Our 544th Post: Back to the Future

I'm feeling nostalgic, so I thought I'd take a look at the first Repository post:

http://repositagain.blogspot.com/2005/12/firedoglake-jonathan-alter-newsweek-on.html

Turns out that our first post was also the first of a series we reposited in 2005 and much of 2006 on the NSA wiretapping revelations.

So, in honor of our 1st post I thought I'd reposit the most recent developments...

First, you must view scenes of James Comey's testimony in front of Schumer's senate committee from Tuesday. I mean it...even if you've read some highlights you've got to see it for yourself. Comey -- who is a mainstream loyal Bushie -- tells a story that both implicates Bush directly as a co-conspirator in the illegalities surrounding the program, and also shows Gonzales and Andy Card and Bush to resort to brute thuggishness against their own.

Now, a few choice quotes from the Washington Post editorial the morning after Comey's testimony. Not only is this a loyal Bushie Comey telling this tale, this is the loyal Bushie (or at least not openly disloyal) Washington Post editorial page.

Mr. Comey's vivid depiction, worthy of a Hollywood script, showed the lengths to which the administration and the man who is now attorney general were willing to go to pursue the surveillance program. First, they tried to coerce a man in intensive care -- a man so sick he had transferred the reins of power to Mr. Comey -- to grant them legal approval. Having failed, they were willing to defy the conclusions of the nation's chief law enforcement officer and pursue the surveillance without Justice's authorization. Only in the face of the prospect of mass resignations -- Mr. Comey, FBI Director Robert S. Mueller III and most likely Mr. Ashcroft himself -- did the president back down.

...

The dramatic details should not obscure the bottom line: the administration's alarming willingness, championed by, among others, Vice President Cheney and his counsel, David Addington, to ignore its own lawyers. Remember, this was a Justice Department that had embraced an expansive view of the president's inherent constitutional powers, allowing the administration to dispense with following the Foreign Intelligence Surveillance Act.

Here are a few legal opinions just to whet your appetite for more detailed reading.

First, from two posts by Glenn Greenwald at Salon:

What more glaring and clear evidence do we need that the President of the United States deliberately committed felonies, knowing that his conduct lacked any legal authority? And what justifies simply walking away from these serial acts of deliberate criminality? At this point, how can anyone justify the lack of criminal investigations or the appointment of a Special Counsel? The President engaged in extremely serious conduct that the law expressly criminalizes and which his own DOJ made clear was illegal.

...

But more revealingly, just consider what it says about this administration. Not only did Comey think that he had to rush to the hospital room to protect Ashcroft from having a conniving Card and Gonzales manipulate his severe illness and confusion by coercing his signature on a document -- behavior that is seen only in the worst cases of deceitful, conniving relatives coercing a sick and confused person to sign a new will -- but the administration's own FBI Director thought it was necessary to instruct his FBI agents not to allow Comey to be removed from the room.

Comey and Mueller were clearly both operating on the premise that Card and Gonzales were basically thugs. Indeed, Comey said that when Card ordred him to the White House, Comey refused to meet with Card without a witness being present, and that Card refused to allow Comey's summoned witness (Solicitor General Ted Olson) even to enter Card's office. These are the most trusted intimates of the White House -- the ones who are politically sympathetic to them and know them best -- and they prepared for, defended themselves against, the most extreme acts of corruption and thuggery from the President's Chief of Staff and his then-legal counsel (and current Attorney General of the United States).

...

As former OLC official Marty Lederman noted last night, John Ashcroft and James Comey are both Republican ideologues who proved that they were willing to endorse and defend even the most radical (and illegal) behavior (including the lawless detention of Jose Padilla and the administration's "refashioned" -- though still illegal -- warrantless eavesdropping program). If they were insisting that the conduct of the Bush administration was not only illegal, but so illegal that they were ready to resign en masse over it, then, as Lederman asks: "can you even imagine how bad it must have been?"

...

James Comey's testimony amounts to a statement that -- even according to the administration's own loyal DOJ officials -- the President ordered still-unknown spying on Americans, and engaged in that spying for a full two-and-a-half-years, that was so blatantly and shockingly illegal that they were all ready to resign over it. And the President's Attorney General then lied to ensure that this episode remain concealed. Mere one-day calls for a Congressional investigation are woefully inadequate here.

And from a former lawyer in the OLC under Clinton, MartyLederman:

These are hardly officials who were unwilling to push the legal envelope, or who were disdainful of the objectives or need for the NSA program. Two or three weeks later, OLC did develop an alternative legal theory that permitted a narrower version of the surveillance program to go forward. By all accounts, that legal theory is some version of the argument that the 2001 Authorization for the Use of Military Force against Al Qaeda authorized this form of electronic surveillance, notwithstanding FISA. That is a theory that I and many others have harshly criticized (see, for example, the letters collected here). It is, to say the least, an extremely creative reading of the relevant statutes -- a reading that not a single member of Congress who voted for the AUMF could possibly have imagined, and one that (to my knowledge) not a single member of Congress has approved once reading of it in DOJ's "White Paper."

These DOJ officials were willing to sign off on that very tenuous legal theory. What does that tell us about the OLC theory that they inisted upon repudiating?

Important Unanswered Questions to Date:

1. Did Bush make the call to Mrs. Ashcroft to pressure her to allow Gonzales and Card in the hospital room?
2. Did Bush know that Ashcroft and then acting Attorney-General Comey said "no" to certifying the legality of the 2001-2003 program? -- Note: even now it is already looking like this is a silly question and is obviously "yes" and will never be denied by the white house.
3. What made Comey and Ashcroft change their minds on this program at this time in 2003? After all, the program was recertified once a year as being legal by the Office of Legal Council in the DOJ (which, by congressional law, has the last and only say in what counts as "legal" and "illegal" in the Executive Branch)?

Actually it is not exactly right to say that Comey "changed" his mind, since he was fairly new to his position coming in in 2003. Actually, the guy who changed his mind is --- Goldsmith, who had also come on board in 2003 as the new head of the OLC. Goldsmith had apparently undertaken a review of his predecessor's legal proclamations, and it seems found many of them wanting.

And you'll never guess who it was that was head of the OLC before Goldsmith....None other than John Woo. Yes, that John Woo.

Now, Goldsmith somehow convinced Comey and Ashcroft that the OLC and therefore the DOJ and the entire executive branch was going to have to completely reverse its stand on the NSA program in question. Now if you watch the Comey video, you get the sense that he probably was easy to convince. My guess is his briefing by Goldsmith was his first encounter with the program and it scarred the hell out of him. (I mean it -- watch his testimony!) What I don't get is Ashcroft. Is it really possible that Woo had convinced him of the program's legal validity only to have a more persuasive Goldsmith come along and so convincingly persuade him to effectively shut down this national security program? Come on...Pull the other one.

Here's my guess, either Ashcroft
1. didn't even read the original Yoo legal evaluations or
2. there weren't any original Yoo evaluations or
3. there were aspects to the program that didn't get mentioned (or were deliberately distorted) in the original Yoo evaluations.

And at this point, the consensus opinion seems to be a mixture of 1 and 3, but there may be other possibilities as well. One possibility seems to be that Yoo and the DoJ folks were not given access to all the details of the program in question, but went on developing legal justifications nonetheless, and that Goldsmith and Comey insisted on knowing the details before they would sign off.

But all this is window dressing: Bush directly intervened and took it upon himself to continue the operation of a program that the OLC -- the one and only voice that is always taken as dispositive in matters of law in the Executive Branch -- and that means that yet again Bush and several others are felons.