Right Wing Nut House

If I could guarantee that this story won’t get any bigger, I wouldn’t take the time nor make the effort to analyze the many parts of it or try and place it in a context that is both realistic and logical.

In other words, the furious spin being given James B. Comey’s testimony before the Judiciary Committee by the usual suspects on the left, while leaving much to be desired with regards to the conclusions they reach about the way the NSA surveillance program was conducted and legally justified, nevertheless raises extremely troubling questions about the Bush Administration’s adherence to the law during the critical time frame of October, 2001 to March, 2004.

Did Bush violate the law by authorizing the NSA program? A federal judge has said so, although many respected and knowledgeable legal observers - not all of them Bush supporters - pointed out numerous deficiencies in that judge’s opinion that will most likely result in the decision being overturned. But if the President violated the law, is there any possible justification for it that would or should keep him from being impeached? It seems to me that the kinds of lawbreaking involved here are exactly what the Founders had in mind when they added the impeachment codicil to the Constitution; the executive branch overstepping its authority and carrying out actions expressly forbidden it by the Congress.

But do the obvious mitigating circumstances - 9/11 and its aftermath - mean anything in this context? Do we approach lawbreaking - if indeed laws were broken - with eyes blinded to the realities faced by our elected leaders? The left would dearly love to do so. For the rest of us, each must determine the answer to that question in their own heart, free of partisan taint or Bush hatred.

This is how important Robert Comey’s testimony is. It gives Congressional investigators a direct avenue to determining whether the impeachment and trial of President Bush is justified. And it does so because there is both a document trail to be unearthed and witnesses to be deposed who could possibly corroborate serious violations of the law.

For those of us not versed in the intricacies of the law, we are forced to rely on good old fashioned common sense and our innate belief in determining what is fair when examining both sides of the debate over what happened. For in truth, besides questions about the law, we must look at the people involved and try to determine their motivations, their state of mind when confronted with the unprecedented domestic threat in the aftermath of 9/11.

Comey’s testimony was, to put it mildly, a jaw dropper. He has been described as a staunch Republican and a straight shooter by some. However, there is a much different take on Comey - one that questions his close ties to Senator Chuck Schumer as well as personal animus he felt toward staffers in the Office of Vice President Cheney:

Comey came on board as DAG [Deputy Attorney General] at the beginning of December, 2003, and he had some unusual support for a Republican appointee–Senator Chuck Schumer was very much in his corner. So it was that Comey was pretty much brand new on the job at the time he decided to reverse what appeared to the Administration as settled policy on the NSA eavesdropping program–certainly a shocking and radical development in any Administration. But Comey had already taken actions that boded ill for the White House, and especially for the Office of the Vice President (OVP), with whom the transcript shows he was in serious, and probably personal, conflict.

Comey, when asked for names of his adversaries in the OVP, mentioned his disagreements with VP Dick Cheney and Cheney’s Legal Counsel, David Addington. Curiously, Comey failed to mention Scooter Libby–Cheney’s Chief of Staff, a prominent attorney in his own right, and a leading architect of policy at the OVP–even though it is known that Libby was also involved in these matters. It is scarcely credible to suppose that Comey had no dealings with Libby, nor that they were in disagreement over the NSA program. Perhaps Comey avoided mention of Libby because he wished to avoid the appearance of personal animus. After all, it is well known that Libby had beaten Comey in a contentious case in the Southern District of New York a few years earlier, and one of Comey’s first acts as DAG–before the NSA program came up for recertification–was to talk Ashcroft into recusing himself from the Plame affair. Comey then proceeded to appoint his former SDNY pal Patrick Fitzgerald to go after Libby, even expanding Fitzgerald’s purview to “process violations,” even though Comey knew that Armitage was the “leaker” and that the supposed “leak” violated no known law.

