pageok
pageok
pageok
Kmiec v. Lederman on Comey Testimony:
In today's Washington Post, Doug Kmiec has an op-ed arguing that the Comey testimony isn't that much of a big deal, and in particular, it's no Watergate; over at Balkinization, Marty Lederman has a response arguing that Kmiec is wrong to minimize the importance of the story.

  In my view, Kmiec is plainly right that nothing in Comey's testimony suggests anything like another Watergate. Consider how little we know about the facts. We don't know what the program was that Comey and Ashcroft wouldn't authorize, or why they wouldn't authorize it. And as far as I can tell, there is absolutely no evidence whatsoever that the President intentionally violated a known legal duty or participated in some kind of cover-up. (Note that when Comey met with the President one-on-one, according to his testimony, the President backed him.)

  At the same time, the test for whether the Comey story deserves attention surely can't be whether it's as bad as Watergate. I'm sure there's room in there for political news that doesn't quite hit Watergate break-in and Nixonian cover-up levels. And just as we don't know the facts to make the Watergate comparison stick, we also don't know the facts to suggest, as Kmiec does, that this was just some sort of routine disagreement within the Executive branch. We do know that there was something going on that led the Attorney General, Deputy Attorney General, FBI director, Head of OLC, and some of their leading staffers — which, we have reason to believe, was everyone in DOJ and the FBI who actually knew of the facts of what was happening — to be ready to resign. Kmiec doesn't know what it was, and neither do we, but it seems odd to imagine it must not have been over something very important.

  Oh, and on the technical questions in Marty's post, Marty seems right to me — in particular, I think he's very likely right that the point of the AG's signature was to persuade the telecom companies to go along. I assume the lawyers for the ISPs and telcos insisted on some sort of legal process to give the government access to their networks, and the 45-day authorizations signed by the President and the AG were the process that the telcos and ISPs accepted.

Related Posts (on one page):

  1. Kmiec v. Lederman - Round II:
  2. Kmiec v. Lederman on Comey Testimony:
Zathras (mail):
It is patently fraudulent for Kmiec to call Comey's testimony "histrionic." Anyone who actually watched this testimony could see that Comey was consistently measured and rational. In contrast, it is Kmiec's editorial that is more fairly labeled "histrionic."
5.18.2007 12:31pm
Just an Observer:
This may not be Watergate yet, and it may not eventually rise to that level of scandal. But the apparent FISA violations -- including but not limited to whatever egregrious behavior had been going on that motivated the top echelon of DOJ to threaten resignation -- need a proper investigation.

All the facts of Watergate were not known at the beginning of the investigations, but at the end. And it turned out to have started when the president created the White House Plumbers for "national security" reasons and they started breaking the law.

It is time for a special counsel. Gonzales and Bush could not be any more conflicted than they are in this situation. A person of honor would have appointed a special counsel some time ago. (The now-defunct special-prosecutor law had its downsides, but we are witnessing the downside of living without it. Foxes seldom investigate themselves voluntarily for chickencoop trespass.)
5.18.2007 12:46pm
Mark Field (mail):
The Watergate comparison, as Prof. Lederman points out, refers to the Saturday Night Massacre (the day I took the LSAT!), not to the burglary. Given the threatened resignations, that seems an apt comparison.
5.18.2007 12:47pm
badger (mail):
OK: I think you're giving this pig more lipstick than it deserves. Of course Kmiec is right when he says that this isn't exactly like Watergate. That's because the whole issue is a strawman based on Sen. Spector's comments which I read to evoke Watergate in a much more general sense of extremely shady and dishonorable conduct of high-ranking government officials and the President.

And it's not the only straw man. Kmiec also lauches a brave rebuke of those who say that the OLC is like the Supreme Court and that it is the final arbiter of what is legal. Except, nobody is under any such misconception and he makes no attempt to cite an actual human being holding such an opinion. But, anything that helps him bump up that word count without actually having to justify AG and Card attempting to get a medicated and self-deposed Attorney General to sign off on untenable legal positions is fair game apparently.

The op-ed is a slimy hit piece masquerading as a civics lesson. Kmiec praises Mr. Comey as "admirable", but the very title of his piece slanders his sworn testimony before congress as an "oscar-worthy performance" in an attempt to imply exaggeration or fabrication without having to make (or support) an outright accusation. Lederman completely blew this piece out of the water.
5.18.2007 12:49pm
Just an Observer:
As for Kmiec's own view of the ethical duty of senior government lawyers, I am flabbergasted. It makes me wonder what he rolled over for when he was at OLC.

This surprises me, because heretofore I often have found Kmiec's opinions on various matters interesting, and I often have agreed with him.
5.18.2007 12:57pm
uh clem (mail):
Note that when Comey met with the President one-on-one, according to his testimony, the President backed him.

Or backed down once he realized that the end-run to get a highly-sedated Ashcroft to sign-off failed.
5.18.2007 1:01pm
Hattio (mail):
Can someone point me to a good general background for this story? I was on vacation, and feel like I'm not quite getting the basic details that underly all these newer blog posts.
5.18.2007 1:03pm
Katherine (mail):
"And as far as I can tell, there is absolutely no evidence whatsoever that the President intentionally violated a known legal duty "

Yeah, but if the President surrounds himself with lawyers who tell him "if the President does it's not illegal" it is quite literally impossible for him to "intentionally violate a known legal duty."

The OLC in this scenario becomes a bunch of mafia lawyers with superpowers: they can write the most ludicrous defense of the presidents' behavior imaginable, and voila: immunity! No intentional violation of the law! Oh, and also, it's classified, forever and ever and ever.
5.18.2007 1:13pm
uh clem (mail):
Can someone point me to a good general background for this story?

This is one of those situations where it's worth the ten minutes or so to go to the primary source. Read the testimony itself (or watch the video) - summaries don't quite do it justice. It's pretty dramatic (but far from histrionic) hence the speculation of who's going to play whom in the TV movie version.

Transcript here.

Video here.

If you insist of pre-digested version, try Dahlia Lithwick here.
5.18.2007 1:18pm
Just an Observer:
Hattio,

Start by watching Comey's testimony of three days ago.

Then browse Orin Kerr's posts here and Marty Lederman's posts at Balkinization

I recommend this roundup post there, which contains several good links to other sites.
5.18.2007 1:18pm
Erasmus (mail):
"No" evidence that the President violated a known legal duty? Comey's testimony provides strong evidence that the President went ahead of the spying program even though it was not legal once there was no AG signature. If I'm wrong about that, please let me know. Thus, either (a) the President knew the program was not legal and went ahead with it anyway or (b) Gonzalez lied to him. I think there's certainly evidence "a" is true, even if it isn't perhaps conclusive.

And isn't the President under a "legal obligation" to "faithfully execute the law"? How is having your underlings attempt to get a very sick man sign off on something (even though that signature would have been meaningless) "faithfully executing the law"? Lets not confuse being able to take the President to court and win with not being under a legal obligation. He violated his legal obligations, even if a court could never say so.
5.18.2007 1:19pm
OrinKerr:
Erasmus writes:
Comey's testimony provides strong evidence that the President went ahead of the spying program even though it was not legal once there was no AG signature. If I'm wrong about that, please let me know.
I think that's wrong. As far as we can tell, the purpose of the signature was to make sure the phone companies went along (as the AG's authorization would be a defense to liability). The AG's signature wouldn't make the program legal, and its absence wouldn't make it illegal.
5.18.2007 1:24pm
Phantom (mail):
You know, I'd really like to know the date on the document Card and Gonzo were going to give Ashcroft. Can you imagine the outcry if it were a back-dated authorization?

Of course, we'll never know. I'm sure the original has gone to the shredder, and I somehow doubt that Card or Gonzalez will be able to remember if they're ever called to testify.

--PtM
5.18.2007 1:29pm
Lawyer Lal:
Phantom,

Great point! Also, what if the rumors are true that Andrew Card is a space alien? I guess we'll never know, but man, that sure would be somethin'.
5.18.2007 1:31pm
IdiotWatch (mail):
Orin,

You have no basis for your response at 12:24. None.

[OK Comments: Which part of the response? Why not? If you disagree, please articulate why.]

Moreover, your statement that there's "no evidence whatsoever that the President intentionally violated a known legal duty" seems a bit suspect since OLC -- which provides him legal guidance -- said the program was not legal.

[OK Comments: For years, OLC had said the program was *legal.* Then, OLC changed its mind. Comey explained this to the President; the President backed the new OLC interpretation.]

And you neglect to mention FISA. Seems like there's a "known legal duty" there that's been "violated."

[OK Comments: But Idiotwatch, you agree that OLC had said for years that the program was legal, right?]

Oh, and your post doesn't touch on the extreme impropriety of Bush sending his cronies to wrangle a signature out of a sedated patient, who isn't even the acting AG!

[OK Comments: IdiotWatch, read my post again. You'll notice that it is not a defense of Bush.]
5.18.2007 1:35pm
badger (mail):
OK: The President still has a minimal obligation to "faithfully execute" laws. By what standard can churning up a novel and spurious legal theory that allows the President to violate long-standing and crystal-clear laws, having that theory rejected by the President's own OLC and AG and proceeding to violate the law anyway be considered "faithful execution"?

