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More on James Comey:
The Newsweek story I linked to yesterday began with an interesting note about James Comey's farewell address when he left the #2 slot at the Justice Department:
Comey's farewell speech, delivered in the Great Hall of the Justice Department, contained all the predictable, if heartfelt, appreciations. But mixed in among the platitudes was an unusual passage. Comey thanked "people who came to my office, or my home, or called my cell phone late at night, to quietly tell me when I was about to make a mistake; they were the people committed to getting it right—and to doing the right thing—whatever the price. These people," said Comey, "know who they are. Some of them did pay a price for their commitment to right, but they wouldn't have it any other way."
  The Newsweek report suggests that this unusual passage was a shout-out to others who opposed hardliners within the Bush Administration. I googled around to see if Comey made any more public statements around the same time that might contain additional hints. I came across one story, an August 8th 2005 Washington Post piece on Comey's decision to accept a position as Lockheed Martin's General Counsel. It's hard to tell whether Comey's statements to the Post were intended as another subtle dig or were unrelated to his DOJ experience, but I thought I would at least point them out:
  Comey said in an interview that he chose Lockheed from among a number of opportunities partly because of the company's clean reputation. . . . .
  "[Joining Lockheed Martin] strikes me as a logical extension of what I do now, which is help provide legal advice and manage a huge entity," Comey said. "I like what they do, I like their values and I like their leadership. They are a company focused on compliance."
(emphasis added).

  Was this just the generic reaction of a career prosecutor to a new private sector job? Or was it in part a subtle dig at some inside the Administration? I don't know. Still, it's an interesting possibility.
Medis:
Anyone know yet if Comey is going to testify in the upcoming hearings?
1.30.2006 12:12pm
Just an Observer:
Medis,

I was about to post the identical question about Comey and Goldsmith. A related question: What privilege might prevent them from testifying?
1.30.2006 12:21pm
srg (mail):
Medis and Professor Kerr,

I hope you will both comment on the recent article by Richard Posner in The New Republic, because, important as the legal and constitutional issues are, the security issues are even more so.

For the same reasons, today's NYT op-ed piece by Philip Bobbitt deserves your comments.
1.30.2006 1:22pm
Apodaca:
Here's a theory: Comey was referring not so subtly to Tim Flanigan, who was nominated in May 2005 to succeed Comey as Deputy Attorney General. First, Flanigan and his employer, Tyco, had ties to Jack Abramoff:
In the Abramoff case, Flanigan had direct dealings with the lobbyist after he left the White House and became Tyco's general counsel; in that post, he was responsible for overseeing a contract Tyco signed in 2003 with Greenberg Traurig, Abramoff's employer at the time.

Abramoff had promised to help defeat proposals for imposing tax penalties on firms -- such as Tyco -- that were incorporated in offshore banking havens, and he bragged to Flanigan about his connections to then-House Majority Leader Tom DeLay (R-Tex.) and to White House senior adviser Karl Rove, according to Flanigan's statements to the committee last month.
Second, Flanigan could easily have butted heads with Comey over the torture issue:
Flanigan served as Gonzales's deputy in the White House counsel's office, where he participated in White House discussions about an Aug. 1, 2002, memo prepared by the Justice Department suggesting strategies that officials could use to defend themselves against criminal prosecution for torture.
Comey was hardly a White House team player on this issue.
1.30.2006 1:38pm
DK:
He could also be referring to Boeing, one of LockheedMartin's top competitors, currently in major scandal trouble with the DOD.

Lockheed Martin isn't going to hire anyone to annoy Dick Cheney, but they might hire someone to show Congress they aren't like Boeing.
1.30.2006 2:05pm
Apodaca:
On second thought, the original Post article Orin refers to also says this:
Comey's friends said his tough-on-corruption reputation will be an asset to Lockheed, which has complained in recent years that it was the victim of improper behavior by Boeing Co., its rival for defense contracts. Pentagon acquisition official Darleen A. Druyun negotiated a job with Boeing while still overseeing the company's contracts with the Air Force. Druyun later admitted to having shown Boeing favoritism over Lockheed, and she was sentenced to nine months in prison.
So perhaps Comey's statement was just a subtle slap at Boeing.
1.30.2006 2:07pm
sir mix a lot:
according to the WSJ Washington Wire last Friday, Schumer has asked Spector to have Comey testify.
1.30.2006 2:23pm
Medis:
srg,

As an aside, I will note that unlike Professor Kerr, I don't have a blog, so my comments on issues are necessarily a bit piecemeal.

