Balkinization  

Wednesday, July 25, 2007

How Many "Terrorist Surveillance Programs" Have There Been?

Marty Lederman

The skirmish in the Senate Judiciary Committee yesterday morning over whether the NSA "Terrorist Surveillance Program" (TSP) uncovered by the New York Times in 2005 was the "same program" as the one at issue in the Ashcroft hospital room in March 2004 -- the one over which 30-plus officials at DOJ threatened to resign -- is based on a transparently flimsy sort of legerdemain offered by the Attorney General.

To recap very briefly:

1. The Attorney General previously testified to Congress that there had been no dispute within the Administration concerning the legality of the TSP.

2. Then, lo and behold, it turns out there was a dispute of epic proportions in early 2004 -- the refusal of Comey, Goldsmith and Philbin to rubberstamp the transparently illegal conduct that John Yoo and others had previously sanctioned; the drama that played out in the Ashcroft hospital room; the President's defiance of the DOJ leadership and his continuation of what they deemed an illegal program; the threatened en masse resignation; the revamping of the NSA program in a manner that OLC could bless; etc.

3. This means, of course, that the Attorney General simply lied to Congress -- and did so, moreover, in order to prevent Congress from learning about the remarkable lawlessness of what had been taking place until March 2004, and the unprecedented crisis within the Executive branch when push came to shove and the President insisted on continuing with a course of conduct that Ashcroft's DOJ thought was clearly unlawful.

4. How to fix that? Well, sayeth the AG, the 2004 dispute was not about "this program," the TSP, but was instead about "other intelligence activities."

5. The Senators, not surprisingly, are incredulous, as are members of the House who had been briefed on the "program," such as Jane Harman. See the excerpts of the Schumer questioning from TPM here, Spencer Ackerman's follow-up here, and Glenn Greenwald's take here. [UPDATE: Hilzoy, as usual, is indispensible.]

It's really not difficult to untangle basically what was happening here. Beginning in late 2001, there was an NSA program of electronic surveillance outside (that is, in violation of) FISA. OLC said it was illegal in early 2004. The NSA and others changed the program in certain unknown respects to allow it to pass OLC muster. (My guess -- The earlier version included surveillance of communications that did not involve anyone even arguably covered by the persons and entities described in the September 2001 Authorization to Use Military Force. And/or that the pre-2004 program also included surveillance of domestic-to-domestic communications. But who knows?)

Thus, the post-3/04 "program" involves "intelligence activities" that are in certain respects distinct from the actitivies that occurred before March 2004 -- and, as to that version of the surveillance, there is no longer any dispute within the Administration.

Does this mean that the AG's testimony was truthful? Hardly. It's the same activity -- a form of electronic surveillance -- but tweaked in certain respects to allow at least a figleaf of a legal argument that DOJ could live with. Therefore, the Attorney General certainly deceived the Congress when he testified that there was no internal disagreement over the legality of "the program." What he meant, apparently, was that there was no disagreement after the profound disagreement was remedied by a change in the program!

Ah, says the AG, but technically I didn't lie, because the 2004 changes established a new, and different, "progam." This is mere wordplay. It's not as if there is some formal, legal definition or authorization of particular "programs." The conduct in question is an extra-legal set of activities that the Administration itself can label in any of 1001 different ways. It could, for exmaple, conclude that there were hundreds of different "programs," since every day the intercepted communications were slightly different from those intercepted the day before. It would hardly be an excuse for the AG's intentionally misleading testimony to note that whereas it was called "the TSP" in 2006, it was given a different moniker else when it was operated more indiscriminately back in 2001-2004. A rose by any other name . . .

Alas for the AG, it turns out not even the names have been changed. The AP dramatically reports this evening that it has "obtained" a document proving that the "program" discussed with congressional leaders on March 10, 2004 was the same exact "Terrorist Surveillance Program" that the President later confirmed and that was in operation until this past January.

Truly, this isn't news. I "obtained" the same document this evening. I did so by downloading it from the Web, where it has been available since it was released to the public on May 17, 2006. The document is a letter to Denny Hastert from John Negroponte, the Director of National Intelligence, attaching a list of members of Congress "who attended briefings on the Terrorist Surveillance Program" from Ocotber 2001 through May 2006, including the "gang of eight" at that White House meeting on March 10, 2004, the day of the Ashcroft hospital visit. Indeed, you may recall that when the Administration acknowledged the existence of the TSP, this was its principal defense -- that for over four years, members of Congress had been briefed on "the program."

