In December 2005, the NYT reported that after 9-11, "President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying."
The Times had sat on the story for more than a year, at the request of the White House. Had this story broken before the 2004 election, who knows what might have happened? But I digress.
In testimony before the Senate this week, former Deputy Attorney General James B. Comey said that in March 2004 Department of Justice officials balked at re-authorizing the 2002-era eavesdropping effort.
In fact, they balked (joined by the head of the FBI - think about it) so much that they were willing to resign when the President planned to renew the order without Justice sign-off. (In case the enormity of this defiance is unclear -- the Administration was directly contradicting its own legal staff.)
What changed between October 2001 and March 2004 (other than the Iraq war) to cause Comey and others to protest the Presidential order? And what caused the "mid-2004" changes that the New York Times reported:
Several senior government officials say that when the special operation began, there were few controls on it and little formal oversight outside the N.S.A. The agency can choose its eavesdropping targets and does not have to seek approval from Justice Department or other Bush administration officials. Some agency officials wanted nothing to do with the program, apparently fearful of participating in an illegal operation, a former senior Bush administration official said....
In mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it.
For the first time, the Justice Department audited the N.S.A. program, several officials said. And to provide more guidance, the Justice Department and the agency expanded and refined a checklist to follow in deciding whether probable cause existed to start monitoring someone's communications, several officials said.
Thus even the somewhat cryptic reporting from December 2005 made it clear that something or someone changed at Justice in 2004, resulting in a more jaundiced view of the NSA program. What changed?
Jack Goldsmith, that's what (and who). Goldsmith joined the Bush Administration in 2002, working at the Pentagon. In April 2003, Bush nominated Goldsmith to lead the DOJ Office of Legal Counsel (OLC). (tip) He left Justice in the summer of 2004 for think tanks (American Enterprise Institute) and academia (Harvard).
Goldsmith was "the central figure in a secret but intense rebellion of a small coterie of Bush administration lawyers" from October 2003 to June 2004, according to a February 2006 expose in Newsweek:
These Justice Department lawyers, backed by their intrepid boss Comey, had stood up to the hard-liners, centered in the office of the vice president, who wanted to give the president virtually unlimited powers in the war on terror. Demanding that the White House stop using what they saw as farfetched rationales for riding rough-shod over the law and the Constitution, Goldsmith and the others fought to bring government spying and interrogation methods within the law. ...
Goldsmith raised with Comey serious questions about the secret [NSA] eavesdropping program, according to two sources familiar with the episode. He was joined by a former OLC lawyer, Patrick Philbin, who had become national-security aide to the deputy attorney general. Comey backed them up. The White House was told: no reauthorization.
What a difference a year makes. Comey "declined" to comment for the Newsweek article, which foreshadows Comey's testimony. (Why come clean now? Another unanswered question.) Watch 20 minutes of the testimony on YouTube -- the emotionally-laden testimony is even more frightening than the transcript.
In the early part of 2004, the Department of Justice was engaged -- the Office of Legal Counsel, under my supervision -- in a reevaluation both factually and legally of a particular classified program. And it was a program that was renewed on a regular basis, and required signature by the attorney general certifying to its legality...
The program had to be renewed by March the 11th, which was a Thursday, of 2004. And we were engaged in a very intensive reevaluation of the matter.
And a week before that March 11th deadline, I had a private meeting with the attorney general... he and I agreed on a course of action...
And over the next week -- particularly the following week, on Tuesday -- we communicated to the relevant parties at the White House and elsewhere our decision that as acting attorney general I would not certify the program as to its legality and explained our reasoning in detail, which I will not go into here...
And it was only a matter of minutes that the door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card. They came over and stood by the bed. They greeted the attorney general very briefly. And then Mr. Gonzales began to discuss why they were there -- to seek his approval for a matter, and explained what the matter was -- which I will not do.
Attorney General Ashcroft then stunned me. He lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me -- drawn from the hour-long meeting we'd had a week earlier -- and in very strong terms expressed himself, and then laid his head back down on the pillow, seemed spent, and said to them, "But that doesn't matter, because I'm not the attorney general."
[On his personal pledge to resign:] I didn't believe that as the chief law enforcement officer in the country I could stay when they had gone ahead and done something that I had said I could find no legal basis for. (pdf)
At the time of the Newsweek article, other lawyers spoke out. Daniel Drezner said:
I have nothing to add but this -- I've known Jack Goldsmith for many years from his time at the University of Chicago. If you think that Goldsmith is either a RINO or a squishy "must kowtow to all forms of international law" kind of guy, well, then you don't know Jack.
