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What Led DOJ to Oppose the NSA Surveillance Program?:
So what were the events that led the top officials at DOJ and the FBI to threaten to resign in 2004 over the NSA surveillance program? Like Marty Lederman, I imagine the key difference was the shift from the legal theories that the John Yoo/Jay Bybee OLC embraced as compared to what Jack Goldmsith's OLC adopted.

  Specifically, I imagine it went something like this. (Warning: Lots and lots of speculation ahead.) As Marty notes, it seems likely that John Yoo had written the initial 2001 memo under OLC head Jay Bybee approving the NSA surveillance program entirely on Article II grounds. Presumably it said that the President as Commander-in-Chief can authorize whatever monitoring the President wants to authorize to protect the county. When Goldsmith took over at OLC, however, he probably repudiated Yoo's Article II theory and instead tried to justify the program under the post 9/11 Authorization to Use Military Force (AUMF). That introduced a tailoring requirement -- specifically, a need for the monitoring to be directed "against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" of 9/11. (There might be a similar tailoring requirement under the Fourth Amendment depending on how you read the cases and how the technology works.)

  What difference would that make? Well, we're guessing, of course, but it may be that the restrictions on the program that the Bush Administration has emphasized -- monitoring only with cause, when one person is believed to be outside the U.S., etc. -- were the requirements that Comey and Goldsmith were insisting on at the hospital that night when Gonzales and Card came by. Remember the "important safeguards" that Gonzales emphasized in his February 2006 Senate testimony:
While the president approved this program to respond to the new threats against us, he also imposed several important safeguards to protect the privacy and the civil liberties of all Americans.

First, only international communications are authorized for interception under this program. That is communications between a foreign country and this country.

Second, the program is triggered only when a career professional at the NSA has reasonable grounds to believe that one of the parties to a communication is a member or agent of Al Qaida or an affiliated terrorist organization. As the president has said, if you're talking with Al Qaida, we want to know what you're saying.

Third, to protect the privacy of Americans still further, the NSA employs safeguards to minimize the unnecessary collection and dissemination of information about U.S. persons.

Fourth, this program is administered by career professionals at NSA, expert intelligence analysts and their senior supervisors with access to the best available information. They make the decisions to initiate surveillance. The operation of the program is reviewed by NSA lawyers, and rigorous oversight is provided by the NSA inspector general.
  It seems quite possible that it was exactly these protections that Gonzales was trying to avoid when he came to the hospital that night to try to get Ashcroft's signature. Perhaps Gonzales and Card wanted to keep the monitoring program "as is," in its broadest form as authorized by John Yoo. But Goldsmith persuaded Comey and Ashcroft and Mueller that it was lawful only if it the monitoring was more targeted along the lines that DOJ would later defend. If this theory is right, it may mean that Comey, Ashcroft, Goldsmith, and Mueller may have been ready to resign at least in part over the proper interpretation of Article II.

  Anyway, I should emphasize that this is all just speculation. We only know a very small chunk of the facts, and it could be that the real elephant is very different from the small part we are feeling.
Ugh (mail):
Card, Gonzales, Bush, Addington, Cheney - all thugs, in charge of the most powerful country in the history of the world.
5.16.2007 6:29pm
Crust (mail):
Glenn Greenwald speculates along very similar lines. But as you say who knows, the reality could be entirely different.
5.16.2007 6:32pm
M. Lederman (mail):
Thanks, Orin. Just added this to my post:

Here's one speculation just suggested to me by a fellow B'zation blogger: Perhaps under the Yoo-approved program, once a U.S. person received any phone calls or e-mails from a "covered" person overseas, the NSA was authorized to intercept all of that U.S. person's future phone calls. (After all, what the Administration was most interested in would not be overseas calls, but instead calls that might reveal activity of Al Qaeda cells here in the U.S.) Under the Goldsmith-approved, AUMF-based program, however, only international calls with actual persons covered by the AUMF could be intercepted. Who knows? — this is only speculation.
5.16.2007 6:34pm
Anderson (mail) (www):
Very interesting, Prof. Kerr. Perhaps there will be an investigation that will allow the citizens of this country to do more than speculate as to whether or not the laws have been broken.
5.16.2007 7:10pm
TheGoodReverend (mail) (www):
A lot of this was actually hinted at back in the original NYT article in December 2005. Senior government officials told Risen and Lichtblau that Justice audited the program in response to Judge Kollar-Kotelly's concerns that information improperly collected under it was constituting part of Justice's basis for certain FISA warrants. Justice responded by "expand[ing] and refin[ing] a checklist to follow in determining whether probable cause existed." It sounds more like DOJ, prompted by Kollar-Kotelly, was concerned that the program violated Fourth Amendment rights, not that Article II was an issue. See Brian Decker, "The War of Information," 9 U Pa J Const L 291, 302 &n.65 (2006).
5.16.2007 7:12pm
Keyes:
Orin wrote:


