Remember that cinematic story of how Jim Comey and Jack Goldsmith and Robert Mueller stood up to Bush and Cheney and forced them to shut down their illegal dragnet to defend the rule of law in 2004?
It turns out, what Comey and Goldsmith did in secret two months later was not so heroic. As I lay out over at Salon, the memo of law they used to get their illegal dragnet blessed by the FISA court argued both Judge Colleen Kollar-Kotelly and the Congress that passed the PRTT law in the first place had no choice but to cede to Executive power.
Essentially, they argued both she — an Article III judge — and Congress must have their power gutted to protect the president’s power.
The same heroes of the hospital confrontation, lionized for the last decade for their courageous defense of the rule of law, thereby gutted the separation of powers, in secret. All to serve still more secrecy … and the power of the presidency they purportedly reined in two months earlier.
They may have won Bush — and themselves, who otherwise would have signed off on an illegal program — legal cover by doing so. But in the process they corroded the balance of powers enshrined by the Constitution, turning the FISC into a place where expansive executive branch programs get rubber-stamped in secret.
Here’s how they justified not getting Congress to write a new law to authorize the spying they themselves refused to approve.
The memo’s focus on Congress — at least what appears in unredacted form — is much more circumspect, but perhaps even more disturbing.
DOJ pointed to language showing Congress intended pen registers to apply to the Internet; they pointed to the absence of language prohibiting a pen register from being used to collect data from more than a single user, as if that’s the same as collecting from masses of people and as if that proved congressional intent to wiretap everyone.
And then they dismissed any potential constitutional conflict involved in such broad rereadings of statutes passed by Congress. “In almost all cases of potential constitutional conflict, if a statute is construed to restrict the executive, the executive has the option of seeking additional clarifying legislation from Congress,” the heroes of the hospital confrontation admitted. The White House had, in fact, consulted Majority Leader Tom DeLay about doing just that, but he warned it would be too difficult to get new legislation. So two months later, DOJ argued Congress’ prerogative as an independent branch of government would just have to give way to secrecy. “In this case, by contrast, the Government cannot pursue that route because seeking legislation would inevitably compromise the secrecy of the collection program the Government wishes to undertake.”
You remember that part of the Constitution where it says Congress passes the laws, unless the Executive Branch wants the laws to be secret, in which case they can do it?
Nope, neither do I.
Towards the end of the Memorandum of Law in support of the Internet dragnet — which was signed by those guys ———-> — DOJ makes a claim that its reading of “relevant” to mean “almost all” was the best possible reading.
Here, by contrast, reading the term “relevant” to permit the collection of this critical information during wartime is a construction rooted in the text that requires no stretching of the ordinary meaning of the terms of the statute at all. In fact, for all the reasons outlined above, interpreting section 402 to authorize the collection the Government has requested in the best reading of the plain terms of the Act.
This is why you should not have secret courts.
I get making an aggressive push to authorize dragnet surveillance.
I get mining old and foreign dictionaries to come up with a definition that suits your needs.
But after you’ve made your best ditch effort to stretch the meaning of words, secretly, beyond all recognition, don’t then, secretly, pat yourself on the back pretending that wasn’t the game you just pulled.
But hey. Who’s the chump? After all, we now know that Misters Ashcroft, Comey, Goldsmith, and Baker pulled this off.
Yet no one is making any effort to put the English language back on some kind of sane footing. Nothing in any of the “reform” efforts before Congress attempts to put sanity back into the word “relevant.”
This will be a closer working thread on documents released yesterday.
X: Initial Dragnet Application (prior to July 14, 2004)
(2) From the start, the government said they wanted to disseminate the dragnet info, perhaps to tag into FBI’s investigative authorities.
(2) The footnote defining metadata hides all the stuff not associated with “standard e-mails.”
(4) The application discusses the briefing I discussed here, attended by (among others) John Brennan.
(5) The application is not submitted by a lawyer, but by Michael Hayden.
(6) The government hasn’t released a Tenet submission; back in November it hid that this submission was from him.
(16) ODNI maintains that the fictional example of metadata is classified.
(18) Originally access was restricted by making the metadata accessible only by 2 admin login accounts. That’s probably a carry-over from the compartments of the illegal program.
(20) RAS approval assigned to the same 7 authorizers that were in place for the beginning of the phone dragnet in 2006.