However, I have in fact read Posner's TNR piece. A few general comments:

First, I don't think many people will be quite as quick as Posner to accept the proposition that our legal inquiries should start with a consideration of the relevant social policies. For example, I think that for many people, even asking about the relevant social policies may be contingent on whether the laws, in light of their text and structure, are sufficiently ambiguous to warrant consideration of such factors. Of course, Posner is right that considering such policy matters is important to the issue of what the law SHOULD be like. Still, I think a lot of people would prefer a harder line between what we think the law SHOULD be and what we think the law IS than Posner is willing to entertain.

Second, I think Posner is mischaracterizing FISA when he implies it is a 1978 law based on a criminal model. Even in 1978, FISA already departed from the criminal model in many relevant ways precisely because it was self-consciously designed for foreign intelligence purposes. Moreover, as far as I recall, Posner more or less omitted discussion of FISA as amended by the USA-PATRIOT Act, which was specifically intended to update FISA in order to make it an effective tool for use in post-9/11 anti-terrorism efforts. Of course, FISA might still be poorly designed as a matter of substance, but the idea that it is somehow not intended to deal with precisely these issues is quite misleading.

Finally, Posner has some interesting ideas on privacy issues in general, one of which is that he places very little, if any, weight on the notion of privacy per se--meaning, for example, that he thinks the only valid concern is about the government misusing information, and not with the government simply having information, about our private communications. I don't think everyone shares his intuitions on this subject, and hence I think his analysis of the relevant issues tends to be too limited.

For example, his basic point is that the initial detection of terrorists is potentially valuable, and he thinks that we should be satisfied with the government casting a very wide detection net so long as the government cannot misuse the information that it obtains. But I think a lot of people would not want the government "eavesdropping" on their private conversations even if there were laws and procedures in place to minimize the ways in which the government could actually use that information (of course, no such laws and procedures would be perfectly effective, but that is another matter).

And that, I suspect, is ultimately going to be one of the crucial questions: how much security are we willing to give up in the name of privacy, or vice-versa? And I don't think there is an obvious answer to that question, but by setting it up as merely a security-versus-abuse-of-power question (which, to be sure, is important as well), I think Posner has loaded the issue in favor of security.

But all that said, from a policy standpoint, one cannot be sure of the "right" result until one knows more about the actual details of the program. However, as I noted, I'm not sure that addressing such policy concerns should really be the first step in our legal analysis.
1.30.2006 2:37pm
Alfonzo S. Tangerine (mail):
I work for Lockheed. Since going through a couple of bribery scandals back in the '80s (long before my time), LM has been hard-over from the executive level at preaching ethical behavior, particularly in relations with customers (i.e., the government). I don't know Comey from Adam, but the language he used in the statement quoted here is very close to being verbatim from the LM official propaganda--uh, I mean, policy statements that I see all the time in internal mass emails from executives and others involved in the ethics program.

In other words, he's saying what his new bosses want to hear.
1.30.2006 2:47pm
Medis:
I just read Bobbitt's Op/Ed, and I would note a couple similar points. Again, he starts with pre-9/11 versus post-9/11 framework, without mentioning that FISA was amended by the USA-PATRIOT Act. For the reasons I have stated before, I think this is a crucial omission.

In general, while he does mention protecting the privacy of innocent individuals, he doesn't get into the very strong possibility that there will be a tradeoff between the effectiveness of our detection efforts and the privacy interests of innocent individuals. Again, I think it is virtually inevitable that we will have to make some tough choices in this area.
1.30.2006 2:48pm
srg (mail):
Medis,

I am not sure yet whether I agree with your last posting, so I'd like to deal with this whole issue in a more general way.

As you of course know, there is a lot we still do not know about precisely what the Bush administration has been doing, and therefore none of us can say for certain if they have broken the FISA law or violated the Constitution. Professor Kerr and Cass Sunstein think that they have probably not violated the Constitution, though Kerr thinks they probably broke the FISA law, with the qualification that we do not have all the facts yet. You will probably disagree, but I think there is a case to be made that, given the high stakes after 9/11, and given the fact that there are, arguably, good constitutional and legal issues on both sides, it was defensible for the Bush administration to go ahead and take a highly aggressive position on warrantless wiretapping.
I wonder if you, as a civil libertarian, are not concerned that another attack like 9/11 or worse would be devastating for civil liberties, as well as in other ways, and therefore whether you are not willing to give the President some slack in a case where there are good arguments on both sides. I ask this even though I would have been more comfortable if Bush had been open about what he was doing and either tried to get the law changed or explained from the beginning why he thought doing so was unnecessary. (The counter-argument to this is that he feared he would lose either in the courts or, if he tried to get the law changed, in Congress, and thought it was vital to avoid these possibilities by simply going ahead and acting. Not altogether kosher, perhaps, but not so dissimilar from what Lincoln did in the Civil War when he suspended habeas corpus. Lincln was more open about his acxtions, but he had to be, whereas Bush did not and may have feared that openness would both inform the enemy unnecessarily and invite Congressional or court action better put off as long as possible.
1.30.2006 3:56pm
Medis:
srg,