It seems quite possible that it was exactly these protections that Gonzales was trying to avoid when he came to the hospital that night to try to get Ashcroft's signature.


I don't understand you to mean that Gonzales was acting on his own initiative, as WH counsel for example.

Rather, I understand you to mean that Gonzales was the errand-boy, along with Card, for someone else.

Don't you think that someone else would be Cheney/Addington?

I don't see Bush making an independent decision here -- as distinguished from the final call (no pun intended). He of course made the final call, but after hearing Cheney/Addington say something like, "Mr. President, you need to act now to keep the program in place and to protect the prerogatives of the President as C-in-C in wartime."

Bush's subsequent directive to Mueller (who told Comey) to make the spying program DOJ-acceptable was an act of realpolitik. He's no fool. While he wouldn't have cared if Comey quit, no way he could explain away Ashcroft quitting, along with Mueller.

By the way, you have to love Bush . . . after this episode, he gave Comey the nickname (behind his back) of "Cuomo".

That maybe says as much as Bush's disdain for the Constitution as anything else he's done.
5.16.2007 7:16pm
Anderson (mail) (www):
(Cross-commenting from Balkinization, b/c I'm curious if anyone has any thoughts:)

I wonder now whether or not notice of the 45-day authorization was forwarded to the phone companies ... *that* would help explain why Card and Gonzales were jumping up &down to get the imprimatur ASAP ... anyone know anything on that score?

I can well imagine that at 12:01 a.m., the day after the authorization period expired w/out renewal, Big Phone would've flipped the "off" switch for its own good ... lest it be opened up to liability for violations of federal law.
5.16.2007 7:16pm
OrinKerr:
Anderson, you may be on to something.
5.16.2007 7:20pm
Just an Observer:
As I have mentioned elsewhere, my own speculation is that FBI Director Mueller was a key player in Comey's dramatic narrative -- but no NSA officials were mentioned -- because the most controversial parts of the program before it was "modified" were being executed by the FBI, not just the NSA.

Why would the FBI director put his own resignation on the line, and meet one-on-one with the President and obtain instructions to modify the program, if that program involved another agency but not his own?

FBI involvement, based on its traditional functions, could include purely domestic surveillance or physical black-bag jobs without benefit of warrants.
5.16.2007 7:28pm
guest:
Why has everyone concluded that the incident Comey describes has anything to do with wiretaps? He said "a classified program." Is there only one classified program of questionable legal status?
5.16.2007 7:36pm
Mark Field (mail):
If Prof. Kerr is right, then it looks to me like Gonzales' testimony in Feb. 2006 was either intentionally misleading or outright false. Note the present tense verbs describing the "safeguards", while the first paragraph uses a past tense ("imposed") in such a way as to make it ambiguous about the time frame but suggesting that these "safeguards" were "imposed" from the beginning. Instead, it appears that the "safeguards" may have been "imposed" only after DOJ balked.
5.16.2007 8:30pm
Kovarsky (mail):
Mark,

The administration would never deliberately construct language capable of simultaneously creating an inaccurate inference and of being plausibly defended later.
5.16.2007 8:46pm
Just an Observer:
In the Judiciary Committee testimony last year by Gonzales, which he carefully limited to the context of the NSA surveillance program Bush had publicly revealed, he explicitly and repeatedly said that the controversy during Comey's tenure did not involve that specific "program," but something else:

SCHUMER: I concede all those points. Let me ask you about some specific reports.

