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Newsweek Report on OLC Under Goldsmith:
Newsweek has a must-read article on internal wranglings within the Bush Administration about legal issues surrounding the war on terror, and in particular on the "insurrection" allegedly mounted against a number of controversial policies by short-lived OLC head (and current Harvard Law prof) Jack Goldsmith. From the story:
  . . . Goldsmith became a rallying point for Justice Department lawyers who had legal qualms about the administration's stance.
  Goldsmith soon served notice of his independence. Shortly after taking over the OLC in October 2003, he took the position that the so-called Fourth Geneva Convention—which bars the use of physical or moral coercion on prisoners held in a militarily occupied country—applied to all Iraqis, even if they were suspected of belonging to Al Qaeda.
  . . . [I]n December, Goldsmith informed the Defense Department that Yoo's March 2003 torture memo was "under review" and could no longer be relied upon. It is almost unheard-of for an administration to overturn its own OLC opinions. Addington was beside himself. Later, in frequent face-to-face confrontations, he attacked Goldsmith for changing the rules in the middle of the game and putting brave men at risk, according to three former government officials, who declined to speak on the record given the sensitivity of the subject.
  Addington's problems with Goldsmith were just beginning. In the jittery aftermath of 9/11, the Bush administration had pushed the top-secret National Security Agency to do a better and more expansive job of electronically eavesdropping on Al Qaeda's global communications. Under existing law—the Foreign Intelligence Surveillance Act, or FISA, adopted in 1978 as a post-Watergate reform—the NSA needed (in the opinion of most legal experts) to get a warrant to eavesdrop on communications coming into or going out of the United States. Reasoning that there was no time to obtain warrants from a secret court set up under FISA (a sometimes cumbersome process), the Bush administration justified going around the law by invoking a post-9/11 congressional resolution authorizing use of force against global terror. The eavesdropping program was very closely held, with cryptic briefings for only a few congressional leaders. Once again, Addington and his allies made sure that possible dissenters were cut out of the loop.
  There was one catch: the secret program had to be reapproved by the attorney general every 45 days. It was Goldsmith's job to advise the A.G. on the legality of the program. In March 2004, John Ashcroft was in the hospital with a serious pancreatic condition. At Justice, Comey, Ashcroft's No. 2, was acting as attorney general. . . . Goldsmith raised with Comey serious questions about the secret eavesdropping program, according to two sources familiar with the episode. He was joined by a former OLC lawyer, Patrick Philbin, who had become national-security aide to the deputy attorney general. Comey backed them up. The White House was told: no reauthorization.
NotAClerk (mail):
I think there may be an interesting backstory to the Goldsmith and Yoo difference of opinion. Not as dramatic as some, including the newsmedia, may expect. But, I had a professor that clerked with Yoo, Goldsmith, Bradley, Flaherty, Lessig etc at the SC. From what I gathered, it was a pretty collegial and lively academic group. It was pretty clear that SC class were bound to become top-notch academics (besides from the fact that SC clerks are generally gifted).

With that in mind, the Goldsmith-Yoo "conflict" seems to me to have more to do with colleagues with a history of engaging in academic debates than some rift at the DOJ. Politics may some part with some of the other players, but to the extent that Jack Goldsmith was playing the role of a political operative, seems to be a stretch.
1.29.2006 12:05pm
M. Lederman (mail):
The Newsweek story is a very important piece and, as far as I can tell, dead-on. It could only have been improved had it given credit where it was due to the blogosphere! (See http://makeashorterlink.com/?B2CB41C8C.)

;-)

It's heartening to know that there are really fine lawyers, on both sides of the aisle, who are ready to uphold the best traditions of OLC and of government lawyering generally. The depressing side-note of the Newsweek story is that Goldsmith left after less than a year, Philbin and Comey are gone, etc. Meanwhile, David Addington and Dick Cheney, who have been planning this Executive aggrandizement for decades, easily survive the comings and goings of those who would stand in their way, and now, with the NSA matter and the McCain signing statement, are having their day, daring the Congress to fight back and getting no resistance . . .
1.29.2006 12:51pm
blackdog:
One wonders if Professor Elizabeth Bartholet and others who publicly castigated Professor Goldsmith for his so-called extremist views (and Harvard Law School for hiring him) will bother to read the article and realize how incorrect they were.
1.29.2006 12:57pm
Anonym (mail):
Articles like this are difficult to swallow without a large grain of salt because of (1) the incentive of participants in controversial decisions to engage in revisionist history and (2) anonymous sourcing. I have no trouble believing that the administration was sharply divided on torture and eavesdropping issues, and that Chaney et al tried to crush dissent, but the over-the-top fawning over Goldsmith and his friends might be exaggerated.
1.29.2006 1:03pm
Medis:
Predictably, people are going to try to make it sound like this story is overblown, politically-motivated, and so on. But for those who know something about the OLC, there are some basic and uncontested facts that truly are extraordinary, most notably the actual repudiation of the Yoo memos (August 2002 and March 2003).

Anyway, should Congress actually decide to protect its constitutional role in regulating the conduct of war, I suspect we will get more details about all of these events.
1.29.2006 2:00pm
Katherine (mail):
This sentence is easy to overlook but really remarkable:

"Addington and Gonzales had both wanted to make Yoo head of the OLC when Bybee went off to take a federal judgeship in March 2003, but Attorney General John Ashcroft balked."
1.29.2006 2:13pm
ROA:
Does that mean there has been no reauthorization since then, or that the administration changed the program to eliminate the objectional provisions, or that the people opposed to the program resigned or were fired?
1.29.2006 2:35pm
Anon7:
ROA,

I think it is slightly suggestive that evidently three people at Justice raised objections to elements of the program and/or the Yoo memos:

former head of OLC
former Deputy Attorney General
former Attorney General

I'm seeing a pattern.
1.29.2006 3:05pm
ROA:
Anon7,
I don't think its too suggestive of anything if appropriate changes were made when the objections were raised. I recall reading somewhere, I can't remember where unfortunayely, that the changes were made and Mr. Comey tried to convince the NY Times not to publish their NSA story. I am not positive about my assertions and if anyone has information contradicting them I am certainly ready to examine it.
1.29.2006 3:11pm
volokh watcher (mail):
I remember my Federal Courts professor saying that the Constitution works on a handshake -- that each branch will respect the role of the others, even with the occasional Youngstown situation which, critically, prompted Truman to move on after SCOTUS ruled.

That's a pretty fragile Constitution.

This Newsweek piece, along with Bush's signing statement after the McCain amendment, suggest that for Cheney and Addington, and the rubber-stamp Republican Congress, there is no handshake by which to abide.

Cheney and Addington are very dangerous people insofar as the Constitution is concerned (and please save the legal arguments about why domestic spying is really not domestic spying).

If they were doctors, Cheney and Addington would advise removing the kidney and liver to save the big toe. And any objection by the patient would be met with threats that imminent death will result if their advice isn't followed.
1.29.2006 4:40pm
gs (mail):
I agree with commenter anonym about "the over-the-top fawning over Goldsmith and his friends":
Stocky, rumpled, genial, though possessing an enormous intellect, Goldsmith is known for his lack of pretense...
The grandson of an Irish cop and a former U.S. attorney from Manhattan, Comey, 45, is a straight arrow. (It was Comey who appointed his friend—the equally straitlaced and dogged Patrick Fitzgerald—to be the special prosecutor in the Valerie Plame leak-investigation case.)
Was Comey already losing bureaucratic battles when he appointed a friend to investigate the administration?

Newsweek's account of self-important lawyers speaking truth to power strikes me as rather pat. "It is almost unheard-of for an administration to overturn its own OLC opinions." Especially during wartime, one would think. On the basis of the limited information in the article, I'm inclined to believe that Goldsmith should have resigned (sooner than he did) if he couldn't support the administration's policy. Otoh, Katherine's quote suggests that Ashcroft helped set the situation up.

Newsweek concludes with:
But, thanks to a few quietly determined lawyers, a healthy debate has at last begun.
...?! Wait a minute. The debate is happening because the surveillance activity was leaked. Is the sentence feel-good boilerplate, or is Newsweek implying the provenance of the leak?
1.29.2006 5:14pm
Barry (mail):
blackdog:
"One wonders if Professor Elizabeth Bartholet and others who publicly castigated Professor Goldsmith for his so-called extremist views (and Harvard Law School for hiring him) will bother to read the article and realize how incorrect they were."

From the article, about the people at Harvard who opposed him:
"They had no idea. Goldsmith was actually the opposite of what his detractors imagined. For nine months, from October 2003 to June 2004, he had been the central figure in a secret but intense rebellion of a small coterie of Bush administration lawyers."

So this is just another case of a man who, when confronted with illegality and evil, choose to limit his fuss-making to the point where it wouldn't get him into trouble, and wouldn't hurt the administration's ability to carry out that which he opposed. (sorry for the run-on sentence)

It's clear by now that the real reason that Bush won in 2004 was that a lot of people chose to keep silent, rather than to speak the truth.
1.29.2006 5:34pm
minnie:
I had just finished reading this article, and came to VC to see if there would be mention of it, and was so glad there was. This article brought tears to my eyes, and I consider it the most important article I've read thus far on this whole depressing issue. I kept thinking, if there had been more people like Comey and Goldsmith in Germany in the 30's to fight the Addington/Yoo/Cheney types, would history have taken a different course?