Doesn't really matter what it was called, however. Call it the TSP. Call it Ishmael. All the same, there was an internal dispute about its legality -- and then, after it was altered in some respect, there wasn't. The Attorney General not surprisingly wanted to conceal this dramatic internal development from the Judiciary Committee when he was defending the New and Improved TSP Program. What he didn't anticipate was that Jim Comey would be more truthful in his testimony. And what's important now is not whether the Attorney General dissembled to the Committee -- of course he did -- but instead having a serious public debate about just what the NSA and DOJ were doing before March 2004, what they've been doing since, and whether that activity, rather than the testimony about it, was lawful.

Comments:

While it makes good theater to watch Gonzales squirm over his dissembling, I am concerned that this is a distraction from the real issue of what egregiously illegal acts were taking place prior to the righteous DOJ mutiny in March 2004.

That illegal activity is the important story, not the chump Gonzales. Whatever it was, it was so serious that it threatened to spark multiple, senior resignations at DOJ and FBI. What was it?

I don't see any senators actually seeking to get to the bottom of that stinking mystery. Presumably several senators and House members in Intel or leadership positions already know the basic answer, but it is in no one's political interest to stop the charade and disclose the truth.
 

Speculation --

In view of Gonzales' claim that the "Gang of 8" approved the illegal program -- then that evening he and Card ran to Ashcroft in effort to illegally coerce him into illegally giving it an appareance of legality -- I suspect the "Gang of 8," if that program and its il/legality were the issue at that meeting, objected to it on the grounds that it was illegal, so Bushit-Cheney-Gonzales-Card were desperate to get that figleaf.

I'm also not yet convinced there was only one program: Comey had no problem with the legality of the TSP, as I recall. But there was omething illegal about which he was adamantly concerned as to it being illegal. It's possible Gonzales didn't lie when he said there was no controversy about the TSP -- which hardly helps, as that means not only that the TSP was illegal, but also that he was involved with attempting to give the appearance of legality to a second, even more illegal program.

Gonzales is small potatoes; but he's a "useful liar" as he keeps the issues alive and front-and-center, and continues to damage the Bushit criminal enterprise and the Republican party. And I don't see that the Democrats aren't concerned with the program, or not disclosing the facts about it -- it's ultimately an inevitable question as concerns Gonzales' veracity.
 

That illegal activity is the important story, not the chump Gonzales. Whatever it was, it was so serious that it threatened to spark multiple, senior resignations at DOJ and FBI. What was it?

Can that question be answered as long as the chump remains AG? Perhaps if the administration appoints a special prosecutor, but that doesn't seem likely. I don't see that the Bushies have any option other than dilitation. To the extent that a prompt removal of Gonzales would help prevent the Bushies from running out the clock, the chump is an important part of the story -- or at least of its resolution.
 

It appears that events occurred in the following order

1. The Justice Department approves the legality of the TSP (whatever it was called at the time) and possibly related program(s)

2. After Comey becomes acting AG, he objects to the legality of either the TSP or a related program

3. The Justice Department briefs the Gang of Eight on the fact of Comey's objection and informs them that Gonzales will visit Ashcroft in the hospital and try to get his permission for the program to continue

4. The Gang of Eight responds . . .?

5. After Gonzales and Card make their ill-fated visit to Ashcroft in the hospital, the administration is forced to make the changes Comey insists are necessary to make the program legal

6. Gonzales testifies before Congress that there has been no internal DOJ dispute about the legality of the TSP

Now Gonzales is claiming that his testimony in (6) was truthful because the Comey dispute was not about the TSP. Maybe this is literally true, maybe not, but this claim certainly makes it look like he is playing word games, particularly if the program in question was closely related to the TSP.

On the other hand, depending on the exact question Gonzales was asked in (6), his testimony might have been true because there was no objection to the TSP (or whatever)as it was constituted at that time. Of course, it still would have been preferable for Gonzales to have explained that prior objections had been resolved, but it is not clear that this omission was deliberate. Indeed, it would seem to have been to Gonzales's advantage to explain that changes had previously been made in the program to address legal concerns. This is particularly true if, as appears to be the case, the congressional leadership had previously been briefed on the legal disagreement that Gonzales was concealing. Another way to look at it is that Gonzales and the committee all knew about the prior legal disagreement, and Gonzales was trying to phrase his answer in a way to avoid giving the committee (ie, members thereof) an opening to bring that disagreement into public view.