It's been reported by multiple news outlets that the former number two man in the Justice Department, the premier terrorism prosecutor, Jim Comey, expressed grave reservations about the NSA program and at least once refused to give it his blessing. Is that true?

GONZALES: Senator, here's the response that I feel that I can give with respect to recent speculation or stories about disagreements.

There has not been any serious disagreement -- and I think this is accurate -- there has not been any serious disagreement about the program that the president has confirmed. There have been disagreements about other matters regarding operations which I cannot get into.

I will also say...

SCHUMER: But there was some -- I'm sorry to cut you off -- but there was some dissent within the administration. And Jim Comey did express, at some point -- that's all I asked you -- some reservations.

GONZALES: The point I want to make is that, to my knowledge, none of the reservations dealt with the program that we're talking about today. They dealt with operational capabilities that we're not talking about today.

SCHUMER: I want to ask you, again, about -- we have limited time.

GONZALES: Yes, sir.

SCHUMER: It's also been reported that the head of the Office of Legal Counsel, Jack Goldsmith, respected lawyer and professor at Harvard Law School, expressed reservations about the program. Is that true?

GONZALES: Senator, rather than going individual by individual, let me just say that I think the differing views that have been the subject of some of these stories did not deal with the program that I'm here testifying about today.

SCHUMER: But you were telling us that none of these people expressed any reservations about the ultimate program, is that right?

GONZALES: Senator, I want to be very careful here, because, of course, I'm here only testifying about what the president has confirmed.

And with respect to what the president has confirmed, I do not believe that these DOJ officials that you're identifying had concerns about this program.



(H/T ThinkProgress.org)

So what was at issue was not only legal theory -- Goldsmith's AUMF rationale in lieu of Yoo's original Article II argument -- but distinct "operational capabilities."

And I think Mueller's direct involvement clearly suggests that those "operational capabilities" were excercised by the FBI, not the NSA.
5.16.2007 8:51pm
Mark Field (mail):
Has everyone seen this letter?

Kovarsky, your talent for satire is reaching new heights with almost every post.
5.16.2007 9:06pm
Just an Observer:
Mark Field,

I think Gonzales will stand by his prior testimony, which will lead to the next question, "What were the other operational capabilities?" And Gonzales will refuse to answer.

Just as obviously, the Judiciary Committee sooner or later will be asking Mueller the same question.
5.16.2007 9:14pm
Anonymous Reader:
All,

This post is rife with rank speculation. I appreciate the spinning of conspiracy theories just like everyone else, but isn't it odd that everyone is treating Comey like he's a paragon of virtue and everyone else is pond scum? Either this administration is completely inept, or they're semi-inept and happened to let Comey and Goldsmith, et al through the door.

The "speculation" caveat is nice window dressing while everyone goes about throwing wild theories about what might/did/seemed to happen. Unless someone can show me some type of testimony from another participant corrabarating these same events, it's just one mans axe to grind.

And don't comment with a "what do you need to hear that this administration is just plain evil?" Sorry to disappoint that I like to treat things with a healthy dose of skepticsm regardless of how they turn out or appear. There are always 3 sides to a story, let's hear the rest before we pat ourselves in the back.


Anonymous Reader

[Ok Comments: AR, you'll notice I say in my post that "I should emphasize that this is all just speculation." Given that, your accusation that "this post is rife with rank speculation" is of course true -- but it's not really as much of an accusation as it is an agreement with the poster. As for whether particular people are "paragons of virtue" or "pond scum," I think it's worth pointing out that all of the people involved in this story are well-known by lots of people. It's not like we just woke up one day and picked a side in this. For example, I first starting hearding great things about James Comey in 2000, when I was at the U.S. Attorney's Office for the EDVA in Alexandria and he was heading the Richmond branch of the same office. I also know a lot of people who worked with him and just think the world of him. Should I just ignore all that I have heard about Comey from people I very much trust? If so, why?]
5.16.2007 9:18pm
Mark Field (mail):

I think Gonzales will stand by his prior testimony, which will lead to the next question, "What were the other operational capabilities?" And Gonzales will refuse to answer.

Just as obviously, the Judiciary Committee sooner or later will be asking Mueller the same question.


