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Full Transcript of Comey Testimony on NSA Surveillance Program:
Marty Lederman has posted the full transcript (.pdf) of James Comey's testimony today. It's pretty riveting stuff.

  If I'm reading the transcript correctly, it seems that most of the highest-level officials in DOJ were ready to resign over the NSA Surveillance program when the White House decided to continue it without DOJ approval. The Office of Legal Counsel under Jack Goldsmith had come up with parameters under which DOJ was willing to approve the program as legal — perhaps within the scope of the AUMF? who knows — and it sounds like the then-existing program was broader than what OLC thought was permitted. Comey agreed with OLC's legal analysis, so he wasn't willing to give DOJ's approval to the program.

  So Card and Gonzales (then WH Counsel) go to Ashcroft at the hospital to try to persuade Ashcroft to overrule Comey. Comey gets word of what is happening, and he gets to the hospital first and tries to get Ashcroft ready for Card and Gonzales. Comey explains:
And so I raced to the hospital room, entered. And Mrs. Ashcroft was standing by the hospital bed, Mr. Ashcroft was lying down in the bed, the room was darkened. And I immediately began speaking to him, trying to orient him as to time and place, and try to see if he could focus on what was happening, and it wasn't clear to me that he could. He seemed pretty bad off . . . I tried to see if I could help him get oriented. As I said, it wasn't clear that I had succeeded.
  Soon Goldmsith and the ADAG are there by Ashcroft's bedside, and a few minutes later Gonzales and Card arrive. Comey explains what happened next:
They greeted the attorney general very briefly. And then Mr. Gonzales began to discuss why they were there — to seek his approval . . . .

And Attorney General Ashcroft then stunned me. He lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me — drawn from the hour-long meeting we'd had a week earlier — and in very strong terms expressed himself, and then laid his head back down on the pillow, seemed spent, and said to them, But that doesn't matter, because I'm not the attorney general. . . . There is the attorney general, and he pointed to me, and I was just to his left.
  (Hollywood, are you getting this?) Anyway, the White House ended up not getting DOJ approval for the next period of the program; the President authorized the order for another 45-day window without DOJ's signature. This led the top people at DOJ to move towards resigning. As Comey puts it, "I didn't believe that as the chief law enforcement officer in the country I could stay when they had gone ahead and done something that I had said I could find no legal basis for." As I understand it, Comey, FBI Director Mueller, AG Ashcroft, and several other high-level officials were ready to resign.

  The crisis was defused when President met with Comey 1-on-1. It sounds like the President personally either gave in or reached a compromise with Comey (it's not clear to me which) that refashioned the program in a way that DOJ was willing to approve.

  Are others reading the transcript the same way? Either way, this is pretty remarkable testimony. (Update: I have added to the original post.)

  UPDATE: Over at Balkinization, Marty is asking a good question -- Who Will Play Gonzales and Card and Addington in the Hollywood Movie of the Comey Testimony?
Zathras (mail):
I think you're reading it correctly. And Gonzalez's treatment of Ashcroft borders on the ghoulish.
5.15.2007 4:09pm
Martin Ammorgan (mail):
Even when Mr. Ashcroft is sick, drugged, and lying in darkened hospital room, he shows more integrity than Gonzales. Remarkable.
5.15.2007 4:15pm
Anderson (mail) (www):
That's how I read it, too -- presumably, the resignations of Ashcroft &Comey would have blown the lid off the NSA program (if that's the one Comey refers to) well before the 2004 elections.

Most amazing part from the transcript, re: the FBI agents stationed at Ashcroft's room:

I went out in the hallway. Spoke to [FBI] Director Mueller by phone. He was on his way. I handed the phone to the head of the security detail and Director Mueller instructed the FBI agents present not to allow me to be removed from the room under any circumstances. And I went back in the room.

*This* is how our gov't was functioning?
5.15.2007 4:16pm
Amazing:
It is remarkable testimony. It reads like it's right out of a Hollywood script.

And people thought Aschroft was a GOP partisan hack yes man for Bush. Ashcroft looks like a model of independence compared to Gonzales. Not to mention bugging Ashcroft when he's seriously ill.
5.15.2007 4:18pm
Just an Observer:
Wow.

That is my first general reaction (first posted at Balkinization.)

This should spawn an expanded investigation into the warrantless surveillance program and legal liability at the highest levels. How can there not be a special counsel now, and possibly a grand jury?

On a specific detail, I wonder why the FBI director was intimately involved in these dramatic events, but the NSA director apparently was not.

The publicly described "Terrorist Surveillance Program" was all about activities of the NSA to intercept communications traffic involving at least one party abroad. The New York Times stories described large-scale intercepts by the NSA at centralized telecom switches.

But my understanding is that the FBI typically performs purely domestic intercepts, as well as physical searches, for purposes of both criminal investigations and foreign-intelligence surveillance.

Perhaps that offers an important clue. In any event, there has always been a mystery about what was changed in the actual program in 2004 to render it even colorably legal in the opinion of DOJ during this time period. We also do not have the OLC legal opinions from 2002-2004 and later rationalizing any form of the program, although we have been told by Gonzales that the legal rationale changed over time.

(Bear in mind that even the modified program, as described publicly by Gonzales and other administration officials last year, has been held to be illegal by a federal district court. That ruling is being appealed, and DOJ relies mostly on technical arguments of standing and privilege rather than merits arguments in an effort to overturn it.)
5.15.2007 4:20pm
Steve:
It's no wonder they made such a priority out of getting as many hacks as possible installed at DOJ. Having all these principled people around must have been so inconvenient.
5.15.2007 4:33pm
Crust (mail):
I thought this part was particularly powerful:


Mr. Ashcroft's chief of staff asked me something that meant a great deal to him, and that is that I not resign until Mr. Ashcroft was well enough to resign with me. He was very concerned that Mr. Ashcroft was not well enough to understand fully what was going on. And he begged me to wait until — this was Thursday that I was making this decision — to wait til Monday to give him the weekend to get oriented enough so that I wouldn't leave him behind, was his concern.


Apparently not only Comey, but also Ashcroft and Mueller were willing to resign over what they thought was illegal surveillance.
5.15.2007 4:38pm
Dave N (mail):
"John Ashcroft is unqualified to be Attorney General. He is a right-wing nut. Defeating his nomination has to be a top priority."

Oops, wrong playbook.
5.15.2007 4:44pm
Stuart Buck (mail) (www):
Here's what Jack Balkin said in 2004:
Over and over again John Ashcroft has asserted that he needs virtually absolute, unreviewable powers to make this nation safe. And each time he has exercised these powers, he has abused them. In the past four years he has proven himself repeatedly to be little more than a shameless, incompetent demagogue.

The rule of law exists for a reason. It exists to protect us from people like John Ashcroft, the nation's chief law enforcement officer.
I wonder if he (or numerous other commentators) will revise remarks made at the time?
5.15.2007 4:49pm
DJ (mail):
Am I wrong in concluding from this that Ashcroft, Comey, and Goldsmith refused to sign off on the legality of the reauthorization of the surveillance program because of the manner in which the program was being implemented? Which means (if I'm right) that DOJ had concluded that the Administration was acting illegally? And, if so, doesn't that mean that Gonzalez and Card were aware of the fact that DOJ believed the Administration was acting unlawfully, and yet they tried to get Ashcroft to sign off on it anyway?

If my reading of this is right, I just don't see how Gonzalez can survive this revelation. Or why he should.

Tne good news: Comey testified that there was no retribution against him for taking a stand. And President Bush, it seems, had the good sense to do the right thing once things came to a head. (I'm assuming for his sake that the White House actually made the changes to the program that Comey demanded. If not, it's I-word time.)
5.15.2007 4:51pm
Crust (mail):
Dave N, Stuart Buck:

The relative praise these days for Ashcroft over Gonzales can be read two ways...
5.15.2007 4:56pm
Crust (mail):
Gonzales in Feb. 2006 on why Comey and Ashcroft should not be allowed to testify on eavesdropping:

You have to wonder what could Messrs. Comey and Ashcroft add to the discussion.
5.15.2007 5:03pm
Steve:
If what Comey refused to approve was the reauthorization of the program, I guess I'm confused about who (presumably Ashcroft?) approved the program in the first place.

This also calls to mind Gonzalez's long-ago testimony about the NSA program, in which he was asked why, if it was so important to ignore FISA in order to protect the nation, the NSA program was limited to calls where one party was outside the US. (Presumably, if both parties are inside the US but one of them is known to have al-Qaeda ties, the urgency of eavesdropping with or without a warrant is hardly lessened.) His response was basically that this is where President Bush had decided to draw the line in order to balance national security and civil liberties, which was rather unconvincing.

