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Wittes on the Comey Testimony:

Benjamin Wittes is uncompromising in his take on James Comey's testimony.

At least as Comey relates it, this affair is not one of mere bad judgment or over-aggressiveness. It is a story of profound misconduct on Gonzales's part that, at least in my judgment, borders on the impeachable. Put bluntly, faced with a Justice Department determination that the NSA's program contained prohibitive legal problems, the White House decided to go ahead with it anyway. In pursuit of this goal, Gonzales did two things that both seem unforgivable: He tried to get a seriously ill man to unlawfully exercise powers that had been conveyed to another man and to use those powers to approve a program the department deemed unlawful. Then, when Ashcroft refused, the White House went ahead and authorized the program on its own. In terms of raw power, the president has the ability to take this step. But it constitutes a profound affront to the institutional role of the Justice Department as it has developed. The Justice Department is the part of the government that defines the law for the executive branch. For the White House counsel to defy its judgment on an important legal question is to put the rawest power ahead of the law.

The much-derided John Ashcroft, on the other hand, showed himself when it counted to be a man of courage and substance whom history will surely treat more kindly than did contemporary commentary. Few attorneys general get tested as Ashcroft did that night in 2004. One can disagree with him about a lot of things and still recognize the fact that ultimately, he passed the hardest test: From a hospital bed in intensive care, he stood up for the rule of law. More broadly, the Justice Department seems to have performed admirably across the board--from the OLC having taken its job seriously, to the willingness on the part of the department brass and Mueller to lose their jobs to defend the department's ability to determine the law for the executive branch. Had the story ended with Comey's victory, it would have been an ugly crisis with a happy ending.

John Hinderaker takes a stab at dismissing Comey's testimony at Powerline, but I find it unconvincing. This WSJ editorial fares a little better, but still fails to do the trick.

Meanwhile, the number of GOP Senators who have said publicly AG Gonzales should resign is up to five (Coleman, Hagel, Roberts, Specter, Coburn).

UPDATE: When I first posted this I had a momentary brain leak and wrote "Philip" Comey instead of James. It's fixed now.

MORE IMPORTANT UPDATE: The number of GOP Senators supporting a Gonzales exit is apparently up to eleven (and as Nigel Tufnel explained, eleven provides that extra push over the clip.

John T (mail):
The much-derided John Ashcroft, on the other hand, showed himself when it counted to be a man of courage and substance whom history will surely treat more kindly than did contemporary commentary.


A point that was obvious to me from the moment he was nominated. John Ashcroft had shown himself as a senator to have an appropriately protective view of civil liberties. Opposition to him was, IMO, always largely based on disliking his personal religious beliefs and inaccurate imagination of where those beliefs would take him, not based on his behavior at all. That crude opposition, unsupported by fact or experience, is a large part of what got us AG Gonzales, who has done much more to live up to the crude caricature than AG Ashcroft ever did.

(Also, too often unremarked is that truth that many Republican "moderates" are less protective of civil liberties than "conservatives.")
5.18.2007 2:13pm
itshissong:
Senator Sununu has also called for Gonzalez to be fired as has John McCain
5.18.2007 2:39pm
A.S.:
Wittes' column, like much of the left-wing commentary, such as Lederman's, is based on facts not in evidence.

First, Wittes writes: "He tried to get a seriously ill man to unlawfully exercise powers that had been conveyed to another man". Bull. They tried to find out if Comey was staging a coup at the Justice Department while Ashcroft was ill. Is there ANY EVIDENCE AT ALL that Gonzales asked Ashcroft to override Comey's decision - as opposed to asking Ashcroft whether Ashcroft agreed with it? Because as far as I can tell, all that was asked was whether Ashcroft agreed with the decision - and that question was asked, I would think, to find out whether Comey was staging a coup.

Second, Wittes writes: "and to use those powers to approve a program the department deemed unlawful". Again, pure speculation. Refusing to certify the program is not necessarily the same as deeming it unlawful. Rather, it is saying, we're not sure about the lawfulness of the program. Anybody who writes legal opinions for a living, as I do, knows that there are plenty of things that you think are lawful but that you wouldn't write an opinion on. The law contains grey areas. People like Wittes and Lederman pretend that the law is black and white - and if the DOJ didn't certify something is white, then it must be black. This simply shows how much of their analysis is a joke.
5.18.2007 2:43pm
Matthew J. Brown (mail):
The progressive replacement of independent-minded people by compliant friends and followers in the George W. Bush administration over the years is one of the aspects that history will not look well upon either, I'm sure. Getting rid of people who disagree might make Bush's working environment more pleasant, but it is poor policy and poor governance.
5.18.2007 2:48pm
Humble Law Student (mail):
Professor Adler,

The important fact is that John Ashcroft became ill the very afternoon after he agreed with Comey. So, was the administration even aware of Ashcroft's change of opinion at that time? This is an important question that is overlooked.