I agree that this is the most likely scenario. Gonzales obviously won't admit to more "inaccurate" testimony. He's fairly safe from impeachment as long as others take the position that they can't disclose even the existence of the other "programs". The questioning will have to be very careful if the Senate really wants to test Gonzales' truthiness.
5.16.2007 9:40pm
Bruce:
Comey's testimony was riveting, but it's interesting that the whole conflict was the result of balls set in motion by Jack Goldsmith at OLC. He managed to persuade both Comey and Ashcroft so completely that he was right that they were (apparently) willing to resign over it.
5.16.2007 10:00pm
Anderson (mail) (www):
but it's interesting that the whole conflict was the result of balls set in motion by Jack Goldsmith at OLC

Just so, &see this Feb. 06 Newsweek article that Lederman linked at Balkin's blog:

In liberal Cambridge, Mass., [Goldsmith] was at first snubbed in the community and mocked as an atrocity-abetting war criminal by his more knee-jerk colleagues. ICY WELCOME FOR NEW LAW PROF, headlined The Harvard Crimson.

They had no idea. Goldsmith was actually the opposite of what his detractors imagined. For nine months, from October 2003 to June 2004, he had been the central figure in a secret but intense rebellion of a small coterie of Bush administration lawyers.
5.16.2007 10:23pm
Just an Observer:
Mark Field: The questioning will have to be very careful if the Senate really wants to test Gonzales' truthiness.

FWIW, I believe Gonzales' carefully parsed prior testimony.

Of course, given his tarnished credibility, the Senate Democrats are taking an easy shot from that angle. And Republicans have gone to ground completely, having sold out principle to partisanship a year ago where the surveillance controversy is concerned.

I also suspect that the AG's testimony concealed serious lawbreaking yet undisclosed on the part of the Bush administration. Uncovering that, and taking appropriate remedial action, is what is most important at this point for the nation.

But it is politically easier for Democrats to focus the attack on Gonzales than to deal forthrightly with the more substantive and larger scandal under the surface. The "When will Gonzales go?" story also gets much better media play than the uglier but complicated story of lawbreaking directed from the Oval Office in the name of patriotism.
5.16.2007 10:35pm
rfg:
Facinating.

Unfortunately, the whole problem with secret programs is simply that we do not know what they do or how they accomplish this. The reason why these programs should be public is so that we, the people, can discuss them, and determine if we want the government to have this kind of authority. Reasonable people may (and will) disagree, but meaningful discussion requires facts. This does not mean that details concerning methods should be in the public domain, but what is being done (monitoring phone calls, data streams, etc) must be.

When facts are witheld, it is not unreasonable to presume that it is because the officials doing the witholding fear our reaction.

When facts are witheld, all we can do is go by reputation (I'm telling you it's OK, and I'm a good guy, so you must believe it's OK). This is extremenly difficult for me in cases where I do not know any of the individuals involved. I do not know the Attorney General, nor do I know Prof. Kerr, nor is it likely that I will ever be able to correct this (we move in very different circles). While all of the peole involved are well-known by lots of people, I do not know any of them! Third-party descriptions are not terribly useful when I know none of the individuals involved, without going into the usefulness of terms like "pond scum".

Public discussion of policies and rules is one of the things that makes us better that our foes (and yes, we have them). Does it impose a burden? Of course, but hey, if this democracy thing was easy, everybody would do it.
5.16.2007 10:52pm
Mark Field (mail):

But it is politically easier for Democrats to focus the attack on Gonzales than to deal forthrightly with the more substantive and larger scandal under the surface. The "When will Gonzales go?" story also gets much better media play than the uglier but complicated story of lawbreaking directed from the Oval Office in the name of patriotism.


Excellent point. Agreed.
5.17.2007 12:05am
uh_clem (mail):
But it is politically easier for Democrats to focus the attack on Gonzales than to deal forthrightly with the more substantive and larger scandal under the surface.

And it is easier for the administration to put Gonzales out there as a human pinata than to deal with the more substantive and larger scandal under the surface.

