Balkinization: An Ashcroft Nugget About the NSA Surveillance Program

An Ashcroft Nugget About the NSA Surveillance Program

Marty Lederman

The key to the NSA's illegal electronic surveillance program was for the agency to obtain the necessary telecom cooperation outside the FISA framework. The problem, however, was that FISA specifically provides that the companies can provide such assistance to the government only if they have been provided with a court order [not applicable here] or "a certification in writing by a person specified in section 2518(7) of this title [mostly designees of the AG, also inapposite here] or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required." 18 U.S.C. 2511(2)(a)(ii).

The idea behind the statute, in other words, is to prevent a government agency's unlawful surveillance by insisting that the telecoms cannot offer the necessary technical assistance unless and until they receive the assurance of the nation's chief law enforcement officer that "all statutory requirements have been met" -- and here, the statutory requirements had most decidedly not been met.

What to do?

In his new book, Eric Lichtblau reports John Ashcroft as telling one of his aides that when the Administration first concocted the program (which Lichtblau describes as -- surprise -- Dick Cheney's brainchild), "the White House just shoved [the certification] in front of me and told me to sign it."

Our Government at its finest.

(Apparently Ashcroft would not act as a rubberstamp -- not at first, anyway. He refused to sign the certification until John Yoo assured him the program was legal (although, since John reportedly relied only on the President's article II authority to ignore FISA, it's not clear how Ashcroft could possibly have certified that "all statutory requirements have been met"). As we also know, when Ashcroft and Comey finally did refuse to issue the requisite certification in March 2004, the White House went ahead with presenting it to the telecoms anyway, but it was signed by . . . Alberto Gonzales. The current telecom immunity controversy is, among other things, about whether it was reasonable for the telecoms to (i) accept the AG's certification that "all statutory requirements have been met" when the requirements had patently not been met; and (ii) why at least some of the telecoms provided assistance pursuant to the certification of the White House Counsel rather than the Attorney General in March 2004 -- a plain violation of the law.)

Posted 7:09 PM by Marty Lederman [link]

Comments:

# posted by

Seth : 9:15 PM

"Exigent Circumstances"

The road to lawlessness is paved with "exigent circumstances"

(That is what is so wonderful about the CAT: its language specifically bars exigent circumstances as being used to supercede compliance.)

# posted by

Michael Sweney : 9:25 PM

I think we need a psychologist and not a lawyer to answer why the telcos cooperated. The government used the same tactics that have worked so well on Congress and the public. Fear and blame.

"If you don't do this right now, you will be responsible for..."

You may hear the telcos say that they cooperated because "it was the right thing to do."

But that's not why they cooperated. Not even close. The nature of business generally precludes the kind of moral response that the telcos claim was necessary.

Why then did they brush aside so many laws to cooperate with the government?

They feared being blamed.

# posted by Seth

Perhaps more than the fear of being blamed. Qwest at first refused to cooperate. Subsequently, Qwest's CEO was being prosecuted by the DOJ for insider training.

I'd like to know if that prosecution was dropped once Qwest -- which had done the right thing -- got on board with the illegal wiretapping.

# posted by

JNagarya : 10:39 PM

Jnagarya,

That has been much speculated on, but from what I understand there was no linkage. Naccio was convicted, appealed, and last month his conviction was overturned on procedural grounds.

Quid pro quo? Probably not. Although the corruption at DOJ and the SAO's is probably the worst we've seen in our lifetimes most of the appellate judiciary is still sound. Or so I would like to think.....

# posted by

Michael Sweney : 11:21 PM

# posted by

JNagarya : 2:58 AM

-- Why then did they brush aside so many laws to cooperate with the government? --
.

I agree, fear of blame is a substantial part of the calculus. Other factors I've pulled out of thin air are: the excitement, if you will, of being "on the inside;" and intimidation by threat of criminal prosecution for disclosing a classified policy.

.

Oh, and there is the money. And the belief that any discomfort due to daylight would be handled "somehow," e.g., state secret, compensation for costs of litigation, etc.

.

IOW, the downside risk was seen as small.

# posted by

cboldt : 9:10 AM

Marty,

As a matter of fact, are you certain that the "certification" described by 18 U.S.C. 2511(2)(a)(ii) is the document Ashcroft signed (and later refused to sign in his hospital room)?