Think of it from the administration's position, Ashcroft becomes ill. Suddenly, the acting AG refuses to certify a program that has been certified 19 times in a row. Of course Gonzales would want to ask Ashcroft what the heck was going on. As far as we know, Gonzales had no idea that Ashcroft had signed off on the idea. Granted, Ashcroft was ill and had no power, but of course the administration would want to go to the AG to ask what was up--especially because of the time constraints.

Finally, the Comey's testimony about that night seems questionable. He states all sorts of dark pictures about that hospital visit and how he refused to meet with administration officials without witnesses. Yet, when asked, he specifically states that he was never threatened or anything of the like. Not a direct contradiction, but highly questionable.
5.18.2007 2:49pm
Joe Bingham (mail):
I'm sorry, Ashcroft is a conservative charismatic Christian. Since his values are based on a perceivedly objective, absolute source, he's obviously unfit for any role in government, which requires a healthy dose of relativism. The very fact that he was uncompromising in this situation shows just how dangerous it is to have these Christians in office.

(Sarcasm. Keep in mind that the major arguments against Ashcroft at the time of his appointment all involved his dangerously strict adherance to religious principles, though.)
5.18.2007 2:54pm
wsj hater:
The WSJ editorial exculpates Gonzalez and Card because their motive was "to gain approval for a program the President thought vital to national security." But the program they were pushing was illegal. Until the President intervened, they didn't intend to change the program to make it legal, instead they just wanted to convince Justice [through the top political appointee].

And the claim that "Democrats are spinning a yarn" is laughable. This is reaction to the testimony of a Bush political appointee.
5.18.2007 2:58pm
uh_clem (mail):
Bull. They tried to find out if Comey was staging a coup at the Justice Department while Ashcroft was ill.

Actually, they just stopped by to wish him well. Really! Card said so himself.

C'mon, get your story straight.
5.18.2007 2:59pm
A.S.:
Come now, Joe Bingham. Surely Ashcroft is no longer a Christian; I mean, since he's received this Strange New Respect from the Wittes and Lederman's of the world...
5.18.2007 3:00pm
Keyes:
Jonathan wrote:

Benjamin Wittes is uncompromising in his take on Philip Comey's testimony.

Philip?
5.18.2007 3:01pm
A.S.:
Actually, they just stopped by to wish him well.

They can't do both?
5.18.2007 3:01pm
uh_clem (mail):
They can't do both?

No, they can't. Look up the semantics of the word "just".
5.18.2007 3:08pm
Q the Enchanter (mail) (www):
"The much-derided John Ashcroft, on the other hand, showed himself when it counted to be a man of courage and substance...."

Or maybe Comey just really spooked Ashcroft with phantoms of lost liberty into aiding terrorists, eroding our national unity, and diminishing our resolve. I mean, who's to say?
5.18.2007 3:09pm
A.S.:
Look up the semantics of the word "just".

I did. It's got a lot of meanings.

BTW, where did Card say that "himself"? Comey says Card said that. I don't see a quote from Card "himself" anywhere.
5.18.2007 3:23pm
Crust (mail):
Meanwhile, the number of GOP Senators who have said publicly AG Gonzales should resign is up to five (Coleman, Hagel, Roberts, Specter, Coburn).

Actually, we're up to 11 Republican Senators, at least by TPM's count. Admittedly, this includes some (e.g. Specter) who stopped slightly short of calling for Gonzales to resign or be fired (e.g. Specter said "it'll be clear even to the attorney general and the president that we're looking at a dysfunctional department which is vital to the national welfare.")
5.18.2007 3:28pm
Bob from Ohio (mail):

In terms of raw power, the president has the ability to take this step.


So, the President has the power but should defer to his subordinates in the Justice Department?

If the White House Counsel does not defer to the Justice Department in early 2004, he should be impeached from an office he did not hold until 2005?

Card and Gonzalez were acting for the President in 2004, he made the call to Mrs. Ashcroft. Gonzales will not resign or be fired for carrying out the President's wishes, no matter how many Senators vote on a non-binding "no confidence" motion or call for his resignation.
5.18.2007 3:39pm
baclaw (mail):
I've never been one to rush to judgment about much of anything, so I'm not going to indict the Bush administration yet over what happened in this incident. Nevertheless, I think it's pretty clear that this matter bears further investigation.

