Balkinization  

Thursday, June 07, 2007

Comey's Answers to Written Questions

Marty Lederman

Here are James Comey's written answers to questions from Senators Feingold, Leahy and Schumer. (Previously, Talking Points had posted Comey's answers to questions from Rep. Linda Sanchez of the House Judiciary Committee.)

Comey states that "I believe the following individuals were prepared to resign: Jack Goldsmith, Patrick Philbin, Chuck Rosenberg, Daniel Levin, James Baker, David Ayres, David Israelite, Robert Mueller, [and, although they were] not involved with the matter, I believe a large portion of my staff would have resigned were I to depart."

(Jim Baker, by the way, was a career employee, not a political appointee. As Counsel for Intelligence Policy, he ran the Office of Intelligence Policy and Review that prepares and presents all applications for electronic surveillance under FISA to the FISA Court. He was an extremely valued and trusted figure, within DOJ, the intelligence community, and the FISA court, on all FISA matters. His intention to resign is therefore very telling, I think.)

Comey also explains that the review of the NSA program was initiated by Jack Goldsmith and Pat Philbin in OLC in the late Fall of 2003. Philbin, it should be noted, is a conservative Republican, who clerked for Judge Silberman and Justice Thomas, and who worked very closely with John Yoo on many war- and terrorism-related matters at OLC. The fact that he presumably encouraged Goldsmith to review so many of Yoo's legal conclusions, on interrogation and the Geneva Conventions as well as electronic surveillance (and who knows what else?), is very revealing. In this respect, I should note that although Pat and I obviously disagree on, and have publicly debated, many substantive legal questions, I can vouch that Pat is an extremely skilled, hard-working, conscientious and careful attorney. Comey's new testimony confirms that after this series of OLC repudiations, the Vice President's Office nixed Pat's appointment to be Principal Deputy Solicitor General. That is a real shame, because Pat would have been a superlative Deputy SG (as the eventual appointee, Greg Garre, has been).

Comey also notes that Goldsmith and Philbin had been speaking to the White House for months before the meeting on March 9th and the fateful hospital visit the next evening. In other words, it's not as if the White House was blind-sided with the bad news just hours before they decided to shake down the ailing Attorney General.

The White House's objections to DOJ's new views had been conveyed orally up to that point, but shortly after March 10th, White House Counsel Gonzales issued a memo, presumably drafted by David Addington and presumably adopting a view opposite that of OLC. That should be interesting reading, if it's ever released (in redacted form, of course).

Finally, in the category of Uncomfortable Conversations, there's this:
Q. In your presence, did Mr. Gonzales or Mr. Card ask Mr. Ashcroft questions to elicit his state of mind and/or medical condition prior to discussing their request for authorization of the classified program?

A. I believe Mr. Gonzales began the conversation by asking, "How are you, General?", to which the Attorney General replied, "Not well."

Comments:

Professor Lederman: I should note that although Pat and I obviously disagree on, and have publicly debated, many substantive legal questions, I can vouch that Pat is an extremely skilled, hard-working, conscientious and careful attorney.

I don't know how to say this without gushing, but you are an absolute national treasure, what with your combination of first hand insider experience, willingness to share your views publicly (and with the rabble of the blogosphere, no less!), and rock-solid graciousness with respect to the many people of whom you speak. We could use a few million more like you, and it was a loss to the legal profession that you weren't born twins. And you deserve the praise to be public.

Peace
 

The AG said there was no major disagreement about the program (he has confirmed that he meant the program Comey was concerned with) and that appears to be incorrect. I suppose it could be a matter of opinion but it seems that it's an unreasonable assertion? Perjury? Congress is weak so I doubt that will become an issue even if it should.
 

Comey states that "I believe the following individuals were prepared to resign: Jack Goldsmith, Patrick Philbin, Chuck Rosenberg, Daniel Levin, James Baker, David Ayres, David Israelite, Robert Mueller, [and, although they were] not involved with the matter, I believe a large portion of my staff would have resigned were I to depart."

By my count, there are eight names on this list. Presuming that Mr. Comey's belief is 100% correct, eight dissenters hardly makes up a "mass resignation."

As a side note, it is interesting to note that Mr. Philbin from that list appears to have cowrote with John Yoo two of the memos laying out an expansive view of executive power concerning captured enemy combatants. If this is the same Philbin, I am having a hard time seeing him opposing the much clearer exercise of executive power in the terrorist surveillance program.
 

Justin: DOJ's explanation will probably be that when Alberto Gonzales said there was no major disagreement about the program, he meant the program as revised. That strikes me as fundamentally dishonest, but sufficient to avoid a perjury conviction.

Bart: Regarding Patrick Philbin, none of us know how bad the program was before it was revised.
 

Justin,

In what sense has Gonzales "confirmed that he meant the program Comey was concerned with" in the actual disagreement?