Not quite the “white knight” he has been made out to be by some on the left. Indeed, Comey’s testimony, taken in its entirety, raises questions about his motivations. However, there is a glaring deficiency in the above critique of Comey that must be highlighted if we are to understand why Comey’s testimony is so important: The arrival on the scene in October, 2003 of Jack Goldsmith as the new head of the Office of Legal Counsel.

The Office of Legal Counsel at the Department of Justice is the fulcrum for this entire controversy. The OLC gives opinions to the Attorney General about the legality and constitutionality of proposals like the NSA intercept program. It should be noted that it is extremely rare for the AG to go against the recommendations of the OLC.

Goldsmith took over following the resignation in May of 2002 of Jay Bybee, author of the so-called “Bybee Memo” or “Torture Memo” that some believe was written at the behest of current AG Alberto Gonzalez and used legal justifications for ignoring the Geneva accords promulgated by Assistant AG John Yoo. It was on Bybee’s watch that the NSA intercept program was first vetted and approved by the Department of Justice. That particular OLC opinion has not been leaked or released so we don’t know the original justification for the program. We do know that President Bush signed an executive order that mandated continuous monitoring of the NSA intercept program by DOJ to the point that the Department had to re-certify the program’s legality every 45 days.

The gap between Bybee’s resignation in May 2002 and Goldsmith’s confirmation in October, 2003 is hugely significant. During that time, the DOJ signed off on the legality of the NSA program numerous times using as legal justification the original OLC opinion.

Enter Goldsmith and within 6 months, he carried out a review of the legal basis for both the “enhanced interrogation techniques” and the NSA intercept program. In both instances, he found the legal justifications wanting. In December of 2003, he informed the Pentagon that they could no longer use the Bybee Memo as a legal basis for carrying out torture. And then he turned his attention to the NSA matter.

By early March 2004, OLC apparently concluded that the NSA electronic surveillance program could not be defended on the basis of OLC’s prior legal opinions, and had convinced the Attorney General and DAG that DOJ had to refuse to sign off on the program — i.e., they were compelled to inform the President that the program violated FISA and could not legally be continued in its present form. Ashcroft and Comey agreed — or at the very least, they deferred to Goldsmith’s legal judgment, which is what happens in 99% of all cases once OLC speaks.

It is extremely rare for OLC to reverse its own opinions within an Administration. And that unusual course would be especially disfavored in this case, because all the relevant DOJ officials — e.g., Ashcroft, Comey, and Goldsmith — undoubtedly understood that repudiation of this particular OLC advice would mean shutting down the very program that the President had described as the most important intelligence program in the war on terror. Moreover, the theory that OLC was repudiating appears to have been one to which the Vice President and his counsel were deeply committed, and one that appears to have formed the basis for the Administration’s decision to disobey other important statutory constraints. Obviously, then, there were profound disincentives to such repudiation.

In other words, Goldsmith - another “staunch Republican” if that designation has any meaning in this context - overturned Bybee’s original opinion on the program’s legality and in one fell swoop, made potential criminals out of everyone who knew anything about it, including the President.

What happened next is confusing. Here’s Bush supporter John Hinderaker’s take:

Comey explained that it was immediately before Ashcroft was stricken with pancreatitis that he and Ashcroft came to the conclusion that they could not certify the legality of the NSA program, given the conclusions of the Department’s recent review. Comey described his conversation with Ashcroft, in which that conclusion was reached, and continued:

The Attorney General was taken that very afternoon to George Washington Hospital, where he went into intensive care and remained there for over a week. And I became the acting attorney general.

And over the next week–particularly the following week, on Tuesday–we communicated to the relevant parties at the White House and elsewhere our decision that as acting attorney general I would not certify the program as to its legality and explained our reasoning in detail….

That was Tuesday that we communicated that. The next day was Wednesday, March the 10th, the night of the hospital incident.