The facts Comey very carefully related in his testimony indicate that various members of the Bush administration have disregarded some important aspects of the rule of law. This has led some to believe that the actions they took may have been, in fact, felonies for which those members of the Bush administration should be held accountable.

As people have pointed out, the fact that the highest levels of the DOJ intedned to resign over various aspects of these actions demonstrates the seriousness of the issues involved. I find it hard ot believe that any of these people, let alone all or many of them, would have considered taking this step if there were not something seriously wrong with the program under discussion.

Some people have suggested that others have blown this incident out of proportion, since we do not actually know whether anything illegal actually happened. This may very well be true. However, it is not a reason to disregard these facts. Instead, it is a reason why this situation needs to be more fully investigated.
5.18.2007 3:46pm
Duncan Frissell (mail):
faced with a Justice Department determination that the NSA's program contained prohibitive legal problems, the White House decided to go ahead with it anyway.

So ignoring your attorney's advice is criminal?

I guess that if Main Justice had approved the program, Wittes (and everybody else) would have had no problems with it?
5.18.2007 3:47pm
John McCall (mail):
The WSJ editorial seems to willfully miss the mark. There are three distinct legal issues here: first, whether DOJ's approval of the program was legally required; second, whether the program itself was legal; and third, whether the administration knowingly enacted an illegal program.

On the first question, it seems that DOJ's approval was customary but not statutorily required; at least, that's what Comey testified to. Certainly we can complain that this was improper, but illegal? No.

On the second question, it's less straightforward. The OLC under Yoo had previously approved the program, but Yoo was acting under a constitutional theory which really doesn't seem to recognize any substantive limits on executive power (incidentally, we can raise an ethical complaint that the administration likely selected Yoo with the specific intent of gaining legal cover for questionable programs, but I don't know that there's an analogous legal complaint). When Goldsmith took over at OLC, his staff reviewed the program and had serious legal objections to it; we don't what these were, so we can't independently evaluate his judgment. We can read the tea leaves by contrasting Yoo and Goldstein, and I, personally, think this points in Goldstein's favor; but this is hardly conclusive.

On the third question, however, we can say something a bit stronger. Correct me if I'm wrong, but OLC's legal opinion about the program seems to control the administration --- as in, it constitutes legal advice to the President which is "binding" in the sense of there not being anyone else who can overrule it. If OLC advised the administration that the program was illegal, and the administration nonetheless decided to continue the program without legal sanction (at least until Comey's team revised it to the satisfaction of OLC), then it appears very hard to escape the conclusion that the administration willfully violated the law.

That last bit turns on whether OLC did, in fact, advise the White House that the program was illegal, or whether this was communicated only indirectly or in weaker terms. At the very least, though, we can surmise that the WSJ trolled through the testimony looking for any way to spin it in the administration's favor.

As a final comment, I would remind people that we still don't know whether this program was, in fact, the NSA program, or whether it was some other yet-undisclosed program.
5.18.2007 3:48pm
IdiotWatch (mail):
This episode, like many in the past 6 years, really forces conservative lawyers/scholars/commentators to reflect on what's important: the truth or their party. The justifications provided for AGAGs behavior, as well as the attempts to explain it away reflect a profound disconnect with reality. Take, for example, Humble Law Student's post. Confronted with sworn testimony from a highly-respected conservative lawyer, who was appointed DAG by this administration, his main response is to state that it was "highly questionable," before spinning a fairy tale about the best-case scenario. It's time that conservatives faced the facts about the executive branch they've supported.
5.18.2007 3:49pm
Kovarsky (mail):
A.S.,

I'm a little disappointed in how long it took you to start parroting the administration's talking points.

Did anybody else notice that the term "palace coup" mysteriously gained descriptive favor across administration mouthpieces overnight?
5.18.2007 3:54pm
Kovarsky (mail):
I basically view this issue as a litmus test for who is capable of independent thought.
5.18.2007 3:54pm
A.S.:
That last bit turns on whether OLC did, in fact, advise the White House that the program was illegal, or whether this was communicated only indirectly or in weaker terms.

There's no evidence that the OLC thought the program was "illegal". In fact, Comey refused - multiple times - to say anything like that. Refusing to "certify" the program does not give us any indication as to whether OLC thought it was "illegal".
5.18.2007 3:58pm
A.S.:
I'm a little disappointed in how long it took you to start parroting the administration's talking points.

It took only 37 minutes!

Wait...

I basically view this issue as a litmus test for who is capable of independent thought.

Agreed.
5.18.2007 4:00pm
John McCall (mail):
I guess that if Main Justice had approved the program, Wittes (and everybody else) would have had no problems with it?