Regardless, the focus on Gonzales's truthfulness or lack thereof seems misplaced (it is not clear that Gonzales is smart enough to be successful at either lying or telling the truth). A better question would be what was the congressional leadership told at and what was their response (points 3 and 4). It sounds to me like Congress is trying to have it both ways, not admitting knowledge or approval of intelligence programs like the TSP, while not being willing to force changes in those programs which could later prove to be harmful to national security.
 

@Professor Lederman, if you have time, could you address the argument that, given a) the President has a Constitutional duty to act lawfully, b) the AG expressed concerns regarding the legality of a program, c) the President implemented the program anyway, then we can conclude the President acted with a reckless disregard for the legality of his acts (i.e., no reasonable person could fail to question the legality of those acts when the AG had so forcefully called it into question)? Wouldn't this be a clear violation of his oath of office, and an equally clear impeachable offense in its own right, the actual legality or illegality of those acts notwithstanding? Setting aside the vagaries of political will and popular opinion, isn't this enough for impeachment and removal from office?
 

This is not too hard to untangle. Both sides are playing word games for their own partisan purposes.

In reaction to the Gonzales testimony, Jane Harman revealed that the TSP had multiple parts:

“The program had different parts, but there was only one program,” Ms. Harman said, adding that Mr. Gonzales was “selectively declassifying information to defend his own conduct,” which she called improper.

It also appears that the members of Congress briefed on the TSP approved all parts of the program as it existed in 2004:

But another member of the Gang of Eight — the Republican and Democratic leaders of the Senate and House and of the two Intelligence Committees _— supported Mr. Gonzales’s version. Speaking on condition of anonymity, he confirmed the attorney general’s testimony that the group reached a “consensus” that the disputed intelligence activity should continue and that passing emergency legislation would risk revealing secrets.

Here is an educated guess as to what is really going on.

When Gonzales stated that there was no dissent on the program, he is referring to the version in existence when the NYT disclosed it to al Qaeda and the rest of the world. The purpose of this parsing without the qualification of time was most likely to mislead the Senate inquisition looking for dissenters to embarrass the Administration.

The TSP appears to be not just one operation, but several.

In 2004, the members of Congress briefed on the TSP reached a consensus supporting the continuation of all of its parts.

However, DOJ appears to have objected to one or more of the parts of the TSP and appear to have convinced the WH to eliminate or substantially change them in that melodramatic hospital showdown.

When Gonzales referred to "other intelligence activities" and not to the program as a whole, he is referring to eliminated parts of the TSP which were no longer part of the program in 2005. This is misleading, but not a lie.

The Dems briefed on the TSP in 2004 and before sound slightly hysterical because Gonzales has revealed that they essentially rubber stamped a program which DOJ successfully fought and changed. This will not sell very well with their base, to whom the Dems (Rockefeller especially) have misleadingly implied that they were opposed to or questioning the TSP.

Consequently, you have the amusing spectacle of Rockefeller accusing Gonzales of "perjury" when the GOP chairman of the Senate Intelligence Committee all but called Rockefeller a liar by contradicting his claim that he objected to the TSP by noting that he never once objected to the TSP during Intelligence Committee meetings.

The other Dems like Harmon are playing parsing games by claiming that there is only one TSP when in fact the TSP appears to cover multiple operations.

This kind of juvenile game playing by both sides during a war just gives me all kind of confidence in the ability of these clowns to defend our nation.
 

Since so many folks are playing word games and taking them seriously, here is a historical footnote on the nomenclature, "Terrorist Surveillance Program."

I, for one, do not believe this term of art even existed at the time of the March 2004 meeting. In fact, I suspect it was invented in January 2006, weeks after the program had been announced by the White House in response to the New York Times disclosure.

The NYT story was published Dec. 16, 2005. President Bush essentially confirmed it in his radio address the next day. A few days later, on Dec. 19, Gonzales and Gen. Hayden briefed the press at the White House, and Asst. AG Walter Moschella sent a letter to congressional leaders Dec. 22 defending the program. On Jan. 19, 2006, DOJ published a "white paper" -- essentially a 42-page press release with lots of legalistic arguments -- as part of a public-relations blitz.

In none of those communications did the phrase "Terrorist Surveillance Program" appear.