In retrospect, it now looks like these various self-imposed limitations on the NSA program were probably the conditions Comey insisted on in his one-on-one meeting with the President.
5.15.2007 5:04pm
Crust (mail):
DJ, as you say the President had the good sense to do the right thing in the end. But his earlier involvement was more problematic. Note that the visit by Gonzales and Card to the hospital was arranged by a phone call from the President himself to Mrs. Ashcroft.
5.15.2007 5:05pm
Anderson (mail) (www):
Buck: I wonder if he (or numerous other commentators) will revise remarks made at the time?

Oh, okay. So EITHER Ashcroft is an all-around good AG, OR he's a completely unprincipled hack. No middle ground.

Crust - ha! Great find!

DJ: Comey testified that there was no retribution against him for taking a stand.

That he knew of. It's very possible that this incident is why he wasn't tapped for AG. "Retribution" is not always a horse's head in one's bed ... regardless of how apt a comparison that seems to be for these creeps.
5.15.2007 5:06pm
DJ (mail):
No, Crust, Coney testified that he assumed the phone call came from the President, but that he didn't know.

Anderson: Read Specter's questions to Comey. And, for what it's worth, I can't think a DAG who was promoted to AG at the start of a second Administration. Not that it hasn't happened. But I doubt that Comey expected the job.

Steve: I think the issue wan't the program itself, but how it was being administered. That's Comey's clear implication. Indeed, it sounds like OLC had been working with the FBI to figure out exactly what was going on. So Ashcroft's prior authorizations of the program are beside the point.
5.15.2007 5:13pm
Hewart:
One only hopes, at this point, that there will come a day when someone understands this tangled mess well enough to actually make a made-for-tv movie out of it...
5.15.2007 5:19pm
dholl:
I have followed Jim Comey's career for a while, after watching his testimony to the senate judiciary committee regarding the Patriot Act renewal. I was struck with the grace and integrity with which he carried himself and made a mental note to see where he would end up. A stint as Boeing's gc was a little confusing, but this testimony will no doubt thrust him back into the limelight-- and in a good way. Hopefully, Americans can benefit from more of his public service.
5.15.2007 5:20pm
Keyes:
Orin:

To paraphrase Eric Muller, there you go again with another post that helps our enemies.
5.15.2007 5:22pm
Anderson (mail) (www):
DJ: I did indeed read the Specter portion, and as I said: "That he knew of." Pages 35-36 of the unnumbered PDF transcript.

That said, you are more likely right than not that Bush wanted a hack like Gonzales in the job.
5.15.2007 5:22pm
CollegeProf:
dholl,

Luttig is at Boeing; Comey is at Lockheed Martin.
5.15.2007 5:29pm
Stuart Buck (mail) (www):
So EITHER Ashcroft is an all-around good AG, OR he's a completely unprincipled hack. No middle ground.


No, Anderson, that's a silly misreading. No one is saying that Ashcroft was perfect. The point is that Balkin (and many others) demonized Ashcroft in such unremitting terms that they themselves left no middle ground, no room to acknowledge that Ashcroft could often be the good guy upholding the "rule of law."
5.15.2007 5:41pm
Philistine (mail):

Tne good news: Comey testified that there was no retribution against him for taking a stand


But he also said that he believed that the promotion of an associate AG who was present with him in the room was blocked because of this incident. (pp. 52-53 of the Transcript)
5.15.2007 5:43pm
Anderson (mail) (www):
Ashcroft could often be the good guy upholding the "rule of law."

"Often"? One swallow doth not a spring make.

I am curious to see what, if any, comment we get from Ashcroft on this story.
5.15.2007 5:45pm
Crust (mail):
DJ, here are Comey's exact words:

I have some recollection that the call [to Mrs. Ashcroft] was from the president himself, but I don't know that for sure. It came from the White House. And it came through and the call was taken in the hospital.

So you're right that I overstated it. This is a detail, but it doesn't sound to me like Comey assumed the call was from the President. Rather he thought he remembered that this was the case but was uncertain of his recollection.
5.15.2007 5:47pm
Felix Sulla (mail):

I am curious to see what, if any, comment we get from Ashcroft on this story.
I'm thinking, "Let the eagle soarrrrrrrrrr! Like he's never soarrrrrrred before!"
5.15.2007 5:50pm
Stuart Buck (mail) (www):
Anderson -- you say "one swallow" -- you're ignorant of this story, I take it?
5.15.2007 5:52pm
John Herbison (mail):
Hey, one swallow--by a zaftig intern wearing a blue dress--would have enabled President Clinton to avoid impeachment.
5.15.2007 6:24pm
Kovarsky (mail):
addington will be played by judi dench.
5.15.2007 6:25pm
Henri Le Compte (mail):
Get ready for an endless series of revisions of this type-- old Bush "hacks" become "good guys" once they are no longer in power. Oh... and when their rehabilitated status can be useful for bashing a Bush "hack" still in power.
5.15.2007 6:39pm
JunkYardLawDog (mail):
The attorney general's office is part of the executive branch and not an independent coequal branch of government. Before going to Mr. Ashcroft they should have fired Comey and many of his buddies. Comey is also the ass who gave the go ahead to Fitzgerald's follies after it was learned early on that Armitage at State was the leaker to Novak.

Comey and his buddies should have been fired long before this event. Elections are meant to have consequences and that means in ALL of the federal bureaucracy. Their are way too many federal jobs in Washington that have been protected far too long by civil service rules, etc. The President is the elected executive and the President should clean house when people are insubordinate. The President does have or should have the power to fire many more levels down in the federal bureaucracy than is current practice. The shadow government comprised of these government job for life types is completely unresponsive to the electorate and violate the entire purposes of our 3 branches of government with elections voted on by the people.

Screw Comey. He's idiot scum protecting our enemies by his stupidity.

Says the "Dog"

[OK Comments: JYLD, if you cannot make your comments in a civil way, you will not be permitted to make them here at all. I'll keep your comment up because it is unintentionally hilarious, but do not use such crude and insulting language again or else I will ban you from making comments. Says the "Cur"]
5.15.2007 6:39pm
Felix Sulla (mail):

The President is the elected executive and the President should clean house when people are insubordinate.
Because insisting that the law be upheld is rank insubordination. And while the President was exercising his limitless powers, he should have just declared Mrs. Ashcroft to be divorced from John Ashcroft. Because he shouldn't have needed to get her permission to send Gonzo and Card to the ICU to talk to Ashcroft, who was the President's slave to begin with. The electorate would have demanded it!
5.15.2007 6:45pm
Keyes:
The president (unitary or otherwise) certainly is the head of the executive branch. And he certainly should have the authority to discharge executive-branch employees who do not execute his policies as he directs . . . subject to one limitation at least.

All executive-branch employees take an oath of office to "bear true faith and allegiance to the same [the Constitution]."

I always understood that oath to mean, as a federal employee, you first owed your allegiance to the Constitution and then to the Office of the President and then to the person holding that Office.
5.15.2007 7:03pm
Just an Observer:
Give JYLD a break. Defenders of Bush and Gonzales are at a loss waiting for the slick talking points to be generated. Comey's testimony today apparently caught them by surprise.

Tony Snow's initial reaction from the White House podium about Ashcroft in the intensive care unit of GWU Hospital: "Because he had an appendectomy, his brain didn't work?"
5.15.2007 7:22pm
Kovarsky (mail):
Orin,

His comments are always unintentionally hilarious. If that's reason enough to leave them up, then you can never take them down.
5.15.2007 7:24pm
JunkYardLawDog (mail):
OK,

Says the Giant Ego.


Got it,

Says the "Dog"
5.15.2007 7:30pm
Kovarsky (mail):
Question:

It does not seem to me that it would have been illegal to go ahead with a program that Justice did not certify. In other words, the failure of Justice to certify seems like it may have bearing on, say, an immunity inquiry, but it does not seem to have any bearing on whether hte underlying activity was legal.

I'm certainly not expert in this area of the law, so I'd be interested if those who are could share their thoughts (and only interested in those qualified opinions).
5.15.2007 7:31pm
JunkYardLawDog (mail):
Kovarsky,

I'm always happy to provide entertainment for the permanently stick up the .... crowd.


Oh, and I'm not necessarily saying anything about sticks and your personal posterior. Its just a general not directed to any particular person alive or dead general kind of opinion statement that free speech advocates usually defend, which offers the opinion that I'm always happy to entertain.

Says the "Dog"
5.15.2007 7:33pm
JunkYardLawDog (mail):
Keyes,

Its the President that gets to determine what the executive branch believes is constitutional or not. If any employee is unable to follow the directives of their superiors then they should quit instead of trying to make end runs around the policies established by the President.

Its just that simple, and then if they don't quit they should be fired for insubordination.

Says the "Dog"
5.15.2007 7:36pm
OrinKerr:
Kovarsky,

I think the point is that OLC *thought* the program was illegal as it was operating at the time. But there was no formal legal requirement (as far as we know) that DOJ sign on.
5.15.2007 7:36pm
Zathras (mail):
The "Dog:" If any employee is unable to follow the directives of their superiors then they should quit instead of trying to make end runs around the policies established by the President.