If Addington came up with a theory that the President is authorized to shoot Harry Reid in the head under Article II and the AUMF for Reid's attempts to end the war, OLC and AG said that no such right existed, and Bush proceeded to shoot Reid in the head anyway, how could he be considered to be "faithfully executing" the law and upholding his oath to the Constitution?
5.18.2007 1:36pm
guest:
Yesterday's WSJ editorial on the topic is even worse. First, it suggests that Comey's testimony is irrelevant because it alleges nothing illegal. Then, it attacks Democrats for "spinning a yarn about shady deeds perpetrated in a hospital room at night." Doesn't stop to note that this is Comey's testimony.
5.18.2007 1:45pm
Crust (mail):
President Bush is not a lawyer. So while his own common sense and moral instincts have a role, he must primarily rely on the expressed views of lawyers to determine what is and is not legal. So while it is true, as OrinKerr says, that "[t]he AG's signature wouldn't make the program legal, and its absence wouldn't make it illegal", I think that is somewhat besides the point. Ashcroft was appointed AG by Bush and was surely predisposed to find his actions legal if there were colorable grounds. Bush knew that. So the fact that Ashcroft (and others) thought the program was illegal should -- and I would contend likely did -- make Bush strongly suspect the program was illegal. He nonetheless reauthorized it. It was only the prospect of mass resignations -- and therefore the probably collapse of his administration or at least his hopes for reelection -- that changed Bush's stance.

Bush didn't back away when he learned that the program was probably illegal. He backed away later, when he learned that he wouldn't get away with it.
5.18.2007 1:49pm
Montie (mail):

By what standard can churning up a novel and spurious legal theory that allows the President to violate long-standing and crystal-clear laws, having that theory rejected by the President's own OLC and AG and proceeding to violate the law anyway be considered "faithful execution"?


Whoa, badger. Novel and spurious legal theories are hardly the exclusive domain of Republicans. There have been several cases of elected officials from both parties adopting legal theories out of expediency only to be slapped down in Court.
5.18.2007 1:52pm
OrinKerr:
Interesting question: Does "faithful execution of the laws" mean "laws as the President believes them to be" or "laws as the President normatively should know that they are"? I have always assumed that the "faithful execution" language suggested a subjective test, not an objective one.
5.18.2007 1:59pm
Crust (mail):
I see in sense Orin already addressed my above comment in his inline reply to IW:

For years, OLC had said the program was *legal.* Then, OLC changed its mind. Comey explained this to the President; the President backed the new OLC interpretation.

The key assertion there is that "Comey explained this to the President" or rather the implicit claim that the President didn't already know that the OLC had changed its mind when he reauthorized without the AG's signature.

I've been assuming the President knew that the OLC had changed its mind and judged the program illegal. I find it hard to read the attempted intervention with Ashcroft behind Comey's back any other way. Am I understanding you correctly, Orin, that you think the President didn't realize that the OLC had changed its mind until later?
5.18.2007 2:02pm
OrinKerr:
Badger, Rarango,

I'm deleting all of these Rashomon posts. If you guys want to keep debating this, please do it one-on-one.
5.18.2007 2:02pm
Erasmus (mail):
Orin, thanks for the clarification.

Regarding your question about "faithful execution of the laws," don't you think that, even if it is a subjective test, given that the entire leadership at DOJ thought the program was illegal, that Bush showed a reckless disregard for the programs legality? Isn't showing a reckelss disregard for the legality of something not "faithful" in this context?
5.18.2007 2:05pm
Katherine (mail):
Orin--So ignorance of the law is no excuse--except for the President of the United States, the Department of Justice, and the Office of Legal Counsel, for whom there is literally nothing it can't excuse. War crimes, felonies, violations of the 4th Amendment, you name it.

If the test is purely subjective, then shouldn't Nixon's belief that "if the President does it it's not illegal" get him off the hook too, as long as it was sincerely held? And how exactly would you prove it *wasn't* sincerely held?
5.18.2007 2:06pm
Just an Observer:
Orin,

Suppose in July 1972, Richard Nixon and AG Richard Kliendienst announced that the Watergate break-in had, in fact, been done by the White House Plumbers, who by the way also had performed a black-bag job at the office of Daniel Ellsberg's psychiatrist. But they said it was all done for classified "national security" reasons, which they couldn't talk about, and anyway the President and his lawyers faithfully believed it was legal because of his Article II authority.

Do you think that would have been the end of the matter, or should have? Or do you think an independent investigation would have been warranted.
5.18.2007 2:08pm
badger (mail):
Montie: Yeah politicians make all sorts of crazy legal claims when they're in a pinch (cf. Jefferson, Rep. Bill). But what we're talking about here is a President adopting a spurious legal theory and ordering federal employees to undertake actions in clear violation of the law and protected only by that fake legal theory, keeping the employee's actions secret and even keeping the legal theory classified. Care to cite any examples of that by Democrats or even another Republican?

But thanks for giving the old "Clinton/Democrats did it too!" defense it's first appearance of the tread.
5.18.2007 2:08pm
OrinKerr:
Crust,

I really don't know what the President knew. I assume Andrew Card was the one briefing him on this, and I don't know what Card told him. Obviously, he (or someone else) said that Comey wouldn't sign the order. But we don't know if he presented that refusal as if Comey were some rogue lunatic, principled public servant, or something else. We just don't know.
5.18.2007 2:11pm
Buck Turgidson (mail):
It is patently fraudulent for Kmiec to call Comey's testimony "histrionic."

That jumped out at me as well. This is not an accident--Hinderaker used the same language, as did a couple of other Out-wing bloggers.

I think that's wrong. As far as we can tell, the purpose of the signature was to make sure the phone companies went along (as the AG's authorization would be a defense to liability). The AG's signature wouldn't make the program legal, and its absence wouldn't make it illegal.

I wonder if you are both wrong on this (IdiotWatch points that out, but, I suspect, he's wrong too).

The program was covert and tried to circumvent statutory standards (that's as close as I can get without calling it blatantly illegal). That required a high-level executive branch signature. AG seems to be the lowest level official who had that authority. Higher level would be President and, perhaps, Vice-President (although this part is pure speculation). But there was a clear requirement of a legal authority--for crying out loud, Orin, the program was reauthorized every 45 days for nearly two years! What does that have to do with telcos? If it was something telcos wanted, they would have been perfectly satisfied with a single signature. Your argument makes absolutely no sense.

But the authorization of AG can clearly be superseded by that of the President--which what happened. It does not make the program legal, just the authorization. So the illegal program was just properly authorized. That does not mean that the President did anything illegal, but someone in the chain did. And this is what the argument was about.

And as far as I can tell, there is absolutely no evidence whatsoever that the President intentionally violated a known legal duty or participated in some kind of cover-up. (Note that when Comey met with the President one-on-one, according to his testimony, the President backed him.)

I might go along with the first part, although that's a tenuous argument (this is the same guy who referred to the Constitution as a "just a damn piece of paper"). But the second part is patently wrong--the President did not "back" Comey on merits of his argument, but he was persuaded that the resignation of all top law-enforcement officials would be bad for business. Note that the only reason Comey was called to the White House is because Card heard "rumors" of mass resignations. Maybe Mueller had already submitted his--we'll never know. But the only way to convince this bunch of anything is to embarrass them--reason alone is never enough. Even embarrassment is not enough--just look at Gonzo and Wolfie, two idiots who are clearly out of their depth.

I have no doubt about Kmiec's objectivity--or, rather, complete lack of it. He's a pandering sycophant, irrespectively of how intelligent he may be or how good a lawyer he is. Just like Gonzo, who told the USA, "I work for the White House--you work for the White House," Kmiec, in his mind, still "works" for the White House.

Mark Field is right--this is about the comparison to the Saturday Night Massacre, not about the break-in, which is what Kmiec is trying to defend. This is about usurpation of power and getting one's way at any cost--utterly Nixonian.
5.18.2007 2:11pm
OrinKerr:
JaO: No, I don't think it's "the end of the matter" if the President thought the program was legal. I have always assumed the President thought the program was legal, but I have blogged on the topic about 100 times because I think it's an enormously important story.

I realize that you want to see an independent investigation to get to the bottom of this -- I think you have mentioned that in blog comments about 10 times. Given all the classified stuff here, though, and the executive privilege issues, I'm not quite sure how that is supposed to work.
5.18.2007 2:22pm
OrinKerr:
Katherine,

I don't understand your first paragraph.

As for your second paragraph: My point is only about the "faithfully execute" clause, not about whether an Administration is culpable or deserving of harsh judgment more broadly.
5.18.2007 2:29pm
Katherine (mail):
Let me try again. Do you really believe that a President who sincerely believes that he is not violating the law because he believes that "if the President does it, it's not illegal", is fulfilling his constituional obligation "take care that the laws be faithfully executed"?

If you don't think that Nixon's belief in unlimited Presidential power exonerates him, why does Bush's? Do you have some evidence that Nixon's belief wasn't sincerely held? Or do you think that Nixon also complied with his constitutional obligation to "take care that the laws be faithfully executed"?
5.18.2007 2:37pm
OrinKerr:
Katherine,

I don't think I've really thought about the meaning of the "take care" clause, which is why I was asking questions to figure out what it means. Are there any cases on it? Is there an originalist account of it? If you could help me learn about it, that would be great.

As for the Nixon comparison, I suppose I don't tend to think about Nixon in terms of constitutional law. I think, "what rampant corruption," rather than, "a clear violation of the 'take care' clause." Given that, I think the real issue here is degrees of culpability, not questions of constitutional interpretation. Of course, that's linked to my first paragraph: I don't know of any cases or history on what the clause means, which may explain why I don't measure such events based on it. I gather you do, though, so I hope you'll share your sources of authority with us and bring us up to speed so we can take a look.
5.18.2007 2:50pm
Crust (mail):
Orin, thanks for the reply. I'd simply been assuming the President more or less knew what was going on. But as you say he may have been given a highly skewed briefing. Even so, I would have thought he would try to get Comey on board by calling him or getting him in a room with Gonzales or whomever. To my mind, the attempt to go around Comey is suggestive of knowledge. And I don't give the fact that he later gave in much countering weight (for reasons I explained above). Still, as you say the bottom line is we just don't know for sure.
5.18.2007 2:55pm
Mark Field (mail):

I don't think I've really thought about the meaning of the "take care" clause, which is why I was asking questions to figure out what it means. Are there any cases on it? Is there an originalist account of it? If you could help me learn about it, that would be great.


