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 socalled FSIA Modernization Act – classified and unclassified versions apparently floating through Congress right now – it is likely that whatever the appeals court decision, Congress will consider and possibly adopt new language pre-election that I suspect will bow to security concerns.
So it is good that a story has come out, but it is not as good a story as we all think.
Best,
Ben
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 these ‘undisclosed’ programs are? Is it because they are too polite to ask (certainly not), too thick to even think of asking (unlikely), or they know the answer already and are merely using the disclosed program as political capital because the truth is too sensitive or weird or what?
Even if you know you will not be answered, the question must be asked.
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 legal while disclosing as little as possible about how the program was actually being carried out. From the NSA point of view, the question of legality could have been irrelvant (if the program was obviously legal), but the disclosure of sources and methods was to be avoided at all costs.
For example, the government has never disclosed where or how the calls were intercepted. Many have assumed that phone companies were involved, but all calls between the US and the Middle East and Pakistan move from Transatlantic Telephone (TAT) cable to the FLAG cable in Cornwall England. Since 100% of the traffic under consideration follows this path, it would have been possible for MI-6 to do all the monitoring (where they also pick up domestic UK traffic and a lot of Northern European traffic). Then they just send the data back to us. Remember, there in this entire story there has never been a single person who claimed to know where the data came from. The only disclosure is that the data was processed by the NSA.
Although such a system is trivial, obviously legal (no FISA), and better (it gets more data), nobody could point out that it was legal to us (because we weren’t doing it) without violating our agreement with MI-6. Remember, if we can’t get the data legally ourselves then either we broke the law or we are getting it from someone else. That and 15 minutes on Wikipedia looking at TAT cables makes it blindingly obvious who that someone else is likely to be.
Obviously I have no evidence that we got the data from MI-6. We could have, or we could have done it the old fashioned way and tapped the TAT cable in Manasquan NJ. Of course every undersea cable has two ends, and in this case the two ends have a “Special Relationship”. From an intelligence point of the two possiblities are equally good, and one is blindingly legal (but we can’t say so).
However, wherever the data came from, Comey was almost certainly not told. The reason why he could never say if the program was illegal was that he didn’t know anything about the program itself. All he knew was the constraints about the program written into the reauthorization document. Maybe it previously held that the other end was a phone number associated with al Qaeda, and he wanted to add the language subsequently disclosed about a career analyst making that determination. Subsequently we know the wording was changed, but nobody has said that the program was changed to match the new wording. It may have met the new constraints all along.
I am not proposing a theory. I will let the critics invent wild theories based on no evidence. I am simply pointing out that the government has disclosed almost nothing, and that everything said about the program has been said by people who don’t know. The fact that one person makes a guess, and a thousand people who agree with him politically then repeat the guess, and the government doesn’t issue a denial, doesn’t make the guess true or even credible. Well it would if only politics was involved, but not when the guess involves the sources and methods of intelligence. Churchill let Coventry be bombed to protect the Ultra secret, so Bush can certainly let a few critical bloggers blow their top over a bad theory without correcting it. Comey does not claim to know how the program worked. He knew how it wasn’t allowed to work, and at the time he wanted more constraints before he was willing to sign off.