That didn't fly in Nuremberg, and it shouldn't fly now.
5.15.2007 7:47pm
Steve:
It's nice to see that Nixon-era thinking remains alive and well in some quarters: the law is whatever the President says it is. When we elect a President every four years, we apparently elect an entirely new system of laws as well.

If this were simply the view of a random blog commenter - that the actions of the Executive Branch are dictated not by law but solely by the President's commands - it would scarcely be worthy of mention. But in fact, this is the predominant philosophy within the White House itself, all the way up to the Vice President's office. All we can do is seek to educate people as to just how pernicious this theory of government is, so that we never elect the likes of this administration again.
5.15.2007 7:51pm
JunkYardLawDog (mail):
There are a lot of rotten apples at the Justice Deparatment and there is no wonder that the Bush administration tried to tame this beast a bit by taking over honors program appointments and finally making some firings. Not enough and not soon enough however. The DOJ is not a politics free zone of do gooders free from their own economic, political, and personal prejudices. The sweetheart deal that was given to Sandy Berger and the failure to enforce even all of the provisions of that sweetheart deal, like taking a lie detector test about what he stole, why, and what was said in the documents he illegally stole and then destroyed is just one example. The prosecutions of innocent border patrol agents for doing their jobs is another. Failures to prosecute voter fraud and other serious legal matters would be another. The overzealous and possibly illegal and certainly unethical handling of many of the Enron fallout cases would be further examples.

With all the sycophants around here who worship at the alter of some imaginary and fictional view of the DOJ and the federal bureaucracy in general a bit of a counterpoint to these views expressed in a common and colloquial manner seemed necessary to provide balance to the discussion.

At least that's my opinion, but I could be wrong.

Says the "Dog"
5.15.2007 7:51pm
Christopher Cooke (mail):
I here I always thought that Ashcroft was simply a nice singer. See this YOUTUBE video

I didn't know he had a spine.

JYD: the courts, not the President, are the final arbiters of what the Constitution means (See Marbury v. Madison). If an executive branch official believes he or she is being asked to carry out an unconstitutional order, he or she has an obligation to refuse and probably should resign, rather than participate in carrying out the order. That seems to be what the DOJ and FBI officials were planning to do, so I fail to see why they behaved improperly, even if you disagree with their views on the legality of the surveillance program.

SAYS THE CAT.
5.15.2007 7:54pm
JunkYardLawDog (mail):
Steve,

A complete strawman argument. What you describe is not what I other strong presidency proponents believe. Its your fantasy about what we believe, and then you argue against your fantasy. Nobody has claimed the laws change with the Presidential elections. So stick to reality.

Zathras,

What? I really don't think there is any connection between the quote you cited and Nuremberg trials. In fact the quote cited says exactly what Nuremberg said Nazi soldiers and officers should have done. If you don't understand that then you don't understand what Nuremberg was about.

OK,

OLC doesn't get to decide for the executive branch what the executive branch believes is constitutional unless that authority for that specific decision is delegated to the OLC by the President. Only the President gets to decide what the executive branch believes or doesn't believe.

Says the "Dog"
5.15.2007 7:58pm
JunkYardLawDog (mail):
CAT baby,

Where they went wrong, imho, as to this specific incident was in trying to make end runs around the President and his staff instead of just quiting. Yes courts get to decide constitutionality, if you buy into the whole Marbury thing, but the PRESIDENT gets to decide what the executive branch believes is constitutional, and there is no conflict with the Judicial branch unless there is a judicial decision directly and specifically opposed to the specific matter at hand. The PRESIDENT gets to determine what the executive branch believes the laws and prior case decisions mean unless and until there is a new case directly covering the specific matter at hand.

Says the "Dog"
5.15.2007 8:03pm
Steve:
Try to believe that the same person made both these comments:

Its the President that gets to determine what the executive branch believes is constitutional or not.

Nobody has claimed the laws change with the Presidential elections.

As an executive branch official, either your first duty is to the law as you understand it, or your first duty is to the law as the President understands it. If the latter, then the laws do in fact change with each election, for all intents and purposes. The President tells you what the law is and you either obey his orders or find a new job.

I'm not sure if this theory of governance bears more resemblance to the military or the monarchy, frankly.
5.15.2007 8:05pm
Kovarsky (mail):
JYLD,

Where they went wrong, imho, as to this specific incident was in trying to make end runs around the President and his staff instead of just quiting.

How were they making an end run around the President, when all involved acknowledge that the President had the authority to overrule Comey (and Ashcroft), but he elected not to do so after consulting with them? What is insubordinate, in the slightest, about that? Sure, they disagreed with Cheney and Addington and Gonzo and Card, but that is not "insubordinate." Comey and Ashcroft don't report to those people.
5.15.2007 8:06pm
badger (mail):

OLC doesn't get to decide for the executive branch what the executive branch believes is constitutional unless that authority for that specific decision is delegated to the OLC by the President.

The OLC is there for the protection of federal employees. Any federal employee that is asked to perform tasks that skirt legality deserve the considered advice of highly-trained lawyers as to whether or not what they are doing could land them in jail. Bush wanted NSA employees to listen in on domestic phone calls without obtaining warrants. This is almost certainly illegal under FISA and any employee following such an order could be prosecuted on felony charges and be imprisoned, regardless of whether the President believes the law was broken or not. NSA employees deserve an OLC and NSA general counsel that will tell them to the best of their ability whether or not they are at legal risk, not a stooge that parrots whatever the President believes to be most politically expedient.
5.15.2007 8:06pm
Steve:
An even better example, provided while I was posting.

"The PRESIDENT gets to determine what the executive branch believes the laws and prior case decisions mean," says the Dog.

"Nobody has claimed the laws change with the Presidential elections," says the Dog.

I guess the Red Queen must have declared that these statements aren't contradictory, or something.
5.15.2007 8:07pm
Steve P. (mail):
Cat:
There's no indication that the order was unconstitutional, just potentially illegal.

JYLD is right — the President could staff the Justice Department entirely with sycophants, and avoid this situation completely. Of course, this seems like a monumentally stupid idea, since the entire purpose of getting Ashcroft's signature was confirmation of independent legal oversight. If the AG was obligated to go with what the President wanted, why even bother with the signature? Undoubtedly the congressional committee that reviewed the program would no longer trust the Justice Department's evaluation if it were obvious that they were mindlessly following the President's orders.
5.15.2007 8:07pm
JunkYardLawDog (mail):
OK,

Now we have a real and interesting discussion going on instead of the usual boring blabber which some might consider common to those threads in which I don't participate.

Kovarsky, I view Comey's running to Ashcroft when he got wind of the President's people heading to meet with Ashcroft being a clear attempt at making an end run. I will give you it could be argued otherwise since he reported to Ashcroft. What we don't know is how much of the political bias and other prejudices of the people at DOJ and OLC were responsible for their "opinions" as opposed to looking at the law to determine whether something was *clearly* and *irrefutably* wrong versus *possibly* wrong under *some* possible views of things.

Badger,

You do raise some valid and interesting points, even if you are wrong about your assertions regarding illegality and FISA. Again however, the solution to this quandary is if you don't want to do what you've been asked to do then quit and get a new job, just like every other private sector employee has to do when asked to do something they think is or might be illegal.

Steve, your analysis is so limited. If your red queen analysis were correct then you would also have to agree that the laws change every time a new judge takes the place of prior judge. Since two different judges might have different opinions about what the laws and prior cases mean. Instead of looking for the rabbit, look in the mirror because you have become the rabbit.

Says the "Dog"
5.15.2007 8:23pm
Anderson (mail) (www):
Stuart Buck: In the spirit of comity, I will see your two swallows and fold, insofar as the extremity of Balkin's claim is cast into doubt. (I noted you commenting at his place -- you might bring the 2004 post to his attention.)

That doesn't make Ashcroft a good AG -- even Hans Frank, to shift the egregiousness by several orders of magnitude, got upset when the Nazis didn't follow the correct forms. However, it does show that Ashcroft had more instinct for the rule of law than Balkin gave him credit for, and that he was Robert Effin' Jackson compared to the hoods now running the place.
5.15.2007 8:29pm
Anderson (mail) (www):
Steve, your analysis is so limited. -JYLD

It is to laugh.
5.15.2007 8:30pm
billtb (mail):
This was news, when it first came out, in January 2006.

Why is old news news again? Oh I get it, the donks are in charge and they think their half dead parrot, the dino media will 'cover it once again' as news.

google it up, see for yourself — AP January 2006.
5.15.2007 8:35pm
Edward A. Hoffman (mail):
JunkYardLawDog wrote:
I view Comey's running to Ashcroft when he got wind of the President's people heading to meet with Ashcroft being a clear attempt at making an end run.
Actually, Gonzales and Card were the ones attempting an end run. Comey, as acting A.G., had the final say as far as the Justice Department's position. Ashcroft temporarily had no authority, as even he stated to Card and Gonzales after telling them what he thought of the surveillance program's legality.

