
Ha!

Oh, I'm laughing so hard, I've started crying! Thank you Charles! Robin Williams couldn't have done better. I don't need to go see Shrek 3 this weekend after that.

Hahahahahahahahahaha.

Oh no, I think I pulled something.
 

Charles,

If someone knowingly reveals something that would normally be a privileged communication in the presence of someone who would negate that privilege (which is why attorneys will not discuss a case with their client in an elevator with others present), then the privilege is considered lost.

Mrs. Ashcroft was not confirmed by the Senate as a Presidential appointment. How in any stretch of a twisted imagination (as you have showed elsewhere) can you consider her part of a privileged conversation?
 

The same way oil executives (not confirmed by the Senate as Presidential appointments) would be -- see, e.g. Walker v. Cheney. Executive privilege (especially involving national security) is a different animal from attorney-client privilege.
 

Post a Comment

Home