(21) They’re hiding at least one kind of Internet metadata.
(23) Metadata originally accessible for only 18 months. Is that what they used for the illegal dragnet?
Y. Memo of Law in Support of Original Dragnet Application, before July 14, 2004
(4) The government claims that only email metadata related to terrorism will be seen. By definition, that means anything returned in a query would be related to counterterrorism and therefore game for dissemination.
(4) This is the jist of the illegal use of PRTT for the dragnet:
Nevertheless, it involves nothing more than adapting the traditional tools of FISA to meet an unprecedented challenge and does so in a way that promotes both of the twin goals of FISA: facilitating the foreign-intelligence collection needed to protect American lives while at the same time providing judicial oversight to safeguard American freedoms.
This claim is followed by a 5-page redaction, which is mighty interesting as it would have to explain why this judicial review was so useful.
(9) Footnote 5 again makes it clear that this involves email and other online communications.
(12) This language is remarkable for a secret court document.
Collecting and archiving meta data is thus the best avenue for solving this fundamental problem: although investigators do know know exactly where the terrorists’ communications are hiding in the billions of bits of data flowing through the United States today, we do know that they are there, and if we archive the data now, we will be able to use it in a targeted way to find the terrorists tomorrow.
(20) This language is particularly important given debates about USA Freedom.
Nothing in the definitions of pen registers or trap and trace devices requires that the “instrument” or “facility” on which the device is placed carry the communications solely of a single user.
(20) This section really tries to constrain the Court.
Unlike certain other certifications made in other contexts under the statute, see, e.g., U.S.C. § 1805(a)(5), FISA does not subject the certification of relevance to any review by the Court.
But to give those two background, I want to look at a passage in the Internet dragnet opinion, in which Colleen Kollar-Kotelly describes a fascinating briefing that she received in advance of authoring what Orin Kerr describes as a “quite strange” opinion.
After describing some declarations she received (including one from a person whose title remains redacted) and some questions she posed, she describes this briefing.
The Court also relies on information and arguments presented in a briefing to the Court on [redacted] which addressed the current and near-term threats posed by [redacted reference to Al Qaeda and others], investigations conducted by the Federal Bureau of investigation (FBI) to counter those threats, the proposed collection activities of the NSA (now described in the instant application), the expected analytical value of information so collected in efforts to identify and track operatives [redacted] and the legal bases for conducting these collection activities under FISA’s pen register/trap and trace provisions. 4
4 This briefing was attended by (among others) the Attorney General; [redacted] the DIRNSA; the Director of the FBI; the Counsel to the President; the Assistant Attorney General for the Office of Legal Counsel; the Director of the Terrorist Threat Integration Center (TTIC); and Counsel for Intelligence Policy.
That is, right at the beginning of her opinion, Kollar-Kotelly tells us that she had a briefing with:
On page 30, Kollar-Kotelly seems to refer to the same redacted person again, which in the context of the reference to CIA v. Sims in that footnote, seems to suggest this is a reference to CIA Director George Tenet, which suggests the redacted author of the brief she relied on was authored by Tenet. (I leave open the more tantalizing possibility that it’s someone like Dick Cheney, but highly doubt it.)
So before she approved the use of FISA’s Pen Register to collect much of the Internet metadata in the US, she had a meeting with at least one of the villains — Alberto Gonzales — of the hospital confrontation at which DOJ refused to reauthorize the Internet metadata program that was part of the President’s illegal wiretap program, and at least three of its “heroes:” Ashcroft, Mueller, and Goldsmith.
Interestingly, this meeting does not appear — at least not described as such — in the Draft NSA IG Report description of the transition to a FISC order.
After extensive coordination, DoJ and NSA devised the PRITT theory to which the Chief Judge of the FISC seemed amenable. DoJ and NSA worked closely over the following months, exchanging drafts of the application, preparing declarations, and responding to questions from court advisers. NSA representatives explained the capabilities that were needed to recreate the Authority, and DoJ personnel devised a workable legal basis to meet those needs. In April 2004, NSA briefed Judge Kollar-Kotelly and a law clerk because Judge Kollar-Kotelly was researching the impact of using PSP-derived information in FISA applications. In May 2004, NSA personnel provided a technical briefmg on NSA collection of bulk Internet metadata to Judge Kollar-Kotelly. In addition, General Hayden said he met with Judge Kollar-Kotelly on two successive Saturdays during the summer of 2004 to discuss the on-going efforts.