This suggests a clarification I should make. Obviously, if the program was legal prior to its modification by Comey, then the administration did not violate the law by ignoring OLC's (bad) legal advice. Assuming that Goldsmith was correct and the program was illegal, then the administration has a plausible defense for its behavior prior to the Goldsmith opinion: namely, that it received bad legal advice from John Yoo's OLC. However, continuing the program anyway despite the opinion that it was illegal obviously removes this defense.

This is a distinct question from whether Congress can legitimately impeach the President for enacting a program when the (presumptively) best legal advice available was that the program was illegal.
5.18.2007 4:01pm
IdiotWatch (mail):

(presumptively) best legal advice available


Best laugh I've had all day!
5.18.2007 4:05pm
John McCall (mail):
There's no evidence that the OLC thought the program was "illegal". In fact, Comey refused - multiple times - to say anything like that. Refusing to "certify" the program does not give us any indication as to whether OLC thought it was "illegal".

You will have to convince me that that hair exists. OLC was given two options: "we think this program is legal" and "no answer". What were they supposed to do, scribble "definitely not" on the approval form? Pretending that their refusal to certify legality has no bearing on the question of illegality is fiction.
5.18.2007 4:08pm
A.S.:
It baffles me to no end why so many people keep saying the program was "illegal". Comey went over and over this issue in his testimony and pointedly refused to say that going forward with the program was illegal. Yet, everyone ignores that.

To me, anybody calling the program "illegal" is simply not paying any attention to the issue, and is speaking out of pure partisanship.
5.18.2007 4:09pm
A.S.:
You will have to convince me that that hair exists.

Read Comey's testimony!
5.18.2007 4:10pm
Fub:
Jonathan Adler quotes Benjamin Wittes:
One can disagree with him about a lot of things and still recognize the fact that ultimately, he passed the hardest test: From a hospital bed in intensive care, he stood up for the rule of law.
Although the intended abstraction is heroic, the metaphor itself is more Homer Simpson than Homeric.
5.18.2007 4:10pm
Mark Field (mail):

a program that has been certified 19 times in a row.


I've seen this claim made several times now. I'm not at all sure it's true. The statements about certification don't actually say this. What they say is that the "program" "is" being certified every 45 days. We don't know what program this references and we don't know how to interpret the present tense verb. The "19 times" claim depends on two assumptions: that the same "program" was involved (something Comey wouldn't confirm) and that the certifications began roughly 855 days before March 11, 2004. Neither assumption is a confirmed fact.
5.18.2007 4:11pm
Steve:
I basically view this issue as a litmus test for who is capable of independent thought.

Independent thought is for the weak. Think of it instead as an adversary process - it's Powerline's role to do the very best job they can to claim that the administration did no wrong, and that anyone who says otherwise is a traitor to America. And based upon whether they make a somewhat plausible or, as here, a totally implausible case, you can draw some conclusions about the strength of your own, presumably opposed, position. Also, people who call 'em like they see 'em aren't nearly as funny as determined apologists.
5.18.2007 4:15pm
A.S.:
OLC was given two options: "we think this program is legal" and "no answer". What were they supposed to do, scribble "definitely not" on the approval form? Pretending that their refusal to certify legality has no bearing on the question of illegality is fiction.

BTW, I still don't understand the logic here.

The options are "can say with 100% certainty that there is a legal basis for the program" and "cannot say with 100% certainty that there is a legal basis for the program".

For some reason, you think that "cannot say with 100% certainty that there is a legal basis for the program" is the same as "can say with 100% certainty that the program is illegal". We have no idea whether OLC thought the program was "definately not" legal, or "maybe not" legal, or "there's a slight chance it's not" legal.

Lawyers confront those situations all the time. That fact that a lawyer can't tell the client with 100% certainty that there is a legal basis for what the client is doing doesn't mean that the client absolutely shouldn't go ahead.
5.18.2007 4:32pm
A.S.:
Neither assumption is a confirmed fact.

True that. And it's not a confirmed fact that it is the NSA program either. Who knows, maybe Ashcroft was talking about the legality of a mosquito eradication program in Missoula, Montana.

But all those assumptions seems pretty reasonable to me.
5.18.2007 4:35pm
John McCall (mail):
Read Comey's testimony!

I did, and I've read it again, and the very entertaining bits between Comey and Specter about splitting hairs are discussing what I've called Issue 1, not Issues 2 or 3.
5.18.2007 4:35pm
PatHMV (mail) (www):
I discussed this two days ago (The Sickbed Soliloquy, before any "talking points" were circulated. I think it makes Gonzales look rather bad, but the President comes off pretty well.

