Need to Know?

Marty Lederman

Jack Goldsmith testified before the Senate Judiciary Committee this morning. His prepared remarks can be found here.

To my mind, the most revealing, important and remarkable aspect of his testimony was that the Bush Administration would not allow the Deputy Attorney General and the NSA General Counsel to see the OLC legal analysis supporting the NSA's outside-FISA electronic surveillance program. In his submitted testimony, Goldsmith writes:

Secrecy is obviously important in war. But too much secrecy can be counterproductive. In my opinion, the Bush administration was excessively secretive inside the Executive branch when it came to the production and receipt of legal advice. For example, the controversial interrogation opinion of August 1, 2002, was not circulated for comments to the State Department, which had expertise on the meaning of torture and the consequences of adopting particular interpretations of torture. [For more on this, see Point 1.a. here.] Another example is the Terrorist Surveillance Program (“TSP”). Before I arrived at OLC, the NSA General Counsel did not have access to OLC’s legal analysis related to the TSP. FBI Director Mueller has noted that Attorney General Ashcroft complained “that he was barred from obtaining the advice he needed on the program by the strict compartmentalization rules of the WH.” I, too, faced resistance from the White House in getting the clearance for the lawyers I needed to analyze the program.

This extreme internal secrecy was exacerbated by the fact that the people inside the small circle of lawyers working on these issues shared remarkably like-minded and sometimes unusual views about the law. Close-looped decisionmaking by like-minded lawyers resulted in legal and political errors that would be very costly to the administration down the road. Many of these errors were unnecessary and would have been avoided with wider deliberation and consultation. The administration acknowledged, for example, that the extreme contentions about the President’s exclusive constitutional powers in the famous interrogation opinions – contentions that led many in the United States and abroad to assume the worst about the administration’s intentions related to torture – were “overbroad” and “unnecessary.”

There is a balance to be struck between too much and too little secrecy inside the Executive branch. But just as it was widely thought after 9/11 that the intelligence agencies were acting sub-optimally because they were not sharing information, it now seems obvious that the Executive branch was too secretive and compartmentalized in its legal deliberations in the years after 9/11. Executive branch legal analysis naturally suffers from a lack of external scrutiny and criticism, and every effort should be made to enhance rather than hinder such scrutiny and criticism inside the government, even, and indeed especially, on sensitive national security matters.

I could not agree more (see Principles Nos. 6-8 here.)

Then, in his oral testimony, Goldsmith revealed that, at least for a while, the White House would not permit Goldsmith even to "read into" the NSA program James Comey, the Deputy Attorney General! Senator Schumer (I believe) asked Goldsmith if the White House had provided any reason for refusing to allow Comey to know about the program. Goldsmith responded that they said something regarding the "importance of secrecy." In other words, they (sotensibly) did not trust Comey or the NSA General Counsel not to abide by classification rules!

Think about that for a second. Numerous telecommunications executives and technicians were informed about this top-secret program, and (presumably) were given some account of why their participation would be legal notwtihstanding FISA. But the Administration continues to refuse to inform Congress about that legal justification (even though it is now asking Congress to immunize the telecoms for having relied on the legal advice that Congress itself cannot see!); and moreover, the White House would not allow the Deputy Attorney General or the General Counsel of the NSA itself to be let in on the secret!

Perhaps one has to have worked at DOJ or NSA to understand how truly shocking, how inexplicable, that is.

Obviously, the reason these officials were not "read into" the program until Goldsmith and Ashcroft insisted upon it was not fear that they would leak vital information to Al Qaeda, but instead that the legal justification was so transparently flawed that it could not withstand any independent review at all -- a judgment that turned out to be true, of course: As soon as anyone outside the Cheney/Gonzales/Yoo circle saw the legal analysis, they realized it was so extreme and untenable that they would have to resign if the President continued to act in reliance upon it. Goldsmith testified today that the NSA program was "the biggest legal mess I encountered [at OLC]." In light of the August 2002 Torture opinion, that's really saying something!

Just when you thought nothing this Administration has done could surprise you anymore . . . .
Posted 2:01 PM by Marty Lederman [link]