The fact that Addington, Cheney, and by extension Bush managed to force out people like Goldsmith and Comey means that the legal consensus within the administration is way, way outside the legal mainstream.
The concern expressed by this legal team -- in defiance of the White House -- was validated in August 2006 when U.S. District Judge Anna Diggs Taylor ruled that the warrantless wiretapping program was unconstitutional. The case was filed by the ACLU; the Bush Administration has appealed.
Aside: remember, too, that in July 2006, a federal district court denied an Administration motion to dismiss the Electronic Frontier Foundation lawsuit against AT&T for cooperating with the warrantless wiretapping program.
Nevertheless, the Wall Street Journal poo-poohs any concern about impropriety, calling the White House hospital visit to the ICU-bound Ashcroft "politically unwise" but benign. Read the Newsweek article if you have any questions at all about how the White House viewed Comey and Goldsmith at that point in time.
Separating Forests and Trees
However, there are bigger issues here, as Glenn Greenwald explains in Salon (emphasis in original):
[W]e should not have to speculate in this way about how the illegal eavesdropping powers were used. We enacted a law 30 years ago making it a felony for the government to eavesdrop on us without warrants, precisely because that power had been so severely and continuously abused. The President deliberately violated that law by eavesdropping in secret. Why don't we know -- a-year-a-half after this lawbreaking was revealed -- whether these eavesdropping powers were abused for improper purposes?
Echoing this theme, Elizabeth Parker, Dean of the University of the Pacific Law School and former General Counsel of the National Security Agency told Time:
The real issue is what is it about this program that is so classified that can't allow it to be discussed in a congressional setting, even a closed congressional hearing. In order to have confidence in what this program is all about, one needs to understand better what the approach is and how it affects the rights of American citizens.
Greenwald reminds us of another key point from Comey's testimony (emphasis in original):
Spoke to Director Mueller by phone. He was on his way. I handed the phone to the head of the security detail and Director Mueller instructed the FBI agents present not to allow me to be removed from the room under any circumstances.
What was going through Comey's mind -- and FBI Director Mueller -- such that they feared someone would manhandle Comey before Mueller got to Ashcroft's room? This truly is the stuff of Hollywood thrillers ... which makes the WaPo's characterization of Comey as a "straight arrow" all the more revealing.
The picture Comey paints is one so far out of line with the Wall Street Journal that one has to wonder if the WSJ writer even read the testimony. [Note: ABC and CBS have yet to report on Comey's testimony, according to Think Progress.]
Gonzales : No Straight Story
Finally, AG Gonzales faces yet-another instance of appearing to have misspoken under oath. From ThinkProgress:
Gonzales said in 2006 that there was no “serious disagreement about the [wiretapping] program,” a claim that flies in the face of the extraordinary testimony delivered by former Justice official James Comey...
Others have asked the question: now I will. Why is this man still our Attorney General?
- 15 December 2005: The nation learns about the warrantless wiretapping (eavesdropping) program from the New York Times, which sat on the story for a year.
- 22 December 2005: The Justice Department sends a five-page defense of the warrantless eavesdropping program to select Congressional leaders.
- 5 January 2006: The Congressional Research Service provides a "general framework for analyzing the constitutional and statutory issues raised by the NSA electronic surveillance activity" and, among other things, explains FISA. "The legislative history of the Act [authorizing FISA] suggests that some electronic surveillance by the National Security Agency involving communications taking place entirely overseas, even involving U.S. persons, was not intended to be covered." (pdf) Greenwald asserts that the analysis "decimated the [defensive] legal theories advanced by the Administration."
- 9 January 2006: Fourteen (14) "scholars of constitutional law and former government officials" detail why they believe the warrantless wiretapping program is illegal.
- 19 January 2006: The Justice Department releases "a 42-page single spaced letter" defending the warrantless eavesdropping program.
- 6 February 2006: In an article more focused on the infamous "torture memo," Newsweek foreshadows Comey's testimony on NSA wiretapping.
- 17 August 2006: A US District Court Judge ruled that the NSA wiretapping program is unconstitutional. In the 43-page opinion, Judge Anna Diggs Taylor wrote: "It was never the intent of the framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights."
- 16 May 2007: The Washington Post editorial board writes: "JAMES B. COMEY, the straight-as-an-arrow former No. 2 official at the Justice Department, yesterday offered the Senate Judiciary Committee an account of Bush administration lawlessness so shocking it would have been unbelievable coming from a less reputable source."
- 17 May 2007: Sen. Charles E. Schumer (D-NY) and Sen. Dianne Feinstein (D-CA) call for a non-binding no-confidence vote on Attorney General Gonzales.