To me, Comey and Goldsmith are real heroes: people who follow their conscience even when the political fallout for them as individuals is costly. I just feel bad that their attempts to preserve human decency in our governmental policies thrust them into such an agonizing, harrowing personal struggle against the dark side.

The first time I head of John Yoo, I posted how dangerous I thought he was. The day I read that Addington had replaced Libby and I did some research into Addington, I shuddered.

I hope this article gets wide exposure and opens up everyone's eyes to the fact that not all conservatives condone these horrific practices which have brought such shame to our country and anguish to the hearts of people who care about human decency, nor do they condone an interpretation of law which permits these abuses. I applaud Newsweek for the article, and Orin Kerr for highlighting it on VC.
1.29.2006 5:47pm
Humble Law Student:
Minnie,

Yes, you are absolutely correct. Addington/Yoo/Cheney are just like Goebbels, Himmler, etc. and all the others who justified Hitler's regime and its practices. You nailed it right on the head. Great job!

On one hand you have legal discussions which at their worst have led to eavesdropping on innocent Americans and a few tens at most of detainees deaths vs. the wholesale slaughter of millions. A very natural comparison if I say so myself.

Gimme a break!!!

No one condones the intentional mistreatment of prisoners that went on in Abu Gharib etc, but come on, if you want to have any credibility, STOP THE HITLER ANALOGIES!
1.29.2006 6:22pm
Humble Law Student:
I also have to agree with other commentators on the tone of this story. However, meritous the claims of the story (they were interesting and also worrisome), the tone taken towards Goldsmith and others of fawning adulation turns me off right from the beginning.

I was however heartened that at least Goldsmith and some of the other main characters had the discretion and professionalism to not go broadcasting their disagreements or go make book deals out of them. They behaved admirably and deserve respect, even if I may disagree with their positions.
1.29.2006 6:26pm
Le Messurier (mail):
"I was however heartened that at least Goldsmith and some of the other main characters had the discretion and professionalism to not go broadcasting their disagreements or go make book deals out of them. They behaved admirably and deserve respect, even if I may disagree with their positions."

Let's hope you are right that they kept their disagreements to themselves and within the administration. Except, that now, according to Newsweek, its public! And don't forget, we still don't know who the 12 traitors were that leaked the story to the NYT. Could it be.....?
1.29.2006 7:02pm
anonymous coward:
"...I'm inclined to believe that Goldsmith should have resigned (sooner than he did) if he couldn't support the administration's policy"

Is it the job of the OLC to "support the administration's policies" regardless of legal merit?

Besides, bureaucratic infighting is precisely the process by which an administration's policy is formed. It does not spring full-grown from the forehead of the President (or, in this case, the Vice President).

Also from the noxious fawning dept: the implication that it required incredible courage to stand up to Cheney's sinister minions, when the worst that happened to these guys is being forced into outrageously lucrative private sector jobs. Woe!
1.29.2006 7:27pm
KMAJ (mail):
This is all political pandering by Newsweek. Their grandiose accolades supporting those who allegedly opposed the NSA program. If one does not read news account with a jaundiced eye, instead of looking for points of agreement, they are then easily swayed. The field of journalism is no longer the font of truth it once was. Instead of being unattached presenters of news, they have become advocates. This is the legacy of the Vietnam and Watergate era. Having worked in the news media for over a quarter century, I saw it day in and day out. There are very few reliable presenters of the news any more, Jim Lehrer would be very high on my list. If one is part of the monolith we know as the mainstream media, and dares to criticize, you are shunned. Bernard Goldberg comes to mind, whose books are pretty much on the mark with the experiences I observed. Newsrooms are disproportionately staffed by left leaning individuals.

To whit, why are Goldsmith and Comey opinions any more legitimate that Addington, Flannigan or Yoo ? Is it because they writers agree with their opinions ? Once you start reporting in such a facetious fashion, and citing unnamed sources, any reporters credibility can be brought under question, because, instead of merely being a presenter of news, they become an advocate for one position. This is clearly what an insider would call CYA journalism, and attempt to legitimize publsihing top secret information, which is a violation of the law and is prosecutable under 18 U.S.C. § 798. Such a conclusion is supported by NEW YORK TIMES CO. v. UNITED STATES, 403 U.S. 713 (1971), the Pentagon Papers case, where a majority of the justices said the NY Times could be held responsible for any violation of the law. Why doesn't the media do any stories on this ? Perhaps they think they are above the law or feel secure knowing that no president would file charges against the country's largest newspaper.

This, while falling under unsettled law parameters, has fallen into the realm of political gamesmanship, saying this person's interpretation is better than this ones, this dicta is unclear, while this case supports my position. I still think Sealed Case is going to play a more important role in any decision than most allow for, because FISA is the central point in the debate.

One other piece to be considered that I have never seen used in the debate is the post 9/11 Commision Report Monograpg on Terrorist Financing by the Commission staff in 2004 and their statement on the FISA process:

"Many agents in the field told us that although there is now less hesitancy in seeking approval for electronic surveillance under the Foreign Intelligence Surveillance Act, or FISA, the application process nonetheless continues to be long and slow," the commission said. "Requests for such approvals are overwhelming the ability of the system to process them and to conduct the surveillance. The Department of Justice and FBI are attempting to address bottlenecks in the process."


This was two years after the NSA program was started, so it is undeniable that FISA was a hindrance to the executive branch's constitutional responsibility to protect, prevent and defend. It also shows that they were still using the FISA procedures in other cases, and those alone were overwhelming the FISA Court.

And this view from Prof. Ken Anderson, Washington College of Law, American University, Washington DC, and a research fellow of the Hoover Institution, Stanford University:

The president has the plenary constitutional power, certainly in the post 9-11 circumstances, to undertake the reported warrantless surveillance, FISA notwithstanding. In any case, Congress authorized action against terrorism prior to and apart from the Patriot Act, knowing fully in the post 9-11 days that this certainly meant the possibility of dealing with terrorist cells on US soil, given that the fact of 9-11 meant they were already here. I think it is astonishing, but telling, that Senator Feinstein (see the senate statement posted at Intel-Dump, here) recites a lot of law about FISA without seriously dealing with the language of the September 14 Congressional use of force authorization that specifically provided that the President "has authority under the constitution to take action to deter and prevent acts of international terrorism." If you already know you have terrorists acting on domestic soil, in the United States itself, and you use that kind of language, I find it questionable to assert afterwards that the president doesn't have power to go around FISA. It is language designed to override concerns from the Church commission days of the 1970s that - somehow - seemed inapppropriate on September 12.


Does this discredit any law professor who sees things differently ? Certainly not, it only is to support the point that theirs is not the only legitimate interpretation. Cass Sunstein, Robert Turner, John Schmidt, Richard Posner, Paul Rothstein, Ann Althouse, Glenn Reynolds, all law professors of various political stripes, who disagree with Marty, Turley and others claiming illegality.

I think this article gives an insight into problems in the FISA process from the FBI perspective: AN FBI INSIDER’S GUIDE TO THE 9/11 COMMISSION REPORT
1.29.2006 7:39pm
Kate1999 (mail):
KMAJ,

Is there any evidence that would ever convince you that you are ever wrong? Or is any evidence against you automatically proof of liberal bias?
1.29.2006 8:01pm
ROA:
Humble Law Student,

Addington/Yoo/Cheney don't even match up with Roosevelt and Warren who imprisoned what would today correspond to 250 thousand citizens and Japanese residents in WW II, or Woodrow Wilson whose Palmer Raids of 1920 imprisoned the equivalent of 40,000.
1.29.2006 8:09pm
minnie:
KMAJ,

Thank you for presenting the administration's obviously well prepared refutal of the Newsweek article. Maybe they should start blogging in their own names, however, as Kerry and Kennedy do on Kos.

Humble law student: My motto is: Resist The Beginnings. I limited my comparison to a tolerance for barbaric behavior, and didn't speak to the degree of same. I stick with that argument. If nobody resists Cheney, Addington and Yoo, who knows how far they would go?

Also, I am decidedly underwhelmed by the attempt to undermine Goldsmith by pointing out a lucrative job was still available to him. If the cost of internal dissent at the highest levels is so insignificant, how come there's so little of it?
1.29.2006 8:24pm
KMAJ (mail):
Kate1999,

I do not claim I am right, I claim an opinion, I claim that until there is a ruling in this case, which is clearly unsettled law, no one can claim definitively they are right. Such a ruling would prove one side or the other wrong, until then, there is no right or wrong opinion. Rothstein seems to think the courts will not address this, he thinks the political system and public opinion will. I don't know if the courts will duck this one.

