Will DOJ Finally Finish Its “Review” of Faulty White Paper on Illegal Wiretapping on Monday?

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Steven Aftergood reports that, as of December 10, DOJ was still “reviewing” the flawed January 2006 white paper that the Bush Administration used to retroactively claim the 2001 Authorization to Use Military Force also authorized Bush to ignore FISA.

In June 2009, Senator Russ Feingold (D-WI) asked the Obama Administration to rescind certain classified legal opinions issued by the Justice Department Office of Legal Counsel (OLC) that asserted legal justifications for the Bush Administration’s warrantless wiretapping program.

But more than a year and a half later, those OLC opinions remain under review and no action has been taken to invalidate them, the Justice Department indicated in a newly published hearing volume.

[snip]

In a December 2010 response (pdf, at pp. 29-30) that has just been published, DOJ repeated that “The Department is still conducting its review, and will work with you and your staff to provide a better sense regarding the timing of the completion of the review.” (at pp. 29-30)

Now, Aftergood suggests that, without Feingold around to nag DOJ twice a year, this is where things will remain, with the white paper under permanent review (sort of the same way torture is under permanent “investigation”).

But a review that continues indefinitely is practically indistinguishable from no review at all.  And since Senator Feingold has now left the Senate, the Department will not be working with him and his staff to resolve this issue.  All that remains is the Senator’s warning about the hazards of embracing “unsupportable claims of executive power.”

And he may well be right.

But I wonder whether, some time years from now, we will learn that DOJ ended up completing its review and deciding to keep the white paper around about next Monday, March 7.

After all, Feingold was likely not the only one nagging DOJ to ditch the white paper.

David Kris was probably doing so too.

Even as the white paper was being written, now Assistant Attorney General for National Security David Kris tried to persuade members of the Bush Administration their effort to legitimize the program was problematic. And within two weeks after the white paper was released, Kris wrote a very clear debunking of the white paper. He demolished the Administration’s effort to claim AUMF authorized the program.

In sum, I do not believe the statutory law will bear the government’s weight. It is very hard to read the AUMF as authorizing “electronic surveillance” in light of the nearly simultaneous enactment of the Patriot Act. It is essentially impossible to read it as repealing FISA’s exclusivity provision. And the AUMF suffers further in light of FISA’s express wartime provisions. Even with the benefit of constitutional avoidance doctrine, I do not think Congress can be said to have authorized the NSA surveillance.

And while his final conclusion was more gentle, predicting the program would be “met with … hostility,” Kris made it clear that, though he didn’t know all the facts about the program, it was probably constitutionally suspect.

So I would imagine Kris has been pushing DOJ to “review” this dubious white paper since he rejoined DOJ.

But Friday is his last day. With Marty Lederman’s departure last summer and Dawn Johnsen’s abandonment by the Administration, Kris’ departure will mean the last of the noted defenders of the rule of law will be gone from DOJ. Along with Russ Feingold, seemingly the last real defender of the Constitution in Congress.

So Monday morning, nothing–no one–will be there to stop DOJ from simply declaring “Mission Accomplished” of making the white paper, rather than Congressionally-passed statute, the law of the land.

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  1. PeasantParty says:

    How can we keep this from being swept into never-never land? This must be pushed to finish the review.

    “In sum, I do not believe the statutory law will bear the government’s weight. It is very hard to read the AUMF as authorizing “electronic surveillance” in light of the nearly simultaneous enactment of the Patriot Act. It is essentially impossible to read it as repealing FISA’s exclusivity provision. And the AUMF suffers further in light of FISA’s express wartime provisions. Even with the benefit of constitutional avoidance doctrine, I do not think Congress can be said to have authorized the NSA surveillance.”

    I’m thinking this is being held up especially in light of the HB Gary and Chamber warfare spying plan.

  7. tjallen says:

    …making the white paper, rather than Congressionally-passed statute, the law of the land.

    Usually the Legislative branch jealously guards it’s lawmaking prerogative. So it makes sense for us to figure out why it would defer on this subject, and let the Executive branch make law.

    Some guesses:
    1. Legislative branch fears political fallout of making law in this area.
    2. Legislative branch prefers to have contradictory and unclear law in this area.
    3. Legislative branch believes this area is presidential prerogative.
    4. Legislative branch sees no votes either way on the topic (no public outcry for a solution).
    5. Legislative branch already tried to make law in this area, and depends on the Executive to decide independently whether and how to enforce the laws already made (and will accept whatever interpretation the Executive chooses).
    6. Legislative branch likes what is happening in this particular case, and lawmaking principles be damned.

    Sometimes you explain in great detail, with knowlege, cleverness and wit, what is going on. Other times you clearly indicate something is not right, but you seem to think we all understand exactly what is raising your ire.

    Help me (us) to understand why the Legislative branch would “delegate” the lawmaking power on this topic. Thanks.

    • bobschacht says:

      Unfortunately, the missing piece of your analysis is Party politics. When the same Party controls both Executive and Legislature, the Legislature tends to defer to the Executive, since the Chief Executive is “our guy.” You could clearly see this when Bush was in the WH, and the Republicans were in charge. You could also see this in the last Congress with the Democrats were in charge of Congress, and Obama was in the WH. When both are in the same hands, legislators tend to become like the Shmoos in the old Li’l Abner comics, who would happily transform themselves into freshly baked chicken in order to please humans. I’m not saying that the Chief Executive gets whatever he wants when Congress & Executive are in the same Party’s hands, but Congress won’t challenge Presidential power by making laws contrary to the President’s stated policies. Or impeach him.

      Bob in AZ