I believe it stemmed from the lessons of 1688 and the provisions of the English BoR

"That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;

That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal..."

Plus, of course, the very nature of the executive means "to execute" the laws.
5.18.2007 2:56pm
Just an Observer:
Orin,

I'm sorry if I came across as too argumentative, and I do not discount your huge contribution to the exploration of these issues since the initial disclosures about domestic surveillance. In fact, I credit your own original, abstract analysis that FISA seems to have been violated for animating my own thinking.

Comey's testimony was so compelling that it causes me to stop and think: Enough is enough. Everyone seems collectively cowed by the obvious prospect that the facts lead to the Oval Office and nobody seems to be able to make the President obey the law. And at some point, perhaps government lawyers have crossed the line and became bad actors themselves.

I am not sure exactly how an investigation would handle that issue, or the issues of classified information and executive privilege you raise, either. But I think the courts are there to sort that out. The initial problem is getting some bona fide investigation started.

Yes, Congress can conduct its own oversight investigation, maybe leading to impeachment and maybe not. It should. And there are third-party civil cases challenging the DOJ legal theories, but we all know they have serious problems ever reaching the merits and getting a final resolution in the Supreme Court. That would not be the case if the executive sought a test case in good faith.

Your post today reasonably reminds us of what facts we still don't know. That is unsurprising, since all the facts are seldom known at the beginning of an official investigation.

If your own abstract analysis about FISA and its "exclusive means" requirement is correct, then it does seem that more than enough is known for a competent prosecutor to explore whether the statute's criminal sanctions have been violated, and if so by whom.

As of now, the law and lawyers have failed. It is time for them to start cleaning up this mess.
5.18.2007 2:57pm
the irreducible minimum (mail):
Gonzales presumably knew the telcos needed AG authorization, but instead of getting authorization from the actual (albeit acting) AG, he tried to get a signature from someone else (Mr. Ashcroft), presumably in the hope of tricking the telcos into thinking that the program had received adequate authorization, with the hope of knowingly inducing them to violate the statute by sharing the critical info even though proper authorization was lacking. Is that it, in a nutshell? Should we start drafting articles of impeachment?
5.18.2007 2:59pm
David M. Nieporent (www):
Mark Field is right--this is about the comparison to the Saturday Night Massacre, not about the break-in, which is what Kmiec is trying to defend. This is about usurpation of power and getting one's way at any cost--utterly Nixonian.
Except, you know, for the fact that there wasn't a Saturday Night Massacre this time. Nobody was fired for refusing to go along with the president's presumed wishes; the exact opposite happened.
5.18.2007 2:59pm
Katherine (mail):
I'm just going off the text. The President having a duty to "take care that the laws be faithfully executed", and swearing an oath to do that, necessarily implies that the law imposes some limits on what the President can do. It seems directly at odds with the view that "if the President does it, it's not illegal".

I thought that was a pretty common view of what the clause means. But if you don't think it's necessary to violate that particular clause to be generally corrupt/worthy of condemnation/commit high crimes or misdemeanors/be comparable to Watergate, then it's not such an important issue.
5.18.2007 3:05pm
Kazinski:
The President has plenty of grounds to think his terrorist monitoring program is legal. Take Jackson in Youngstown:

We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society.


Lets not forget, as Jackson reminds us, that Youngstown was a case dealing more with Commerce than with National security, hence the 3 prong test. But there is really a 4 prong test, as Jackson recognizes above, does the case deal with national security? When that is the case the President is always at his strongest.

Then take UNITED STATES v. UNITED STATES DISTRICT COURT:

It is important at the outset to emphasize the limited nature of the question before the Court. This case raises no constitutional challenge to electronic surveillance as specifically authorized by Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Nor is there any question or doubt as to the necessity of obtaining a warrant in the surveillance of crimes unrelated to the national security interest. Katz v. United States, 389 U.S. 347 (1967); Berger v. New York, 388 U.S. 41 (1967). Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General's affidavit in this case states that the surveillances were [407 U.S. 297, 309] "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government" (emphasis supplied). There is no evidence of any involvement, directly or indirectly, of a foreign power.


I could go on, there are plenty of cases that allude to the Presidents inherent art. II powers. Other than one obscure judge in Michigan no court has ruled that the President doesn't have authority for warrantless surveillance dealing with foreign powers. Indeed the Supreme Court has gone out of its way NOT to rule on the question.
5.18.2007 3:08pm
Katherine (mail):
Also: do you think it's legitimate for the President to classify, or withhold from disclosure on privilege grounds, the OLC's constitutional arguments about why the President's commander-in-chief power allows him to authorize violations of FISA, the torture statute, the UCMJ, etc. etc.?
5.18.2007 3:13pm
Christopher Cooke (mail):
Orin:

I agree with you and Professor Lederman that one purpose of the authorization was to appease the telcos, who otherwise might be nervous they were committing felonies and also could be held liable civilly for what they apparently were doing.

But, I still find it hard to believe that the authorization was not also meant for the NSA or FBI officials participating in the program, especially those aware of FISA and the Federal Wiretap statute's criminal provisions. I think the authorization was, in part, designed to assuage their fears that they could get in trouble for participating in a novel program. Certainly, it would give them a defense to any charge by a later administration that they "intentionally" violated FISA (50 USC Section 1809).

So, I am not sure I agree that the sole purpose of the authorization was just for the telcos.

Also, I do think one of the reasons for the urgent visit to Ashcroft in his hospital was the White House's realization that FBI/NSA officials might be nervous about their continued participation in the program if they realized that the OLC/AG was now opining that it lacked a statutory basis. Even if prosecution by a Bush DOJ was unlikely, 2004 was a presidential election year so discovery and prosecution of their activities by a different administration would not be so far-fetched.
5.18.2007 3:15pm
Zathras (mail):
Kazinski: You omitted the most important fact about Youngstown: Jackson ruled against the President and found that the President had exceeded his authority, even for national security.

Why did you forget to mention that little detail?
5.18.2007 3:43pm
Bob from Ohio (mail):
If this mass resignation had occurred and the program revealed, it would not have prevented the President's re-election. President Bush was re-elected because enough people valued his efforts against terrorists over the perceived weaknesses of Kerry in this area. Revelations of the program would have sharpened this difference if anything.

Most of the commentators here oppose the program but there is no evidence that an overwhelming majority of people in Ohio or Florida share this opposition.
5.18.2007 3:52pm
Just an Observer:
Kazinski quotes the Keith case to stand for something it did not. The court simply carved out foreign-intelligence surveillance from the scope of its decision, and explicitly took no position with respect to such situations.

FISA, of course, was enacted a few years later.

And the "4-prong test" is something Kazinski just made up. The violation of FISA clearly falls within Category 3 of Youngstown: Congress did act in this field, and the President's actions contradict the express language of the statute. "Courts can sustain exclusive presidential control in such a case," Justice Jackson wrote, "only by disabling the Congress from acting upon the subject."

So only if FISA is unconstitutional, which the administration is afraid to argue in court, would the violation of the statute be upheld.
5.18.2007 4:03pm
IdiotWatch (mail):
Orin,

(1) You have no basis for you speculation that "the purpose of the signature was to make sure the phone companies went along (as the AG's authorization would be a defense to liability)." It's an education guess, I'll give you that, but a guess nonetheless. In fact, no one has ever confirmed in the recent reporting that this visit was directly connected to the wiretapping program reported by the NYT. Probably the best bet, but we just don't know.

(2) Your reponse that "the President backed the new OLC interpretation" is just silly. Bush was faced with a revolt that would have major implications for his presidency and -- more importantly -- the 2004 election. His only choice was to talk Comey down that evening. He did tallk him and Mueller down but, as every reporter has noted, the program ontinued with the DOJ-approved changed for an undetermined period of time. So, yeah, he "backed" it if you mean he recognized that, if he overruled it, he was screwed.

(3) Also, in your response, you collapse your first assertion -- that there's "no evidence whatsoever that the President intentionally violated a known legal duty" with the question of whether OLC signed off on violating FISA. They probably did, but he certainly knew he was violating at least the letter of the law.

(4) Finally, I'd agree that your post is not a defense of Bush,. But, to say on the one hand that it's not clear he's broken the law and yet ignore the ethical rules he's asked his aides to break seems odd.
5.18.2007 4:03pm
OrinKerr:
IdiotWatch,

You have an unusual way of dealing with uncertainty. Compare (1) to (2) -- in both cases we're obviously just making educated guesses, but you seem extremely certain of yourself in (2) but in (1) you don't even want to venture a guess. I'm curious, why do you approach these two questions so differently?

As for (3), presumably OLC said that FISA was void, and was therefore not "law" that imposed a "duty" on the President. (Alternatively, the AUMF was a law that provided an exception to it.) Thus the President was not intentionally violating a known legal duty.

As for (4), I don't understand what your argument is, to the extent you are making one.
5.18.2007 4:24pm
Kazinski:
Gosh Zathras,
I was assuming at least a little bit of legal literacy here on this blog of all blogs. But please let me correct myself, Truman lost Youngstown.

