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Can You Even Imagine How Bad it Must Have Been? (re; Comey's testimony on NSA program)

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maddezmom Donating Member (1000+ posts) Send PM | Profile | Ignore Thu May-17-07 04:22 AM
Original message
Can You Even Imagine How Bad it Must Have Been? (re; Comey's testimony on NSA program)
Can You Even Imagine How Bad it Must Have Been?

Marty Lederman

I want to put yesterday's incredible Comey testimony in some context, to demonstrate just how otherworldly this story is -- and what an extraordinary tale it tells about the nature of the officials who are running our government.

In March 2004, the NSA surveillance program had been operational for two-and-a-half years. According to the President and NSA, it had produced extraordinarily valuable intelligence against potential terrorist actions. (At the very least, it's fair to assume that the folks in DOJ understood this to be the case.) The NSA and the phone companies had been going full-steam ahead on the program, even though on its face it would be a crime to do so under FISA. See 18 U.S.C. 1809. Presumably they did so only because OLC had written one or more legal opinions concluding that the President had Article II authority to disregard the statute in wartime -- a legal theory not only critical to the operation of the program, but also at the very heart of the Vice President's passionately held philosophy of Executive prerogatives.

Jack Goldsmith was confirmed to be head of OLC in October 2003. He was a loyal Republican and supporter of the President. And yet almost as soon as he took office, he began reviewing much of John Yoo's handiwork, and found it lacking. Barely two months into his new job, for instance, Goldsmith called the Pentagon and told them that they must immediately cease relying on the critical Yoo Opinion that formed the basis for the Department of Defense's absuive interrogation policies in Iraq and elsewhere. (I've reviewed this fascinating story in detail here.)

According to Comey, "there were a number of issues that was looking at" as part of his "reevaluation" of past OLC advice, and the NSA program "was among those issues" under OLC review. "Demanding that the White House stop using what they saw as farfetched rationales for riding rough-shod over the law and the Constitution, Goldsmith and the others fought to bring government spying and interrogation methods within the law. They did so at their peril." (The quotation from the best account yet of this basic story -- the article in Newsweek in February 2006 by Daniel Klaidman, Stuart Taylor and Evan Thomas. That article obviously owes a great deal of debt to partial accounts published earlier by, e.g., the New York Times and this blog. Nevertheless, it is a taut, comprehensive and compelling account of what might be the most revealing aspect of the legal crisis within the Executive branch during the past six years. It is well worth reading.)

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maddezmom Donating Member (1000+ posts) Send PM | Profile | Ignore Thu May-17-07 04:36 AM
Response to Original message
1. Laura Rozen's take here:
May 16, 2007
A reader raises a good point. Why were FBI director Mueller and the FBI so involved in Comey's decision-thinking on the NSA warrantless domestic spying program? Was this about a separate component of the program, that involved the FBI spying without warrants on Americans? Not just the NSA? Now that the Senate Judiciary committee anticipates a confirmation process for the DAG nominee, will its members ask to review some sort of list of those specifically targeted and who signed off on it and get a determination of why it was not possible to get a warrant for these people? And to get all the documents involved? It's hard to see who else can uphold the Constitution at this point. Comey was more than adamant in his testimony yesterday that these conservative Republican appointee Justice department officials -- he, Ashcroft, Goldsmith, Philbin -- could find no legal basis for the program until modifications were made. As Marty Lederman says, imagine just how bad it must have been. And Marty worked in the Justice Department's Office of Legal Counsel until just over a year before the events described, so he's in a position to imagine that scenario pretty vividly.

Update: Did Gonzales lie under oath, when he said Comey did not object to the NSA domestic spying program whose existence the president confirmed? Or was he in fact suggesting that Comey's problem was with a second covert warrantless domestic spying program, one perhaps run by the FBI, such as I outline above?

