Douglas Kmiec Responds to Marty Lederman

Douglas Kmiec

From: Kmiec, Douglas
To: marty.lederman@comcast.net
Sent: Saturday, May 19, 2007 6:31 PM
Subject: Former DAG Comey

Marty

I tried to post the comment somewhere on the Bakinization site, but not sure whether I did so successfully. In any event, my respect for your work prompts me to send this to you directly. If you are so inclined, you may post it on the site if I have sent it into cyberspace.

I am old fashioned enough not to know the etiquette of how best to respond in gratitude to so many readers who have taken the time to write here or to me personally, either agreeing or disagreeing with my commentary. Thank you for taking the time to share your thoughts.

First, let me reaffirm my description of Mr. Comey as an admirable fellow. I especially admire Mr. Comey's forthrightness and genuine concern for his professional responsibility; though I think it important that good men like him not feel the necessity to resign over interpretative disagreement. With much respect for and agreement with Professor Tamanaha's insights on the need to avoid opportunistic indeterminacy, I still believe the President's authority for the terrorist surveillance program is a closer question than he apparently does. In part, this is premised upon the OLC analysis or "white paper" that Mr. Gonzales and the Department have since relied upon in public testimony, but it is also because of older, unaddressed constitutional concerns raised by Griffen Bell with regard to application to FISA in war time.

Instrumentally, were it not a close question for Mr. Comey as well, I do not understand how, after meeting with the President, he could modify the surveillance program to eliminate his stated legal objection. Were the "exclusivity" language in FISA as absolute as Marty's reference to the criminal liability under section 1809 implies, mere tinkering with a program that, until recently, was not operating with a FISA warrant or some other as yet publicly unidentified approval or order of the FISA court, would not be capable of obviating the legitimate statutory concerns.

Mr. Comey was especially to be applauded for his unwillingness in testimony to transmute his disagreement with Mr. Gonzales over the scope of the President's authority to undertake war-time surveillance without the particular certification in issue into a claim of "illegality."

What outrages many was the seeming nefariousness of the hospital visit. Here, I did think Mr. Comey's testimony was "histrionic" -- that is, "of a theatrical quality." This does not mean I disbelieve his recounting of the scene, I just think the sirened arrival at the hospital, breathless rush up the stairs, and Ashcroft's rising from the bed, and so forth, was vividly re-told. It is fair to say, I believe, that Mr. Comey saw no justification for the "hospital visit." As I indicated in the essay, I too am "mystified" by what on the surface appears to be an "ethically dubious" attempt to pursue a futile certification from a man recused and critically ill in the hospital. (Please note, as one of your astute readers observed, this terminology was not aimed at Mr. Comey as Professor Lederman suggested. I apologize that my late night sentence construction misled Marty in this regard.). I speculate, but do not know, that Mr. Gonzales had reached the conclusion that this extraordinary contact with Mr. Ashcroft was necessary because an interruption in the on-going terrorist surveillance effort would seriously jeopardize the security of the nation and he intended to ascertain whether Mr. Ashcroft concurred and was well enough to rescind his recusal in light of that possible concurrence. Marty's reference to section 2511(2)(a)(ii)does not alter my supposition; rather, it bolsters the view that the program could well have been interrupted in a fashion that those concerned with gaps in terrorist intercepts would find to be an unacceptable risk for the country.

Overall, the purpose of my commentary was largely to raise a caution about the undifferentiated likening of a dispute over the extent of the president's war powers to distortions of the rule of law we know as Watergate. To disagree over the interpretation of Constitution or statute, especially where that disagreement is consequential to the nation's well-being, is not to indulge in corrupt or venal behavior. Of course, to be open to that view one does need to see the FISA authority question as not, to pick a regrettable phrase employed elsewhere a "slam dunk" against such authority.

Unfortunately, one of the now regrettable realities is that, for some, the dislike and distrust of either the President or Mr. Gonzales or both has become so intense, that it is difficult to outline legal argument without partisanship obstructing constructive dialog. Goodness knows, I myself have been highly critical of unnecessarily gratuitous and indeterminate presidential power claims in signing statements and the closed-mindedness -- revealed only after profound damage has been done to Iraq and the moral footing of the United States -- but, in good faith, I am holding onto the belief that it is possible to defend the separation of powers, including its presidential dimensions, without being understood only as a Bush apologist.

One of your readers asked about my own work in OLC. It is somewhat off-topic, so I will not dwell on it, other than to note that my career in OLC ended shortly after I issued a legal opinion that interpreted the Rehabilitation Act and related statutes as protecting those with asymptomatic HIV against discrimination in the administration of government programs. At the time, more than one person in the White House and in OLC, itself, told me that was either a politically imprudent thing to do or was not obviously sustained by the legislative history of the Act. The first concern, political acceptability, should have no bearing on OLC's work. The latter consideration, whether I correctly grasped the textual meaning of Congress' intent was perhaps arguable, but if President Reagan or then- campaigning George H.W. Bush had disagreed with my exercise of legal judgment, I would have conceded their authority to override my conclusion without thinking I needed to resign. Of course, if the President seldom found my advice useful, that would be a different matter. As it was, the politics of elections allowed President-elect Bush to make his own unfettered choice of who should and should not be removed from a presidential appointment without explaining himself to me – but then, I may be wandering into another topic that involves Mr. Gonzales.

As always, I have benefitted greatly from the commentary on this site, and of course, I am most grateful for your charitable efforts to give me a different view of matters.

Respectfully,

Douglas Kmiec