My impression from descriptions by Goldsmith and Comey was that the certification for the AG to sign was a different document altogether -- an internal opinion attesting to the legality of the entire surveillance program. This AG signature bloc on that general, 45-day opinion was just put there as a CYA measure by the drafters who were making up their own process, and in fact the President determined for a brief time to proceed without it. The 18 U.S.C. 2511(2)(a)(ii) certification , by contrast, is something specific presented to the telecoms in lieu of a court order.

I am not sure that such certifications to the telecoms ever existed. IIRC, the government has refused, on state-secrets grounds, to confirm or deny their existence even to the presiding judge in the ongoing litigation.

This detail has always troubled me especially in the context of the lame "congressional debate" over legislating blanket, retroactive amnesty for violating the laws. If such certifications did exist, on their face they already protected the telecoms from legal action. So why is retroactive immunity required at all?

# posted by

JaO : 11:47 AM

JaO:

As a matter of fact, are you certain that the "certification" described by 18 U.S.C. 2511(2)(a)(ii) is the document Ashcroft signed (and later refused to sign in his hospital room)?

My impression from descriptions by Goldsmith and Comey was that the certification for the AG to sign was a different document altogether -- an internal opinion attesting to the legality of the entire surveillance program.

That's my impression too; that this "certification" was part of some internal 'review process' concocted to add a patina of 'legality' to the program that was circumventing FISA (as well as other laws).

Cheers,

# posted by

Arne Langsetmo : 12:02 PM

Seth:

They feared being blamed.

As Eric Lichtblau details in his boot WRT both the TSP and SWIFT stuff, the maladministration put on full-press campaigns to get the N.Y. Times not to publish, with the strongly implied argument/threat (echoed publicly by the RW "noise machine" after publication) that 'blood would be on the N.Y. Times's hands' if they went ahead and published and someone, somehow, somewhere later died. Lichtblau titled one chapter "Blood on our Hands".

Cheers,

# posted by

Arne Langsetmo : 12:12 PM

p.s.

I also speculate that, at least in the pre-2004 DOJ environment, perhaps no such certification under 18 U.S.C. 2511(2)(a)(ii) could have been executed because such a certification must include a statement "that all statutory requirements have been met" (as Marty points out above.) But up to that time, the administration didn't pretend to care about mere statutory requirements. It was operating under Yoo's grandiose constitutional theory that the president could act and the statutes be damned.

As for the telecoms, I suspect they were initially persuaded to go bareback, with no written certifications. Perhaps they got such certifications later, under Goldsmith's expansive reading of the AUMF, when the program was modified in 2004.

But during the pre-2004 period -- when whatever was going on was so egegriously illegal that the entire top echelon of Justice was prepared to resign -- perhaps the telecoms received no certifications. That is one reason they are so exposed and why their lobbyists have almost succeeded in securing blanket amnesty by legislative action.

# posted by

JaO : 12:33 PM

It seems that, under Specter's questioning, Comey testified that the documents signed by Ashcroft and Bush originaly were NOT even arguably 18 U.S.C. 2511(2)(a)(ii) certifications.

***************
***************

SPECTER: Was the program reauthorized without the requisite certification by the attorney general or acting attorney general?

COMEY: Yes.

SPECTER: So it went forward illegally.

COMEY: Well, that's a complicated question. It went forward without certification from the Department of Justice as to its legality.

SPECTER: But the certification by the Department of Justice as to legality was indispensable as a matter of law for the program to go forward, correct?

COMEY: I believed so.

SPECTER: ...

The point that I'm trying to determine here is that it was going forward even though it was illegal.

COMEY: The reason I hesitate is I don't know that the Department of Justice's certification was required by statute -- in fact, it was not, as far as I know -- or by regulation, but that it was the practice in this particular program, when it was renewed, that the attorney general sign off as to its legality.

There was a signature line for that. And that was the signature line on which was adopted for me, as the acting attorney general, and that I would not sign.
...
SPECTER: Well, Mr. Comey, on a matter of this importance, didn't you feel it necessary to find out if there was a statute which required your certification or a regulation which required your certification or something more than just a custom?

COMEY: Yes, Senator. And I...