If you are referring to Gonzales press conference statement two days ago, I don't think that is established at all. Gonzales was apparently just dissembling and blowing smoke without specifics. He used weasel phrases and ambiguities at the press conference: "Mr. Comey’s testimony related to a highly classified program which the president confirmed to the American people sometime ago."

Well, part of Comey's testimony -- the end of his narrative, about how the "program" was modified -- may well have been "related to" the post-2004 program. But that does not necessarily conflict with Gonzales' 2006 testimony that the actual disagreement in 2004 involved other "other matters involving operations" and "operational capabilities that we're not talking about today."

In your zeal to suggest that Gonzales committed "perjury," I fear you are being distracted from the substantive scandal -- that the 2004 disagreement was over violations of law even more egregious than those in the NSA "program" Bush eventually confirmed.

(Gonzales was not under oath last year, BTW, but I don't think that is material to your basic argument. It is also unlawful to make false statements to Congress.)
 

Add my gush to Robert's.

And since I probably said this on the wrong thread: who sent Card and Gonzales to that hospital room, or "suggested" that they go? They need to answer that question under oath.
 

It all began on March 17, 1972, according to the Senate Watergate Report, when Malek, deputy chairman of President Richard Nixon's re-election campaign, presented his plan to H.R. Haldeman.

On March 17, 1972, Malek submitted to Haldeman a document entitled, "Increasng the Responsiveness of the Executive Branch." (Malek Ex. 4) The document, which was initially drafted by William Horton and designated "Extremely Sensitive—Confidential," constituted Malek’s broad-view conception as to how the federal bureaucracy could be put to work for the President’s re-election. His plan subsequently received Haldeman’s approval." [SWR, p. 329]

By "responsiveness," Malek did not mean responsive to the public, whose taxes fund agencies supposedly for nonpartisan services. Rather, it referred to the willingness of agency officials, including career or "Schedule C" employees, supposedly protected from political pressures, to further the campaign goals of the Republican Party. As the investigating committee indicated, this applied to the Justice Department, where even legal authorities were viewed as mere political machinery.

Particularly important to the present study is the clear prescription in this document that "legal or regulatory action" should be shaped to benefit the campaign effort. In this regard, the memorandum quoted in the previous section that referred to legal actions by the Department of Justice as a form of "patronage" to be utilized for campaign purposes should be recalled. [SWR, p. 331]

Investigative and judicial authorities are vested in other federal agencies, also, and those, as well, were politicized. A Washington Post article (Feb. 4, 2006), describes a Labor Department ruling that reportedly was orchestrated by Nixon campaign officials.

Malek's responsiveness program was extensively investigated by the Senate Watergate committee. The panel found that the program was aimed at influencing decisions concerning government "grants, contracts, loans, subsidies, procurement and construction projects," decisions regarding "legal and regulatory actions," and even personnel decisions that affected protected "career positions" -- all to advance Nixon's reelection [WPost]

.

This surely was not the first time a President sought to manipulate the bureaucracy for political gain. But, the Nixon administration's vision of top-to-bottom control was far more extensive than any previous or since, with the exception of the current Bush administration. The Bush administration had the advantage of starting with Malek's vision, which was developed too late in the Nixon administration for full implementation.

Malek also proposed that federal grants and loans be directed to pro-Nixon minorities and away from those perceived as unsupportive.

Under questioning by Sen. Carl Levin (D-Mich.) during the second day of hearings, Malek admitted that a memo written by him did suggest that people who were not Nixon's supporters be punished in some way. "Unethical, immoral and improper" was the way Levin described Malek's role, adding that Malek had "spearheaded a calculated, systematic effort to sell government favors to the highest bidder in the Nixon reelection campaign and to punish low bidders or the nonbidders." [WPost]

Federal employees were scrutinized to make certain that they fit a prescribed demographic profile. One example was a 1971 order by Nixon, which Malek carried out, to ferret out Jews in high-ranking posts at the Bureau of Labor Statistics.

To protect Nixon and the White House from being investigated for any wrongoding, Malek devised measures to avoid leaving any footprints that would lead back to them.

" No written communications from the White House to the Departments -- all information about the program would be transmitted verbally . . . documents prepared would not indicate White House involvement in any way."
-- March 17, 1972, Malek memo to Haldeman. [WPost]

Many will recall that President Bush prefers verbal briefings, and that Alberto Gonzales demanded that no written record be made of his hearing testimony, which he also insisted should not be under oath.

If Malek's 1970's playbook needed updating, the Bush family did not have to go far to request it. Following Nixon's resignation, Malek co-owned the Texas Rangers with George W. Bush, served as campaign manager for George H.W. Bush and was deputy chairman of the Republican National Committee.

-useful context
 

above is from a post at DailyKos and it contains working cite links.
 