Just an Observer,
I did come up with the "4 prong test", but Jackson himself alludes to it in his decision concurrance. Youngstown was at the intersection of Commerce and National Defense, so Congress is at the height of its powers. Take a hypothetical where Congress passes a law (vetoed then overridden) that tells General Petreus to evacuate Bahgdad and concentrate his forces in a cordon around the major cities. Bush orders Petreus to keep his current strategy with its focus on urban warfare in Bahgdad. Now lets apply the 3 prong test to that. Obviously it doesn't work, because Congress has no power here at all. Same thing applies to FISA.
5.18.2007 4:29pm
Kazinski:
I should add one thing, I am not contending that the product of warrantless surveillance where the "primary purpose" is gathering intelligence(see Truoung), would be admissible in court for a criminal proceding, or even to be used as probable cause to get a warrant. But it is legal for the President to conduct it.
5.18.2007 4:34pm
Just an Observer:
Kazinski,

Having searched the concurrence in vain to find your fourth prong, I repeat that this is a Category 3 situation under the three prongs Jackson actually enumerates. That does not necessarily mean Congress prevails. If, as you argue, FISA were unconstitutional, then the President would prevail under this framework.

But DOJ would actually have to make that argument forthrightly in court -- which it cowers from doing -- and the courts would have to agree.

Unless and until that happens, FISA is presumptively constitutional like any other statute.
5.18.2007 4:36pm
Apodaca:
Orin writes:
there is absolutely no evidence whatsoever that the President intentionally violated a known legal duty
For at least two weeks after the episode in Ashcroft's hospital room, the program in question continued without modification, despite DOJ's emphatic unwillingness to certify it as lawful in the face of intense pressure from the White House. This strikes me as rather more than "absolutely no evidence," Orin.
5.18.2007 4:39pm
Zathras (mail):
Well by golly Kazinski,

I would also assume that most of the people here are familiar with Youngstown. It is just more than a bit disingenuous (perhaps worth the equivalent of a Rule 11 motion) to say that Youngstown supports your argument when the fact which I point out you omit completely undercuts this point.
5.18.2007 4:54pm
Zathras (mail):
One more thing Kazinski,

Why isn't wiretapping also in the nexus of interstate Commerce and national security? Any phone company which admitted that it did the wiretapping per the President's minions would likely lose a lot of business, just as in Youngstown, in which the President was ostensibly interfering with a labor dispute. If anything, this case is *more* about interstate Commerce than Youngstown.
5.18.2007 4:57pm
Buck Turgidson (mail):
IW and I seem to agree on most points. There is one exception. I am not at all convinced that the AG signature was in response to telco demands. Again, the program was reauthorized every 45 day with the AG signature--this could not have come from telcos. If telcos were convinced that the program was legal, they would have signed onto it indefinitely. So the only plausible explanation for the requirement would have to have come from one of two of the following:

1) Everyone knew it was illegal, but the telcos agreed to it "in the interest of national security"; as part of their cover--to show that they were not complicit in breaking the law--they demanded the reauthorization process with AG signature attached every time;

2) Telcos were stubborn in granting permission because their lawyers warned them that the government authority was restricted and that they would be liable if the program broke the law; to make it more convincing, the NSA and White House lawyers offered the reauthorization deal, which telcos accepted, because the AG authorization covered their asses (as in (1));

3) The reauthorization language is a part of the Patriot Act and AG is required to sign of on any program of this nature, even if there are no questions whether the program may violate the law.

(1) is highly unlikely--no lawyer would advise his employer (except those who work for the White House, apparently) to violate the law for any reason. Telcos' lawyers would not allow them to sign on to a program that they judged likely to be found illegal if it were ever contested. Contrary to GOP contentions, not every lawyer is as unprincipled as Gonzo, Yoo and the rest of the White House-hired bunch.

(2) is more plausible, but is still a reach. Again, if there were any questions of legality, an AG signature may be more convincing, but it does not absolve anyone of responsibility. Compare this to international law on war crimes and crimes against humanity, for example--no part of the relevant conventions exempts either the higher-ups who knew about the lower-level violations, or the lower-level officials or troops who executed an order from responsibility for the crimes. The principal is the same here--when in doubt as to whether a particular action violates the law, a signature of what amounts to a co-conspirator is not going to absolve you from responsibility.

That leaves (3)--and there are several parts of the PA that provide precisely for the kind of authorization that was executed with respect to this surveillance program.

One additional point. Gonzo testified that there was no disagreement in the DOJ on the legality of the NSA wiretapping program. The DOJ reiterated this position earlier this week. However, there is clear disagreement that is evident from Comie's testimony--and this testimony is not being disputed by the White House or the DOJ! So there are, again, two possibilities:

1) Gonzo lied. No ifs, ands or buts. The DoJ is being hypertechnical in its interpretation--they affirmed that the program that was in place when it was revealed was not subject to dispute, ostensibly because the obvious illegalities had been corrected after the internal DoJ revolt testified to by Comey. This does not mean, however, that there were no disagreements in the entire history of the program. They simply choose to pretend that the program as constituted in 2005 did not exist prior to changed demanded by the DoJ in March 2004.

2) The NSA warrantless surveillance program revealed by the NYT is not the program about which Comey testified. There are several such programs and only one or one category of them was revealed to the public. The dispute was about another, yet unrevealed surveillance program. So Gonzo lied about that instead.

Take your pick. I find both choices unpalatable. In either case, Gonzo should be 1) removed from office, 2) disbarred, 3) preferably, prosecuted and rot in jail for the rest of his [highly unnatural] life. (3) is unlikely to happen, but (1) will for sure. (2) is almost a shoo in if any lawyer files a grievance.
5.18.2007 5:02pm
Kazinski:
Zathras,
Please don't be obtuse. Jackson's concurrence supports just exactly the point I was making. Please read it again:
<blockquote>
We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society.
</blockquote>

In ruling against the President in his claim to be able to have near absolute power in running the economy in wartime, Jackson goes out of his way to make sure that his opinion didn't trammel any of the Presidents authority when it came to his powers as CIC.

JAO,
You evidently didn't read my comment to the end, I did not say that Keith gave the president the power to conduct warrantless searches, I said:
<blockquote>
Indeed the Supreme Court has gone out of its way NOT to rule on the question.

</blockquote>

I guess putting a word in all caps makes it less readable. I also didn't say the FISA is unconstituional, I just don't think it applies to the Presidents power to gather intelligence. I do think it applies to the admissibility of that intelligence in criminal cases.

And as for the 3(4) prong test, read the Jackson quote above, if he isn't carving out an exception to the 3 prong test(making a 4th prong) then what is he doing?

JAO, please send me your email address, I'd like to send you a Amazon gift certificate for some reading glasses.
5.18.2007 6:02pm
badger (mail):
I ran through this hypotheical in a previous post but never got a response. I've modified it a little, and would like some comment on the reading

Let's say Addington came up with a theory that the President is authorized to order soldiers to shoot Harry Reid in the head under Article II and the AUMF for Reid's attempts to end the war, OLC and AG said that no such right existed, and Bush proceeded to give the order anyway, telling the soldiers that is order is justified by Addingon's legal theory. But let's say the soldiers, not being idiots, refuse the order and Congress finds out. By giving an illegal order to the soldiers, hasn't Bush committed an impeachable offense?

Now, sub out "ordering soldiers to shoot Harry Reid" for "authorizing wiretaps in violation of FISA", and you have the situation we have today (except with a different response from the hired help). Bush is going against a very clear and long-standing law (violating FISA is a felony, punishable by jailtime) and when told of the illegality by OLC and DOJ, proceeded to give illegal orders to NSA employees, justifying his order on a novel and dubious (and classified) legal theory. How has he committed an impeachable offense in the first example, but not the second?
5.18.2007 6:06pm
Just an Observer:
Orin: ... presumably OLC said that FISA was void, and was therefore not "law" that imposed a "duty" on the President. (Alternatively, the AUMF was a law that provided an exception to it.) Thus the President was not intentionally violating a known legal duty.

As I understand our presumed timeline, in March 2004 OLC effectively said, "Never mind. We were wrong in saying that FISA did not apply to everything that has been going on for the past 2-1/2 years." But all those things -- whatever they were, and apparently including operational practices that were later discontinued -- were certainly not legalized retroactively.

Perhaps the President and those subordinates who previously had relied on the earlier opinion would still have a good defense against prosecution for their prior acts. Perhaps not. But that would not render their acts legal.

Then there is the awkward time period where the President reauthorized the prior practices even after OLC retracted its prior opinion. What was Bush's "known legal duty" at that point in time? According to Comey's narrative, Bush later agreed -- when confronted with prospective resignations from Comey, Ashcroft and Mueller -- to alter the program to meet their objections. But apparently the actual program modifications took a couple of weeks.
5.18.2007 6:06pm
badger (mail):
"reading" = "reasoning"
5.18.2007 6:07pm
Just an Observer:
Kazinski: Indeed the Supreme Court has gone out of its way NOT to rule on the question.

Fair enough. I was reading the quote from Keith as an attempt to support your main thesis, which was, "The President has plenty of grounds to think his terrorist monitoring program is legal." If you concede that the Keith case neither supports nor disproves that thesis, we can let it go.

Since we agree that the Supreme Court has never decided the question, particularly as applied to FISA. I assume you will join me in urging the President to seek a forthright test of those constitutional merits. So far, he cowers from doing so.

Meanwhile, you continue to misread Youngstown.

As for your rhetorical question about the fragment of dicta from Justice Jackson, it certainly carved out no fourth category. Nor is it remotely the one-sided endorsement of an overriding Commander-in-Chief power as you imply. That is evident when one reads the rest of the paragraph, which you dishonestly omit:

... But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence. His command power is not such an absolute as might be implied from that office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose law and policy-making branch is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role. What the power of command may include I do not try to envision, but I think it is not a military prerogative, without support of law, to seize persons or property because they are important or even essential for the military and naval establishment. [My emphasis]
5.18.2007 6:27pm
Kazinski:
JAO:
Great quote, it supports my point even more. That first sentence is pure gold:

But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence.


