18 May Lederman on Comey’s Testimony and Extralegal Conduct at the Highest Levels
Marty Lederman has terrific posts here and here on the import of James Comey’s riveting testimony before the Senate Judiciary Committee earlier this week. I link to it here for our non-American readers who might have missed it. (Maddeningly, this profoundly important story has not been afforded the wall-to-wall coverage cable news reserves for Anna Nicole Smith’s baby custody battles). Lederman’s question is, I think, on many of our minds: What was the scope of the wiretapping program that Gonzales endorsed over the objections of Ashcroft/Comey/Goldsmith? We will all know in due course. In the meantime, Comey’s testimony
I went out in the hallway. Spoke to 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 [AG Ashcroft’s hospital room] under any circumstances. And I went back in the room.
is truly remarkable. Think about that. The Acting Attorney General requesting a security detail to protect himself from potential forcible actions by the senior White House officials.
Perhaps what is most significant about this story, as Lederman points out, is that those who attempted to block the White House from extralegal conduct are not around, having all left government service. But Gonzales, the man who sought to strong arm a gravely ill attorney general, lying in a hospital bed, is now himself the most senior law enforcement officer in the country — and seemingly impervious to any sense of shame. The mind reels.
I recognize that we are in a moment in which we are desperately looking for (present or former) legal heroes in Justice, but while this makes great cinema – there are no great legal heroes here. Might I say that those who attempted to block extralegal conduct under one theory (Constitution Article II) only to allow it under another theory (Authorization to Use Military Force) are hardly heroes. It is merely a quibble between subalterns. It appears patently clear that the original OLC basis was a Yoo opinion asserting the Article II powers of the President. When Goldsmith et al came to OLC and reviewed the prior bases, the Article II basis appears to have been found wanting. Cormey and Goldsmith’s solution? They sought to anchor the program under the broad vision of the AUMF. As we know, last year, a federal judge in the Eastern District of Michigan rejected that version also on statutory and constitutional grounds. That decision is under appeal. I despair that either the appeals court or the Supreme Court will care enough about civil liberties to sustain the courageous federal district judge. We shall see. Moreover, in an effort now to put in place the… Read more »
Why does no one ask what the ‘undisclosed’ programs are? It is patently obvious that the disclosed program, while controversial, is nowhere near as legally-objectionable as the undisclosed programs are. Comey declined to say what program precipitated the hospital-scene, so everyone assumed it was the disclosed program of domestic spying. The DOJ then issued a statement that Gonzales stands by his statement that there was no serious controversy over the disclosed program involving domestic spying. Many assume Gonzales is flat-out lying, but he did not deny that the hospital-scene happened. I take it instead to be his confirming that the hospital-scene involved the legality of a yet-undisclosed program. And you know it must be a doozy for even John Ashcroft to refuse to bless it. Which makes it pretty darn relevant for Americans who “support and defend the Constitution . . . .” The officials testifying before Congress during the (brief) hearings about the disclosed program were very precise in their testimony to specify that they would comment only on this particular program, and other programs exist in this area on which they would not comment. So again, why does no one (such as the media, scholars, etc.) ask what… Read more »
A basic principle of Intelligence is that you do not disclose information about a program to those who do not need to know. Comey made it clear that there was no requirement that anyone at the DOJ approve and sign off on the document. Either the NSA broke one of its own most basic rules, or the DOJ was not given detailed information about the program. In 1941 the fact that the Japanese codes had been broken was so secret that it was not disclosed to Admiral Kimmel who was in control at Pearl Harbor. That was clearly a mistake, but it would be vastly worse if today the details about the sources and methods of intelligence were widely circulated to lawyers at the DOJ who admittedly had absolutely no “need to know”. They did not need details about the program to approve it. They just had to know that it obeyed constraints that would make it legal. We have heard the constraints: only international calls were processed, only calls to or from overseas numbers associated with al Qaeda, etc. The negotiations between NSA and DOJ would be designed to obtain constraints under which the program would be regarded as… Read more »