As far as the media goes, I have over 25 years of personal experience to draw upon, and, yes, the 'old media' is biased. So is FOX News. I think the state of journalism in this country is sad, though it could be worse, it could be like Europe's, where there is limited exposure to opposite points of view in the news media. I don't attrinbute that to any conspiracy, but to different paths of social evolution and beliefs that reflect the differences in the societies and cultures.
1.29.2006 8:36pm
Kate1999 (mail):
KMAJ,

So I assume you support having the Supreme Court address this issue ASAP, so we can get an answer -- and you also agree that the Bush Administration must comply with however the Supreme Court rules?
1.29.2006 8:45pm
gs (mail):
Anonymous Coward @ 1.29.2006 7:27pm, you asked:
Is it the job of the OLC to "support the administration's policies" regardless of legal merit?
It's difficult to formulate an answer in the abstract because:
1. I don't have access to the legislation creating the OLC or the OLC's mission statement.
2. Afaic this is wartime. Notwithstanding my concerns about the administration's competence and overreaching, I give it a degree of leeway, especially in this novel kind of conflict.
3. The circumstances are unusual. "It is almost unheard-of for an administration to overturn its own OLC opinions."

To me the issue is whether, e.g., Goldsmith perceived the surveillance policy as coming from the president.

If he did so perceive and if his concerns were disregarded, I believe he should have submitted a resignation, cc'd to the White House, declining to support a policy whose legality he doubted. Such a resignation would have put the issue on record and the administration on notice. It's not the proper role of midlevel functionaries to modify the chief executive's directives to suit themselves. (Of course, midlevel functionaries everywhere do this all the time.)

If Goldsmith didn't perceive the surveillance policy as coming from the top, then your point is well taken that bureaucratic infighting is part of how policy and decisions are made.

I don't know for sure, but my impression is that the OLC's role is more to give a legal vetting to policy than to make policy. The two (vetting and making) are not entirely distinct, but I wonder if Goldsmith et al didn't conflate them more than was necessary or appropriate.
1.29.2006 8:49pm
Defending the Indefensible:
KMAJ:
I do not claim I am right, I claim an opinion, I claim that until there is a ruling in this case, which is clearly unsettled law, no one can claim definitively they are right. Such a ruling would prove one side or the other wrong, until then, there is no right or wrong opinion.
I'm afraid this is simply nonsense. All "opinions" are not equally well-founded in law and precedent. A bald assertion which expressly violates statute and presumes a constitutional authority which is denied by precedent is not a legal opinion due special deference. This is settled law, although undoubtedly the administration would happily disturb Ex parte Milligan if they can get away with it.
1.29.2006 8:51pm
Duncan Frissell (mail):
ROA is correct that GWB is a piker compared with other US presidents, particularly one. But Earl Warren was Governor of California at the time and though he supported the Japanese relocation, he didn't carry it out. Biddle was one of FDR's AG's involved in his activities. As I wrote elsewhere:

There was a US President (P1) who clearly exceeded George W. in oppression.
  • P1 refused to surrender his office after two terms and had to be removed from his office by divine intervention.
  • He directed an unprecedented expansion in the size of government. During his administration, Federal expenditures increased 20.2 times. For George W. to match that, Federal expenditures would have to end up at more than $40 trillion. Of course P1 had 12 years to do his damage. In his first 8 years, he only increased spending by about 3 times (2.97) when the US was at peace. It looks like George W. will increase spending by 1.4 times in 8 years while we were at war -- half as much.
  • P1 interned more than 200,000 U.S. residents (half of whom were U.S. citizens) in a country with half the current population. These internments had nothing to do with immigration violations or individual guilt of any kind but were purely based on race, nationality, ethnicity, and place of residence. He even locked up Aleuts.
  • P1 recruited a private company to intercept and copy all wire communications leaving the US at this building at 60 Hudson Street in Tribeca in lower Manhattan.
  • P1 sent federal agents to confiscate or disable cameras and shortwave radios owned by all "enemy aliens".
It will hardly be a surprise that P1 was Franklin Delano Roosevelt and that the above list is only a small part of his transformations of American traditions.

The first mandatory US ID card of any kind state or federal was introduced on January 1, 1937 -- the social security card.

**********

Note too that William Jefferson Blythe Clinton's admin killed more US citizens (in the homicide sense) during its first 3 months than GW's admin has managed so far.

**********

If WJBC were still president, no only would he be cutting corners to fight the war, but Time reporters would be lining up to perform his favorite sex act on him to thank him for saving abortion rights by fighting theocratic Islam.
1.29.2006 8:55pm
WB:
How did we get from a newsweek article to comparing the body counts of each administration?

For what it's worth, I thought the article was great and provided a bit of context to what little I know about OLC.

Goldsmith comes out rather favorably, but he seems to deserve it. And, as the authors noted, he and Comey declined comment.

Not to dive back into the digression, but it seems really odd to say that an internment of X number of people in one year is "equivalent" to the same thing done to a larger number of people later on. As with currency, I understand that there are more people walking around in the world today than there were before, but I don't see the logical leap from that to formulating a "consumer population index" for the purpose of comparing atrocities. Different circumstances, different technological capabilities, different practices tugging at the edges of the Constitution, different reasons, different results. The question of whether GWB is the "most oppressive president" ever is a question best debated among drunk campaign staffers after a Dean speech, not something that should be debated with any pretense of seriousness.
1.29.2006 9:06pm
Justice Fuller:
anonymous coward writes:

Also from the noxious fawning dept: the implication that it required incredible courage to stand up to Cheney's sinister minions, when the worst that happened to these guys is being forced into outrageously lucrative private sector jobs. Woe!
You must be kidding. Goldsmith was likely in line for a federal appellate judgeship; Comey was likely to become the next AG. They each challenged Cheney, and were rewarded by being booted out.
1.29.2006 9:13pm
Just an Observer:
To me the important thing about the Newsweek article is not its style, which I found a bit gushy, but the facts it reported. We previously did not know these details of how some administration lawyers dissented from the White House line.
1.29.2006 9:38pm
CrazyTrain (mail):
Note too that William Jefferson Blythe Clinton's admin killed more US citizens (in the homicide sense) during its first 3 months than GW's admin has managed so far.

Next time someone brings up the "loony left", I will simply refer them to this. Recall that this was mainstream conservatism throughout the '90's. Kos has nothing on these loons.

1.29.2006 9:43pm
CrazyTrain (mail):
It's heartening to know that there are really fine lawyers, on both sides of the aisle, who are ready to uphold the best traditions of OLC and of government lawyering generally.

It's time for another "fine lawyer" to come out and say what he thinks. There is a clear pattern in this administration, and that pattern is to aggrandize executive power to the detriment of the judicial and legislative branches. Some have defended this as necessary in light of the war we are in. I find the defense absurd, and have no doubt that these same people would be screaming bloody murder if Clinton and Reno were doing this. But at least they can come out and tell us their views.

Orin Kerr, whose specialty touches at least more than tangentially on this subject, has never come out and given us his view of this administration's pattern of behavior. Her certainly cannot have "no opinion" of it. It's high time he let us know what he thinks.

I would say the same for Volokh except I think I am pretty sure he supports it -- he uses his "I am not an expert" schtick to avoid touching on the topic ever. (But at the same time has little problem asking his readers to compile a list of anti-Americanism by those on the left; a list which yielded almost nothing.)

1.29.2006 9:49pm
CrazyTrain (mail):
I meant "He" certainly cannot have no opinion on it. Nothing meant by the typo. . .
1.29.2006 9:50pm
Defending the Indefensible:
CrazyTrain,

To be charitable of Prof. Kerr, you must admit he has invited open discussion from all sides, and has not withheld arguments presented by anyone. I think it is unfair to leap to a conclusion that by reserving his own opinions, he must necessarily agree with the administration. To the contrary, he has poked substantial holes in their publicly released reasoning, and has quite explicitly expressed an opinion that FISA was likely violated while the Fourth Amendment may not have been.

It is also worth pointing out that if Prof. Kerr were to express his tentative opinions as legal conclusions, there would cease to be an open debate between participants here. At some point, I think this does need to happen, as every debate should hopefully come to a resolution in time, but not prematurely.

I am not personally ready to convict the administration. They are entitled to have a full and fair hearing. I think this should be taking place in the house of representatives, the sooner, the better. Until then, this kind of discussion forum is a good place to explore the legal issues (taking the facts as stipulated so far).

You and I can express our opinions without the same chilling effects on discussion, because this is not our forum. We don't have any special status here. I can say, as clearly and plainly as I may, that I think the legal arguments of the administration appear to go against Milligan, and are probable grounds for impeachment. If an when Orin says this, he would be acting as a sort of "forum judge" -- his opinion will carry great weight, so he should be careful in expressing it.
1.29.2006 10:17pm
KMAJ (mail):
Kate1999,

Yes, I would like to see the court address it or refuse to hear it. Refusal is an option that is available to SCOTUS. If they hear it, I would be very interested in the outcome. If they refuse to hear it, I would hope they would cite the reasons why.

I do think the president should abide by the SCOTUS ruling and not pull an Andrew Jackson.

