Balkinization: No Way to Run a Government

No Way to Run a Government

Marty Lederman

Eric Lichtblau, in an excerpt from his forthcoming book, confirms that the NSA wiretapping program was operated beneath an unprecedented and remarkable veil of secrecy. He confirms Jack Goldsmith's earlier testimony that the Deputy Attorneys General (Larry Thompson and then Jim Comey) were not permitted to be read into the program and, more astonishingly still, that the lawyers at the NSA itself were not permitted to see the John Yoo-penned legal opinions that provided the basis for the program the NSA was operating! (I can't even imagine what those meetings looked like: "No, really -- you guys do have the legal authority to secretly violate FISA; but we can't show you the legal theory why that's the case. Just trust us." And the NSA responded: "Oh, in that case, ok, we'll get right on it." Huh?)

The story also appears to confirm that the original Yoo legal theory was in effect that the President could disregard any laws he wished in deciding how to surveille al Qaeda. How often have we heard this?: "[Yoo's Opinion] was revised in 2004 by a new cast of senior lawyers at the Justice Department, who found the earlier opinion incomplete and somewhat shoddy, leaving out important case law on presidential powers."

I don't think there's much more to be said about this that many of us have not already said multiple times over -- except that it remains scandalous that the Congress would even consider the Administration's requests for new legislation until the Administration has made public the entire set of OLC opinions on this issue and interrogation techniques, etc. (redacted, of course, to protect secret NSA technological capabilities). Congress has quite a bit of leverage here; they simply seem unwilling to use it.

Posted 9:17 AM by Marty Lederman [link]

Comments:

One wonders when Presidents started reading any lawyers into top secret foreign intelligence gathering programs and why?

# posted by

Bart DePalma : 9:39 AM

N.b. the part that Prof. Lederman doesn't quote, about the revised 2004 opinions:

Even after the final legal opinions were written, lawyers at the National Security Agency were not allowed to see them, officials said.

So, the NSA's own lawyers -- who, one would think, are as up on that area of the law as anyone -- didn't get to see the opinions.

If they're still this secret, then they're probably still bogus.

# posted by

Anderson : 9:51 AM

It seems rather obvious that if you're going to have people violate the law on the basis of patently dubious legal advice, you probably want to keep them from seeing the substance of the advice. On the one hand, once they see it's dubious they might balk, on the other, if they go ahead and do it anyway, they can't claim they weren't aware of how dubious it was.

"Congress has quite a bit of leverage here; they simply seem unwilling to use it."

Words Sandy should have engraved on his bathroom mirror, just so he'll be reminded of that every morning.

# posted by

Brett : 12:28 PM

One of the most interesting references was the implicit acknowledgement that Larry Thompson was aware of the FISA chief judge's orders and refused to sign off on FISA applications rather than risk contempt/perjury/etc. in connection with the failure to confirm sourcing from the illegal program.

# posted by

Mary : 4:09 PM

A couple of years ago I asked a former clerk the a Justice of the U.S. Supreme Court: "What's your opinion of President Bush's and his administraion's attitude to the Constitution?"

He replied: "What Constitution?"

Seems he hit the nail on the head

# posted by

damonk : 4:20 PM

Prof. Lederman:

Congress has quite a bit of leverage here; they simply seem unwilling to use it.

Here, surprisingly, it would seem that "Bart" and I would be in agreement: Impeachment would be the prudent course of action.....

Cheers,

# posted by

Arne Langsetmo : 4:38 PM