Because JYLD believes end runs amount to insubordination and that insubordination should cost executive-branch officials their jobs, he should believe that Card and Gonzales deserved to be fired for trying to get Ashcroft to sign off on their plan when Comey was in charge of the justice department. Will he agree with me on this? Stay tuned....
5.15.2007 8:37pm
badger (mail):

"...the solution to this quandary is if you don't want to do what you've been asked to do then quit and get a new job, just like every other private sector employee has to do when asked to do something they think is or might be illegal."

Option 1: The President appoints people he is confident can properly interpret the law and accepts their decisions with regards to whether or not things are illegal.
Option 2: Federal employees must choose between sacrificing years of seniority and pensions or becoming felons when given a legally suspect order by President and OLC sockpuppets.

What a strange world you live in where those are two equally favorable options.
5.15.2007 8:38pm
Robert Bell (mail):
Kovarsky: Ok. I'll bite. Judi Dench as James Bond's boss or Judi as Kate Blanchett's nemesis?
5.15.2007 8:39pm
JunkYardLawDog (mail):
Badber,

Welcome to the real world. Private employees have to face those very same questions and sacrifices of senority and pensions without an OLC to fall back on and if they make the wrong decision then some do gooder zealout government employee will gladly come and put them on trial and in jail without any right to funds for legal defense, etc.

So welcome to the real world. Federal employees should NOT have a better deal than the private sector employees they regulate and seek to litigate against.

Its just that simple.

Anderson, if you don't see the inaccuracy of claiming the law changes when the President changes but NOT claiming that the law changes when a new judge replaces an old judge then you are not nearly as smart as I once believed.

Says the "Dog"
5.15.2007 8:47pm
Christopher Cooke (mail):
Cat:
There's no indication that the order was unconstitutional, just potentially illegal.

That is true, but violations of FISA are potentially criminal offenses. See 50 USC Section 1809. The program that Comey refused to certify was the NSA surveillance program. No one at the Executive Branch can be ordered to engage in a crime, and no one should do so. The Executive Branch officials all take oaths to uphold the laws of the United States. And, an attorney is under an ethical obligation to resign rather than to participate in a crime with a client or to provide advice as to how a crime can be carried out. My guess is that the DOJ officials and Director Mueller thought they had to resign because they thought an illegal program had been re-authorized.
5.15.2007 8:50pm
JunkYardLawDog (mail):
BillTB,

You are quite correct and you get exactly why the DEMOCRAT CONGRESS' ratings are now below President Bush's.

The people in 2008 will remember how nothing except tax increases changed when democrats took control.

Says the "Dog"
5.15.2007 8:50pm
itshissong:
JYLD, please respond Edward Hoffman's post. It is indisputable that Gonzalez and Card, not Comey were the ones making an "end run."
5.15.2007 9:19pm
Jim Rockford (mail):
This isn't unusual. The President (rightly in my view) figured his job was to do whatever it took to prevent another 9/11 terrorist attack on US soil. Clinton, Carter, and other Presidents had argued the same inherent Executive Authority to conduct warrantless searches and summary imprisonment (recall Clinton jailing Wen Ho Lee?) when mere espionage was involved, and largely the courts have upheld that authority.

Justice, OLC don't care about terrorist attacks. Any lawyer would advise do nothing to stop, even at the most hypothetical, a nuclear attack on the US versus potential harm to civil liberties. No one went to jail, was investigated, suffered from putting civil liberties of terrorists like Zacarias Moussaioui over the lives of the 9/11 victims.

So until we lose a city or three to terrorist nukes (which is likely sooner than we think) all lawyers even guys like Ashcroft will put civil liberties concerns over stopping terrorist attacks on the US.

The question is, will the larger public decide to put civil liberties for terrorists over their lives?

In a way the debate is similar to that of civil liberties for criminals. When Dukakis was asked the hypothetical about the rape and murder of Kitty Dukakis his failure to reject civil liberties orthodoxy along with Willy Horton (furloughs for murderers so they can rape and murder again) lost him the election.

I'm sure this will be "great stuff" with Dems inside the Beltway. Outside in the general public Americans generally expect the President to "do something" about terrorists and don't much care what it takes. As a practical political matter if an attack succeeds all Bush has to do is point to the compromises he made with Comey and say "If I had done what my Administration wanted to do X amount of people would be alive today."

Given the constant drip-drip-drip of jihadist attacks thwarted by various means (presumably including NSA wiretaps without warrants) this is certainly inevitable. No one can be 100% successful but the fact remains that Bush has against all expectations stopped any more 9/11 scale attacks on the US, without extreme measures such as internment of all Muslims, closing down all Mosques, etc.

I'm sure Dems will do their best to commit political suicide by pressing this issue right through a massive terrorist attack. Fundamentally the American public expects any President post-9/11 to do whatever it takes to stop terrorists. Civil rights concerns be damned. Pushing legalisms only tells Americans one side is not serious about fighting terrorism. I'm sure Bush wants to be thrown into that briar patch.
5.15.2007 9:56pm
Edward A. Hoffman (mail):
Jim Rockford wrote:
The question is, will the larger public decide to put civil liberties for terrorists over their lives?
This question, like the rest of his post, presumes that those the administration accuses of being terrorists actually are terrorists. Presuming somone guilty unless he can prove his innocence is exactly the opposite of how our system of justice is supposed to work.

More importantly, there is little reason to believe the administration -- and I don't just mean the current administration -- will be particularly good at identifying terrorists. How many of those it has locked up over the past six years are innocent? We have no idea, because the charges against them effectively can't be reviewed. To the extent they can be reviewed at all, the review is performed by people chosen for the task by the same administration that brought the charges. These tribunals' findings are inherently suspect, regardless of how accurate they might be.

There is essentially nothing to prevent a president from making wilfully false accusations of terrorism in order to have people he dislikes locked up indefinitely. Even a president who could be trusted to act in good faith (I, for one, do not believe we have such a president at the moment) should not have this kind of power.
5.15.2007 10:13pm
Kate1999 (mail):
Jim Rockford writes —
Clinton, Carter, and other Presidents had argued the same inherent Executive Authority to conduct warrantless searches and summary imprisonment (recall Clinton jailing Wen Ho Lee?) when mere espionage was involved, and largely the courts have upheld that authority.

Justice, OLC don't care about terrorist attacks.
Geez, there are so many errors here it's hard to kow where to start. I guess I'll do this in order. 1) No, Clinton and Carter did not take that position. 2) Wen Ho Lee was charged with a felony offense before he was detained. 3) Courts have not upheld the Bush Administration's inherent authority argument, see Hamdan. 4) If you have ever actually met a lawyer at OLC, you would realize how frivolous that statement is.
5.15.2007 10:25pm
jukeboxgrad (mail):
rockford: "the American public expects any President post-9/11 to do whatever it takes to stop terrorists. Civil rights concerns be damned"

Words like that should be considered in the light of words like this:

"Naturally, the common people don't want war ... but after all it is the leaders of a country who determine the policy, and it is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is to tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in every country."
5.15.2007 11:04pm
jukeboxgrad (mail):
As others have mentioned, Comey's transcript is exceptionally dramatic and cinematic. I especially like the street he was on when he got the phone call: Constitution Ave.
5.15.2007 11:06pm
Joe Veenstra (mail):
I know this comment will probably not fly at this site, but this episode speaks well of Senator Feingold's judgment with regard to A.G. Ashcroft (who he voted to confirm on the Judiciary Committee) and A.G. Gonzalez (who he voted against on the JC). Sen. Feingold took a lot of heat from the left for his vote in favor of Ashcroft. Sen. Feingold was so disturbed, however, by Gonzalez's analysis of the application (or should I say lack thereof) of the Geneva Convention that he could not vote for his confirmation. It appears now that his judgment was spot on.
5.15.2007 11:28pm
JunkYardLawDog (mail):
Itshissong,

Whom exactly was Gonzalez and Card trying to make an end run around?

I've talked about people making an end run around the President's policies. Are you asserting that Gonzalez and Card were making an end run around the President's policies?

After you answer these questions you will understand why I didn't respond to Mr. Hoffman's whimsical post.

Says the "Dog"
5.16.2007 1:07am
jukeboxgrad (mail):
dog: "Whom exactly was Gonzalez and Card trying to make an end run around?"

The person who was, at that moment, the Attorney General of the United States. As Ashcroft memorably said: "I'm not the attorney general. There is the attorney general."
5.16.2007 1:15am
Recovering Law Grad:
Didn't President Bush promise to restore "honor and integirty" to the White House?

Honestly, I know that sounds like a silly cheap shot - but I guess it only sounds like that if you concede that, in the first place, Bush's statement was meaningless pablum.