The biggest game in politics is figuring out what's going on elsewhere, what other peoples' true intentions are. For a whole slew of reasons, miscommunications are rampant. Politics of any number of stripes either force officials to be extremely reserved in their comments, and cynicism and distrust cause many to assume that someone is lying to them even when that's not the case.

We see that the Chief of Staff, for example, appears only vaguely aware of "rumors" that the DOJ staff is contemplating mass resignations. I suspect that Mr. Comey assumed that Mr. Card and Mr. Gonzales had much more information about what was going on than in fact they did. They may not have even realized just exactly how incapacitated the Attorney General was before arriving.

I've often seen difficulties arise from subordinates assuming that the higher-ups knew more than they actually did.

In the end, keep in mind that the President did the right thing by implementing the changes sought by Mr. Comey.
5.18.2007 4:37pm
Guest 3L (mail):
"Then, when Ashcroft refused, the White House went ahead and authorized the program on its own. In terms of raw power, the president has the ability to take this step. But...[t]he Justice Department is the part of the government that defines the law for the executive branch. For the White House counsel to defy its judgment on an important legal question is to put the rawest power ahead of the law."

This part of the article is completely contradictory. If the President has the power, then his actions are lawful, period. Therefore, authorizing the program w/out DOJ certification does not put power "ahead of the law." Indeed, given the President's duties to "preserve, protect, and defend the Constitution of the United States" and "take care that the laws are faithfully executed" an argument can be made that the President's failure to act in an area of national security, where he correctly believed he had the power to do so (and that doing so was necessary and proper), would be an abdication of his constitutional duties notwithstanding DOJ's disagreement as to the scope of his authority. The DOJ does not "define" law for anyone; rather, it is "emphatically the province and duty of the judicial department to say what the law is."

If the President is acting w/in the scope of his constitutional or statutorily granted powers, then that is (almost always) the end of the story. If the power is in the 'twilight zone' of ambiguous or concurrent authority (i.e., concurrent w/conrgressional authority), then the President should act if he believes the national security of the US demands it. The best practice would be to then ask for congressional ratification of the power, but such ratification is not necessary to make his actions lawful. Likewise, DOJ approval is certainly not necessary to make the President's actions a lawful exercise of his constitutionally or statutorily granted powers.
5.18.2007 4:43pm
Crust (mail):
So ignoring your attorney's advice is criminal?

If your attorney (Ashcroft, Comey) tells you (non-attorney Bush) that what you want to do is a felony, then it's probably not a good idea to do it. Yes, if it turns out your attorney was wrong and it was legal you're free and clear. But if you're not an attorney yourself you don't have any basis for thinking you know the law better.
5.18.2007 4:53pm
Mark Field (mail):

But all those assumptions seems pretty reasonable to me.


I imagine they do. But that reinforces the apparent contradiction between your willingness to accept those unproven assumptions while asking us all to "wait and see" about better documented facts.


If the President has the power, then his actions are lawful, period. Therefore, authorizing the program w/out DOJ certification does not put power "ahead of the law."


This sounds good, but it's wrong. Let's suppose Prof. Kerr is right about the purpose for the AG's certification, namely that it was to permit the telecos to provide the government access to their data and/or facilities. The relevant statute which grants that immunity specifically requires certification from the AG, not the President.

Also note the other side of your coin: neither DOJ approval nor Presidential action means that the action IS legal.
5.18.2007 4:55pm
A.S.:
But that reinforces the apparent contradiction between your willingness to accept those unproven assumptions while asking us all to "wait and see" about better documented facts.

Perhaps you have me confused with someone else. I have not asked anyone to "wait and see" about anything.
5.18.2007 5:00pm
John McCall (mail):
The options are "can say with 100% certainty that there is a legal basis for the program" and "cannot say with 100% certainty that there is a legal basis for the program".

You are suggesting that OLC will refuse to certify a program if it is not 100% certain of its legality? I certainly don't work in OLC, but given the ambiguity of most statues, that must result in an infuriating number of rejections.

I understand what you're saying, and no, the OLC's refusal to certify a program doesn't mean that it's categorically illegal. Still, for a human institution to make huge waves by radically changing its opinion about an established program in a manner guaranteed to maximally annoy its superiors --- the suggestion that they did this for trivial reasons is wildly inconsistent with anything I've ever noticed about bureaucracies. Quibbles about minor elements of the program could surely have been voiced in a less destructive and intrusive way than attempting to completely derail the entire thing.
5.18.2007 5:00pm
Harry Eagar (mail):
Fub sez: 'Jonathan Adler quotes Benjamin Wittes:

One can disagree with him about a lot of things and still recognize the fact that ultimately, he passed the hardest test: From a hospital bed in intensive care, he stood up for the rule of law.
Although the intended abstraction is heroic, the metaphor itself is more Homer Simpson than Homeric.'