------
DtI,

With all due respect, I cited other law professors who disagree. What makes your opinion any better than theirs ? For that matter, what makes your opinion any better than DoJ lawyers or White House legal advisors ? I assume they have law degrees, also. Ex parte Milligan is a straw man, nothing close to martial law is being invoked.
1.29.2006 10:22pm
Humble Law Student:
Minnie,

Your "resist the beginnings" is nothing but a more vague name for the slippery slope fallacy. Yes, you are right, if no one resists, who knows how far they will go... right on down that icy slope all the way to, oh let's say, concentration camps!

Am I the only one who thinks that there is more than a slight difference (beyond just degree) between Bush and Hitler? Or, is this more of this outlandish liberal moonbat behavior. If so, keep it up. Please feel free to voice your opinions as loudly and broadly as you can. You are doing your best it seems to ensure Republican dominance for several more election cycles. THANKS!
1.29.2006 10:26pm
anonymous coward:
Justice Fuller: Doing (what you see as) your job when a federal judgeship is on the line takes integrity, but it's ludicrous to term this "a quietly dramatic profile in courage" (Newsweek). No threat to their safety, no threat to their ability to make an exceedingly comfortable living.
1.29.2006 10:33pm
Justice Fuller:
anonymous coward,

Isn't the Goldsmith example roughly similar to the examples in JFK's book "Profiles in Courage?" I assume the authors of the Goldmsith article were trying to use "profiles in courage" as a term of art based on the well-known Kennedy book. Given that, I'm not sure why the Newsweek phrase was "ludicrous."
1.29.2006 10:45pm
Jim Rhoads (mail):
There is one thing that all of us who comment on this thread probably have in common. We have no first hand knowledge about how the NSA surveillance which is the subject of the post actually works.

IOW, we don't yet know the facts.

Yet we have such certainty on both sides of the issue as to whether the NSA surveillance practices ordered by the President violate FISA and if so, whether under the Constitution, Congress has the power to regulate that type of surveillance. Further discussion has little chance of changing minds on either of these issues.

Interesting times in which we live.
1.29.2006 10:54pm
anonymous coward:
You're quite right on the JFK book's contents; the phrase isn't as awful as I read it. As for why I find the phrase objectionable, I don't think "courage" and "integrity" are useful words when they are used interchangeably.
1.29.2006 11:01pm
Medis:
For anyone who is interested, you can look up the OLC on the DOJ website and get a description of its mandate. Basically, the OLC gives legal and constitutional advice, including reviewing proposed legislation, Executive Orders, Attorney General orders, and so on for legality and constitutionality. In general, they serve as a kind of outside counsel for the entire executive branch.

Accordingly, it is not the OLC's job to make policy. However, it is their job to give objective legal and constitutional advice, and they emphatically should not resign themselves to writing briefs in support of the President's policies. In other words, it is getting the mandate of the OLC exactly backwards to say that a member of the Office should resign if he or she can't "support" the President's policies. Rather, as soon as they find themselves "supporting" policies rather than giving objective legal advice, they should seriously consider resigning precisely because they are no longer doing their job.

Of course, I think there is good evidence that this Administration is not particularly interested in getting objective legal advice, as the basic elements of this story suggests. Indeed, this story fits into a much larger pattern of the Administration favoring those who tell it what it wants to hear, and disfavoring those who do otherwise, and it is inevitable that the quality of the advice the Administration receives will degrade over time as a result of such patterns.
1.29.2006 11:10pm
Medis:
Jim Rhoads,

I'm not entirely sure why the details of the program matter for either of those propositions. The Administration has stated repeatedly that this program involves electronic surveillance within the meaning of FISA. So, we can ask whether the legal and constitutional arguments made by the Administration apply to such surveillance without knowing the details of the program.
1.29.2006 11:15pm
Just an Observer:
KMAJ,

You are of course correct that there are law professors who support the President's position. Rather than just naming them, it is useful to look at the content of what they say.

In the case of the passage from Ken Anderson you quote, it is worth noting that he hangs his hat on a whereas clause from the AUMF. He finds that fragment vaguely incompatible with the spirit of the times during which FISA was enacted. But that non-binding language in no way repeals the quite specific operative provisions of the FISA statute.

Even the specific language of the clause, that the President "has authority under the Constitution to take action to deter and prevent acts of international terrorism," is by itself a relatively non-controversial statement. It even more of a stretch to make that cover domestic wiretapping than trying to construe the actual authorization for "all necessary and appropriate force" to do the same thing.
1.29.2006 11:18pm
KMAJ (mail):
JaO,

I don't disavow the legitimacy of asking questions or offering opinions of interpretations. What I found most compelling in Prof. Anderson's opinion was that he connected it to the reality of the situation, that of knowing terrorists are already in this country waiting to strike again. He inserts logic into his opinion. Is maintaining the status quo the best way of preventing another attack ? I also find the 'Monograph' opinion that the FISA process is arduous and slow to be very relevant. What I found even more worrisome was that some surveillance was let go because of the slowness of the FISA process. It is not like they are abandoning the FISA process completely, as there have been a record number of requests for FISA warrants since 9/11, with dubious results, with the FISA Court issuing an unprecedented number of modifications.

As far as Comey and Goldsmith, how many of the attorneys in the DoJ and OLC agreed with them versus disagreed ? That is something we do not know, they could just as easily been the minority opinions. We know that the NSA program was drawn back when concerns were expressed by Comey and the chief FISC judge and adjustments were made. Has anyone reported on whether Comey and the FISC chief judge still had concerns after the adjustments ? Or did they sign off on them ? I haven't seen anything reported on that.
1.29.2006 11:58pm
Kate1999 (mail):
KMAJ writes:
What I found most compelling in Prof. Anderson's opinion was that he connected it to the reality of the situation, that of knowing terrorists are already in this country waiting to strike again. He inserts logic into his opinion. Is maintaining the status quo the best way of preventing another attack ?
In other words, you found Anderson compelling because he is not actually presenting a legal argument based on statutes or precedents. Rather, he is expressing a policy view that you agree with. Right?
1.30.2006 12:13am
gs (mail):
Medis @ 1.29.2006 11:10pm writes:
In other words, it is getting the mandate of the OLC exactly backwards to say that a member of the Office should resign if he or she can't "support" the President's policies. Rather, as soon as they find themselves "supporting" policies rather than giving objective legal advice, they should seriously consider resigning precisely because they are no longer doing their job...Of course, I think there is good evidence that this Administration is not particularly interested in getting objective legal advice...
I agree that the administration's overemphasis on what they mislabel as loyalty is a serious deficiency. I'm a bit confused by the phrase 'objective legal advice' in a context in which the legalities are not clearcut. Perhaps you mean 'objective' in the sense of disregard for the personal consequences of a professional opinion?

The web page Medis mentioned--thanks--is here.
The Assistant Attorney General in charge of the Office of Legal Counsel assists the Attorney General in his function as legal advisor to the President and all the executive branch agencies. The Office drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the executive branch, and offices within the Department. Such requests typically deal with legal issues of particular complexity and importance or about which two or more agencies are in disagreement. The Office also is responsible for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality.
(Boldface added.)

Ideally, advisors will give their best considered opinion irregardless of what the recipient wants to hear. The advice may be disregarded. If so, resigning over a difference of principle is an honorable way of underscoring dissent.
1.30.2006 12:28am
KMAJ (mail):
Kate1999,

If you do not deal with reality, then you are not dealing with the full scope of the situation. Playing semantic games with what constitutes a 'legal argument' is disingenuous. Are you telling me that 'legal argument' is some concrete and inflexible monolith that never is affected by the reality of events surrounding it ? That it is not relevant to cite real circumstances that laws affect ? That it is not affected by shifts in societal, attitudes, mores and folkways ? I hope not, because the Constitution was very specific in some areas and very general in others, allowing for changes.
1.30.2006 12:51am
Kate1999 (mail):
KMAJ,

Yikes, your argument is really frightening.

To recap, you find Anderson's argument persuasive because you like it as a policy matter, even though Anderson cites no statutory or constitutional authority. When I point this out, you assert that law must reflect shifts in "folkways" and accuse me of not "dealing with reality." I guess I'm old-fashioned, but you seem to be saying that the constitution is whatever you damn well feel like it should be.

KMAJ, I am afraid I have no choice: I hereby declare declare you unconstitutional. You see, the folkways have shifted, and you have become troubleeome in light of the full scope of the situation. Sorry! ;-)
1.30.2006 1:36am
Kovarsky (mail):
I actually think one of the more interesting elements of the article has not yet been discussed.

We already knew the the story about Comey rejecting the policy and the administration going to Ashcroft in the hospital to get approval, only to have Ahcroft stand by his first.

The administration chided anybody invoking this incident as "failing to mention that Ashcroft and Comey ultimately signed off on the program." The Newsweek Article explains why.

Basically, the CG camp forced the Cheney/Addington (CA) camp to ratchet up the substantive standard to implement a tap (I guess to what the president is calling a reasonable basis), and in exchange the CG camp agreed to sign off on a process that did not require any form of judicial authorization.