But by the time Gonzales testified Feb. 6, the "Terrorist Surveillance Program" had become the quasi-official name of the program in question. (I think it might have been rolled out in a speech he gave Jan. 24, although the official prepared text does not capitalize "terrorist surveillance program.") Notably, his Judiciary Committee testimony Feb. 6 and subsequent letter of clarification repeatedly qualified his remarks with verbose phrases pertaining to a "program" that the President had "confirmed."

The use of the TSP title in Negroponte's May 16, 2006, letter is a retrospective description of the historical log of congressional briefings.

I doubt that the title was ever used contemporaneously before it was invented by administration PR operatives in January 2006.
 

MLS: Regardless, the focus on Gonzales's truthfulness or lack thereof seems misplaced (it is not clear that Gonzales is smart enough to be successful at either lying or telling the truth). A better question would be what was the congressional leadership told at and what was their response (points 3 and 4). It sounds to me like Congress is trying to have it both ways, not admitting knowledge or approval of intelligence programs like the TSP, while not being willing to force changes in those programs which could later prove to be harmful to national security.

While I have long been critical of President Bush's behavior in this matter, I also am not willing to give congressional leaders of either party a pass. I suspect that the situation you describe is a major reason the congressional establishment holds back from an aggressive inquiry into the substance of what appears to have been serious lawbreaking. Gonzales essentially threatened to rat out everyone on the Hill who was remotely involved.

As a legal matter, I know of nothing in the Constitution or statute that allows eight legislators, meeting in secret with administration officials, to authorize laws such as FISA to be violated.

But as a political matter, congressional leaders -- especially Democrats -- are in a bind. While I think the structure of the secret oversight rendered congressional leaders quite impotent, coopted and compromised, they do remain on the hook politically. (Note that in the briefing logs, for example, Nancy Pelosi has been in the loop from the beginning.)

I say, too bad. I will continue to argue for investigation and disclosure of lawbreaking, regardless of whose oxen are gored.

I also think this is another good argument for a special prosecutor. Relying completely on congressional oversight is severely undermined when it is not in the interest of congressional leaders to pursue the truth.
 

When will our masters inform us of all the ongoing secret activities which have been undertaken to protect us?

It is nearly impossible to catalogue all of the activities, now nearly six years old, that have been undertaken on our behalf.
 

"Bart" DePalma:

Here is an educated guess as to what is really going on.

No. "Bart"'s "educated guess[es]" cannot be more reliable than his incorrect recitation of easily verifiable facts. Until he acknowledges such obvious errors, why anyone would think his "educated guess[es]" are useful for anything but toilet paper is beyond me.

In fact, though, when "Bart" says "educated guess", he means, "I'm making sh*te up to 'explain' away in any way possible, however implausible, the malfeasance and illegality of my beloved Dubya maladministration (and I hope they recognise me for my talents)."

Cheers,
 

I say, too bad. I will continue to argue for investigation and disclosure of lawbreaking, regardless of whose oxen are gored.

I second this. If exposing the illegality means that Pelosi and others have to resign, so be it. I'm sick and tired of the fundamental corruption in Washington that is the natural consequence of the "protect our own" mentality.
 

Some more information, courtesy of ThinkProgress. Maybe that will help clear things up a bit.

Cheers,
 

Arne,

Read Marty's post above more carefully. The letter that Think Progress is pushing as breathtaking news is not new at all. Nor is its use of "Terrorist Surveillance Program" or "TSP" a big deal.
 

JAO:

You are absolutely correct that the TSP was a marketing term. The NSA probably has a code name for the program along the lines of the Carnivore program.
 

[Prof. Lederman, from the post]: (My guess -- The earlier version included surveillance of communications that did not involve anyone even arguably covered by the persons and entities described in the September 2001 Authorization to Use Military Force. And/or that the pre-2004 program also included surveillance of domestic-to-domestic communications. But who knows?)

The triggerpoint for FISA is whether the "target" is a "United States person" (see 50 USC § 1801(f)(1), albeit there is also the geographic "acquisition occurs in the United States" clause in § 1801(f)(2)), not whether the communication is to or from a location overseas versus entirely domestic. Both these situations fall under § 1801(f)(1) where the "target" is a "United States person").

Considering purely domestic conversations of "United States person" as a different type of violation doesn't make sense.

It is conceivable that there might have been distinctions based on programs that skirted 50 USC § 1801(f)(1) versus others that skirted § (f)(2).