I was very slightly amused by the 'standing up' construction. It needs emphasizing, though, that Ashcroft was dying. That he did not die was more luck than treatment, probably.

I dunno if Gonzales and Card understood just how very, very sick Ashcroft was.
5.18.2007 5:05pm
Guest 3L (mail):
Mark - I do not know enough about these issues to make a judgment about whether prof Kerr is correct or not. The article, however, conceded that authorization absent DOJ approval was within the President's power; my post was merely to point out that if a certain action is within the President's power then he need not obtain DOJ approval before exercising that power.

And of course you are correct that DOJ approval or Presidential action does not make an action legal; if I am not mistaken, I believe Lincoln's AG gave him an opinion to the effect that the President had the power to suspend habeas corpus, which Chief Justice Taney certainly didn't agree with. But DOJ approval or disapproval has no binding effect w/r/t the legality of a President's actions; and if a President thinks his actions are not only legal but necessary to preserve national security, I think he has an obligation to ignore DOJ and proceed anyway.
5.18.2007 5:05pm
badger (mail):
Guest 3L: I believe when Wittes refers to "raw power" he is referring to the President's ability to order others to do things despite their illegality and to have those orders followed out of blind trust, loyalty, or fear of reprisal, not any kind of lawful power.


Indeed, given the President's duties to "preserve, protect, and defend the Constitution of the United States" and "take care that the laws are faithfully executed" an argument can be made that the President's failure to act in an area of national security, where he correctly believed he had the power to do so (and that doing so was necessary and proper), would be an abdication of his constitutional duties notwithstanding DOJ's disagreement as to the scope of his authority.

That's pretty sketchy reasoning. First, note that the thing being "preserved, protected, and defended" is the Constitution, not America's national security. While those can be two closely-linked things, the clause clearly says that the president must uphold the Consitution, even if it makes preserving national security more challenging. And how on earth do you reconcile his obligation to "take care that the laws are faithfully executed" with his complete and carefully hidden from the public disregard of both FISA and the legal reasoning of his own OLC and DOJ?

Your formulation that the President has a constitutional duty to ignore any law that prevents him from preserving national security is a formula for martial law. How many other laws is the President allowed to secretly violate and secretly justify for national security?
5.18.2007 5:06pm
A.S.:
You are suggesting that OLC will refuse to certify a program if it is not 100% certain of its legality? I certainly don't work in OLC, but given the ambiguity of most statues, that must result in an infuriating number of rejections.

I don't work in OLC either. (And OLC wasn't providing the certification anyway.) And indeed, I don't know whether it takes the AG's metaphysical certainty as to the legality of the program in order to him to sign off. So perhaps I'm wrong - maybe the AG would certify as to the legality of the program if he believes there is a 50.1% chance it is legal. But I doubt it. Where, between 50.1% chance it is legal and 100% certainty on the matter does an AG sign off? I dunno. I'd bet it's more toward the latter than the former.

Still, for a human institution to make huge waves by radically changing its opinion about an established program in a manner guaranteed to maximally annoy its superiors --- the suggestion that they did this for trivial reasons is wildly inconsistent with anything I've ever noticed about bureaucracies.

I don't believe, and haven't said, that OLC and the DAG changed their opinion for trivial reasons. Likely they have different views of the law than did the previous occupants of those offices. Which seems to me to be completely innocuous. Lots of people differ on their views of the law. But we can't infer anything about the issue they opined about merely because they had different views. Who's right - Bybee or Goldsmith? I don't know. Neither does anyone else here.
5.18.2007 5:12pm
FC:
Now I remember this episode. Ashcroft had carbon nanothingies in his blood and Gonzalez was controlling them with an Apple Newton.
5.18.2007 5:33pm
PD (mail):

The options are "can say with 100% certainty that there is a legal basis for the program" and "cannot say with 100% certainty that there is a legal basis for the program".


Given a continuum of 0 equaling a complete lack of legal basis and 100 equaling a total legal basis, what is the threshold where the AG, DAG and Director of the FBI would threaten to resign over the legal basis of the program?
5.18.2007 5:33pm
Mark Field (mail):

Perhaps you have me confused with someone else. I have not asked anyone to "wait and see" about anything.


I may have confused you with Kazinski. Have the two of you ever been seen together in public?


The article, however, conceded that authorization absent DOJ approval was within the President's power; my post was merely to point out that if a certain action is within the President's power then he need not obtain DOJ approval before exercising that power.