It's a win-win scenario!
5.17.2007 2:11am
Christopher Cooke (mail):
JAO:

I think Gonzales' testimony about Comey's disagreements means this: the program whose existence the President "confirmed in December" (this is the one to which Gonzo repeatedly describes when he talks about the safeguards) is the REVISED program that contains the safeguards that Comey and Goldsmith felt were necessary for it to be lawful, probably under the AUMF. So, of course, Comey's and Goldsmith's disagreements had nothing to do with that program, but with the ILLEGAL one John Yoo had approved, and which had apparently run from 9/13/2001 to 3/13/2004.
5.17.2007 11:18am
Just an Observer:
Christopher Cooke,

I don't disagree with your conclusion. Gonzales' own testimony indicates that there were "operational capabilities" in the older program that did not exist in the newer one. But I don't think that means just a lack of "safeguards," which to me implies process rather than operational actions, although process enhancements also could have been made in the modified program. I think the government was actually doing serious domestic spying stuff before 3/13/2004 that it stopped doing later.

What is in question is the specific contours of that older program, and what changed in 2004. What was the government doing that Goldsmith, Comey and Ashcroft thought was illegal?

(It must be noted for the record that even the revised program later described by Gonzales was held to be illegal by a federal court. The court did not even find Goldsmith's AUMF-trumps-FISA theory, as outlined in the rather skimpy DOJ briefs, persuasive. And on appeal, the government has yet to defend the merits forthrightly, relying instead on technical issues of standing and privilege.)
5.17.2007 1:21pm
Christopher Cooke (mail):
JAO:

Watch the Frontline show airing this week on the NSA's program. I think it likely that the NSA, beginning before the AUMF, was doing a large sweep of all sorts of communications, that John Yoo later said (via his OLC memo) was authorized under the President's Article II powers. By the time the NY Times broke the story in Dec. 2005, the program had been modified and narrowed, in response to DOJ (Comey/Goldsmith/Ashcroft) concerns. The NY Times reports as much.

However, during his testimony last year, Gonzo didn't want to describe the prior, much broader program, because he knew that Congress would have a fit (both about the program and his actions in visiting Ashcroft at the hospital). So, Gonzo limited his testimony to the revised, narrower program that he thought was more easily defended, by saying he could only talk about the program the President had revealed in December 2005 (which, as you note, the District Court in Michigan has said was still illegal). That it is clear to me that he didn't want Comey's story about the hospital visit to come out is shown by his statement to the Senate that he didn't see what Comey et al could "add" to his testimony about the program.

And, Gonzo could truthfully answer that Comey's reservations didn't have to do with the post-March 2004 program (the one Bush revealed), and thus try to side-step the whole scene in the hospital, the much broader data mining the NSA had done for 2 1/2 years (9/2001 to 3/2004), etc. A neat trick, which Gonzo now may be revealed to have pulled.

By the way, in response to the Senators' letter to him yesterday about this prior testimony, I predict Gonzo will say he stands by that prior testimony (because it was true). What Gonzo does, when he is fully prepared (i.e., unlike the AUSA firing scandal) is give very slippery answers that may mislead, but which are literally truthful. People are starting to figure this out, that he is not just a buffoon, but is actually pretty smart. That is why the Senators are now mad at him, he fooled them last year when he testified about the program into not calling up Comey, et al.
5.17.2007 3:48pm
Christopher Cooke (mail):
As predicted, Gonzo is standing by his prior testimony:

See here
5.17.2007 6:41pm
Just an Observer:
That is why the Senators are now mad at him, he fooled them last year when he testified about the program into not calling up Comey, et al.

I doubt that any Judiciary senators were actually "fooled." Gonzales' evasiveness was widely noted at the time by those following the hearings. The chairman then, Specter, simply chose not to follow up. What changed was political control of the Senate.

It remains to be seen now how resolutely and skillfully Leahy, Schumer and their colleagues pursue the underlying surveillance scandal, which is more daunting than other matters such as U.S. attorney firings. (Perhaps, by some miracle, committee Republicans will reverse course and join in real oversight. But we seem to be in a perpetual election campaign season.) To me that means doing more than just focusing on Gonzales.
5.17.2007 7:36pm
jukeboxgrad (mail):
Chris, JaO,

I find this above exchange of yours to be very astute and clarifying. Thanks a lot to both of you.
5.17.2007 11:27pm