Another possibility is surveillances under 50 USC § 1802(a) versus those skirting the requirements of 50 USC §§ 1801(f) and 1804.

Cheers,
 

In [March 10th] 2004, the members of Congress briefed on the TSP reached a consensus supporting the continuation of all of its parts.

What evidence do we have that:

1). "members of Congress [were] briefed on the TSP" on all its parts? Keep in mind what a "brief" is....

2). ... then "support[ed] the continuation of all its parts"?

Do we know if the "members of Congress" were briefed on the DoJ objections?

And FWIW, I'd note that raspberries, frowns, glares, enthusiastic applause, popcorn throwing, or "support[]" by these members hardly changes the legality of any such program (albeit, it potentially remedies another illegality in that Congress is supposed to be kept informed about such activities).

Cheers,
 

"Bart" DePalma:

This kind of juvenile game playing by both sides during a war just gives me all kind of confidence in the ability of these clowns to defend our nation.

You misunderestimate us, "Bart"; we have no confidence at all in Dubya and Seedy Gonzales. The evidence we rely on is on the front pages pretty much daily.

Cheers,
 

Arne: Considering purely domestic conversations of "United States person" as a different type of violation doesn't make sense.

It may not "make sense" to you or a court under FISA, but that is not what matters in reconstructing this history. The speculation is about what the administration's internal and unreviewed legal theories might have encompassed, and what the administration might have been willing to commit. Remember, these guys don't believe in going to court.

I think the best-informed speculation is that the OLC in the earlier part of the administration hung everything on the radical Addington/Yoo constitutional theory that Article II trumps all, but Jack Goldsmith rejected the most extreme form of such a theory when he took over OLC. But the narrower, statutory AUMF theory was Goldsmith's.

It is possible that the newer AUMF justification is the reason the program came to be limited to transnational calls involving at least one party deemed to be affiliated with al Qaeda. (Of course we can't yet know, because the administration so far refuses to disclose its actual legal rationale to Congress. Gonzales has stated that the rationale changed over time.)

I find Marty's speculation to be plausible. As an additional reason for suspecting domestic-to-domestic surveillance to have been involved, I continue to think that the material involvement of FBI Director Mueller in Comey's narrative supports that scenario. It is the FBI, rather than the NSA, that traditionally has had the mission and the infrastructure for purely domestic wiretapping, even for intelligence purposes.
 

JaO said:

Gonzales has stated that the rationale changed over time.

I guess, from my background, is that this is what has bothered me most about these programs. Dealing with investigations into fraud and theft, having a person change rationale, but continuing to assert that their actions were acceptable, was generally strong evidence that what they did/attempted was illegal, and they knew it.

If you wish to adhere to the law, it should be used as the starting point for your arguments as to what is permissable, instead of turning to it afterwards and looking for justifications of your behavior. Too many of the pro TSP/torture/firing decisions arguments are taking the actions and searching for a legal justification, which lends strong credence to belief in their moral, ethical and legal weakness (why else did it take years to find an acceptable rationale to the TSP, as per previous posts). When that is pointed out, the retreat is to positions which resemble schoolyard taunts--well, if you don't like it, Congress should impeach "::::chuckle::::". What we have then is government by bullies, weaned on privilege and Machiavelli.

My belief is that we should argue against the law and sausage dictum, and put this all into the public forum; only if enough people know what and why we are doing as a government, will they get disgusted enough to have a chance at change. The threat to us from our government run amuck is much greater than that of the terrorists; at the very least partisan and incompetent government reduces our chances of stopping attacks and increases the likelihood of creating antagonism here and abroad.
 

I suspect that this might get its own top-level post eventually, but I will note here that four Democratic senators -- Schumer, Feingold, Feinstein and Whitehouse -- wrote today to Solicitor General Paul Clement asking for a special counsel to investigate possible perjury in Gonzales' testimony to Congress.

Their letter can be found here.

Personally, I would prefer a special counsel with enough scope also to investigate the underlying question of illegal intelligence activities. No one seems to have the guts to go there.
 

JaO said...

I will note here that four Democratic senators -- Schumer, Feingold, Feinstein and Whitehouse -- wrote today to Solicitor General Paul Clement asking for a special counsel to investigate possible perjury in Gonzales' testimony to Congress.

This is pathetic.