SPECTER: Did you make that determination?

COMEY: Yes, and I may have understated my knowledge. I'm quite certain that there wasn't a statute or regulation that required it, but that it was the way in which this matter had operated since the beginning.

I don't -- I think the administration had sought the Department of Justice, the attorney general's certification as to form and legality, but that I didn't know, and still don't know, the source for that required in statute or regulation.

***********************
***********************

Specter actually did the most effective questioning on this point and I was listening pretty closely bc I did not see how you could have a program - doing what has been speculated - where there could be a certification that met the requirements of stating that statutory requirements were being met (those being, in general, things like minimizations requirements, reports to the full Intel committees on surveillance, etc.)

The heart of the declarations the President and AG were signing had to have been that the President was not bound by statutory requirments - a very different proposition than that they were being followed.

The other issue is that there is nothing about 18 U.S.C. 2511(2)(a)(ii) that allows basketing or blankets or generic certifications or any administrative type equivalent to a general warrant.

There's no way, with any of the programs that have been alluded to - that a once very 45 day certificate would match on a per target or per incident or per phone line or any other specific basis with the multitude of invasive searches and seizures taking place.

# posted by

Mary : 5:42 PM

Thanks to Mary for the transcript of Comey's testimony. That narrative formed part of my own impression that the document Ashcroft was asked to sign off on was a general authorization for the NSA, DOJ, etc. to implement the surveillance program under the administration's own invented process, not a "certification" document designed to be presented to one or more telecoms under 18 U.S.C. 2511(2)(a)(ii).

I just read the relevant section of Lichtblau's book, and that is the way I read his account, too. I respectfully suggest that Marty might be confusing such an internal authorization document with the 18 U.S.C. 2511(2)(a)(ii) certification.

Once again, I don't think we know that such statutorily described "certifications" ever existed.

# posted by

JaO : 7:08 PM

JaO --

"But during the pre-2004 period -- when whatever was going on was so egegriously illegal that the entire top echelon of Justice was prepared to resign -- perhaps the telecoms received no certifications. That is one reason they are so exposed and why their lobbyists have almost succeeded in securing blanket amnesty by legislative action."

"Retroactive" immunity. And doesn't the Constitution prohibit ex post facto laws? Or is that prohibition only against making past legal acts illegal "in the past" for the purposes of prosecution? Whereas here we have an effort to make legal "in the past" acts which were illegal when committed?

# posted by

JNagarya : 7:30 PM

JNagarya,

I think you answered your own question. I see no constitutional problem with Congress retroactively legalizing something. The ex post facto prohibition exists to protect the rights of those who otherwise might be charged for doing something that was not unlawful when they did it.

# posted by

JaO : 7:42 PM

-- Whereas here we have an effort to make legal "in the past" acts which were illegal when committed? --

.

But only on a "this case" basis, acting more as executive would in granting a pardon, or as a judge might do in a civil trial. If Congress wanted to retroactively change the law, they would repeal the part of the law that provides a civil remedy. They have not, and there has been no call to do so. However, any suit, pending or in the future, will bump into exactly the same issues that the administration urges as compelling reasons to grant immunity in pending cases. Any suit will risk exposure of classified activity, and any suit will turn the telecoms off as to cooperation.

# posted by

cboldt : 11:25 AM

Why the telcos cooperate is a good question. After all, they had lawyers too, and good ones.

A key point is that some telcos did not cooperate. Qwest said no.

Why? Because Qwest "concluded that doing so would violate federal privacy laws, a lawyer for the telephone company's former chief executive said today." (NYT May 12 2006).

My guess is other telco lawyers came to the same conclusion, and my guess is that some of them were at AT&T and Verizon. My guess is they reported to their managements that not only were their firms not required to comply with the administration's request, but to do so would be a specific violation of law.

My guess is management listened, understood, and decided to do so anyway.

Why?

Qwest's experience suggests an answer. After saying no, Qwest suddenly lost hundreds of millions of dollars of government contracts -- and Qwest's CEO was prosecuted for insider trading, and his conviction was subsequently overturned (10th Circuit).

That to me suggests we don't need a psychologist to answer why the telcos cooperated.

There are much simpler explanations that are well within the possibilities.

# posted by

jpk : 8:27 PM