Agreed, of course, but this isn't entirely helpful because it begs the fundamental dispute: is this action within Presidential power? The key point here is that (a) the President has never attempted to obtain a judicial determination; and (b) ignoring DOJ warnings to the contrary, while perhaps legally defensible, might not be advisable, especially for a President with no legal training.


if a President thinks his actions are not only legal but necessary to preserve national security, I think he has an obligation to ignore DOJ and proceed anyway.


Here, I think, it depends on the situation. When there is time available to obtain legal advice or a judicial determination, then I think the "duty to execute" clause obligates the President to do so. In a true emergency -- the house is burning down -- then there's always the defense of necessity. But it's a defense, and that means the President has the burden of proving it.
5.18.2007 5:36pm
PersonFromPorlock:
All this havering back and forth is interesting, but the fact is that all of these people are sufficiently important to be immunized under the Important People Clause. IF there's an offense then there may be the blood sacrifice of some minor functionary, but basically nothing is going to happen.
5.18.2007 5:37pm
Steve:
It's just hilarious to suggest that the DOJ concluded that the surveillance program was, say, 80% likely to be legal, and yet not only did they refuse to sign off on it ("I know we might lose Cleveland, Mr. President, but our new guidelines require 85% certainty. It's a chance we'll have to take!") but the entire senior staff of DOJ was prepared to resign if the program continued. Because, you know, if you're going to give up your cushy government job over a matter of principle, it's typically a principle like "they went ahead with something even though we told them there was only an 80% chance it was legal!"

To hear some people talk, you would think that the threat of mass resignations is something that gets deployed every day. One of my favorite bits from Powerline is this post, quoting an anonymous correspondent identified as "a sophisticated observer with relevant professional background," which begins:

On the face of it, there was little of interest in former Deputy Attorney General Comey's testimony before the Senate Judiciary Committee yesterday. No wrongdoing was alleged against AG Gonzalez or any Administration official...


You simply cannot make this stuff up.
5.18.2007 5:44pm
Crust (mail):
Jonathan, are you going to correct this statement?

Meanwhile, the number of GOP Senators who have said publicly AG Gonzales should resign is up to five (Coleman, Hagel, Roberts, Specter, Coburn).

As noted above, there are 11 Republican Senators who have called for the resignation or firing of Gonzales, or said something tantamount to that. Now if you want, you can exclude Senators who haven't come right out and said it explicitly. But in that case Specter shouldn't be on your list. And e.g. Sununu should be on the list since he said this:

The president should fire the attorney general and replace him as soon as possible with someone who can provide strong, aggressive leadership.
5.18.2007 6:26pm
TCO:
To start with: I'm very bothered by this story (the middle management cravenness of the Bushies) and not persuaded by some of the pushback.
Especially "histroniocs". That is at a minimum poor word choice, at a maximum dishonest. However, I always want to look at both sides of something. I do think that the Comey story is almost cliched in some elements (e.g. "raising off the pillow"). I'm inclined to beleive Comey. But would like some confirmation. We've all seen emotional stories prove exaggerated/untrue (Tilman death, etc.)

Some other things I would have liked to have asked:
-more probing on the nature of the 45 day reviews. Why the periodicity. What was done (a fundamental legal review, a check on certain parameters of execution, the state of the terror war)? What happened with the initial determination that it was flawed and needed correction? Etc.
-What did he mean (probe) when he said that he had not seen Ashcroft strong before? Was it a compliment or an implicit slam?
-more probing on the issue of relative evaluation of fired AGs. What is the talent spread? What are relevant performance parameters? To what extent is politics relevant in hiring/firing? What are the duties of a local AG to pursue department initiatives, etc? He'd only seen one bad AG? Etc.
5.18.2007 7:20pm
JunkYardLawDog (mail):
I've changed my mind completely on several things. I think Gonzales should be fired. I think a special prosecutor should be appointed to put as many Bush people on trial and in jail as possible. I don't care on what basis or for what violations. I don't care if they are made up or not. I think Bush should be impeached. The sooner the better. Tomorrow wouldn't be too soon. Again I don't care on what basis or what grounds, just get the stupid deaf s**t out of office asap. I think Fitzgerald should indite Rove and anybody else in the administration he can be persuaded to indict through any deception, trick, or device he might care to employ.

Says the "Dog"
5.18.2007 7:29pm
Kovarsky (mail):
Someone pull Marty Lederman off Doug Kmiec. Jesus, wow. That qualified as "blistering."
5.18.2007 7:59pm
Kovarsky (mail):
To me, anybody calling the program "illegal" is simply not paying any attention to the issue, and is speaking out of pure partisanship.