Was this “briefing” one of the Saturday meetings Hayden had with FISC’s Presiding Judge?
More broadly, it is important to consider the context in which the FISA Court initially approved the bulk collection. Unverified media reports (discussed above) state that bulk telephony metadata collection was occurring before May 2006; even if that is not the case, perhaps such collection could have occurred at that time based on voluntary cooperation from the telecommunications providers. If so, the practical question before the FISC in 2006 was not whether the collection should occur, but whether it should occur under judicial standards and supervision, or unilaterally under the authority of the Executive Branch.
The briefings and other historical evidence raise the question whether Congress’s repeated reauthorization of the tangible things provision effectively incorporates the FISC’s interpretation of the law, at least as to the authorized scope of collection, such that even if it had been erroneous when first issued, it is now—by definition—correct. [my emphasis]
The Internet dragnet was illegal. At least 3 of the people who conveyed the importance of authorizing this program had said so — in very dramatic fashion — less than four months before she would do so.
And yet she wrote a memo saying it was legal.
Update, 8/12/14: This application confirms that George Tenet was the redacted declaration submitter.
Judge Colleen Kollar-Kotelly is pissed.
After spending 2002 to 2006 as Chief Judge of the FISA Court struggling to keep parts of the American legal system walled off from a rogue surveillance program, she read the classified account the NSA’s Inspector General wrote of her efforts. And while that report does say Kollar-Kotelly was the only one who managed to sneak a peek at a Presidential Authorization authorizing the illegal program, she doesn’t believe it reflects the several efforts she made to reel in the program.
“In my view, that draft report contains major omissions, and some inaccuracies, regarding the actions I took as Presiding Judge of the FISC and my interactions with Executive Branch officials,” Kollar-Kotelly said in a statement to The Post.
Kollar-Kotelly disputed the NSA report’s suggestion of a fairly high level of coordination between the court and the NSA and Justice in 2004 to re-create certain authorities under the Foreign Intelligence Surveillance Act, the 1978 law that created the court in response to abuses of domestic surveillance in the 1960s and 1970s.
“That is incorrect,” she said. “I participated in a process of adjudication, not ‘coordination’ with the executive branch. The discussions I had with executive branch officials were in most respects typical of how I and other district court judges entertain applications for criminal wiretaps under Title III, where issues are discussed ex parte.”
The WaPo story reporting on her objections makes no mention of the role one FISC law clerk — who got briefed into the program before any of the other FISC judges — played in this process, something I’m pretty curious about.
It does, however, recall two incidents where Kollar-Kotelly took measures to crack down on the illegal program, which Carol Leonnig reported back in 2006.
Both [Kollar-Kotelly and her predecessor Royce Lamberth] expressed concern to senior officials that the president’s program, if ever made public and challenged in court, ran a significant risk of being declared unconstitutional, according to sources familiar with their actions. Yet the judges believed they did not have the authority to rule on the president’s power to order the eavesdropping, government sources said, and focused instead on protecting the integrity of the FISA process.
In 2004, [DOJ Office of Intelligence Policy and Review Counsel James] Baker warned Kollar-Kotelly he had a problem with [a "federal screening system that the judges had insisted upon to shield the court from tainted information"]. He had concluded that the NSA was not providing him with a complete and updated list of the people it had monitored, so Justice could not definitively know — and could not alert the court — if it was seeking FISA warrants for people already spied on, government officials said.
Kollar-Kotelly complained to then-Attorney General John D. Ashcroft, and her concerns led to a temporary suspension of the program. The judge required that high-level Justice officials certify the information was complete — or face possible perjury charges.
In 2005, Baker learned that at least one government application for a FISA warrant probably contained NSA information that was not made clear to the judges, the government officials said. Some administration officials explained to Kollar-Kotelly that a low-level Defense Department employee unfamiliar with court disclosure procedures had made a mistake.
Though the NSA IG Report mentions violations that occurred before 2003, it makes no mention of these violations.
What good is an IG Report that gives no idea of how often and persistent violations are?