Which is it?
5.16.2007 1:19am
Kazinski:
According to Powerline the NSA program needed to be re-approved every 45 days, and had been approved about 29 times before the drama in the hospital room happened. I think the WH concern was that Comey was going off the reservation with Ashcroft incapacitated. It turns out that wasn't the case, but it was pretty suspicious that a wrench gets thrown in the gears after more than three years of 45 day reauthorizations. Then add to the fact Comey goes to the hospital to intercept Gonzales and Card and try to forstall them from talking to Ashcroft. It also seems that once Comey outlined his concerns the WH was able to quickly come up with the modifications needed to keep the program running.

Is this much ado about nothing or did I miss "the dark night of facism desending"?
5.16.2007 3:35am
Edward A. Hoffman (mail):
JunkYardLawDog:

Card and Gonzales were trying to make an end run around Comey, who had the full authority of the office of the attorney general at the time. They carried out this end run by going to Ashcroft, who had transferred his authority to Comey while he recuperated and thus had no authority at the time.

I'd very much like to know your answer to this question: What purpose is served by asking the Attorney General to sign off on a program like this? Is it to ensure (a) that the program's constitutionality is reviewed by the government's top lawyers and that they have concluded it is constitutional; or (b) that the president remembers to order the A.G. to write his name on a piece of paper?

If you think Comey was shirking his duties by refusing to sign off on it, then it seems you must believe (b) is correct. After all, you're the one saying that this refusal to sign was an act of insubordination. Perhaps you don't agree with option (b), and if that is the case I'd like to know what you do believe.

And if you don't have a plausible answer, do feel free to deflect attention from that fact by calling this post whimsical, too.
5.16.2007 4:00am
Edward A. Hoffman (mail):
Kazinski wrote:
According to Powerline the NSA program needed to be re-approved every 45 days, and had been approved about 29 times before the drama in the hospital room happened. I think the WH concern was that Comey was going off the reservation with Ashcroft incapacitated. It turns out that wasn't the case, but it was pretty suspicious that a wrench gets thrown in the gears after more than three years of 45 day reauthorizations.
It would only be suspicious if the version Comey was unwilling to sign was the same one Aschroft had previously approved. It clearly wasn't, as shown by Ashcroft's willingness to resign rather than sign it. A White House that knows it is circulating a significantly different proposal should not expect it to be approved just because the earlier version was, no matter how many times that happened.
5.16.2007 4:06am
itshissong:
Also, let's not forget the hilarity of the situation that, as many have noted, according to many in the administration, they didn't need the signature. In other words, the program was so egregious that they couldn't get their own appointees to follow the rules that the administration had made up.
5.16.2007 8:12am
Anderson (mail) (www):
Justice, OLC don't care about terrorist attacks.

What a nasty slur.
5.16.2007 8:44am
David M. Nieporent (www):
I agree with JYLD up to a point. A very small point, well well well short of where he goes with it. The president is the head of the executive branch, and people who work for him do not possess the authority to ignore his orders. If a person feels that a presidential order given is illegal, he should ultimately (after consulting with counsel if he wishes, and after trying to persuade the president otherwise) either (a) resign, or (b) refuse the order openly, and say, "Fire me if you want." He should not try to covertly undermine or subvert the president's orders. And there's no "illegality exception" which allows one to disobey an order _and_ keep one's job merely because one says, "I think the order was illegal."

That's as far as I agree with JYLD. It seems pretty clear here that Comey was not trying to do an "end run" around the president (How can one? There's no "end" beyond the president to run to.), but that Card and Gonzales were trying to do an end run around Comey.

Further, defying Card and Gonzales is not the same as defying the president. If the president tells you to do something, you have that resign/refuse option. But if a presidential subordinate tells you to do something, you only have to do it if that person has the authority to give you orders, and in any case, you can always legitimately try to go around that person to the president.

And I don't quite understand what JYLD means by "the president gets to decide what's constitutional (or legal)." I mean, I guess, for internal executive branch purposes, that's true -- but I don't understand what he thinks the implications of that are. It's not a defense to impeachment or later prosecution that the president told you it was okay. (I guess it might be a mitigating factor at sentencing.)

Finally, as far as JYLD's comments about the "federal bureaucracy" in his 5:39 PM post, one may agree or disagree, but I don't see how that's relevant. JYLD seems to think Comey is a civil servant. But he was DAG, a politically-appointed position, nominated by Bush and confirmed by the Senate; not a member of the "shadow government" of the civil service.
5.16.2007 8:47am
Anonymous Reader:
Hoffman,

I think Kazinski and the Powerline folks have a point. What I would like to know is what was so different about this particular reauthorization than the others? You say Ashcroft threatned to resign over this issue, but what was the straw that broke the camel's back? Without that information, you can't just automatically assume that what Comey stated was "true". Maybe he wasn't privy to certain info. I don't know myself, but that would be interesting to know.

I'm not a lawyer, but I do know that lawyers are a very cautious lot. Anyone who's been in a position of big responsibility knows that he must sometimes balance the legalities vs the best strategy for the defense of the country. In that regard, I think Rockford is partially correct. Lawyers don't make decions, they argue their case, provide advice, counsel, etc. In my opinion, a lawyer must kind of divorce himself from emotion. All he can rely on is the law or it's interpretation and go from that. If that wasn't the case, then either there wouldn't be defense lawyers or they would lose every case because they would only put up a fig leaf of a defense for the accused.

Anonymous Reader
5.16.2007 9:03am
Anonymous Reader:
Nieporent,

I think what JYLD was saying or is trying to say is that if the President doesn't think that something's illegal, then just because a lawyer says it is does not make it so. Now, I have to assume that we commenters are operating under the assumption that there are some things that are plainly illegal. But there are also a lot of things that aren't clear cut. Which is why lawyers are important (HA!). They have, or should have, the ability to parse what is legal/illegal in different situations. Are they always right, wrong, or on the same side of an issue? Nope, but that's why the President "decides" what is legal/illegal/constitutional/unconstitutional in this subset of issues.

Anonymous Reader
5.16.2007 9:28am
itshissong:
"Maybe he wasn't privy to certain info."

Maybe I am misinterpreting this statement but you seem to be implying that there is a chance that Comey didn't know everything there was to know about the policy that he was providing an advisory opinion on. However, if this is true than OLC, Ashcroft, and everyone else in the DOJ was in the same boat because if you take a look at Comey's testimony he clearly mentions that Jack Goldsmith, the head of OLC, supported his views as a matter of law as did Ashcroft when they discussed whether to reauthorize the program before his pancreatitis.
5.16.2007 9:51am
itshissong:
"Maybe he wasn't privy to certain info."

Maybe I am misinterpreting this statement but you seem to be implying that there is a chance that Comey didn't know everything there was to know about the policy that he was providing an advisory opinion on. However, if this is true than OLC, Ashcroft, and everyone else in the DOJ was in the same boat because if you take a look at Comey's testimony he clearly mentions that Jack Goldsmith, the head of OLC, supported his views as a matter of law as did Ashcroft when they discussed whether to reauthorize the program before his pancreatitis.
5.16.2007 9:51am
itshissong:
I also agree with David Nieporent's views on the correct course of action for a federal employee who has been ordered to do something that he/she feels is unconstitutional or illegal. JYLD seems to think that the only option is prompt resignation. I think that, in light of the oath that all federal employees take to uphold the Constitution, another perfectly good option is to state clearly and openly that they will not comply with the order on the grounds that it is unconstitutional with the understanding that this is grounds for firing.
5.16.2007 9:53am
Philistine (mail):

It would only be suspicious if the version Comey was unwilling to sign was the same one Aschroft had previously approved. It clearly wasn't, as shown by Ashcroft's willingness to resign rather than sign it.


As I read Comey's testimony, it's not that the program was changed—it's that OLC had finally gotten around to doing an in-depth study of the program and coming to a conclusion. Their conclusion was that there was no legal basis for it, and based on that, Ashcroft &Comey determined they could no longer sign off on it.
5.16.2007 10:10am
jukeboxgrad (mail):
recovering: "Didn't President Bush promise to restore 'honor and integirty' to the White House?"

Yes, but 9/11 changed everything. We can no longer afford 'honor and integirty,' just like we can't afford certain other quaint things, like the rule of law. Why are you helping the terrorists?

kazinski: "According to Powerline the NSA program needed to be re-approved every 45 days, and had been approved about 29 times before the drama in the hospital room happened"

Hindrocket has a long history of having trouble getting his facts straight. 9/11/01 to 3/10/2004 is a period of 30 months, or exactly 911 days (oddly enough). 911/45 is approximately 20. If the reviews were on a 45-day cycle, there was not enough time for the program to have been reviewed "about 29 times before the drama in the hospital room happened." There would have been time for only 19 prior successful reviews.