In other news, Mark McGwire didn't use steroids, he's just "not here to talk about the past."
5.18.2007 8:03pm
Crunchy Frog:
I don't think there is a question that AGAG is an incompetent hack who deserves to be thrown under the bus at the earliest possibility. Unfortunately, given the politics of the situation, he's not going anywhere. The chance of getting anyone who is not a Charles Schumer lackey approved by the Senate is completely nil, and putting someone who is would open up the administration to more Patrick Fitzgeralds running around with an unlimited mandate and no supervision.

When's the next congressional recess? August? When it rolls around, AGAG will resign and Bush will put someone in with one of the same Patriot Act recess appointments that pissed off the Dems in the first place. You think the howling is bad now? I can hardly wait.
5.18.2007 8:09pm
Mark Field (mail):

When's the next congressional recess? August? When it rolls around, AGAG will resign and Bush will put someone in with one of the same Patriot Act recess appointments that pissed off the Dems in the first place. You think the howling is bad now? I can hardly wait.


An all too plausible suggestion.
5.18.2007 8:37pm
A.S.:
Someone pull Marty Lederman off Doug Kmiec. Jesus, wow. That qualified as "blistering."

I don't think the word you're searching for is "blistering"; try "embarrassing".
5.18.2007 8:37pm
Just an Observer:
A.S. And it's not a confirmed fact that it is the NSA program either. ... But all those assumptions seems pretty reasonable to me.

Actually, we know the opposite from Gonzales' own testimony last year.

He repeatedly told the Judiciary Committee that the confrontation with Comey involved some "other matters regarding operations" and "operational capabilities" other than the NSA program that the administration confirmed/announced in December 2005.

Whatever those operations were, they apparently were serious enough to get the FBI Director -- the NSA director is found nowhere in Comey's narrative -- to threaten to resign, to meet one-on-one with the President, and to obtain instructions from the President to modify the program to meet his and DOJ's objections.

That suggests to me that the operations at issue were being conducted by the FBI.
5.18.2007 9:52pm
Kovarsky (mail):
That suggests to me that the operations at issue were being conducted by the FBI.

If you read Comey's testimony carefully (which no doubt many have faild to do), Mueller is a sufficiently central protagonist that one may pretty fairly infer substantial FBI involvement.
5.19.2007 2:39am
jukeboxgrad (mail):
AS: "all that was asked was whether Ashcroft agreed with the decision"

You're suggesting that Gonzales wanted to know if Comey had Ashcroft's support. If so, then Gonzales could have simply asked Comey this question: "do you have Ashcroft's support?"

Are you suggesting that Comey was not considered trustworthy enough to answer such a question honestly? If so, then why was he considered trustworthy enough to be DAG, and to be acting AG?

Also, Gonzales didn't walk into the room with a question for Ashcroft. He walked into the room with a form he wanted Ashcroft to sign. Not the same thing. Even if Ashcroft had said 'Comey is wrong,' the proper step would have been for Gonzales to then hand the form to Comey. Ashcroft was drugged, and he was not the AG. Handing him a form to sign was wrong, no matter how you look at it.

"The law contains grey areas"

Given the number of people who were threatening to resign, this particular 'grey area' was uncomfortably close to the black end of the scale.

By the way, the problem is not just that it appears that Bush knowingly did something illegal. It's also that he led us to believe that everything he did had DOJ approval (see the statements he and his people made in 12/05). That was a lie.
5.19.2007 3:59am
SpenceB:
...the fundamental legal problem with covert electronic government surveillance is that any 'illegality' is moot -- unless revealed by the persons associated with the illegal behavior. Undetected crimes are successful crimes to the criminals

Ten-thousand pages of surveillance "rules" (certified or uncertified by DOJ) are mere noise, unless the persons actually conducting the surveillance and using its output -- comply fully with the rules.

Who's to know or care ?

Generally, the courts only get involved when police/prosecutors choose to introduce selected wiretap information as formal criminal evidence (where its legality may be reviewed). Otherwise, the government is practically unconstrained to conduct unlimited illegal wiretaps ... subject only to their own ethics.
5.19.2007 8:50am
Eli Rabett (www):
The hidden issue here is John Yoo. He provided opinions that these programs were legal (sort of like legal letters justifying illegal tax shelters, but more damaging). When he left and real lawyers rather than advocates of torture and spying took a look at the programs it turned out that Yoo's opinions were, to put it nicely, enabling law breaking, which lead to the farce under discussion. One wonders why his colleagues tolerate Yoo's presence at the UC law school. It does not reflect well upon them
5.19.2007 10:58am
Crust (mail):
Jonathan, thanks for posting the second update. And I enjoyed the Spinal Tap reference.
5.21.2007 10:42am