I think we need to disaggregate a few issues. I would agree that it is difficult to assess whether or not this program was unconstitutional under the 4th Amendment, or whether it struck an appropriate balance between civil liberties and national security, without knowing a lot more about the details of the program. So, while I have sometimes participated in discussions framing those issues, I haven't offered any proposed conclusions.

In contrast, I think we are in a decent position to evaluate the Administration's statutory and separation-of-powers arguments, because in my view, those arguments do not depend heavily on the details of the program. Indeed, once the Administration granted that the program involved electronic surveillance within the meaning of FISA, I think we were in a pretty good position to assess the remainder of these particular arguments.

Personally, on those issues I don't think the Administration actually has much in the way of good arguments on its side. As I have frequently suggested before, their root principle seems to be that only the President, and not Congress, has a constitutional role in regulating the conduct of war. I think that proposition is at odds with the text and structure of the Constitution, particularly in light of contemporaneous events and legal sources, and it has been rejected by the Supreme Court whenever it has been seriously tested. So, I am pretty confident with the conclusion that the Administration's legal arguments on these issues are very weak.

Incidentally, I'm not particularly confident in Congress when it comes to civil liberty issues, and I agree that if there is another 9/11-magnitude attack (or worse), civil liberties may be more severely curtailed. Of course, I would note that could happen whether or not we approve any particular program in the meantime.

In any event, to paraphrase Churchill, our system of government is the worst form of government except for all the others. So, what I personally find so troubling about this Administration's arguments is that in my view they are indeed trying to push us into an importantly different system of government, and I think that is unwise in addition to being unconstitutional.
1.30.2006 4:30pm
Tyrone Slothrop (mail) (www):
In other words, he's saying what his new bosses want to hear.

Dollars to donuts the statement was drafted by the PR folks.
1.30.2006 4:30pm
Apodaca:
Tyrone Slothrop says:
Dollars to donuts the statement was drafted by the PR folks.
Loath as I am to ignore the advice of your literary creator (who advised one not to, er, intermeddle with der Raketenmensch of Gravity's Rainbow fame), I'd bet you're wrong. Comey was still in the employ of DOJ at the time, and I very much doubt that he was doing a rip-n-read of talking points from his future employer.
1.30.2006 5:28pm
Just an Observer:
srg,

I read Bobbitt's piece, and while I don't endorse everything he said about the contours of an amended FISA, I note that he made his points in the context of a legislative policy debate. (I, too, am interested in that debate.) Notably, the author showed respect for the rule of law.

However, I was slightly chilled by your own reaction, which seems a politely worded apology for a President's defying Congress and possibly even the Supreme Court because in his sole judgment it's good for the country.

I have noticed a smattering of such sentiment -- to defy the court, if it comes to that -- around the blogosphere. That would really take this matter to the next level. I hope this is just coincidence, and that such comments do not reflect any trial balloons or talking points emanating from 1600 Pennsylvania Ave.
1.30.2006 6:47pm
Dave Hardy (mail) (www):
He might just be a wise administrator. In my experience with the bureaucracy, at each stage bad news gets screened out, so all a guy at any high level hears is good news and how right the organization is. Moreover, despite job security, most bureaucrats are timorous when it comes to telling the boss that he's gonna get himself in trouble. Especially when he's about to follow a course of action endorsed by their own boss.

A wise administrator will thus prize the people who dare tell him when he's about to screw up. As he noted, some of them paid the price.
1.30.2006 9:05pm
srg (mail):
Just an Observer,

So far the President has not defied Congress or the Supreme Court.
1.31.2006 10:05am
srg (mail):

Medis,
You wrote:

"Personally, on those issues I don't think the Administration actually has much in the way of good arguments on its side. As I have frequently suggested before, their root principle seems to be that only the President, and not Congress, has a constitutional role in regulating the conduct of war. I think that proposition is at odds with the text and structure of the Constitution, particularly in light of contemporaneous events and legal sources, and it has been rejected by the Supreme Court whenever it has been seriously tested. So, I am pretty confident with the conclusion that the Administration's legal arguments on these issues are very weak."