This strikes me as the information that is vital to understand what likely happened. Attorney General John Ashcroft had certified, over and over, that the NSA program was legal. Suddenly, Ashcroft was taken ill. The next thing that happened, according to Comey, was that Comey notified the White House that he would not sign the certification that Ashcroft had signed some 20 times. Comey did not say–amazingly, no one asked him–whether he ever told the White House that Ashcroft had agreed with this conclusion on the very day when he was taken to the hospital.

So it is hardly surprising if, confronted with sudden intransigence from a brand-new, acting attorney general, Alberto Gonzales and Andy Card thought that the problem lay with Comey’s staging a sort of palace coup. It may well have been reasonable for them to go to see Ashcroft to get the same certification they had gotten many times before.

When they got to the hospital, they found that Ashcroft seconded Comey’s legal concerns, based on the review that had just been completed. That caused some confusion, no doubt, but it led to the White House meeting between Comey and President Bush, followed by a meeting between Bush and FBI Director Robert Mueller. The upshot of those meetings was that Bush, apprised of the results of DOJ’s legal review, told Comey to do what he thought was right.

Most of the above sounds reasonable and explains much. Comey was mistakenly seen as going against the wishes of Ashcroft who had signed off on the legality of the program nearly 45 times during the previous 2 1/2 years. And because of Ashcroft’s illness, Andy Card and the Bush Administration was unable to discover that Ashcroft himself agreed with Goldsmith’s recommendation that the original OLC justification for the program was invalid and that it would have to be altered in order for it to continue.

Of course, this doesn’t solve the problem that if the original OLC memo was voided, did the President, the phone companies, the NSA, and anyone else involved break the law in carrying out the NSA intercept program?

Left-leaning Marty Lederman lists the consequences:

2. Repudiation of the theory would mean that the NSA and phone companies had been committing crimes for more than two years.

3. It meant DOJ doing a remarkable about-face and acknowledging profound error.

4. It was a rejection of the principal constitutional theory at the heart of the Vice President’s program for executive aggrandizement (and was presumably the basis for several other practices and policies as well) — and so it could be expected to be met with the considerable wrath of Cheney/Addington, to the point where one of the messengers of the bad news, Associate DAG (and former OLC Deputy) Patrick Philbin, had an expected promotion blocked (according to Comey’s testimony). Newsweek: “It is almost unheard-of for an administration to overturn its own OLC opinions. Addington was beside himself [when Goldsmith repudiated the Yoo DoD Torture memo in late 2003]. Later, in frequent face-to-face confrontations, he attacked Goldsmith for changing the rules in the middle of the game and putting brave men at risk, according to three former government officials, who declined to speak on the record given the sensitivity of the subject.”

5. The President demonstrated his profound commitment to the program by personally calling the Attorney General’s wife and urging her to allow the White House Counsel and Chief of Staff to cajole the AG in intensive care, where she had not been allowing visitors.

and

6. The White House told the DOJ officials that it was going to go forward with the program anyway, even after DOJ had opined that it was unlawful.

And yet not only would Ashcroft, et al., not budge — they were prepared to resign their offices if the President allowed this program of vital importance to go forward in the teeth of their legal objections.

And there you have it. The President and his people squaring off with their own Justice Department over a program that the most important constitutional expert in government had informed the White House that it was his opinion that they had been breaking the law for more than 2 years in authorizing the NSA to spy on Americans. And apparently most of the entire upper management at DOJ was prepared to resign rather than work for a government that violated the law.

What happened next is not in dispute. Once it was clear that Ashcroft backed Goldsmith, the White House acceded to changes in the program as recommended by DOJ. A new OLC memo was prepared that gave a legal framework for the program - that is, using the Authorization to Use Military Force (AUMF) as a basis for Congressional approval of the intercept program - and the Justice Department went back to re-certifying the program’s legality every 45 days.