If the Dem Congress can prove that Gonzales committed perjury, then by all means let them attempt to impeach the AG and lay out their evidence of perjury.

Instead, the Dems are attempting to deputize a special prosecutor to milk this political theater even longer because they lack evidence of perjury.

As I posted several times before, the purpose of this partisan witch hunt was never about underlying crimes and was always about laying perjury traps to gain political scalps.
 

Bart: ...partisan witch hunt was never about underlying crimes and was always about laying perjury traps to gain political scalps.

If true, well, the wise general learns from, and where proper adopts, the methods of his enemy, and just look how much stew y'all made of this method back with the blue dress. If what you describe is truly what were happening could you really blame us for emulating the smashing success of these GOP tactics?

Of course there might be more to it than that, but why go on? We know you're beyond reason and are only whining because you're not man enough, intellectually or morally, to take even a taste of your own medicine. "What's good for the goose..."
 

@Bart: Y'know, when I bookmarked that link for future reference I hadn't really realized the extent of your cowardice. You never once poked your nose back onto that thread after getting so thoroughly spanked. Pusillanimity shouldn't suit a soldier so comfortably as it seems to sit with you.
 

jao:

I find Marty's speculation to be plausible. As an additional reason for suspecting domestic-to-domestic surveillance to have been involved, I continue to think that the material involvement of FBI Director Mueller in Comey's narrative supports that scenario. It is the FBI, rather than the NSA, that traditionally has had the mission and the infrastructure for purely domestic wiretapping, even for intelligence purposes.

I understand your point, and you may well be right, we don't know (in fact, I want to get to the bottom of this; I don't really care so much whether Gonzo committed perjury as I do whether they were breaking the law with illegal wiretaps; if Gonzo is willing to face a perjury charge [and pardon] rather than spill the beans, as Scooter also managed to do, I think we're losing the battle).

And thanks for pointing out the "old news"; I should have checked the links before commenting and I would have seen that the document I linked too had already been linked by Prof. Lederman. My apologies to Prof. Lederman.

Cheers,
 

"Bart" DePalma:

As I posted several times before, the purpose of this partisan witch hunt was never about underlying crimes and was always about laying perjury traps to gain political scalps.

Ummmmm .... say, "Bart", why, given that Leahy even invited Gonzo to revise his testimony, can't Gonzo just tell the truth?!?!?

Cheers,
 

I'm not convinced. I still can't get these statements to agree:

SCHUMER: First, I take it that there was just one program that the president confirmed in 2005. There was not more than one.
GONZALES: He confirmed one, yes, intelligence activity. Yes, one program.
[about ten lines later...]
GONZALES: The president confirmed the existence of one set of intelligence activities.


Same term. One singular. One plural. I'm not sure how, after that, he's about to split that hair anymore.
 

Hmm.

No, I think it's all the TSP. What's telling here is that the Gang of 8 never had interaction with Comey or OLC. The Democrats clearly thought that they were reapproving the same program -- the TSP -- every time.

What's clear from Comey's testimony is that there was an internal OLC investigation -- he uses the term "reevaluation" many times, as well as language about bringing the program in line with the DoJ's opinions on its legality -- that determined that the TSP had gotten out of control, probably gone beyond its mandate, and they couldn't certify its legality anymore.

Gonzales only says that he had a reauthorization with him -- I think it's clear that the "reauthorization" was probably worded to bring the DoJ certification in line with the program, rather than the program in line with the DoJ's opinion on where it should be. It didn't even need to specify the problematic activities -- all it needed to say is that "the DoJ has looked at the program and it's OK as it stands."

Feingold, who's on the Intelligence Committee, obviously picked up on this, and pressed Comey on it a bit until it became clear that Comey didn't want to discuss specifics, and then he backed off quickly. But he knows.
 

Here's a good example of Gonzo's parsing of the issue during his hearing with Hayden:

ATTORNEY GENERAL GONZALES: That question was asked earlier. We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that -- and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.

Note the passive voice there. They asked Congress if they could amend FISA to allow the questionable intelligence activities, Congress said no. So "a decision was made" -- note the implication that Congress was involved, but they clearly weren't -- that they would go ahead with those "activities" anyway under the aegis of the TSP.

It's clear what happened after that. The TSP was expanded; later, OLC came along, looked over the program, said wow, you guys are acting way outside your mandate. Comey and Ashcroft said they couldn't recertify the program. (They had reauthorized the program multiple times -- therefore, the critical question is what changed that caused them to change their minds. Comey makes clear that it was an "internal reevaluation.")