You'll have to agree that the President is not using his power here to intervene in a struggle between labor and capital, but in a struggle between the US and a foreign power. Jackson had it exactly right, as long as you don't ignore the first sentence.
5.18.2007 6:37pm
Kazinski:
Badger,
The answer to your hypothetical is that no one would seriously believe (well, maybe Lincoln) that the President could order a Senator shot under any constitutional clause, law, or court decision. But the question about whether FISA applies to the President has never been decided (absent one case still pending) and as JAO concedes the Supreme Court has been purposely silent on the matter. It may be open and shut to you, but neither your opinion nor OLC are controlling. In fact until a court of appeals rules, or SCOTUS, the President's opinion is controlling in this matter.
5.18.2007 6:48pm
Katherine (mail):
I don't think anyone can seriously believe Addington's &Yoo's theories. I think they're ludicrous. Yoo's stated belief is that it's unconstitutional to forbid the President from torturing a child if he deems it necessary for the sake of national security. How different is from a belief that the President can order extrajudicial execution of opposition politicians or journalists, or lock them up without charge as "enemy combatants", in the name of national security?

When the first OLC torture memos were released, the consensus was: ludicrous. Also evil.

They are afraid to release the other Yoo OLC memos on why the President doesn't have to obey FISA, why he can tell the military it's okay to torture people, why he can disregard God knows what other laws--there is no possible reason why the OLC's Constitutional Law arguments have to be classified for the sake of national security, and details about the program could be redacted. They simply won't release the memos for fear of embarrassment. They also will not make their legal arguments in open court; instead, they do everything possible, from invoking state secrets privileges to releasing or transferring prisoners so the courts can't decide their habeas challenges.
5.18.2007 6:59pm
badger (mail):
Kaz,

So as long as a President does something that "no one would seriously believe [is legal]" or something that has never been directly resolved in court, it's legal? Well, I seriously doubt that there's never been a court case about whether or not it's okay to order soldiers to shoot Senators, so that hurdle is cleared. So as long as Bush can't find anyone crazy or syncopantic enough to write some justification on a piece of paper and keep it classified for "national security" I guess the Republic is safe huh?

In fact until a court of appeals rules, or SCOTUS, the President's opinion is controlling in this matter.

Last I checked, a Congress convicting Bush on articles of impeachment is pretty controlling as well.
5.18.2007 7:04pm
badger (mail):
"legal" = "illegal"
5.18.2007 7:05pm
srg (mail):
Kazinski,

Lincoln???
5.18.2007 7:10pm
Just an Observer:
Kazinski,

Yes, the dicta does mention labor-management, which the underlying Youngstown case happened to involve. But Jackson's framework -- as adopted by subsequent decisions such as Dames and Moore -- is a generalized framework for analyzing shared war powers, not labor-management cases.

And you continue to ignore the rest of the quote, which is about the legislature's role. Taken together, the whole paragraph supports Jackson's shared-power framework, not your bizarre theory of "carving out" an unenumerated fourth category of exclusive executive power.

His paragraph was constructed as on-the-one-hand, on-the-other-hand, joined by a "but." By truncating the first half without so much as an ellipsis -- twice -- you demonstrate a level of intellectual dishonesty seldom seen even in blog comments.

Shame.
5.18.2007 7:25pm
Anderson (mail) (www):
They simply won't release the memos for fear of embarrassment. They also will not make their legal arguments in open court ...

Katherine's point deserves emphasis. How amazing is it that the feds are afraid to even let us see their theoretical basis for presidential war powers? Flabbergasting.
5.18.2007 7:35pm
Steve:
In fact until a court of appeals rules, or SCOTUS, the President's opinion is controlling in this matter.

Seriously, if the President believes a statute is unconstitutional, he can simply violate it, in secret, without telling anyone, and that's fine? That's your actual view of how the government is supposed to function?
5.18.2007 7:49pm
Kovarsky (mail):
Kazinski,

I've got reality on the line. He wants to know where you are.
5.18.2007 8:13pm
Kazinski:
Get off it JAO,
I quoted the first two sentences of the paragraph for brevity, the rest of the paragraph supported my position too. The third sentence which you helpfully quoted was probably even more supportive than the first two sentences because it shows the decision is clearly not aimed at a President that is targeting a foreign power and its adherents. I am appalled at your blatent dishonesty in calling me dishonest. Show a little class when you lose an argument. And while you are at it show me the style book that requires quoting only entire paragraphs.

Here's the whole paragraph, and you tell me that Jackson isn't clearly putting legitimate national defense needs,as opposed to commercial or economic expediency beyond the perview of his 3 prong test:


We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward not because of rebellion, but because of a lawful economic struggle between industry and labor, it should have no such indulgence. His command power is not such an absolute as might be implied from that office in a militaristic system, but is subject to limitations consistent with a constitutional Republic whose law and policymaking branch [p646] is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role. What the power of command may include I do not try to envision, but I think it is not a military prerogative, without support of law, to seize persons or property because they are important or even essential for the military and naval establishment.
5.19.2007 2:30am
Kazinski:
SRG:
Yes, Lincoln faced with someone like Harry Reid may have gone extra-judicial on him, like he did with ex-congressman Clement Vallandigham.

Badger,
Yes Congress' impeachment power is controlling too. Especially if you look at how the Johnson impeachment took place. Congress passed the "Tenure in Office" act that required Senate approval for the President to dimiss a cabinet officer. Johnson thought it was unconstitutional, and went ahead and fired one of his Cabinet anyway. Rather than test the matter in court, the House impeached Johnson, and the Senate barely aquitted.

Steve:
I thought Bush was handling the matter the way all Presidents do. Congress passes a law, the President interperets it and applies it according to his interpretation. If someone with standing doesn't like his interpretation they sue, and the courts decide the matter. To say that it is standard procedure that everytime that Congress passes a law, the president asks for a court ruling to see if he is applying it correctly would bring government to a halt. In fact since the courts have specifically said they aren't in the business of offering advisory opinions, that's the way the system has to work.
5.19.2007 3:31am
Kovarsky (mail):
Kazinski,

I think you're missing Steve's point. It's not that Bush is supposed to bang on the SCOTUS door every time he needs to do something. It's that he felt completely comfortable ignoring the entity he entrusted to give him disinterested legal advice when that advice did not allow a maximal exercise of authority.

Your repeated hijacking of these threads has caused me to drop VC below my fantasy baseball team on my Explorer "favorites" menu, a fact which testifies more powerfully to how you degrade this dialogue if you understood how bad my fantasy team is. I can't decide what I want more desperately, you to stop posting or Albert Pujols to be able to pull a plus fastball again. Much more out of you and VC is dropping below Deadspin.
5.19.2007 3:42am
jukeboxgrad (mail):
OK: "OLC had said for years that the program was legal"

I realize this is sort of conventional wisdom, but I wonder if we really know this. To begin with, it's becoming more and more clear that there's been a shell game going on with regard to what's meant by "the program." FBI or NSA? Pre-pancreatitis or post? There seems to be a magical process whereby a program sheds its skin and becomes born-again (which permits Gonzales to testify that Comey never objected to 'the program'). The program is dead; long live the program. And when does life really begin, for a program? At the moment of birth? At conception? And when a program continues even when deprived of legal authorization, do we consider that a vegetative state? When do we remove the feeding tube? Is there a statutory requirement for a remote video diagnosis, first?

Anyway, "the program" is convenient and unavoidable terminology, but it's also a slippery oversimplification that obscures a pile of material uncertainties.

Totally aside from that, there's also lots of uncertainty about the reality of what "OLC had said for years" about 'the program.' For all we know, Bybee issued regular memos that said something like this: "not yet ready to issue any opinion regarding program du jour; working on golf swing; don't call us, we'll call you; in the meantime, any unitary executive worth their salt will not let our golf needs get in the way of protecting the homeland from the brown-skinned hordes."

Then Ashcroft could go to Bush and say this with a straight face: "OLC has raised no objections regarding Program X, or any other program." And that was more than enough for Bush, because he knew he could then count on people to say things like this:

as far as I can tell, there is absolutely no evidence whatsoever that the President intentionally violated a known legal duty or participated in some kind of cover-up

bob: "If this mass resignation had occurred and the program revealed, it would not have prevented the President's re-election"

That's your opinion, which is interesting to you but hardly anyone else. What's much more interesting is Bush's opinion. The facts suggest that he was indeed concerned about headlines announcing mass resignations. It's probably not a coincidence that Bush instructed Comey to do the right thing after, not before, Comey refused to do the wrong thing and threatened to resign.

kaz: "I am appalled at your blatent dishonesty in calling me dishonest."

I'm appalled at your blatantly dishonest dishonesty in suggesting that you are anything other than blatantly dishonest. Maybe you've already forgotten, but it was only yesterday that you tried to get away with claiming that Kornblum said something he didn't say. And when this was demonstrated, you promptly slithered away from that thread and slithered into this one.
5.19.2007 5:35am
Just an Observer:
Kazinski,

Your problem in reading Jackson's quote in context is that as a whole it simply does not support the exclusive executive power you claimed from the truncated fragment, but the opposite: The president has command powers, but is subject to legislative control, and cannot evade that simply by invoking the C in C mantle. Readers are free to confirm that themselves. That you continue to deny what is front of us is of no consequence.

Elsewhere in the concurrence, in the famously enumerated three-way framework, Jackson explains how to analyze the balance between executive and legislative power. The whole framework is about shared war powers! (And the violation of FISA is definitely is in Category 3. Since DOJ is not prepared to argue in court why FISA is unconstitutional, then your argument fails Jackson's Youngstown test.)