That said, today’s WaPo story provides this as the solution to our distorted view of the FISA Court’s role in rubber-stamping this massive dragnet.
A former senior Justice Department official, who spoke on the condition of anonymity because of the subject’s sensitivity, said he believes the government should consider releasing declassified summaries of relevant opinions.
“I think it would help” quell the “furor” raised by the recent disclosures, he said. “In this current environment, you may have to lean forward a little more in declassifying stuff than you otherwise would. You might be able to prepare reasonable summaries that would be helpful to the American people.”
Back in 2006, Leonnig noted that the judges didn’t believe they had the authority to intervene to stop the dragnet. So what good does a ruling — even two as broad and stunning as the ones that used Pen Registers and Business Records to collect the contact records of all Americans — do to depict the role the Court is in?
The Administration keeps pointing to this narrowly authorized court as real court review. But that’s not what it is. And until we have a better sense of how that manifested in the past (and continues to — I’ll bet you a quarter that they’ve moved the Internet data mining to some area outside of court purview), we’re not going to understand how to provide real oversight to this dragnet.
We’d be far better off having the FISC provide its own history of these surveillance programs.
On December 16 and December 20, 2005, respectively — just days after the NYT revealed its existence — EPIC and ACLU FOIAed DOJ for documents relating to George Bush’s (really, Dick Cheney’s) illegal wiretap program (National Security Archive also FOIAed, though more narrowly). Among other documents, they requested, “any presidential order(s) authorizing the NSA to engage in warrantless electronic surveillance.” Yet in spite of the fact that the ACLU was eventually able to get DOJ to cough up some of the OLC memos that provided a legal rationale for the program, no presidential order was ever turned over. I don’t believe (though could be mistaken) it was even disclosed in declarations submitted by Steven Bradbury in the suit.
There’s a very good (and, sadly, legal) reason for that. According to the 2009 NSC draft IG report the Guardian released yesterday, it’s not clear DOJ ever had the Authorization. The White House is exempt from FOIA, and it’s likely that NSA could have withheld the contents of the Director’s safe from any FOIA, which is where the hard copy of the Authorization was kept.
It’s worth looking more closely at how David Addington guarded the Authorization, because it provides a lesson in how a President can evade all accountability for unleashing vast powers against Americans, and how the National Security establishment will willingly participate in such a scheme without ensuring what they’re doing is really legal.
The IG report describes the initial Authorization this way:
On 4 October 2001, President George W. Bush issued a memorandum entitled “AUTHORIZATION FOR SPECIFIED ELECTRONIC ACTIVITIES DURING A LIMITED PERIOD TO DETECT AND PREVENT ACTS OF TERRORISM WITHIN THE UNITED STATES.” The memorandum was based on the President’s determination that after the 11 September 2001 terrorist attacks in the United States, an extraordinary emergency existed for national defense purposes.
The authorization specified that the NSA could acquire the content and associated metadata of telephony and Internet communications for which there was probable cause to believe that one of the communicants was in Afghanistan or that one communicant was engaged in or preparing for acts of international terrorism. In addition, NSA was authorized to acquire telephone and Internet metadata for communications with at least one communicant outside the United States or for which no communicant was known to be a citizen of the United States. NSA was allowed to retain, process, analyze and disseminate intelligence from the communications acquired under the authority.
And while the NSA IG report doesn’t say it, the Joint IG Report on the program (into which this NSA report was integrated) reveals these details:
Each of the Presidential Authorizations included a finding to the effect that an extraordinary emergency continued to exist, and that the circumstances “constitute an urgent and compelling governmental interest” justifying the activities being authorized without a court order.
Each Presidential authorization also included a requirement to maintain the secrecy of the activities carried out under the program.
David Addington’s illegal program
While the Joint report obscures all these details, the NSA IG report makes clear that Dick Cheney and David Addington were the braintrust behind the program.
The Counsel to the Vice President used [a description of SIGINT collection gaps provided by Michael Hayden] to draft the Presidential authorization that established the PSP.
Neither President Bush nor White House Counsel Alberto Gonzales wrote this Authorization. David Addington did. Continue reading
Viewed from one perspective the facts that Blackwater has admitted to amount to running guns–precisely the crime that Fast and Furious attempted to combat. Viewed from another perspective, Blackwater’s actions amount to the same kind of thing Viktor Bout is in prison for: making weapons deals with sanctioned entities.