"more than three years of 45 day reauthorizations"

Hindrocket thinks 19=29, but at least he correctly described the period as "2 1/2 years." You have the problem of thinking that a period of 30 months is fairly described as "more than three years."

By the way, we don't really know for a fact that Ashcroft had previously signed the order 19 times. Believing this requires taking certain WH statements at face value. Only a fool does such a thing, at this point. When Bush et al mentioned the 45 days, I believe they always used the present tense (e.g., "the activities I authorized are reviewed approximately every 45 days"). Strictly speaking, this means the program is currently being reviewed every 45 days. This isn't exactly the same thing as saying it's been subject to such review on a continuous basis since the start. This WH has a history of hiding behind silly distinctions like this. (And in fact we now know that the program continued even in the absence of DOJ approval.)

"I think the WH concern was that Comey was going off the reservation with Ashcroft incapacitated."

Then too bad. At that moment, Comey was AG. Ashcroft was not. The WH had adopted a rule requiring it to get AG permission. In this episode, WH proved that it wasn't even willing to follow its own made-up rules. It was fitting the rules to the desired result, i.e., making up new rules as needed (first it made up a new rule that the signature could be from someone who used to be the AG, even though he wasn't the AG right now; when this didn't work, they made up another rule that said they didn't need a DOJ signature at all). This is highly reminiscent of a moment when "the intelligence and facts were being fixed around the policy."

This end-run is also highly reminiscent of another end-run, when Bush relied on UK intel to back his 16 words, because the CIA would not.

I think it's interesting to note that Gonzales apparently did not start by asking Ashcroft to sign an order indicating that Ashcroft was now AG again. Gonzales was apparently perfectly happy to get a signature from somone who wasn't AG, at that moment. If Ashcroft had been asleep, maybe Gonzales would have been willing to settle for the signature of Ashcroft's wife. Or maybe a paw-print from his poodle.

Anyway, if there was a concern that "Comey was going off the reservation with Ashcroft incapacitated," they could have asked Comey a very simple question: are you acting with Ashcroft's approval? There is no indication that such a question was ever asked. Presumably they did not ask the question because they already knew the answer. And they were simply hoping to exploit a sick man and get him to change his mind.

Chances are the WH was well-aware of the underlying issue: that Goldsmith was new on the job, and was doing a review perhaps more thorough than what had been done before. It also seems possible or likely, as Philistine just suggested, that there had never been a thorough review, previously. That would mean that Ashcroft had been signing anyway, in the absence of such a review. A slight taint on Ashcroft's newly heroic persona.

Also, it's worth noticing that Bush said this (12/17/05): "The activities I authorized are reviewed approximately every 45 days. ... During each assessment, previous activities under the authorization are reviewed." In other words, it's possible the program flunked this time, after being passed 19 prior times, because the program was now doing something it hadn't been doing before. (After all, the election was only 8 months away, and it may have become especially important to snoop on Democrats who were helping the terrorists.) It's also possible that the program had been doing something very nasty all along, but this had only recently come to light, perhaps because Goldsmith was being more thorough. Comey didn't say this, but he also made it clear he intended to stay as far as possible from revealing details about the program.

Speaking of what Bush told us: he said the program was approved by the AG ("the activities I authorized are reviewed approximately every 45 days. … the review includes approval by our nation's top legal officials, including the Attorney General"). This was a lie, since in this episode the program continued even though the AG's approval had been explicitly denied. In other words, the program always had the AG's approval, except when it didn't. Needless to say, Bush had also lied when he looked at us with a smirk on his face and told us that wiretaps required a court order (17-second video). He delivered that lie about 6 weeks after the hospital scene.

Hayden told essentially the same lie as the lie Bush told on 12/17/05 (12/19/05; "these actions that I described … have intense oversight … by officials of the Justice Department who routinely look into this process"). We now understand that the program continued even when this "intense oversight" rejected the program.

We also now have reason to believe that there was no "intense" DOJ oversight until Goldsmith arrived and did his thorough review, 30 months into the program.

"Comey goes to the hospital to intercept Gonzales and Card and try to forstall them from talking to Ashcroft."

Wrong. There's no indication Comey tried "to forstall them from talking to Ashcroft." Comey wanted to talk to Ashcroft first, and Comey wanted to be present when the other guys talked to Ashcroft. This is not the same as what you claimed.

"once Comey outlined his concerns the WH was able to quickly come up with the modifications needed to keep the program running."

Yes, Bush understood that he had made the mistake of allowing some honest men to hold senior positions in his administration. He also understood they were heading for the exits, which would make for some interesting headlines 8 months before a very important election. So after he failed at his ghoulish attempt to get exactly what he wanted, he settled for something less, because he was being forced to.

So yes, Bush "was able to quickly come up with the modifications needed" only after he realized he had no other choice.

By the way, here's another way hindrocket twisted the facts. He said "immediately thereafter, Comey says, the program was revised in some unspecified way to satisfy the DOJ's new concerns." Trouble is, Comey didn't say this happened "immediately." He said it took "two or three weeks." And of course during this time the WH continued the program anyway, sans DOJ certification.

Hinderaker's idea of "immediately" is a lot like Bush's idea of "recently," in the famous 16 words. In that case, the word "recently" was used in 2003 to describe something that ostensibly happened in 1999.
5.16.2007 10:52am
rarango (mail):
Three thoughts of which one seems to have been made: Ashkrofft as hero? you mean that fundamentalist christian who tramples civil rights and throws innocent American in prison? Geez--wrong meme, I guess.

President Bush as decider, who looked at the program, DOJs concerns, and told DOJ to do the right thing? Damn--another meme shot.

Finally, while I do not know Mr Comey, nor have I followed this case, I am old enough to realize that anytime a bureaucrat goes before congress to spill his or her guts, there MAY be some element of self service behind that. I am NOT saying that is the case; rather, I prefer to take a skeptical approach and hear from other principals, eg, Mr. Ashcroft. This cynicism is going to kill me yet.
5.16.2007 11:04am
apogee404:

Outside in the general public Americans generally expect the President to "do something" about terrorists and don't much care what it takes.


Then they're not American. They want to live in a country where an absolutely powerful executive has the authority to do anything. It's your absolute right to want to live in a place like that, but this isn't it. The existence and protection of civil liberties against an unrestricted government represents perhaps the most fundamental elements of this country.

So, I say again, you and the other people you claim think the same way (which, despite what you wish to believe, isn't so very many) are welcome to your opinions as long as you're willing to admit that you wish to destroy the America that exists in favor of your new version. Say you want to deconstruct this country and be honest about it for once.
5.16.2007 11:28am
Anderson (mail) (www):
Jukeboxgrad, great comment. Wish I had your patience.
5.16.2007 11:55am
Anonymous Reader:
Jukeboxgrad,

Slow your roll. You're getting all tied up in knots over this situation. First of all, the AG doesn't decided JACK! He makes recommendations, gives his approval/disapproval, etc, etc. Just because he doesn't approve something doesn't mean that it automatically becomes the "law". That's why the President ultimately got involved and worked it out with Comey. You have to be careful of arguing in a vacuum. The terrorists have a vote too. If the CIA or other credible intelligence agencies around the world were saying something during this time, information that the AG and other folks probably wouldn't be privy too, concerning possible attacks being planned/executed, the President may have noted the disapproval and went ahead anyways doing what he feels is right to defend the country. You may not like it, you may disagree, but it is what it is. At the end of the day, who's going to be called on the carpet about an attack?

All this talk about "he changed the rules, blah, blah, blah" is all vacuum talk. He made a decision based on the information he had at the time. The ideal thing is to have the legal cover, but it seems from this incomplete testimony, the reality outweighed the legality and he acted with that in mind.

Apogee404,

I appreciate that this is a lawyers blog and that many lawyers are appropriately anal retentive, almost to a fault. However, there are times when you need to run the red light, regardless of it's illegal or not. It'll come out in the wash at the end. It's great to scrutinize and keep people honest, but please let me know when an American has had their civil liberties violated. Then you'll have a leg to stand on. Until then, we're all Americans until proven otherwise.

Anonymous Reader
5.16.2007 12:12pm
jukeboxgrad (mail):
Anderson, thanks for your kind words.

anonymous: "First of all, the AG doesn't decided JACK!"

First of all, leave "JACK!" out of it. JACK "doesn't decided" anything.

Here's one of many problems you're glossing over: Bush told us the program had DOJ approval, as if it always had DOJ approval. This was a lie.

It always had DOJ approval, except when it didn't. Likewise, a wiretap always requires a court order, except when it doesn't. And Bush always tells the truth, except when he tells us stinking lies. But of course he only does this to protect us from the terrorists. His lies have nothing to do with escaping accountability.

I realize it's OK with you that we have a president who breaks the law. Therefore it's no surprise that you're also OK with a president who's a liar.