"In your zeal to suggest that Gonzales committed "perjury," I fear you are being distracted from the substantive scandal -- that the 2004 disagreement was over violations of law even more egregious than those in the NSA "program" Bush eventually confirmed.

"# posted by JaO : 10:45 AM"

That's why I keep asking the same obvious questions again and again -- to which no one responds, and no one refutes --

In his February, 2006 testimony, Gonzales made a distinction. He said -- responding to Schumer's question -- there was no disagreement about the NSA prograqm. But that there was disagreement about "other" that he wouldn't identify. None of that necessarily conflicts with Comey's testimony.

1. Why would the FBI Director be in the thick of the issue over a program _OUTSIDE_ the FBI?

2. Why would the FBI Director threaten t resign over a program _OUTSIDE_ the FBI?

3. Would the FBI DIrector even know about a program in the NSA?

4. Why is there no mention of involvement in the issue of the NSA Director, let alone his threatening to resign?

Come on: Show me how those questions have no relevance, no bearing.
 

I recall reading reports of something much more extensive than just wiretapping people with suspected terrorist ties, a general filtering of international calls for leads. As I also recall, the NSA produced so many false leads for the FBI to investigate that they started referring to the NSA tips as "more calls to Pizza Hut."

Could that be the FBI's involvement here, that they wanted to stop having to investigate "calls to Pizza Hut"?
 

JNagarya,

If you are replying to me, you are preaching to the choir. Ever since Comey's original testimony I have believed that such circumstantial factors as you mention, as well as others (such as the fact that it was Mueller to whom Bush finally gave the word to modify the program) suggest substantial FBI involvement in whatever the 2004 fight was all about.

I can only speculate about what that might have been -- something beyond NSA wiretaps of transnational communications, as have been disclosed. Surveillance of purely domestic communications and physical black-bag jobs are an obvious thing to suspect. Such domestic techniques are traditionally the mission of the FBI in lawfully warranted criminal investigations and intelligence-gathering.

Whatever was going on before March 2004, it was so serious that the whole top echelon of DOJ and the FBI were willing to resign.

Discovering and prosecuting the underlying malfeasance -- not to mention pursuing the fact that even the post-2004 program itself was illegal -- should be the focus of investigation. That Gonzales deceives Congress and the public is, by now, as well established as it needs to be. He is a decoy, a sacrificial anode, in the ongoing cover-up.
 

Enlightened Layperson: Could that be the FBI's involvement here, that they wanted to stop having to investigate "calls to Pizza Hut"?

If that was the only involvement, it would amount to a resource and management issue, which hardly rises to the level that requires the FBI director to resign.

All the factors that JNagarya lists above are not compelling to me. For example, I think it is plausible that the FBI director would be briefed into a program even if the surveillance was all conducted by the NSA, if only because the feebies would be expected to follow up on the fruits of such leads.

But not only was Mueller threatening to resign, he was in the key one-on-one meeting with President Bush in which Bush reportedly directed that the "program" be modified to meet the objections of DOJ/FBI.

Anonymous Liberal has advanced a reasonable doubt about my FBI-involvement speculation. AL cited a U.S. News article about Mueller's protective stewardship of the FBI.

But I read that record differently. I think Mueller's history of pushing back is consistent with the common speculation that the earlier Yoo opinions from OLC, supported by Cheney and Addington, had been imposed on the FBI to justify whatever was going on from 2001 through March 2004. (Just as Yoo's memo on torture was force-fed to dissenting Navy General Counsel Alberto Mora and his colleagues.)

But once that legal cover was withdrawn by Goldsmith's renewed legal review, accepted by Comey and Ashcroft, the broader umbrella of legal protection for FBI personnel would have been gone. Mueller then went to the mat to protect the integrity of the agency and its people.
 

just perused the documnet dump over at TPM and one thing stuck with me.

Why was Mary Beth Buchanan sending out, to all USAs, before Ms. Goodlings arrival and after AG Gonzalez's secret delegation of power, instructions on how to handle their resignations?

In her cover letter she says she was prompted to disseminate this information due to a "few" requests about the resignation procedure. Is this correct? Is it unusual. Is this information not already available to USAs or was it a warning shot from the WH?

As an aside, it is also interesting that the policies refer to the old policy of Senate approval. I wonder when or if they sent notice to the USAs of this change in policy.

Something is smelly here when these facts can be construed as Rove's opening gambit in Operation Noble Purge.
 

As a side note, it is interesting to note that Mr. Philbin from that list appears to have cowrote with John Yoo two of the memos laying out an expansive view of executive power concerning captured enemy combatants. If this is the same Philbin, I am having a hard time seeing him opposing the much clearer exercise of executive power in the terrorist surveillance program.

Poor Bart, so unable to process new facts and revise his conclusions.
 