As for your prior, willful distortion of the quote, readers also can judge for themselves whether you deceived them in the first place. You sleep with your conscience, and I'll sleep with mine.
5.19.2007 10:13am
markm (mail):
Badger,
The answer to your hypothetical is that no one would seriously believe (well, maybe Lincoln) that the President could order a Senator shot under any constitutional clause, law, or court decision. But the question about whether FISA applies to the President has never been decided (absent one case still pending) and as JAO concedes the Supreme Court has been purposely silent on the matter. It may be open and shut to you, but neither your opinion nor OLC are controlling. In fact until a court of appeals rules, or SCOTUS, the President's opinion is controlling in this matter.

Kazinski, are you placing the President above the law? Because anyone else can go to prison for guessing wrong about what a court might finally decide are the limits of an ambiguous law.

Not that I see the ambiguity or doubt about FISA. According to the Constitution, the President conducts war, but Congress regulates how it is conducted. So to the extent that FISA concerns warmaking, it's such a regulation, which the President is bound to obey. And if the case doesn't properly fall under making war, then the President is definitely bound to follow the laws.


I thought Bush was handling the matter the way all Presidents do. Congress passes a law, the President interperets it and applies it according to his interpretation. If someone with standing doesn't like his interpretation they sue, and the courts decide the matter.

And in the usual case, who has standing isn't secret. In this case, how do I know if my privacy was invaded? If I suspect it was, how can I show that I have standing?

In addition, "Congress passes a law, the President interperets it" wasn't what happened here. Bush didn't interpret an act of Congress, he ignored it. Apparently that is, because with all the secrecy, we really don't know what went on. There are times when the executive does have to keep secrets from their employers, the people. At such times, because oversight by courts, legislators, or the people is impossible, they have an increased obligation to keep it legal and proper - and relying on a tortured Constitutional interpretation by just two lawyers, when other lawyers disagree, to ignore the law isn't meeting that obligation...
5.19.2007 11:28am
jukeboxgrad (mail):
JaO: "That you [kaz] continue to deny what is front of us is of no consequence."

Well, not exactly. kaz provides an inadvertent public service every time he does this sort of thing. It becomes easier and easier for innocent bystanders to place his future remarks in the proper context. And it's always helpful to have an additional case-study demonstration of the increasingly undeniable fact that the raw materials of Bushism are denial and willful distortion.
5.19.2007 11:46am
Kazinski:
JAO:
You are plain wrong (ignorant) when you say:

"The president has command powers, but is subject to legislative control..."


Take the hypothetical I posed earlier, Congress passes legislation (and overrides the veto) ordering Petreus to evacuate Baghdad and focus his mission on controlling access in an out of the cities without entering them. Can Bush tell General Petreus to ignore the law and continue his urban warfare focus? Of course he can. Congress has zero authority to encroach on the Presidents power as CIC in this case. Same thing with FISA, if, and I believe it does, Art. II. gives the President the power to gather intelligence against external threats, then Congress can no more modify that power than they can order Gen. Petreus around.

And despite your mis-reading Jackson is pretty clear that while he is not going to let the Prsident use his CIC powers to lord over domestic matters, when it comes to external threats he would "indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society."

There is just no honest non-delusional way to interperet Jackson's intent as curbing the Presidents power to meet external threats.

Jukeboxgrad,
I wasn't going to spend all that time reading your squishy meanderings, I missed your mis-understanding of Kornbluth's testimony. When Kornbluth said:

As you know, in article I section 8, Congress has enumerated powers as well as the power to legislate all enactments necessary and proper to their specific authorities. And I believe that's what the president has, similar authority to take executive action necessary and proper to carry out his enumerated responsibilities, of which today we're only talking about surveillance of Americans.



He was talking about the Presidents inherent constitutional authority to conduct surveillence, not specifically the current program, the details of which aren't public. How obtuse are you guys? What do you mean that isn't what Kornbluth said? I linked the transcript from Talkleft, what more do you want? I posted complete sentences with no gaps or material excised. I'll tell you what the problem is here, you will just not believe that the experts in this area of law do not think it has been settled where the Presidents Art. II authority begins and Congress's Art I. authority ends.

Orin has been clear over and over again, that while he personally thinks the Terrorist Surveillence program violates FISA, and that FISA controls, he also believes that it is not settled law, and the courts may well decide Art. II and/or AUMF trump FISA. JAO conceded earlier that SCOTUS has gone out of its way, NOT to settle the issue. But these facts don't fit your narrative that Bush is intentionally violating the law, so any arguments to the contrary must by definition be "dishonest". Grow up.
5.19.2007 1:58pm
Kate1999 (mail):
Kazinski writes:

Can Bush tell General Petreus to ignore the law and continue his urban warfare focus? Of course he can. Congress has zero authority to encroach on the Presidents power as CIC in this case.

What case would you cite for that?
5.19.2007 2:27pm
Kazinski:
Kate1999:
There is no case because Congress wouldn't dare. Robert Byrd as much as he hates this President and hates this war, would have an apoplectic fit at the thought of Congress cutting orders to Generals. It is totally beyond the bounds of Congressional authority and they wouldn't humiliate themselves by even trying it. No, not even Dennis Kucinich.
5.19.2007 2:40pm
Just an Observer:
Kazinski: You are plain wrong (ignorant) when you say: "The president has command powers, but is subject to legislative control..."

I'll let your personal attack pass. But I don't think John G. Roberts is ignorant. Here is how he addressed this general question, explaining Justice Jackson's Youngstown framework:


Senator LEAHY: Do you agree that Congress can make rules that may impinge upon the President's command functions?

Judge ROBERTS. Certainly, Senator. The point that Justice Jackson is making there is that the Constitution vests pertinent authority in these areas in both branches. The President is the Commander in Chief, and that meant something to the Founders. On the other hand, as you just quoted, Congress has the authority to issue regulations governing the Armed Forces, another express provision in the Constitution. Those two can conflict if by making regulations for the Armed Forces, Congress does something that interferes with, in the President's view, his command authority, and in some cases those disputes will be resolved in Court, as they were in the Youngstown case.

There is no reason to engage your attempt to construct an unrelated hypothetical, which deals with military operations abroad rather than surveillance of Americans at home, to understand Jackson's framework as applied to FISA.

We both understand that the constitutionality of FISA has never been tested in court. As Roberts suggested, that is where the issue can be settled. Bush is free to argue in court, under your theory of magical Article II powers, that FISA is unconstitutional. Jackson said that in case of a direct conflict (a Category 3 situation) the court would have to find a law unconstitutional -- "disabling the Congress from acting upon the subject" -- in order to support an executive claim of exclusive power.

But so far, in the case of FISA, Bush and his lawyers cower from reliance upon such an argument. Alberto Gonzales and Paul Clement can count to nine, and they know your theory would lose decisively. If your extreme theory as applied to FISA were presented squarely to our current court in a way the question could not be ducked, I am confident it would lose 8-1 or 9-0.
5.19.2007 3:43pm
Kazinski:
JAO,
Bush could very well lose, especially in today's legal climate. I'm pretty confident that Jackson were he on the court to day would take Bush's side, if fact I'm not sure Jackson wouldn't have sided with Nixon on the Keith case. Times change. After all Ex Parte Quirin was sttled law that the adminstration was entitled to rely on, until Hamdan came along.

But don't take Roberts too seriously there, a SC testifying before congress is going to some degree tell them what they want to hear. That's a lot different from drafting an opinion.
5.19.2007 5:37pm
Just an Observer:
Kazinski,

Threee separate points:

1) FISA actually does not regulate the president's power to "command the instruments of national force, at least when turned against the outside world." The statute excludes from its scope foreign communications intercepts.

Only if the target or the intercept is within the United States does FISA even apply. That fits the alternative situation mentioned by Jackson -- "when it is turned inward" -- the situation where he says Congress has more sway.

So your attempt to twist Jackson's dicta to mean FISA is unconstitutional demonstrably fails when one considers what FISA actually does.

2) I just read your exchange with jukeboxgrad about Magistrate Judge Kornblum's comments to Senate Judiciary. Not only do you misrepresent what Kornblum said (as jukeboxgrad pointed out), you misrepresent who he is. You call him a "FISA judge" who "doesn't think the program is illegal." Kornblum not only did not say what you claim, he has never been a FISA judge.

Kornblum was invited to testify in Congress that day because of his prior experience as a DOJ lawyer who practiced before the FISA court. He and several former FISA judges -- who also expressed no opinion about the NSA program -- were called not to testify about that subject but to comment on prospective legislation. So whatever Kornblum's opinion of inherent executive power or other constitutional topics, it has precisely as much judicial weight as the tooth fairy.

3) As someone who strongly supported the nomination of John Roberts (and Samuel Alito) I take great umbrage at your intimation that the chief-to-be dissembled under oath. His full testimony showed a huge respect for Jackson's Youngstown framework, and I think he meant exactly what he said.

I am confident that, if presented squarely with your Article II theory as applied to FISA, both Roberts and Alito would join the overwhelming majority smacking it down.

Small wonder the Bush administration will never make your argument before this court.
5.19.2007 6:13pm
OrinKerr:
Kazinsku wrote:
Orin has been clear over and over again, that while he personally thinks the Terrorist Surveillence program violates FISA, and that FISA controls, he also believes that it is not settled law, and the courts may well decide Art. II and/or AUMF trump FISA.
Hmm, Kazinski, I think your memory is a little off here. I think the Article II issue would probably be 8-1, maybe 9-0 against the view that Article II trumps FISA. Before Hamdan, I thought the AUMF claim was unpersuasive but possible. After Hamdan, it's considerably harder to make the AUMF argument.