So it's clear that the CA camp was pressing an even more constitutionally questionable program before the CG camp began to resist. More importantly, this episode reveals the inference the administration tried to create - that Comey and Ashcroft ultimately approved the program after they thought about it enough - to be, predictably, a politically saavy exaggeration.

KMAJ, would you mind explaining in a single sentence your take on the article, because I am finding it difficult to follow your point. That could well be my fault, though.
1.30.2006 1:53am
CrazyTrain (mail):
Is Humble Law Student Michelle Malkin? He sure seems to have her talking points down, and her utter lack of original thought. . . . Tip to Humble Law Student: Go back to studying, and learn to think for yourself. Glenn Reynolds is not a serious thinker; neither is Michelle Malkin. Parotting their views in your exams will not get you good grades. Regards, CT.
1.30.2006 1:56am
KMAJ (mail):
Kovarsky,

It is shoddy journalism, more propaganda than news. One can glean some information out of it if you can wend your way around the hyperbole. It is meant to sway opinion and not give balanced information.

Why engage in CYA journalism ? Because after Plamegate, where sources were given up, if this case becomes a full fledged investigation, as it should, anonymous sources will dry up. Anonymous sources are the way politicians and other 'officials' manipulate the media and do not have to be held accountible. In this NSA case, there was a serious violation of the law, much more serious than Plame, the NY Times is culpable also, for knowingly publishing classified information. The old media is circling the wagons hoping the public does not grasp on to the significance of their law breaking. If there is a public outcry, they will have to cover it. In essence, this story is a deflection or diversion.
1.30.2006 3:07am
KMAJ (mail):
Kate1999,

You must scare easily. The rule of law is not a universal monolith that is dictated to all, regardless of society or culture. Globalists, or New World Order devotees, may subscribe to that theory. But that is simply neo-Marxism painted in verbally attractive clothes.

Now, you do have a habit of twisting, I did not say the law 'must' reflect attitudes, mores and folkways, I said it is 'affected by', which is the essence of any government 'of the people'. So, if I were to enjoin your little semantic twisting, would it be correct to surmise that you are in favor of dictatorial laws that do not reflect the will of the people ? That you prefer a Big Brother government that will tell us all what is good for us, how we should think ? Must you now declare yourself 'unconstitutional' ? Sorry, I believe the people should shape government and its laws, not the other way around. Isn't that what our Constitution is all about ?
1.30.2006 4:46am
Pooh (www):
In case no one has done so recently, I'd like to remind people to read any of KMAJ's sourcing for yourself, as he's been known to, er, loosely quote said authority.
1.30.2006 4:58am
Just an Observer:
KMAJ:... What I found most compelling in Prof. Anderson's opinion was that he connected it to the reality of the situation, that of knowing terrorists are already in this country waiting to strike again. He inserts logic into his opinion. Is maintaining the status quo the best way of preventing another attack ?

This "logic" strikes me as relevant to an issue of policy: It explains Anderson's view of what the law ought to say or how it might be amended. It does not speak to the legal question of what the law was and is. If Congress intended to change the actual provisions of FISA, it would have taken different language than what Anderson quoted from a whereas clause in the AUMF.
1.30.2006 8:23am
Anon7:

KMAJ:
What I found most compelling in Prof. Anderson's opinion was that he connected it to the reality of the situation, that of knowing terrorists are already in this country waiting to strike again. He inserts logic into his opinion. Is maintaining the status quo the best way of preventing another attack?


So because we are afraid of terrorists, we should be willing to suspend the laws for an indefinite amount of time and let the President rule as he chooses? That's a recipie for dictatorship, because there never will be a time when we can guarantee that the U.S. contains no terrorists. That was true in the past, as well.

Molly Maguires in the 1860s and 1870s.
Anarchist bombings in the 1910s.
Suspected but nonexistant Japanese sabateurs in the 1940s.
Weathermen in the 1970s.
Unibomber in the 1980s.

And those were just examples I could pull off the top of my head in a couple of minutes.

When should we stop compromising away our freedoms in the "War" on Terror? Fifty years? A Hundred?
1.30.2006 8:48am
Kate1999 (mail):
KMAJ writes:
That you prefer a Big Brother government that will tell us all what is good for us, how we should think ? Must you now declare yourself 'unconstitutional' ? Sorry, I believe the people should shape government and its laws, not the other way around. Isn't that what our Constitution is all about?
Actually, the opposite: I am a proud member of the Federalist Society. I therefore believe that "the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be." KMAJ, you must be some kind of leftist radical Marxist, as obviously you donb't believein any think remotely like what the Federalist Socciety stands for.
1.30.2006 9:54am
colts41 (mail):
Anon7 says: "So because we are afraid of terrorists, we should be willing to suspend the laws for an indefinite amount of time and let the President rule as he chooses? That's a recipie for dictatorship, because there never will be a time when we can guarantee that the U.S. contains no terrorists. That was true in the past, as well. [Listing terror organizations]."

Anon7, you don't get it.

Those terror groups you listed were domestic terror groups. And they existed before we had cell phones and the internet.

Now we're involved in a fight against *foreign* terrorists, maybe up to 10,000 of them.

The fact that some of those *foreign* terrorists may be American citizens or lawful alienns just confuses the argument about whether the 4th Amendment applies. Keep this in mind: an American calling abroad is no longer an American -- s/he's a potential enemy combatant.

This is all about doing what Clintonistas never would do in these circumstances -- spy on Americans on American soil, cut taxes, create federal programs that prohibit using Medicare's bargaining power to get best prices, take no bold action to facilitate the creation of alternative energy forms so we don't keep financing these *foreign* terrorists, promote democracy abroad (except where we don't, like Africa) while having no plan on how to deal with unfriendly foreign governments that have or will have nuclear capability, and engage in round-the-clock fear-mongering.

Okay, maybe i exaggerated about the fear-mongering being "round-the-clock".

But more tax cuts are sure to help.
1.30.2006 10:00am
farmer56 (mail):
It appears that there is dispute with the law. there are lawyers on both sides of the dispute. Which lawyers are right? Well thats easy. The lawyers on my side! Wow some of you make this complicated.

If the 'splish splash' Teddy Kennedy. or Hillary ' I got 100% of the vote in a precinct Where I saw to the realese of murderers' Got a problem with the executive branch on a interpatation of law...Wow I just had a thought! Who writes the law?Hillary, and. Splish splash. But They have not offered up a clarifcation of the law that CONGRESS WROTE!

Why?

Because the every member of congress would be forced to,,,vote, in public, on, stopping sevalience on the people trying to kill US women and children. AHH, they are'nt doing that. Every member of congress would pillory any member that would force a vote to make us less safe.

Hey! Splish spash! Got a bitch? offer a fix. Or, just shut up.
1.30.2006 10:03am
volokh watcher (mail):
Would someone explain why, if the administration has identified "suspected" Al Qaeda operatives here in the United States, the administration has not taken these "suspects" into custody.

If the administration has a "reasonable basis" to believe that a specific individual is providing support to Al Qaeda, why aren't we taking them off the street?
1.30.2006 10:18am
Just an Observer:
volokh watcher: Would someone explain why, if the administration has identified "suspected" Al Qaeda operatives here in the United States, the administration has not taken these "suspects" into custody.

If the government did that, it might have to defend its claims about the legal merits of the surveillance program in a real court. That is the last place the DOJ lawyers want to make those arguments.
1.30.2006 10:40am
volokh watcher (mail):
JaO said: "If the government did that, it might have to defend its claims about the legal merits of the surveillance program in a real court. That is the last place the DOJ lawyers want to make those arguments."

JaO -- are you suggesting that this administration would knowingly choose to let terrorists walk Americas streets rather than have to defend its policies in a court of law?

Because if that's true, it would mean this administration's public statements about how it's doing everything to fight terrorism is nothing but platitudes intended to scare the crap out of voting Americans.
1.30.2006 10:53am
Chris Bray (mail):
Humble Law Student,

In her original post, Minnie referenced Germany in the 1930s. You responded with a comment about "the wholesale slaughter of millions." Of course, the National Socialist regime didn't undertake the wholesale slaughter of millions during the 1930s. Long before the Holocaust -- long before -- Hitler began working to concentrate power in his person, pushing aside the legislature and the courts around the premise that communists presented a dire threat to the survival of the German nation. You might take a look at the Enabling Act and the Reichstag Fire Decree. The latter, by the way, restricted "the privacy of postal, telegraphic and telephonic communications." The analogy is surely not exact, but Minnie was just as surely not talking about "the wholesale slaughter of millions," and was actually making a reasonable argument that you never bothered to notice.
1.30.2006 10:56am
Medis:
gs,

By "objective legal advice", I just meant to contrast that concept with something I might call "legal advocacy". In other words, rather than doing something like starting with a preferred legal position and coming up with the best arguments for that position (which would be advocacy), the person giving "objective legal advice" would try to analyze and explain the law as if they had no preferences over the possible conclusions.