So then there was an emergency meeting with the Gang of 8 to get them to reauthorize the TSP -- but they were still only told about the TSP, not all of its "operational details," which included things they'd already been asked about in the context of FISA and had rejected. They also couldn't have been privy to the internal OLC findings. So of course, they said they supported the TSP, and so Gonzales and Card went to get Ashcroft to reauthorize it, and Comey intercepted them.

Note also that the "disagreement" always refers to the people in Justice who had figured out what the program was doing, and the "consensus" always refers to the people in the Gang of 8 who were being misled about it.

That's the only explanation that's consistent with everyone's parsings, I think.
 

A,

I respectfully suggest that you have it backwards. The OLC reevaluation under Jack Goldsmith was based on a less radical view of the Constitution than that which had prevailed under John Yoo's theory. The older theory could have been used to rationalize most anything. But activities that had been deemed legal under the Article II theory might be considered unlawful once the underlying opinion was no longer operative.

A statutory rationale based on a generally expansive reading of the AUMF, which Goldsmith is known to favor, perhaps would require a closer nexus between the statutory language and the actual surveillance activity.
 

Another update from ThinkPrgress here.

Mueller is also saying that there was only the "terrorist surveillance program", and contradicting Seedy Gonzales.

Cheers,
 

I respectfully suggest that you have it backwards. The OLC reevaluation under Jack Goldsmith was based on a less radical view of the Constitution than that which had prevailed under John Yoo's theory. The older theory could have been used to rationalize most anything. But activities that had been deemed legal under the Article II theory might be considered unlawful once the underlying opinion was no longer operative.

That's precisely what I meant, and it seems to be confirmed by the release today. The WH asked if they could amend FISA to do what they wanted. Congressional leaders said no. So the WH came up with a theory that let them expand the program past its original mandate to do exactly that. The new OLC came in, saw what had happened, and refused to keep signing off on it. The WH tried to end-run around that, but Comey cut it off. The WH then scaled the program back to something closer to what they'd been telling the Congressional leaders it was all along.

That's the only explanation that I can see that makes the Gang of Eight's declarations that they weren't briefed on those outside activities -- they thought they were merely approving the same program. They weren't privy to either the WH's covert expansion of the program, nor to the internal OLC review which discovered the sleight-of-hand that had been pulled. Pretty straightforward.
 

I agree with Jao and think there needs to be far more questions asked about exactly whowas being illegally surveiled and why. Of course, these are the most difficult and delicate questions for the Bush admin to answer because, if truth be told, the surveillance was almost certainly politically motivated - to blackmail and extort Democratic political opponents, whistleblowers, and anyone else who stood in the way of the Bush/Cheney cabal. (We all see what they did to the CIA covert operative Plame who was involved in counter proliferation work to prevent dangeorous weapons getting into the wrong hands. These people are totally ruthless and without principle.)

Recent Congressional hearings have exposed just how much of the DoJ activity was obsessively directed to achieving political gains through outrageous abuse and illegal manipulations of our justice system. There is little doubt in my mind that the illegal surveillance was part and parcel of the same general effort.

The FISA system is not "antiquated" and is not inadequate to the task of addressing the supposed "terrorist" threat. The only reason for bypassing that judicial review process is to evade accountability for secretive, politically-motivated, domestic surveillance of the kind Richard Nixon got busted for.
 

Just for the record, after watching FBI Director Mueller's testimony before House Judiciary, I am less inclined to think that the intelligence activities over which he and Comey objected in 2004 involved FBI operations. Mueller repeatedly referred to a controversy over an "NSA program."

So whatever those activities were -- while they were obviously beyond the scope of the TSP as revealed and were serious enough to motivate the massive resignations -- I don't think the answer is as simple as the FBI conducting warrantless surveillance. That still does not rule out the possibility of NSA surveillance of domestic-to-domestic communications.
 

UPDATE 7/31/07:

Sen. Arlen Specter (R-PA) met with director of national intelligence Michael McConnell yesterday, and as a follow-up, McConnell sent a letter to Specter today explaining what Gonzales was talking about. That letter hasn't yet been publicly released, but CNN reported that McConnell writes that "a number" of surveillance activities were "authorized in one order" and that "one particular aspect of these activities and nothing more, was publicly acknowledged by the President and described in December 2005."
 

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