More broadly, Kazinski, please keep it civil. You seem to want to be really harsh towards people who disagree with you, and that seems to be independent of the strength of your argument. If you want to comment here, please keep it civil.
5.19.2007 6:22pm
sysprog:
http://federali.st/69
The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.
Nowadays it's fashionable to say "micromanaging" instead of "regulating" and it's fashionable to pretend that Congress has no such power.

Congress does have that constitutional power, as affirmed by precedent, though exactly how and when "micromanagement" is politically possible and/or wise is a whole 'nother question.
5.19.2007 6:41pm
jukeboxgrad (mail):
kaz: "He [Kornblum] was talking about the Presidents inherent constitutional authority to conduct surveillence, not specifically the current program, the details of which aren't public."

Exactly. I was hoping you would finally catch on to that fact, if I reminded you enough times.

However, you're still understating the disclaimer Kornblum offered. He didn't just say he couldn't talk about the program "specifically" because he didn't know the "details." He resorted to no such equivocations. He said this (pdf):

I … further disclaim that we will not be testifying today with regard to the present program implemented by President Bush.

The main reason we're not going to discuss that program is because we've never been briefed on it, we don't know what it involves, and we're not in a position to comment intelligently about it.


So let's review. You quoted some of Kornblum's words, and then you said this:

So if a FISA judge doesn't think the program is illegal, I'm supposed to take your word for it?

You led us to believe that Kornblum, "a FISA judge" (not, as JaO mentioned), had opined about Bush's program. Trouble is, that's not what Kornblum did. Kornblum didn't tell us he "doesn't think the program is illegal." He expressly said he was "not … testifying … with regard to the present program." As you have now admitted, Kornblum wasn't talking about "the current program." Why did you pretend he was?
5.19.2007 7:18pm
Kazinski:
Orin,

I really should't cite you as an authority here, because you can speak for yourself, but the point was that unlike what some commentators are asserting, the issue is not settled law. And while your predictions may well be right, they are just predictions.

I was civil, even when I was calling people names, and that wasn't until I was called dishonest multiple times just for citing inconvenient quotes fully in context and without any editing. I'll try not to call people ignorant or delusional anymore, but if I can't use obtuse you might as well ban me now. But I have to say I am dissapointed with the tone of some of the commentators that are quick to say opinions contrary to their own have "no basis" or are "dishonest", I should have been a little more patient with them.
5.19.2007 7:23pm
Kazinski:
Jukeboxgrad:
Kornbluth was testifying at a hearing about the the NSA program, the part I quoted was from his prepared remarks, not from some question that took him off on a tangent. Kornbluth didn't express an opinion one way or another as to the legality of the NSA program, but his remarks indicated that he was quite open to the possibillity that it was legal.

You sieze on the point that Kornbluth "was talking about the Presidents inherent constitutional authority to conduct surveillence, not specifically the current program", but you don't take that through to the logical conclusion that if the President does have inherent Article II authority to conduct surveillence, then the NSA program is legal.

Nor is Kornbluth's view in a vaccum, as the United States Foreign Intelligence Surveillance Court of Review opined in Re: Sealed case


The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power.



The fact that a recent (2002) decision states clearly that FISA can not restrict the the Presidents power, is even more supportive to my case, I don't know why I even bothered to quote Kornbluth. But don't take my word for it read the whole thing.
5.19.2007 7:59pm
Kazinski:
Sorry Kornblum, not Kornbluth. But of the two Kornbluth was the greater man, Science Fiction Writer is a higher calling than Federal Judge.
5.19.2007 8:11pm
Just an Observer:
Kazinski: I was called dishonest multiple times just for citing inconvenient quotes fully in context and without any editing.

Interesting, except the Jackson quote I analyzed was not "inconvenient" except after it was truncated by Kazinski's own usage. The original quote -- published twice -- was not "fully in context" at all, and the truncation materially affected the source's meaning.

In order to understand the meaning, a reader had to fact-check against the original text. Similarly, fact-checking the Kornblum quote disclosed other material distortions, paraphrasing him to mean what he obviously did not say and in fact disclaimed, and misstating his authority to be that of a judge.

Sunshine applied to these examples is thus a good disinfectant, and credibility is worth whatever it is worth. Readers are left to form their own opinions about how much they should trust Kazinski when he quotes or paraphrases anything.
5.19.2007 8:11pm
jukeboxgrad (mail):
kaz: "his remarks indicated that he was quite open to the possibillity that it was legal"

Thanks for this excellent demonstration of abject backpedaling.

Back in the day (yesterday, to be precise), I once knew a Kazinski who stood tall with statements like this:

if [Kornblum] doesn't think the program is illegal

Consider how that firmness compares to the limp performance we have now come to expect from latter-day Kazinskis, who hide behind mealy-mouthed hedges like this:

[Kornblum] was quite open to the possibillity that [the program] was legal

They don't make Kazinskis like they used to.

Anyway, your backpedaling gets you closer to the truth, but you've still got a ways to go. You're still distorting what Kornblum said. We're not in a position to know that he "was quite open to the possibility that [the program] was legal," because he expressly told us "we don't know what it involves, and we're not in a position to comment intelligently about it" (pdf). That applies to you, too, by the way.

However, we do know of a few people (i.e, Comey, Ashcroft, Goldsmith, Mueller et al) who were indeed "in a position to comment intelligently about it." And we know that the comment they delivered to Bush amounted to this: stop or we'll quit.

Of course we're not the least bit surprised you put essentially no weight on that, and instead put weight on the words of someone who admitted he knew nothing about the program, and in fact offered no opinion about the program.

And speaking of possibilities, we can speculate endlessly about Kornblum being "quite open to" all sorts of them. For example, I imagine that he is even open to the possibility that someone like you might come along and try to get away with putting words in his mouth, despite his explicit, unequivocal disclaimer.

"a recent (2002) decision states clearly that FISA can not restrict the the Presidents power"

What a darn shame that Bush hired dunces like Comey et al, who were too ignorant to take that decision into account. If only you had been there to help them put one foot in front of the other.

"the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information"

Here's an idea: since you know almost nothing about what Bush was actually doing, maybe you should consider the possibility that he was gathering something other than "foreign intelligence information." In other words, maybe you should consider the possibility that Comey et al were not threatening to resign over nothing. Or something close to nothing: a minor "interpretive disagreement," as Kmiec memorably said.

"Science Fiction Writer is a higher calling"

Fiction is a noble pursuit, and you produce lots of it. It would be better if you labeled it as such.
5.19.2007 10:49pm
Just an Observer:
Kazinski,

Ah, yes, the disconnected dicta -- not a holding, or anything close -- from In Re: Sealed Case.

It has no precedential value except persuasion to anyone except the courts lower, and it is quite unpersuasive. So what if the author(s) of this per curiam opinion "take it for granted" that something is true? It was stated as an unsupported assumption to introduce an unrelated concept: that the fruit of lawful FISA court orders can be used in criminal prosecutions.

One could always use the dicta to dress up an actual argument in a case where the constitutionality of FISA were actually at issue, but then one would actually have to make an argument (and support it with something more substantial). The government's brief in ACLU v NSA quotes the orphan dicta, but pointedly does not go on to make the argument that FISA is unconstitutional. We can presume the reason: To do so would be to tee up the question for eventual review and smackdown by the Supreme Court, which has no duty whatsoever to pay heed to mere dicta from a lower court. So even on appeal of ACLU v NSA, the government avoids briefing the merits of this point.

The only courts with a duty to pay any attention to In Re: Sealed Case dicta are the lower FISA courts themselves (FISC). And we know from reporting in the Washington Post that DOJ has deliberately avoided initiating a test case there, despite its tremendous home-court advantage in the secret venue. According to the Post, the chief judges of FISC warned DOJ that if it brought a test case based on the fruits of the unwarranted surveillance program, it likely would be struck down.

So much for the persuasive of power of assumptions by Judge Silberman (the widely-assumed author of the 2002 dicta). During the 1970s, when FISA was being considered in Congress, he openly advanced the view that its binding provisions would be unconstitutional. But his was a minority view, and Congress overwhelmingly passed FISA with executive-branch support. He probably does cling to his earlier view, and the 2002 dicta was mostly mischief.

Now, that is not to say that the dicta is nothing. In the hands of such a player as John Yoo (who can perform feats of legal gymnastics so amazing that he can write an entire OLC opinion on executive war powers without so much as mentioning Youngstown), such ex nihilo dicta probably can be a useful rhetorical building block. Like your Article II theory, Yoo's never was intended to stand judicial review.

Which is how DOJ got itself into a jam. From what we know of OLC circa 2004, Yoo's opinion apparently was revoked by Goldsmith, Comey and Ashcroft after Yoo left and Goldsmith took over. Which meant that certain approved activities that had been going on were unlawful after all. Oops.

And, of course, the Sealed Case dicta is great for the blogosphere, where judicial review is non-existent and folks make rhetorical arguments based on unsupported assumptions all the time!
5.19.2007 11:09pm
Kazinski:
JAO,
I didn't expect the dicta from Re:Sealed case to convince anyone, everyone is already in their bunkers. But you do have to admit that a per-curiam opinion that contains these savory phrases "as did all other courts" and "did have inherent authority" has to carry some weight. Now I'm waiting for you to tell me that these Federal Judges were taking the statments out of context. That they were cherry picking dicta from these other opinions, that they were being dishonest. And as for dicta, does Jacksons 3 prong test, being in an unjoined concurrence even rise to dicta? I don't much care, it is still useful. You might, however, want to do a search on EV's very useful post on why dicta is controlling, that is in the archives here. I think it was on the subject of the 5th Circut or the DC appeals court ruling on the 2nd amendment. By the way I quoted Kornblum, I didn't paraphrase him, I'm lazy enough that if I can't cut and paste, I don't bother.