Update II: After a conversation with a knowledgeable lawyer, I think I have at least a plausible theory of what roughly might have been going on. The NSA program targeted calls from terrorism suspects (however loosely defined) say from abroad to the States, and vice versa, without obtaining warrants, including for the US persons targeted. According to this speculative theory, the presumed second, FBI part of the program - the part that Comey and Goldsmith et al found objectionable, conceivably - then, without warrants, tracked all of the other communications that recipient made and received. How might the program have been brought into compliance when Comey et al objected? If the gov't decided to use the first part - the calls received from a terrorism suspect - as probable cause to obtain a warrant for all of the recipient's domestic and other communications. The problem? Getting a warrant could presumably cause the FISA judge to question why and how the target was identified in the first place. Maybe they found a way to get around the problem of illegal search and seizure. Just a theory.

As Balkinization's Lederman tells me, the relevant Congressional committees need to get all the documents from the DOJ. "They need to see the documents - about torture, about the NSA spying program, about military commissions, treaties, everything John Yoo wrote. And they have not appeared to be willing to get that. They just back down. Just yesterday, Comey says he can't talk about this, and can't talk about that. This is ridiculous. You don't give away NSA operational capabilities. You go into closed session for that. This is: we want to know what the legal theories were, what the programs were. ... Until the committees see the documents, they're totally speculating. If the Senate really wants to find out what's going on, they must get all the documents before them, and stop this nonsense."
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watrwefitinfor Donating Member (1000+ posts) Send PM | Profile | Ignore Thu May-17-07 05:24 AM
Response to Reply #1
3. Rozen's 'speculative theory' goes a long way toward explaining
Edited on Thu May-17-07 05:26 AM by watrwefitinfor
why Comey kept refusing to confirm the name of the program all the hub-bub was about that night at the hospital. Seeming to appear just a little cute, and winning praise by sticking to the letter of his duty not to confirm the program everyone assumed he was talking about - instead, he was keeping the real program (i.e. whatever involved the FBI) under wraps.

Was he getting over on the Congress, too, or just on the American people once again? And why do so many on DU think he is some sort of hero, along with Ashcroft?


(Edit for spelling - again.)
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frogcycle Donating Member (1000+ posts) Send PM | Profile | Ignore Thu May-17-07 06:36 AM
Response to Reply #1
5. Thom Hartman suggested
or was it Bill Press - I forget whether I was driving north or south!

that we start claiming it was a concerted effort to spy on Democrats. Just like Nixon's Watergate burglers, only much broader.

We don't need to prove it. Just keep making outrageous claims. Keep repeating it until teh story gets "legs" and they start responding.

They cannot defuse such a rumor without coming clean on what WAS going on. And they won't.

We can say that they specifically targeted certain senators - Hartman/Press said "say Ted Kennedy was a target" - keep pumping up the myth. Get various people to start reporting they have been hearing strange clicks on the line...

If nothing else, it will drive them nuts, and it might actually smoke out some portion of the truth.

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wakeme2008 Donating Member (1000+ posts) Send PM | Profile | Ignore Thu May-17-07 04:44 AM
Response to Original message
2. Watched Yoo on Frontline and he repeated time and time again
Edited on Thu May-17-07 04:56 AM by wakeme2008
"We're at War, and the Command-in-Chief" has the power to ............ :grr:

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frogcycle Donating Member (1000+ posts) Send PM | Profile | Ignore Thu May-17-07 06:30 AM
Response to Reply #2
4. The cult mantra
We are NOT "at war"

Yes, there are people out there who want to do damage in and to the US. There has never been a point in our history where that was not true to some degree. It is worse now than at other times. But "war" and the "war powers" are something finite. You don't just get to say "ok, permanent war footing; now I get to be the dictator"

Yes, there have been various attacks, some successful. There were likewise in the 70's, when the Symbionese Liberation Army was blowing up office buildings.

The bush administration has used the expression "at war" to rationalize doing whatever the hell it wants. This is identical to the ploy used by religious fanatics to keep people in their cult. Anything the leader does not like is "satan's work". Anything the leader says to do must be accepted unquestioningly. Given a slight change here and there in history, and bush could just as easily be holed up in Waco with a bunch of loyal followers holding off the ATF. I am sure david karesh told his followers they were "at war"
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