For example, if the state of the law on some issue was relatively unclear, as is often the case, it would be fine for a person giving "objective legal advice" to note and explain the relevant lack of clarity in the law. In contrast, if the state of the law was relatively clear, it would be wrong for a person giving "objective legal advice" to formulate arguments for the proposition that the law was relatively unclear simply because doing so would help support a particular preferred conclusion.

Of course, "clarity" in the law is usually a matter of degree. But the basic point remains the same, even if one has a more nuanced view of the law--a person giving "objective legal advice" is trying to explain the state of the law from a neutral point of view, in contrast to an advocate who is making legal arguments in support of a preferred legal outcome.

Incidentally, I should note that there is nothing inherently wrong with government lawyers being advocates, and indeed many lawyers in government are specifically tasked with being advocates of one kind or another. But it is not the job of the OLC in particular to be advocates for the Administration--rather, as I understand it, their mandate is to give what I have been calling "objective legal advice".
1.30.2006 11:05am
Just an Observer:
volokh watcher,

Well, to arrest such a suspect presumably would require probable cause of anything, which of course the government did not have when it made the intercepts. We know that because Gen. Hyden has told us.

But one must wonder, as you suggest, if subsequent investigation of those many leads -- which we are assured were all bad people talking to Al Qaeda -- would not have yielded a few actual Al Qaeda operatives. But the wiretap likely would be a fatal flaw in the subsequent prosecution, and expose the government's program to court review.

The USA-PATRIOT Act essentially eliminated the old "wall" between legal foreign-intelligence surveillance under FISA and criminal prosecution. But by going outside of FISA, I believe, the administration gave up that advantage. The government, in effect, became an outlaw afraid of federal courts.
1.30.2006 11:30am
volokh watcher (mail):
JaO:

Here's what I'm getting at.

Domestic Al Qaeda/terrorist aiders &abetters ("supporters," I think is what the president calls them) are "enemy combatants", right? They're stateless individuals dedicated to the total destruction of America and Americans.

Why then, if they're "enemy combatants", does the administration need probable cause to "remove" these "supporters" from the US to GitMo or somewhere else?

I thought the way it works is all that's needed is a written determination signed by Bush that the person is an "enemy combatant".

I'm aware of no prescribed legal standard for that determination -- e.g., probable cause that such individual was (a) caught with a gun on an active battlefield in a foreign land, (b) getting off an airplane on arrival from a foreign country and thought to be a dirty-bomber, or (c) in the US and talking on the phone to Al Qaeda.

My impression since 9/11 has been that Bush designates people as "enemy combatants" based on something, but not mcuh, more than fantasy and a military commission sorts out the evidence of that designation.

So this isn't about the US court system.

If the administration's "eavesdropping as a vital tool" story had any real truth to it -- as opposed to posturing for political advantage to cover for monarchical condcut -- we'd be hearing about the 100s of "enemy combatants" found here in our own country who've been moved to Gitmo to keep us secure.

We haven't.

That silence speaks volumes to me.

And just so I'm clear. I've no problem with eavesdropping that complies with the 4th Amendment.

I do have a problem with lying and fear-mongering, however.
1.30.2006 11:49am
Just an Observer:
volokh watcher: Domestic Al Qaeda/terrorist aiders &abetters ("supporters," I think is what the president calls them) are "enemy combatants", right? They're stateless individuals dedicated to the total destruction of America and Americans.

An citizen who is an agent of a foreign power is not a stateless person, but remains a citizen.

It is a separate matter -- arguably related -- to label such a citizen arrested in the United States an "enemy combatant. AFAIK, that has only happened once, in the case of Jose Padilla. His is another case the DOJ has tried to avoid arguing before the Supreme Court. But that tactic has drawn a rebuke from the Fourth Circuit, and the Supreme Court may yet make the government stand up and make its case.

volokh watcher: So this isn't about the US court system.

As I have said, I think it is really about avoiding the U.S. court system.
1.30.2006 12:02pm
Defending the Indefensible:
KMAJ:
With all due respect, I cited other law professors who disagree. What makes your opinion any better than theirs ? For that matter, what makes your opinion any better than DoJ lawyers or White House legal advisors ? I assume they have law degrees, also. Ex parte Milligan is a straw man, nothing close to martial law is being invoked.
You haven't cited caselaw, and you haven't made any argument to show that Ex parte Milligan is inapposite. I realize that you are not a lawyer, but you should know that it is not a legal argument to say that you "cited other law professors who disagree." Disagree with what? That Ex parte Milligan applies? I don't see where that was addressed by any of them.

To address your specific comment, however, that nothing close to martial law is being invoked: the administration is explicitly citing inherent Article II Commander-in-Chief authority. This is military authority.

Are we under martial law? No, we are not. The courts are open, the legislature is in session (apart from ordinary recess), the laws are in full force and effect. That is what Milligan says, that in this circumstance, barring an invasion or similar necessity such that the courts are effectively closed, the President is circumscribed by statute and cannot exercise Commander-in-Chief (military) jurisdiction over the United States.

Now if you have an argument to make to the contrary, tell me how Milligan is inapposite or show where it has been overruled.
1.30.2006 12:07pm
Kovarsky (mail):
KMAJ,

what in the Newsweek article was "made up," or is this a generalized "the media is sensationalist" criticism, because I would be very interested in knowing.
1.30.2006 12:13pm
Anderson (mail) (www):
When I point this out, you assert that law must reflect shifts in "folkways" and accuse me of not "dealing with reality."

Ah, yes, "folkways." Because true law proceeds only from the Folk, and who better to interpret the will of the Folk than the only member of the gov't who's chosen by the Folk at large?

(Argument reads better in the original German, with "Volk" for "Folk.")

We'll stop comparing Yoo et al. to Carl Schmitt when Yoo's defenders quit sounding so Schmittian.
1.30.2006 12:13pm
volokh watcher (mail):
JoA,

I agree with all you say. My point about "enemy combatants" is to highlight what I see as the inherent contradiction in the administration's position about spying on Americans. But you're right -- it's all about staying *out* of a US court.
1.30.2006 12:55pm
Just an Observer:
volokh watcher,

Even though you raised the question about all those Al Qaeda suspects rhetorically -- I thought I detected some irony in your posts ;-) -- it actually is a question to be taken seriously. It gives lie to Bush's own rhetorical assertion that only Really Bad People have ever been surveilled under the program.

Because the DOJ effectively made itself a fugitive from federal court there may actually be some Really Bad People who now have a built-in defense against prosecution.

And because of the Catch-22 about establishing standing, there may be many innocent victims of the program who will not have a remedy.

Bush and his top officials are hiding behind these procedural issues. They have made brazen statements that FISA's provisions were violated but that it was all "legal," apparently confident that they won't have to prove the merits of their "legal" claims in a real court.
1.30.2006 2:10pm
minnie:
You are doing your best it seems to ensure Republican dominance for several more election cycles. THANKS!

Humble Law Student, you make the same assumption that most strictly partisan thinkers do, that anyone who loudly criticizes certain policies of the party in power is doing so for partisan reasons.

I am a Republican, and there is nothing I would like more than for Republicans to dominate forever, as I am a laissez faire capitalist, vote my pocketbook, which fortunately coincides with my conscience about which system of government is moral, and have always been opposed to the philosophy that has dominated Democratic thinking ever since I can remember, namely, a quasi collectivist mixed economy held hostage to special interest groups who believe "what's mine is mine, and what's yours is mine."

However, with each passing year, I see less and less difference in the two major parties, who I now view as the Repubocrats, in their increased willingness to to substitute a bastardized system of corruption, political cronyism, incumbancy at any cost, big government, etc.

So, being left with no place to go, I have two choices: become apolitical, or try in my small way to speak up against the the more egegrious missteps of the Republican party, in the slim hope that people will gain influence in that party who are honest, who are true capitalists (and I might insert that "Big Business" strikes me as less and less capitalistic every year, and more and more dependent on government favors, government hand-outs, and more and more likely to escape punishment for out and out fraud which is one of the main functions of the judicial system in a truly capitalist society) and who can return that party to the Republicanism of Reagan and Goldwater. I found neither perfect, because of my libertarian slant, but they came closest to what I think were the ideals which represented the views of the founders of this nation. FDR came least close.

Chris, thank you for your words, which accurately state my intent. I wasn't comparing anyone to Hitler, whose name I never mentioned. I was expressing my belief that the more people are insensitized to corruption, assaults against human decency, and the abandonment of a heroic view of human nature and the passionate concern for the rights of each individual which issues from that belief, the liklier it is that the noble experiment in government which created this country will fail.
1.30.2006 2:18pm
volokh watcher (mail):
JaO:

you are entirely right about the irony in my posts . . . and it is bitter irony at that.
1.30.2006 2:40pm
Kovarsky (mail):
There was a good article in salon recently about how if the surveillance was found to be illegal it will have the purverse effect of keeping a lot of vital information out of court.
1.30.2006 2:59pm
colts41 (mail):
Kovarsky said: "There was a good article in salon recently about how if the surveillance was found to be illegal it will have the purverse effect of keeping a lot of vital information out of court."