Jukeboxgrad:
I am making an assumption that the NSA program is as is was presented by the NY times. And the way it was briefed to Rockefeller and Harman. If you know something different please enlighten us. But until them I will go on with the assumption that at least one of the parties being monitored was not a "U.S. person" and thus would be considered foriegn intelligence. I haven't heard any credible source allege differently.

But I've do have one bleg for you all, if my Youngstown, Keith, Truong, and Re: Sealed case cites are not controlling and are all meaningless dicta, can you please point me to the cases that contradict their holdings, just one case that holds FISA narrows the Presidents authority to conduct foreign intellligence?

I'll do my homework and go and read Anna Diggs Taylors emmbarrassing opinion in advance.
5.20.2007 2:52am
jukeboxgrad (mail):
kaz: "dicta"

You haven't bothered explaining why what impresses you was apparently not equally impressive to Comey et al.

"I quoted Kornblum, I didn't paraphrase him"

I don't know what you call this:

if [Kornblum] doesn't think the program is illegal

I know what I call it: dishonest. You're spinning like a top in a feeble attempt to avoid accountability for what you said.

"I am making an assumption that the NSA program is as is was presented by the NY times."

Then I guess you're telling us Gonzales is a perjurer. He testified as follows (2/6/06): "I do not believe that these DOJ officials that you're identifying had concerns about this program" (excerpt, full transcript). He also said "there has not been any serious disagreement about the program that the president has confirmed."

As far as I can tell, "the program that the president has confirmed" is "the NSA program is as is was presented by the NY times." Gonzales swore that Comey had no problem with this program. But Comey definitely had a problem with a program, so it must have been some other program.

You're assuming that the program that offended Comey is the same program that Risen wrote about. Trouble is, that assumption is contrary to Gonzales' testimony.

"And the way it was briefed to Rockefeller and Harman."

As far as I can tell, you're talking about a briefing that took place in 2006. What does that tell us about what Bush was doing during the 30-month period that ended when Ashcroft got sick, in 3/04?

"just one case that holds FISA narrows the Presidents authority to conduct foreign intellligence"

You seem to be sure that the program that offended Comey et al was limited to "foreign intellligence." How do you know?
5.20.2007 3:45am
Kazinski:
Jukeboxgrad:
If you don't know the difference between paraphrasing and quoting then this isn't the forum for explaining it. Now you may not agree with my characterization of Kornblum's remarks, To call it dishonest when I include a quote and then comment on it is ridiculous. Even if you don't think I hit the mark in my interpretation, the unaltered quote (and the link) is there for everyone to make up their own mind. I think, and the Re: sealed case decision backs me up that I fairly characterized his remarks. Your problem is that you want to supress the argument and would like to present the issue as Bush's disregard for the law, rather than a legitimate disagreement about what the law is.

Your last post cleared a few things up for me, it is apparent you are completely oblivious to most of the known facts on the NSA program. And your remarks are directed at some fictional surveillence program that has never been reported or even alluded to in the press. This is the
program I am talking about:

[T]he NSA intercepts certain international communications into and out of the United States of people linked to al Qaeda or an affiliated terrorist organization.


This is the program that was briefed "more than a dozen times" to the ranking members of both parties of the Senate and House intelligence committies, starting very soon after it was implemented. If you even been following the Comey saga you would know that the reason the program was authorized 19 times by OLC, then rejected wasn't because the program changed, but because the OLC took that long to complete their full review.
5.20.2007 6:15pm
Just an Observer:
Kazinski,

The Jackson's Youngstown concurrence has precedential weight because of its subsequent adoption in other cases, notably Dames & Moore, Hamdi and Hamdan. AFAIK, every sitting Supreme Court justice has embraced Jackson's framework in some venue.

The Keith case, as you remind us above, simply did not apply to foreign-intelligence cases one way or another. And Truong was pre-FISA. No one disputes that presidents have inherent powers in the field absent congressional action, but a central element of Youngtstown is that the contours of such powers can change after Congress acts. Your cite from In Re: Sealed case was pure dicta, far removed from a holding.

So your challenge to find cases that "contradict their holdings" is meaningless, since none of these cases has a holding against FISA.

The pure fact is that the question of FISA's constitutionality has never been challenged in court, let alone decided. If the administration chooses to make your Article II argument in a real court, perhaps that will change. I suggest that you write the President and petition him to do so. So far, his lawyers consistently avoid it.
5.20.2007 6:52pm
Buck Turgidson (mail):
Nieporent wrote:

Except, you know, for the fact that there wasn't a Saturday Night Massacre this time. Nobody was fired for refusing to go along with the president's presumed wishes; the exact opposite happened.


It is amazing to me how people can fall for superficial comparisons and miss the substantive ones. No point delving into it--the thread is pretty much over. I just wanted to point this out for completeness.
5.21.2007 12:26am
jukeboxgrad (mail):
kaz: "If you don't know the difference between paraphrasing and quoting"

The issue is not "the difference between paraphrasing and quoting," although your feeble attempt at misdirection is adorable. The issue is the difference between an honest person and a dishonest person. I proved that you're the latter. Actually, it was you who did the proving.

"you may not agree with my characterization of Kornblum's remarks"

The issue is not whether or not I agree with your "characterization of Kornblum's remarks," although your feeble attempt at misdirection is adorable. The issue is that Kornblum disagrees with your "characterization of Kornblum's remarks." You suggested his remarks were regarding Bush's program. Trouble is, they weren't. Kornblum plainly said they weren't.

"To call it dishonest when I include a quote and then comment on it is ridiculous."

What's ridiculous is you pretending that your "comment" was honest.

"Even if you don't think I hit the mark in my interpretation"

That's like saying that you think I didn't "hit the mark" when I claimed the Earth is flat. An understatement. By the way, you didn't purport to be presenting your "interpretation." You pretended to be telling us a fact about what Kornblum said.

"the unaltered quote (and the link) is there for everyone to make up their own mind"

English translation: "it was possible for a highly-motivated reader to examine Kornblum's 3,000 word transcript and discover his emphatic disclaimer which proved that my statement was dishonest. Therefore it's OK that I was dishonest." Thanks for yet another vivid demonstration of the Bushist concept of integrity.

"the Re: sealed case decision backs me up that I fairly characterized his remarks"

That decision doesn't claim that Kornblum was discussing Bush's program. Kornblum told us he wasn't discussing Bush's program. You pretended otherwise.

Speaking of dishonesty, besides misrepresenting what he said, you also misrepresented who he is. He's not a FISA judge. You have been reminded of this error more than once, and you have never acknowledged it. This tends to create the impression that it's a lie, rather than an honest mistake.

"it is apparent you are completely oblivious to most of the known facts on the NSA program"

Uh, no. What's apparent is that you are completely oblivious to the wisdom of avoiding unwarranted assumptions.

"This is the program I am talking about"

I know that's the program you're talking about. What's infinitely more germane is the program that Comey was talking about. Trouble is, you're not in a position know what that program is. This issue was explained well by commenter Mark Field over at Balkin's place:

Comey took great care not to identify which "program" he was referring to. We all assume it involved the same "program" identified in the NY Times in December 2005. The problem with that assumption is that (a) it doesn't explain the involvement of the FBI in Comey's recitation; and (b) it seems to be inconsistent with Gonzales' testimony at a couple of points (e.g., Gonzales' assertion, recently reaffirmed, that Comey never had a problem with "that (i.e., the NY Times) program". Given this uncertainty, we also don't know which "program" needed or was getting authorization, how often that authorization occurred, and on what basis.

I already pointed out to you this glaring problem with regard to Gonzales' testimony. You're exhibiting that charming Bushist trait of completely ignoring all facts that cause you trouble.

"the reason the program was authorized 19 times by OLC, then rejected wasn't because the program changed, but because the OLC took that long to complete their full review"

First of all, you don't know that this program or any other program was actually "authorized 19 times by OLC." This is another unwarranted assumption on your part, which traces back to vague statements Bush issued about a 45-day review cycle. Maybe you didn't notice that all those statements were carefully worded in the present tense (e.g., "the NSA activities are reviewed and reauthorized approximately every 45 days"). Let us know if you can find a statement that plainly tells us when that 45-day cycle started.

Aside from this, we also know that this review cycle was bogus. Comey told us that Bush continued what he was doing, even in the absence of DOJ certification.

"briefed 'more than a dozen times' … starting very soon after it was implemented"

The document you cited makes a claim (without offering any proof, of course) with regard to "more than a dozen times." But where did you get "starting very soon after it was implemented?"

"the OLC took that long to complete their full review"

This is a stunning admission on your part. Bush has tried to tell us that everything he did has been under constant, careful DOJ scrutiny, right from the start. Here's an example of Hayden suggesting that:

these actions … have intense oversight by the NSA Inspector General, by the NSA General Counsel, and by officials of the Justice Department who routinely look into this process and verify that the standards set out by the President are being followed

But now you tell us that Bush was going on his merry way for the first 30 months even though there had not yet been a "full review" by the OLC. Which is it? 30 months without a "full review" is what Bush et al call "intense oversight?"
5.21.2007 3:45am
jukeboxgrad (mail):
nieporent: "Nobody was fired for refusing to go along with the president's presumed wishes; the exact opposite happened."

Uh, not quite. Comey testified that Philbin "had been blocked from promotion, [Comey] believed, as a result of this particular matter," and that therefore Philbin was an example of people who "did pay a price for their commitment to right."

It's worth noticing that all the DOJ people who stood up to Bush were soon gone: Ashcroft, Comey, Goldsmith, and probably others.

So what actually happened is pretty close to the "exact opposite" of what you claim happened. If the current AG was one of the people I just mentioned, then your claim would have a leg to stand on.
5.21.2007 3:58am