These are the same arguments the administration made in the Hamdi case, and only Justice Thomas agreed with them. I agree with you and the other justices that this is a weak argument, but I don't think this is the case they are making so far over the FISA law. The Gonzalez brief contains other arguments beyond that of absolute presidential power in time of war (for example the alleged contradictions between AUMF and FISA), and while you may think those are weak arguments too, they are certainly less weak than the argument you deal with here.
1.31.2006 10:13am
Just an Observer:
srg: So far the President has not defied Congress or the Supreme Court.

My remarks were not about so much about the President, but about your post. It indicated that you think it might be acceptable for Bush to act contrary to the intent of Congress, even if he thought the courts might rule against him:

The counter-argument to this is that he feared he would lose either in the courts or, if he tried to get the law changed, in Congress, and thought it was vital to avoid these possibilities by simply going ahead and acting. Not altogether kosher, perhaps, but not so dissimilar from what Lincoln did in the Civil War when he suspended habeas corpus.


Since Lincoln did defy the Supreme Court in that instance, I took your post to be an endorsement of such behavior in the current situation.

Of course, the courts have not ruled against Bush on the merits of his aggressive interpreation of the law; because of standing issues, those issues may never reach adjudication. But hopefully, the Supreme Court may resolve these questions someday.

If the court did rule against Bush and found the NSA surveillance to be illegal, would you excuse him if he continued the program in the face of such a ruling?
1.31.2006 10:52am
srg (mail):
Just an Observer:
No.
1.31.2006 11:04am
Medis:
srg,

As an aside, I think the Administration's "White Paper" actually does a good job of explaining how their statutory arguments depend in part on their "Article II" arguments. The CRS analysis similarly discusses this aspect of their argument in detail.

Anyway, I've analyzed all of those arguments in detail before, so I won't do so again here. I'll just suggest that I do think that given the texts of the relevant laws, and the history of legislative events culminating in the amendment of FISA in the USA-PATRIOT Act (which came after the 2001 AUMF, of course), the Administration's independent arguments for the proposition that Congress intended the 2001 AUMF to supercede FISA at the discretion of the President are extremely weak. Indeed, I think the Administration's arguments on this issue run counter to the standard doctrine of implied repeal/amendment in several crucial aspects, and on their own would have almost no prospect of success.

So, in my view those arguments ultimately depend on the Article II arguments via the Administration's attempted invocation of the doctrine of constitutional avoidance. And again, I think the CRS analysis does a good job of explaining how the Administration is misapplying that particular doctrine in this case.

Which I think leaves the Administration with their Article II argument itself, and I do think that one way or another (either directly, in a "Category Three" sense, or indirectly, through a new version of the doctrine of constitutional avoidance), all of their arguments ultimately must rise or fall with that particular proposition.
1.31.2006 11:08am
Medis:
On the issue of defiance:

I think it is interesting to ask how one defines "defying" Congress. Arguably, by bypassing FISA as amended by the USA-PATRIOT Act, the President actually has already defied Congress. Alternatively, with his signing statement on the McCain Amendment, the President arguably has explicitly made clear his intention to do so in that area as well.

But perhaps what we are missing is a combination of both elements: the President explicitly declaring his intention to defy Congress, and then actually doing so.

In any event, this strikes me as just a semantic issue.
1.31.2006 11:14am
srg (mail):
Medis,

In what specific ways did the Patriot Act modify FISA? (Perhaps you have dealt with this already, but I missed it.)
1.31.2006 1:48pm
Medis:
srg,

There were a large number of modifications, and I couldn't name them all by memory. Off hand, and in no particular order, I believe that FISA was amended to allow for roving wiretaps, the duration of some surveillance orders was increased, it expanded the scope of the pen/trap and business records provisions, the purpose section was amended (from primary purpose down to significant purpose), it provided some additional immunity for complying with FISA orders, and (perhaps most notably, or perhaps not) it expanded the time for emergency orders from 24 to 72 hours.
1.31.2006 4:07pm
Just an Observer:
An update on the question of what details, and what witnesses, will be available at the upcoming Judiciary Committee hearing from today's NYT: Senate Panel Rebuffed on Documents on U.S. Spying

It appears that as of today, Gonzales is the only scheduled witness, and the DOJ has denied requests for relevant OLC memos. Schumer wants subpoenas. Specter says the matter isn't closed.


Mr. Specter would not address the committee's request for the classified legal opinions, except to say, "that's not a closed matter — we're still working on that."

... With two additional hearings scheduled on the program after Mr. Gonzales's appearance, Mr. Specter said he was also considering seeking testimony from former Justice Department officials, and perhaps even input from the FISA court itself.
2.2.2006 11:03am