My impression from the administration's statements, and posts here, is that *regardless* of the legality of the domestic spying regime, vital information will be kept out of court for the reason that the administration doesn't want anyone to know what's going on.

Of course I may be wrong about that. But if I were defending someone against whom the DOJ wanted to use some of this vital information, I'd try to put in the record -- and the Sixth Amendment requires a public hearing -- as much background info as possible.
1.30.2006 3:03pm
KMAJ (mail):
Kovarsky,

The article is full of half-truths. It is written from a position of advocacy to support one side of an argument. I have seen this tactic used time and time again. You minimize the focus on some facts and maximize it on others. Sometimes this is done because doing so makes the story more compelling, sometimes it is used as a technique to support innuendo and sometimes it is doen because to do otherwise would make their past reporting come under question and diminish their credibility and integrity. I have sat in on enough story meetings where these types of points were made as to how the reporter should cover a story and editorial meetings where they make changes to a submitted story. In the televison newsrooms, it is usually the executive producer who carries out this function, or the News Director or Assistant News Director, if it is a big story or they have a personal interest. In newspapers and magazines, it is the editorial desk's function. Rarely does any story get aired or printed exactly as submitted.

Specifically, this story, shows the intent of the reporter and edotorial desk to paint Goldsmith, and Comey in a favorable light, while casting a negative pall over Addington and the administration. What is the reason for such an advocacy position ? To sway public opinion. Reporters and editors are not unaware of how they tell their story can influence public perceptions, any journalist who claims otherwise is lying through their teeth. They are also aware that if they go overboard, and use more blatant verbal insinuationss, their story will be dismissed on its face. Hence the choice of a more subtle presentation and choice of words to paint a picture they want the public to perceive.

So when I read a story, I always look to see if there is some slant that is implied, elevating one position over another. Observe the choice of words, sometimes picking one synonymous word over another can change the complexion of a story. What has been the past positions of this news organization and/or reporter ? I do think Bernard Goldberg has it right when he says for the most part, the bias in the old media is inherent and not deliberate. It is an undeniable fact that a large majority of people in the journalism profession have personal beliefs that lean left, study after study has proven this to be true. It would be unrealistic to think those beliefs do not sometimes bleed through into the stories. Though I must say, there has been an increase in deliberate bias mirroring the polarization that exists in this country and the dislike the MSM has for this president.

One glaring area of bias is in their coverage of economic news, gloom and doom makes page one, good news is buried in the business section.

Personally, I think we are seeing the old media self-destructing, subscription rates are way down, viewership is way down, some of it is due to the technological advances that give people more choices for getting news, but if it were the only cause, all news providers would be declining. FOX News is going up, but that is not because they are less biased, it is because they have been given a monopoly on a segemnt of the population, a segment that is growing. By a 1.5 - 1 to almost 2 - 1 margin people self-identify themselves as conservative versus liberal (I cringe using that word because it is a misnomer because classical liberlaism is a conservative ideology, progressive would be more accurate).

Talk radio has had some impact, but I do not consider them news, they are entertainment programs with a political point of view. In a free market, as long as they can draw listeneres, they will survive because it is all about advertising dollars. I won't even start in on proposals by some to re-introduce the anti-free market Fairness Doctrine.
1.30.2006 3:23pm
JAFAC:
Interesting article...

My two problems with it are:
" but under Prime Minister Cheney, it became a vital power center, especially after 9/11." (from page 2; emp added) What happened to the multiple layers of editors? Or has the Constitution really been changed already?

And second (from page 4):
"But Addington 'usually had the facts, the law and the precedents on his side,' says Flanigan." (emp added)

It seems kinda hard to get too worried about it right now. I might change my mind later, but I know that civil liberties always go to the wayside when little things like facts, law, and precedents get in the way.
1.30.2006 3:25pm
Medis:
JAFAC,

I don't think it is a given that Flanigan is correct.
1.30.2006 3:30pm
Kovarsky (mail):
KMAJ,

No offense, and I do absolutely respect what appears to your extensive background, but I myself certainly understand the risks inherent in journalists as informational intermediaries.

I'm asking instead what, specifically, you think might be suspect in the article, other than the general cognitive (or epistemic) phenomenon that all writers subconsciously editorialize.

Even if each individual event reproted in the story has a 1/2 likelihood of being an untruth, the fact that N number of events were reported, all confirming the same intra-adminsitration feud, the likelihood of ALL of them being untrue is 1/(2^N). if N is sufficiently high, I don't know how you can take the articles thrust - that there was resistance within the administration - to be untrue. It is simply too large a statistical improbability.
1.30.2006 3:30pm
Kovarsky (mail):
JAFAC

I don't know if you made this representation deliberately or inadvertantly, but that part of the Article was quoting a colleague describing Addington's "M.O." generally, not to his possession of superior facts and precedent on the specific NSA issue that he and Goldsmith were fighting over.
1.30.2006 3:35pm
KMAJ (mail):
Kate1999,

The Federalist Society, while considered a conservative organization, encompasses various beliefs from libertarian to paleo-conservative to neo-conservative to moderates within its ranks. You believe the state should protect our freedoms, but it seems you believe the state should tell us what freedoms are. I have stated quite frequently that it is a delicate balance between security and civil liberties in today's world. Civil liberties are not much good if you are dead or if the economy is destroyed by a terrorist attack.

I would be interested in your take on entitlement programs, the First Amendment, especially the Establishment Clause, and the Second Amendment. I do have to thank you for calling me a radical left winger, it certainly provided a chuckle.
1.30.2006 3:42pm
KMAJ (mail):
Kovarsky,

I do not make the argument that there was no clash between factions in the administration. Those types of things occur in every administration. It is in the presentation that one side is good and the other evil. Why is it necessary to demonize Addington and praise Goldsmith in the presentation ? They disagreed, so what ? Is that a shocking revelation that two people disagreee ? The very structure of such a presentation discredits much ot the story as news. Instead it becomes an opinion shaping editorial presentation.

My degree came before advocacy journalism became the accepted practice, neutrality was stressed. This article does not pass the smell test for neutrality. I have watched journalism evolve, from yellow journalism, what advocacy or 'gotcha' journalism used to be called, being denounced to now being endorsed and the primary news presentation. One shouldn't confuse yellow journalism as synonymous with 'sensationalism' or probably better known as 'if it bleeds it leads' journalism, though there is some overlap. Sensationalism has been around in journalism for as long as it has existed, as the public tends to be voyeuristic in their news consumption, and is why bad news leads and good news is not considered news, except as a feature story.
1.30.2006 4:00pm
colts41 (mail):
KMAJ said: "Civil liberties are not much good if you are dead or if the economy is destroyed by a terrorist attack."

Given the threat of terrorism for the rest of our lives and then some, why bother worrying about civil liberaties at all?

On KMAJ's premise, random house searches, quartering of soldiers, taking of property without any compensation, not to mention eavesdropping and no more jury trials, is all fine.

Why . . . because the president would say it's in the name of fighting terror, and what good are such quaint civil liberties if you're dead anyway.

Plus, if you haven't done anything wrong, you have nothing to worry about.
1.30.2006 4:29pm
Kovarsky (mail):
KMAJ,

So your point is that it's no big deal that the president's now highly controversial NSA program was itself the subject of a pitched inter-agency battle, with it's detractors being people that one would ordinarily expect to support such a program?

Or is your point that it is a big deal, but the article is "yellow journalism" because it inappropriately lionizes comey and goldsmith?

if it's the first, do you seriously believe that's "no big deal?"

if it's the second, OK, sure.

K
1.30.2006 4:32pm
KMAJ (mail):
colts41,

I said it was a delicate balance between security and civil liberties, I never inferred that civil liberties should be ignored.
1.30.2006 4:40pm
KMAJ (mail):
Kovarsky,

My point is that it is not as big of a deal as it is played up, though I would agree it is a news story, but not page 1. And that the presentation is not news, it is basically propaganda instead of news, because it seeks to influence opinion. It also takes the focus away from the criminal aspects that made the NSA surveillance a story in the first place. Why aren't they focusing on the law being broken by those who gave out classified information ? That is a much bigger story than a dispute between lawyers.
1.30.2006 4:49pm
Kovarsky (mail):
But if Bush's argument for the legality of the program rests not entirely on some external auditor, and instead on a wink and a nod and a "trust me, my administration made sure it was legal," isn't whether there was severe dissent within the administration highly relevant, A1 news?
1.30.2006 4:56pm
KMAJ (mail):
Kovarsky,

Whether one trusts DoJ oversight every 45 days, he did confer with select members of BOTH parties of Congress as well as the Chief Judge of the FISC. There were objections raised that led to the pull back of the program until those concerns was addressed. On whose authority can we definitively claim severe dissent ? Anonymous sources ? That is called rumor mongering, not news.