While I believe Director Mueller is an upstanding and dedicated person, he alone hardly qualifies as "the whole top echelon of ... the FBI" right?
 

just perused the documnet dump over at TPM and one thing stuck with me.

Why was Mary Beth Buchanan sending out, to all USAs, before Ms. Goodlings arrival and after AG Gonzalez's secret delegation of power, instructions on how to handle their resignations?

In her cover letter she says she was prompted to disseminate this information due to a "few" requests about the resignation procedure. Is this correct? Is it unusual. Is this information not already available to USAs or was it a warning shot from the WH?

As an aside, it is also interesting that the policies refer to the old policy of Senate approval. I wonder when or if they sent notice to the USAs of this change in policy.

Something is smelly here when these facts can be construed as Rove's opening gambit in Operation Noble Purge.

# posted by Garth : 5:37 PM

Glad you posted this here, Garth. I'd like to see Marty Lederman's review of the document dump contents in a way which would give us who are unfamiliar with or in the dark about DOJ operation -- proper and otherwise -- an informed picture that fills in the gaps from which our understandings suffer.

Though I've worked admin. law, and enjoy the complexities, I've never looked at the DOJ.
 

But I read that record differently. I think Mueller's history of pushing back is consistent with the common speculation that the earlier Yoo opinions from OLC, supported by Cheney and Addington, had been imposed on the FBI to justify whatever was going on from 2001 through March 2004. (Just as Yoo's memo on torture was force-fed to dissenting Navy General Counsel Alberto Mora and his colleagues.)

But once that legal cover was withdrawn by Goldsmith's renewed legal review, accepted by Comey and Ashcroft, the broader umbrella of legal protection for FBI personnel would have been gone. Mueller then went to the mat to protect the integrity of the agency and its people.

# posted by JaO : 4:29 PM

And it is, of course, the "whatever was going on" that I (and apparently everyone else) want to know. It just seems obvious that the fact of Mueller being in the thick of it, and threatening to resign, had to have had something to do with the FBI -- which means the "frozen" assumption that the program in question was NSA and only NSA, and probably two versions of the same, is failing to look at those facts as if they aren't there.
 

If revealing "whatever was going on" will endanger the lives of Americans, then I DON'T want to know.
 

If revealing "whatever was going on" will endanger the lives of Americans, then I DON'T want to know.

# posted by Charles : 5:29 PM

According to the experts, the illegal invasion and occupation of non-threatening Iraq has increased the number of terrorists. That consequence doesn't only undermine the "abstract" that is national security. It endangers the lives of Americans.

As has and does the war crime of torture.

I'm for knowing so that endangerment ceases. I'm for knowing if it results in a consequence which endangers mine and me.

In short: ours is to be a system of laws, and not of men. I am opposed to covering up crimes based upon your hypothetical, in view of the fact that doing so endangers Americans -- and their right not to be so endangerd.
 

We don't know that alleged torture or illegal invasion / occupation of Iraq has endangered the lives of Americans.
 

Also, JNagarya, you haven't answered this question from the other thread: "How do we know Card was the first to call Mrs. Ashcroft and that she was adamant in refusal?"
 

We don't know that alleged torture or illegal invasion / occupation of Iraq has endangered the lives of Americans.

# posted by Charles : 11:52 PM

Our troops are no longer Americans once they land in Iraq? If so, then of what nationality are those troops who were killed in Iraq after ceasing to be Americans?

There were no reports of Americans being tortured in Iraq until after Abu Ghraib was revealed (which was inevitable).

Also, JNagarya, you haven't answered this question from the other thread: "How do we know Card was the first to call Mrs. Ashcroft and that she was adamant in refusal?"

# posted by Charles : 11:55 PM

We know that from Comey's testimony. And if it requires deduction, we know it wasn't likely to be Gonzales, as he would conceivably have legitimate reason to want to speak to Asscrafty at the hospital.

Though Comey wasn't certain, he also said he (seemed to) recall(ed) that the second person to call was Bushit.
 

Oh, I see now. To you "assume" is the same as "know." Thanks for clearing that up for me.
 

Charles,

Just as you know that torturing innocent people will lead you to guilty parties.

Glad you cleared that up.
 

I "know" that John McCain admitted his torture forced him to revealed classified info. But I'm not saying that I "know" all future torture will as well -- that's why I'm fine leaving that up to the experts / judge under the grand Dershowitz Compromise (see thread above)
 

Charles,

The Dershowitz Compromise you support is not a compromise in the sense of a middle ground. It is a compromise of the rule of law, our Constitution and Bill of Rights, and the Geneva Conventions.

Come back from your "24" fantasies; that ticking time bomb you hear is only your alarm clock, and you will hopefully wake up soon.
 

I've never watched "24" although I don't know if Dershowitz has.
 

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