Maintaining national security in a democracy is always going to be harder than doing so under another system. As Bush has pointedly said several times, it would be much easier if he was the dictator. Freedom isn't free. If you're a cowardly authoritarian who can't deal with the inevitable costs and risks of freedom, then maybe you'd be happier in a place like Singapore. As apogee suggested.

Some colonialists were very upset when our Founders told King George to get lost. The philosophical descendants of those royalists are obviously alive and well.
5.16.2007 12:41pm
Felix Sulla (mail):

I appreciate that this is a lawyers blog and that many lawyers are appropriately anal retentive, almost to a fault. However, there are times when you need to run the red light, regardless of it's illegal or not. It'll come out in the wash at the end.
You mean I'm heinously violating the Constitution and the entire philosophical underpinning of the American legal system when I run red lights? I knew there was a reason it made me feel guilty...
5.16.2007 12:46pm
Martin Ammorgan (mail):
It's always bugs me when Bush (and his supporters) say his number one job is to protect the country ("homeland" in the newspeak). Constitutional ignorance is a particular irritant.
5.16.2007 1:11pm
Tom Maguire (mail):
I think Kazinski and the Powerline folks have a point. What I would like to know is what was so different about this particular reauthorization than the others? You say Ashcroft threatned to resign over this issue, but what was the straw that broke the camel's back? Without that information, you can't just automatically assume that what Comey stated was "true".

On p. 52 of the transcript (Feingold's questioning) that is addressed, as noted by Powerline - the DoJ had finally completed its review of the program, launched in 2003 - gee, what was the hurry?:

FEINGOLD: Did something in particular occur that led to this issue coming to a head in March of 2004? Why not at an earlier point, in connection to one of the earlier reauthorizations?

COMEY: It was simply the pace at which the work went on in the Office of Legal Counsel. We had a new assistant attorney general as of, I think, October of 2003. And there were a number of issues that he was looking at. And this reevaluation, this particular program was among those issues. And the work got done in the beginning part of 2004. And that's what brought it to a head with this particular...

FEINGOLD: So it was at this point that the office was able to get around to these concerns, these legal concerns and these internal concerns?

COMEY: I think that's right.


So Gonzalez and Card had had smooth sailing for 30 months, then Ashcroft collapses and Comey won't play ball, based on a new review which has finally come off the back-burner. Is it really a complete shock that they want to hear that from Ashcroft himself?
5.16.2007 1:14pm
Anonymous Reader:
Jukeboxgrad,

I appreciate you pointing out my grammar errors. That was very nice of you. What I meant to say was, "..., the AG doesn't decide JACK!" Hopefully that clears up any confusion.

Felix,

Technically, running a red light is always illegal. But if you have a good enough reason, you might not be prosecuted for it. If you were held hostage and made to drive through one, you MIGHT have a good enough excuse, again, you might. I'm sure there are some lawyers out there who would prosecute you because, dagnabit... "... the inevitable costs and risks of freedom..."

Folks,

I try not to be snarky in my comments, I try to respond to the merits as I know them or see them. I would appreciate the same consideration. There's no need to get heated over an anonymous commentor. We all have different perspectives and can and do educate each other via our experiences and knowledge. As an aside, I would argue that commenting, especially on Volokh, has a "flatening" affect on the world and topics. Anyways, please continue.

Anonymous Reader
5.16.2007 1:19pm
Felix Sulla (mail):

Is it really a complete shock that they want to hear that from Ashcroft himself?
While he's in the ICU, declared incommunicado by his wife, and not acting as Attorney General? Yes.

But you misstate the point anyway. It's not that they wanted to "run it by" Ashcroft (maybe while he was between doses of narcotics), it is pretty clear from the testimony they were trying to (illegally even under their own rules) get him to sign off on the program right there in the ICU.
5.16.2007 1:21pm
Felix Sulla (mail):

Technically, running a red light is always illegal. But if you have a good enough reason, you might not be prosecuted for it.
Most likely I wouldn't be caught running the red light, and in the end, the harm to society is probably minimal or even nonexistent when I do it. In other words, it's a "victimless" crime.

Now, if I run that red light and cause a bus full of nuns to flip over, I suspect the full weight and majesty of the law will be swiftly brought to bear on me. That is not a victimless crime, and neither is violating people's Constitutional rights.

Incidentally, the law draws profound distinctions between the violation of "lesser" laws (e.g., traffic stuff, misdemeanors, etc.) and greater laws (e.g., felonies, war crimes, and so forth).

I'm sorry, but your red light analogy falls apart on so many levels.
5.16.2007 1:27pm
jukeboxgrad (mail):
tom: "Is it really a complete shock that they want to hear that from Ashcroft himself?"

At that moment, Ashcroft wasn't AG. So what was the point of hearing it from Ashcroft? Why not hear it from any number of other humans who were also not AG, at that moment? As I said, why not just get Ashcroft's poodle's paw-print? After all, when lives are at stake, you have to bend the rules a bit, and run a few red lights.

And anyway, why not just ask Comey if he was working with Ashcroft's consent? A simple question, with a simple answer. But an answer they didn't want to hear. That would explain why the question was apparently not asked.

My hunch is that Gonzales already knew where Ashcroft stood, and was simply hoping to coerce him to change his mind.
5.16.2007 1:40pm
jukeboxgrad (mail):
And let's be clear about something, because in other places I've seen comments indicating people are confused. Gonzales was not there looking for permission to wiretap people. Gonzales was there looking for permission to wiretap people without bothering to get a warrant. Even though the FISA court was highly compliant, and even though there's a 72-hour retroactive grace period.

All this tends to create the impression that Bush was in the basement of the White House, with headphones on, listening to a very, very interesting conversation. And he really wanted to hear the rest of the conversation, without even a moment of interruption, and he really didn't want anyone, even the highly compliant FISA court, to know who he was listening to. It's really hard to make sense out of this without assuming that Bush was listening to folks he should not have been listening to.
5.16.2007 1:54pm
William Swann (www):
I appreciate that this is a lawyers blog and that many lawyers are appropriately anal retentive, almost to a fault. However, there are times when you need to run the red light, regardless of it's illegal or not.
I think there's some validity to the "sometimes you have to break the rules" argument. If the intelligence community approaches the president with news of an imminent plot involving a nuclear weapon, the rules will be set aside to the extent that it's helpful to neglect them.

That will happen regardless of whether we have a Republican or Democratic president. Leaders from either party will recognize an emergency when they face one.

What I don't understand is how that reality -- the response we will give to a true national crisis -- relates to what's happened in this country in recent years. There is no credible intelligence of a terrorist possessing a nuclear weapon -- if there were, we'd probably know about it. Some murkier threats and possible plots have filtered through the media, and we've apparently tried to manage those threats with a variety of tools.

These murkier threats have happened in what you might call a politically permissive environment. The president had a congress from his own party for the first few years post-9/11 in a political environment of strong national concern regarding terrorism. If he needed tools to fight terrorism, the path was there in front of him. I don't see what stops him from operating the legitimate levers of government to achieve fundamental security goals.

Part of the problem with this debate is that some people can't distinguish a threat from a crisis. The threat of Muslim extremism has been here since well back into the Cold War era, as we've always been seen as Israel's primary sponsor. Terrorists would have loved to attack a U.S. city with a WMD. That threat is a critical concern, which means we need to set up the intelligence community, FBI, police, and military with the right kind of resources and authority to manage it.

What, exactly, could the president want to do that he can't or won't make a case for in front of the American people, and hence draw enough support for to push through congress? What pushes this out into the realm of "crisis management" where the president might justifiably step outside the law?
5.16.2007 1:54pm
Just an Observer:
FYI, YouTube video of Comey's testimony is here.

It is time for a special counsel.
5.16.2007 2:09pm
Bob from Ohio (mail):
If the terrorist survelience program was approved 29 times previously for 45 days each time, that is 43 months or 3 1/2 years, before OLC completed its review?. Can that be right? If it is, it was shameful neglgence on OLC's part.
5.16.2007 2:27pm
jukeboxgrad (mail):
bob: "If the terrorist survelience program was approved 29 times previously for 45 days each time, that is 43 months or 3 1/2 years, before OLC completed its review?. Can that be right?"

No. Those numbers don't add up, because only 30 months, not 43 months, elapsed between 9/11 and the drama in the hospital. I reviewed this in detail upthread.

But there's reason to believe your basic point is correct, that it took DOJ a long time to get around to doing a thorough review (or maybe any review at all). It's to Ashcroft's credit that he did the right thing eventually, but there's reason to think that he was awfully slow getting there.

Also, as I mentioned upthread somewhere, it could be that we are being too trusting of the White House when we assume that the DOJ reviews started right away. We don't really know that. For all we know, Bush kept the program secret from Ashcroft for some number of months.

JaO, thanks for the tip about the video. And yes, it's time for a special prosecutor. The obvious candidate is Fitzgerald.
5.16.2007 2:52pm
Anderson (mail) (www):
The obvious candidate is Fitzgerald.