One thing must be realized about anonymous sources, they can, and often do, tell the reporter how to refer to them, i.e. a senior official in intelligence can be a Senator or Representative on the Intelligence Committee as well as an official in a number of agencies or departments. The way they cover for these anonymous sources can be semantic word play, such as, senior official in the Justice Department could be an official who frequently has business in the Justice Department as a liason between the Justice Department and another. Anonymous sources are notorious for furthering partisan spreading of information, or even to undermine.

As I have said, I do not argue that this is news, but the big news should be the leakers of classified information. The old media refuses to cover that aspect of the story. What if it turned out one of the leakers was a congressman ? Why didn't the media focus on the Senate Intelligence memo instead of Manuel Miranda ? Or the Judicial Committee memos ? We hear about Abramoff but there is no investigation of the largest provider of congressional junkets, The Aspen Institute (they provide five times as many junkets as the next largest one, the Ripon Educational Fund, which has ties to Abramof's law firm, Kessler). Could it be because they pay for more junkets for democrats by 2 to 1 ? There is only one logical answer, advocacy journalism and selective reporting. When the news media becomes a propaganda arm for either side, it is the people that lose.

Personally, I am disgusted with the state of journalism in this country. If it were really doing its job, there would be no FOX News, or, at least, not in its biased form.
1.30.2006 6:41pm
Defending the Indefensible:
KMAJ, are you intentionally ironic? Your latest post reads like something authored by Stephen Colbert.
1.30.2006 11:50pm
JAFAC:
Kovarsky
I didn't really think it was misrepresentation - basically inadvertently. I did, consciously, leave out a reference to the reporters following that quote with an un-quoted 'Cheney is his boss reference'. But yes, it is what he usually did, and not applied specifically to this situation. Would someone that is that much of a work-aholic vary his routine for this issue? The work-aholics I know never vary their routine and just come off as pushy, obstinate, and over-bearing; plenty of reason to leave a job in my book.

Medis
Correct - it is not a given. I don't think anyone in this article has facts to back them up and most of it is based on conjecture because some people left their jobs. There are a few references to the "Torture Memo" and sourcing such as "according to two sources who had heard accounts" and "According to colleagues".

I'll be honest -
1. I'm sick of the "King George III" meme and the title of this article as "Palace Revolt" put me off right away.
2. The article's protaginist is described right at the beginning as "Jimmy Stewart" while the antagonist has one good sentence (besides being a work-aholic) halfway down the fourth page; I only got a 'B' in psychology, and I can see Primacy/Recency (sp?) at work. (The theory that you are more likely to remember something at the begining and at the end ie "Jimmy Stewart" and "Now the healthy debate has started" vs the one sentence in the middle.)
3. 3 reporters couldn't catch the "Prime Minister" reference? I read the article over lunch and saw it right away. Is it sloppiness on their part? I assume so. (I hope they really didn't fail Government 101.) If it was someone's resume and I was reviewing it they wouldn't even get a phone call for a mistake like that.
4. I am not in a legal profession - I work in manufacturing. If I put the above together with the paucity of actual first-person facts, I get the impression that it is a grey area. If I knew my boss was giving their superior wrong information, I would be bound to go to that person and explain my point of view - not because it is the law, but because I have too many co-workers to care about. Not all of us could leave the company and find good jobs somewhere else; not to mention share holders. If these lawyers actually thought the law was being broken, aren't they bound to go through the chain of command? I know there is attorney-client privilege, but doesn't that go away if the client is breaking the law? So it looks like the ones that left or were fired didn't like the grey area they were in and didn't want to be held by precedants and existing law - I can't say I blame them if their story is true. But - I end up with it being back at a grey area and no immediate concern, but agreeably an area for further investigation. I think it is very seldom the inital application of findings and memos like this that go wrong - it is only when they last. 2 years from now we'll probably have a Democrat in office and easily the more obnoxious memos and findings will go away.
1.31.2006 12:24am
KMAJ (mail):
DtI,

It was intentional, but I must say I wish I could claim to have Colbert's comedic skills, ocassionally I get lucky and turn a phrase, so if it came off sounding like Colbert, thanks for the compliment.
1.31.2006 12:40am
Medis:
JAFAC,

To make my point more specific, Flanigan is not just a former colleague, but someone who reportedly worked with Addington to advance the specific agenda at issue. So, his opinion on the merits of Addington's arguments is even a little more subject to bias than usual for a former colleague.

Anyway, there are some uncontroverted facts, including the withdrawal of the two Yoo memos and the hospital visit with Ashcroft, which suggest that unusual and important events did occur. Whether Newsweek has characterized these events correctly is a different matter, but I do hope we get more information on these subjects in the upcoming hearings.
1.31.2006 12:57am
Defending the Indefensible:
KMAJ,

I suppose you could spend more time talking about yourself, but you were starting to head in that direction in discussing your journalism background in the halcyon days of unbiased media. Maybe you could carry on a point-counterpoint with yourself, but then it would be just too obvious, so I guess I had to play the straight man in the routine.

So about those testicles....
1.31.2006 1:07am
Defending the Indefensible:
KMAJ,

By the way, I do think the mainstream media is terribly biased, not in so much in a liberal vs. conservative way (except for FOX News, which is just pretty much straight neocon spin all the time), but in a universally pro-state advocacy. This is partly unavoidable, with the broadcast media depending on the FCC and government permission to "publish" at all, you can hardly expect them to give any time (not to speak of equal time) to perspectives which challenge or ridicule the state itself. It sneaks in anyhow, through comedy, but historically it's always been the privilege of the court jester to criticize the king.
1.31.2006 1:24am
KMAJ (mail):
DtI,

Naw, talking about myself is boring to me, so I can only imagine how droll it is to others.

As far as playing the straight man, it is always good to have a straight man with testicular fortitude...
1.31.2006 1:32am
KMAJ (mail):
DtI,

As I said, I think the bias is more inherent than deliberate. The old media has developed a pack mentality as they see their position of prestige and authority under attack from the right, specifically from blogs and talk radio, and they see this administration as the embodiment of the attack. Rather than taking an introspective look at the cause, they lash out without understanding, but simply to protect their turf. It has only served to re-enforce that biased perception among the public, as polls have verified. The FCC is a pretty much feckless organization, to get your license pulled you have to do something pretty egregious and have no control over the print media.
1.31.2006 1:52am
Defending the Indefensible:
KMAJ,

Politics aside, anti-establishment views are something you can find widely online but, apart from shows like South Park, not so much in broadcast media. Print is a separate matter, but here I think the newspapers are constrained by avoiding offense to advertisers in light of a very high distribution cost and a need to defray that by a lot more than the 50 cents or a buck someone will lay down for a copy. Mostly we get the paper because my wife likes to clip the coupons, anyhow (and we signed up for just the sundays, but they gave us the dailies for free for six months). There are of course magazines and other print outlets with alternative perspectives, but nothing compares to the internet in leveling the field.
1.31.2006 2:31am
JAFAC:
Medis:

Agreed.
1.31.2006 3:43am
farmer56 (mail):
Why not the obvious? The persons that wrote the law, clarify the law?

But, What would be the result? What would happen after another attack on our Nation? Consider the outcome. Then, realize that not a single elected member of congress is able to offer up a fix of such a terrible usurpation of power by the executive branch. 'Cause, the fight is better than the fix, and every single member of congress know what GWB is doing is the right thing.

Just a small game of what if.

The courts stick their nose in, and rule against the executive branch. How long after another attack would it take congress to enact a law that would be close to the same as what we got now. Come on! think it thru.
1.31.2006 9:45am
Medis:
Of course, we do not know yet what Congress will do. Quite reasonably, they are starting with an investigation of what has actually happened.
1.31.2006 12:01pm
Defending the Indefensible:
farmer56:
But, What would be the result? What would happen after another attack on our Nation? Consider the outcome. Then, realize that not a single elected member of congress is able to offer up a fix of such a terrible usurpation of power by the executive branch. 'Cause, the fight is better than the fix, and every single member of congress know what GWB is doing is the right thing.
Apart from the fact that the administration has asserted the constitutional authority to ignore congressional legislation in the field of foreign (or domestic but international) intelligence surveillance or other incidents of war? What is the point of congress legislating on the subject at all then?
1.31.2006 3:04pm
farmer56 (mail):
DtI

Congress can stop, at this moment. right now, immediedetely anything they wish.

It is called sepperation of powers.

The Executive Branch can not spend a single nickle.

(It's a fact, you can look it up)

You refuse to listen.

Got a bitch? write a law. See, I can't. Kerry can. Hillary can. Biden can. Why not?

Because the members listed above would be out of office in the next election cycle. because....The full Congress would NOT support their best friend in a re-elction campaign if they were put into a postion of an actual vote that would back up their own rehtoric.

Catch a clue. got a bitch. Write a law

The people are fine with what is happenning. that is why not a single member of congress has done a single thing to attempt to fix that of which they bitch.

See? if the majority of the Senate, and House passed into law what you find sooo bad. the president would be forced to stop. BUT? other than bitching on TV. Not a soul feels the need to do THEIR JOB.
2.1.2006 10:00am
Medis:
farmer56,

Are you the poster "corngrower" using a different name?
2.1.2006 3:15pm