Some hysterics believe that the fact the program was still running in the two weeks between the time that DOJ repudiated the original justification for the program and when the new OLC memo took effect, that the Administration was not only carrying out warrantless surveillance but also didn’t have any legal justification from DOJ for doing so. Hinderaker makes a valid point:

Senator Schumer made a prolonged attempt to get Comey to say that it was illegal for the administration to continue, briefly, the NSA program without DOJ certification of legality. Democrats and others on the left will undoubtedly claim that they now have proof of the program’s “illegality.” But Comey refused to go along with this theory. He pointed out that DOJ certification was not a legal requirement. Rather, the DOJ process was part of the procedure that President Bush established by executive order. Thus, it was perfectly legal for the program to continue in the brief absence of DOJ certification, pursuant to the order of that same executive.

One other point to consider: What were the parameters of the NSA intercept program prior to that second memo being issued by OLC? And given the fact that the DOJ rarely reverses itself in matters such as this, can we assume that the legal justification - flawed according to Goldsmith, Comey, and Ashcroft - gave license to the Administration to go far beyond the program that was finally exposed in the New York Times in December of 2005?

We just don’t know. Only a Congressional investigation would be able to answer those questions, among others. And you and I both know (and any honest, non partisan lefty) that such hearings would turn into a partisan witch hunt designed not to get at the truth of the matter but rather form the basis for impeaching the President of the United States.

The efforts by the Administration to have Congress approve the NSA program failed last year largely because the current legal justification - the AUMF resolution passed by Congress - leaves most on the Hill unsatisfied and uncomfortable. They make the valid point that never in their wildest imaginings did they think their vote for going to war in Afghanistan mean that they were signing off on a domestic intelligence program of questionable legality.

Is there a case to be made for impeachment? Or is this simply one more partisan dust-up with the President’s enemies using a controversial program to try and undermine the war effort and perhaps even drive Bush from office?

It would be nice to believe that the Congressional hearings that are sure to come in the aftermath of the Comey testimony could answer that question. Unfortunately, the poisonous partisan atmosphere on the Hill gives me absolutely zero confidence that any such hearings would prove much beyond the fact that Democrats hate the President and will do anything to bring him down while most Republicans will defend Bush regardless of what evidence emerges that would call into question his fitness for office.

In the meantime, al-Qaeda and their offshoots continue to plot and plan. And the terrorists that are almost surely here (according to Bush critic George Tenet), get something of a breather while Congress and America itself tears at each other in open partisan warfare.

I wonder what the terrorists think of all this?

UPDATE

Orrin Kerr gives us some intelligence speculation on what may have been in that very first OLC memo authorizing the NSA intercept program:

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.

If correct (and Yoo is known as a huge booster of sweeping executive powers in wartime using Article II as justification) then impeachment devolves back to a political question - unless the Dems can get the Supreme Court to rule that the original justification for the program under Article II itself is unconstitutional.

Fascinating question: Can a President act in a constitutional manner yet still break the law? Could the NSA program be illegal under statute but the President ordering it using his powers under Article II be acting constitutionally?

Can ‘o worms anyone?

UPDATE II

Tom McGuire catches the WaPo editors engaging in some gross hypberbole:

Let’s see - we are told that Gonzalez and Card “tried to coerce a man in intensive care”. Is that based on anything at all? Comey certainly did not mention any threats in describing their contact with Ashcroft, nor did he mention any attempted coercion of himself.

We are also told that Card and Gonzalez “were willing to defy the conclusions of the nation’s chief law enforcement officer and pursue the surveillance without Justice’s authorization”, but eventually the President backed down. Come again? The program did in fact proceed for several weeks without DoJ approval while changes were made. Nothing in Comey’s story tells us that Card and Gonzalez were unwilling to contemplate the changes sought by the DoJ; the problem seems to have been one of timing.

In fact, both Lederman and Lambchop use exactly the same kind of exaggeration to breathlessly describe the hospital scene with Ashcroft on his sick bed and Card thrusting a pen in his hands telling him he’s got to sign off on the program’s legality while the AG is near death’s door. (Well, that’s an exaggeration too. But what’s good for the goose…)