Alas, that would seem a bit too conspiratorial to the wingnuts.

But what is Carol Lam doing these days?
5.16.2007 3:28pm
Anderson (mail) (www):
More on the "why did Comey suddenly refuse to sign on" issue, from Charlie Savage:

In early 2004, several Justice officials who were not in office at the launch of the NSA program began questioning whether it violated civil liberties. Jack Goldsmith , the new head of the Justice Department's Office of Legal Counsel, said he doubted that the program was lawful. After listening to Goldsmith, Comey and Ashcroft agreed, Comey said.

Via Dan Froomkin's roundup. Of course, this assumes that it *was* the NSA program, which we've seen some reason to doubt.
5.16.2007 3:40pm
JunkYardLawDog (mail):
So Comey is the GC for Lockheed Martin now. I sure hope they don't have any bids in on big government contracts. My advice is sell Lockheed Martin stock short over the next year. I think they are going to have a dry spell contract wise.

Yes we need Fitzgerald to investigate. Lets put another self-sacrificing public servant or two in jail for not doing anything except having a memory that differs from some idiot reporter. This time maybe we can jail somebody for trying to protect the citizens of this country from death and other enemy atrocities. Above all we need an investigation as to why there was a disagreement among executive branch staff members that was resolved by the President in a manner that made all sides HAPPY, including the side that the liberal weenies among us are currently using as their tool du jour. Its a crime after all to ever disagree with an opinion by some staff lawyer at DOJ. If its not a crime we can certainly pretend its one just like with old Scooter Libby.

I'd like to see a special prosecutor investigate who sold out this country and the 9/11 Commission by giving Sandy Berger such a sweetheart deal and then not even enforcing the terms of the sweetheart deal. I'd like to see everyone at DOJ below Gonzales down to just above the Janitor fired. I'd also like to see all the leadership of the republican party in Congress fired. Too bad I won't get either wish.

Says the "Dog"
5.16.2007 4:19pm
Kazinski:
I thought the 29 authorizations didn't quite add up which is why I made sure it was qualified with the "about". But the point holds, it was reauthorized 19 times, then in order to conform the program with the DOJ review, the WH made some modest changes in the program and got it reauthorized.

I might add that as unconscionable as Gonzales and Card were by going to Ashcrofts hospital room to talk to him, Comey beat them there so he could talk to Ashcroft first.
5.16.2007 6:00pm
Edward A. Hoffman (mail):
Kazinski wrote:
I might add that as unconscionable as Gonzales and Card were by going to Ashcrofts hospital room to talk to him, Comey beat them there so he could talk to Ashcroft first.
I'm not sure what point you're trying to make. Comey only went there because he knew Card and Gonzales were on their way. Had they not been planning to meet Gonzales, Comey would not have gone to the hospital at all. Besides, the fact that Mrs. Ashcroft called DOJ to let them know what was going on suggests that she feared Card and Gonzales were going to try to manipulate her ailing husband and that she wanted other top DOJ personnel to be there when they arrived.

On an unrelated note, I'm still waiting to see if JunkYardLawDog will answer the second question I asked him lat night.
5.16.2007 6:11pm
jukeboxgrad (mail):
dog: "not doing anything except having a memory that differs from some idiot reporter"

You're a cornucopia of misinformed Bushist talking points.

LIbby's primary problem was not that Russert contradicted him. Libby's primary problem was that multiple government employees contradicted him.

"maybe we can jail somebody for trying to protect the citizens of this country from death and other enemy atrocities"

We expect our government to protect us "from death and other enemy atrocities." We also expect it to do so without breaking the law. If you think this is expecting too much, then your standards are too low.

"a disagreement among executive branch staff members that was resolved by the President in a manner that made all sides HAPPY"

Yes, I'm sure senior officials like Mueller, Ashcroft and Comey were "HAPPY" that nothing short of threatening the president with mass resignations (and the concomitant headlines) was sufficient to persuade Bush to do the right thing. And Ashcroft and Comey were so "HAPPY" with this overall scenario, and the outcome, that they waited a bit and then headed for the exits anyway.

"Its a crime after all to ever disagree with an opinion by some staff lawyer at DOJ"

The problem was not that Bush was unable to gain consent from "some staff lawyer at DOJ." The problem was that Bush was not able to gain consent from the AG. Not quite the same thing. A further problem is that Bush led us to believe that everything he had done had been approved by the DOJ, when in fact this was not the case.

"If its not a crime we can certainly pretend its one just like with old Scooter Libby."

Perjury is a real crime, not a "pretend" crime. It's nice to see that you have so much respect for the truth, democracy, our justice system, and the rule of law. It's clear that you're motivated by one idea: finding a king who can protect you from everything that scares you.

kaz: "it was reauthorized 19 times"

I've already made it clear that we don't actually know this. Bush et al made a vague claim about a 45-day cycle, but they didn't explicitly claim, let alone prove, that this cycle started at the begininning, and was then followed reliably.

You're doing a good job of proving that you like to repeat, as fact, all sorts of things that are either dead-wrong or unproven.

"the WH made some modest changes in the program"

Yet another example. The changes may have been modest, or they may have been radical. Comey didn't say. So how do you know?

"Comey beat them there so he could talk to Ashcroft first"

As Ed suggested, it seems that Comey was there because Mrs. Ashcroft wanted him to be there. It seems that she invited him. She did not invite Gonzales and Card. If you have a problem with this, you should take it up with her.
5.16.2007 6:48pm
Anonymous Reader:
All,

Can we stop with this "seems" crap? Comey says one version of events and then it's official? Hmmm... that's interesting. I'd be very interested to know what Ashcroft's wife knows/remembers and what Ashcroft himself knows/remembers. We all know that there's always more than 1 side to a story. To automatically take up Comey's or Gonzales' banner and run with it is pretty irresponsible in my book.

I still feel that there is a lot that we don't know and just like Orin states in another post related to this, there's speculation all around. Just remember that staff people make recommendations they don't make the final call, especially something as highly disputed as this subject.

By the way, my red light analogy is exactly that... an analogy. It's meant to illustrate the fact that something illegal happened, running a red light, but that there may be more to the story than simply running a red light. I agree, if you run a light and cause a bus to flip over, there may be repercussions, but if you're a hostage in a carjacking and you run a red light and cause a bus to flip over, that's an entirely different set of mitigating circumstances. HOWEVER, to the casual observer, all he'll see if the running of the light and the flipping of the bus. If you can't understand my analogy after that explanation, then I believe you're being purposefully obtuse.

Anonymous Reader
5.16.2007 8:42pm
Felix Sulla (mail):

If you can't understand my analogy after that explanation, then I believe you're being purposefully obtuse.
No, as some of us have said, we just think the analogy is lousy. Speaking for myself, I understood it all too well. It's one thing to break a regulation or a law under "heightened" circumstances. In fact, the law actually provides for such occurrences via several mechanisms. It is quite another to subvert, rewrite, or otherwise ignore the law with no transparency, no authorization, and apparently no potential limits, regardless of your claimed justification. If you can't see the difference between those, then the most charitable thing I can say is that you are being intentionally obtuse.
5.16.2007 9:52pm
loki13 (mail):
Felix,
I think you were being charitable to anonymous reader. There are two reasons why his ananlogy fails, the first of which you missed:

1. Comparing something as substantial as the conduct descirbed here wih running a red light trivializes the nature of this particluar crime. Someone running a red light does not shake the very foundations of the rule of law in the same way, as, say, the Executive (in charge with faithfully executing the laws) deliberately allowing illegal activties to proceed.

2. But if you were to accept the red light analogy, the analogy would not be that the law breaking was justified and would be justified (there was a terrorist holding a gun to my head!)- it would be more akin to:
a. Red lights do not apply to me. (aka if the Executive does it, it is not illegal)
b. There was a justification for running the red light and killing the busload of nuns, and it may be a good one, but I can't tell you what it is. Trust me. I need to be able to run red lights when I want to. (No executive accountability or transparency)

Good analogies can be effective. Bad analogies are misleading.
5.16.2007 10:11pm
Felix Sulla (mail):
loki13: Oh, I agree. I made those points (in different verbiage) above. It just seems to me that the fundamental difference here is process and accountability: yes, on occasion the law has to be "broken" in order to avert some larger danger. And the law, in general, actually recognizes this phenomeneon. But there is (or should be) accountability: the person breaking the law is called to account for it in each individual sitaution and must proffer a sufficient justification for having deviated from the rules in that instance. And furthermore, the rules can then be amended, supplemented, or repealed through proper channels if it turns out they are not adequate to the task at hand.

The administration apparently believes that it should be able to undertake or authorize any course of action and break any law or violate any right on the flimsiest of legal arguments (or even none at all), without transparancy or accountability. This is the real problem here.
5.17.2007 10:04am