But Blackwater will suffer no more than a wrist slap for such things: a $7.5 million fine, a third of which can be credited to implementing a compliance system that is substantially already in place, as well as a $42 million Consent Agreement fine it signed two years ago. (It has paid two $6 million installments of the $42 million fine it owes to State Department; even while it continues to get contracts with State)
That doesn’t make the Deferred Prosecution Agreement any less funny.
There are the repeated lists of all the aliases of Blackwater–by my count some 37 companies or subsidiaries. Just in case you needed master list of how many times it has tried to change its identity.
There’s the bragging about Blackwater’s new compliance structure (paid for, presumably, as part of this fine), featuring John Ashcroft (the monitor on one of the most corrupt DPAs ever) and former AIG (AIG?!?!?!) compliance whiz Suzanne Folsom.
There’s the way it says Blackwater can’t charge the government any aspect of its fine (what is left after its credit for compliance infrastructure, that is). Only in DPAs is money not fungible, I guess.
There’s the way they try to guard against Blackwater rebranding again (the DPA is written in the name Academi and invokes Xe) by selling itself to someone else. (There’s apparently an Erik Prince declaration I’m going to have to chase down tomorrow.)
And there’s the way that of those who signed this DPA for Blackwater, only the name of the attorney is included in the text.
Now maybe I shouldn’t be laughing so hard. The DPA implies that the US Attorney in North Carolina’s Eastern District, Thomas Walker, is still investigating. Maybe Erik Prince will go to jail? Ha!
But this DPA is more a case study in the myriad ways corporate entities escape all justice in this day and age than any real accountability for the same kind of actions we impose stiff sentences on others for.
As always, the lesson is if you’re going to commit crimes, do it as a corporation.
SCOTUS has just ruled unanimously that John Ashcroft can’t be sued by Abdullah al-Kidd for using a material witness warrant to incarcerate him. The 8 justices (Elena Kagan recused herself) all agree there was no law explicitly prohibiting this kind of abuse of material witness warrants, so Ashcroft has immunity from suit.
Where the decision gets interesting is in the justices’ various statements about whether material witness warrants are valid under the Fourth Amendment. The court’s swing justice, Anthony Kennedy, basically invited a constitutional challenge of the material witness warrants themselves.
The scope of the statute’s lawful authorization is uncertain. For example, a law-abiding citizen might observe a crime during the days or weeks before a scheduled flight abroad. It is unclear whether those facts alone might allow police to obtain a material witness warrant on the ground that it “may become impracticable” to secure the person’s presence by subpoena. Ibid. The question becomes more difficult if one further assumes the traveler would be willing to testify if asked; and more difficult still if one supposes that authorities delay obtaining or executing the warrant until the traveler has arrived at the airport. These possibilities resemble the facts in this case. See ante, at 2.
In considering these issues, it is important to bear in mind that the Material Witness Statute might not provide for the issuance of warrants within the meaning of the Fourth Amendment’s Warrant Clause. The typical arrest warrant is based on probable cause that the arrestee has committed a crime; but that is not the standard for the issuance of warrants under the Material Witness Statute. See ante, at 11 (reserving the possibility that probable cause for purposes of the Fourth Amendment’s Warrant Clause means “only probable cause to suspect a violation of law”). If material witness warrants do not qualify as “Warrants” under the Fourth Amendment, then material witness arrests might still be governed by the Fourth Amendment’s separate reasonableness requirement for seizures of the person. See United States v. Watson, 423 U. S. 411 (1976). Given the difficulty of these issues, the Court is correct to address only the legal theory put before it, without further exploring when material witness ar-rests might be consistent with statutory and constitutional requirements.
Mind you, he remains coy about what he thinks about the material witness warrants, as his language makes clear: “uncertain,” “might,” “unclear,” “more difficult,” “more difficult,” “possibilities,” “might not,” “might.” Of note, though, he neither endorses a rather crazy argument Antonin Scalia makes (joined by the usual suspects)–that witnesses to a crime may now be considered suspects of a sort–nor Ruth Bader Ginsburg’s trashing (joined by Sotomayor and Breyer but not Kennedy) of that claim.
Here’s Scalia’s assertion:
Needless to say, warrantless, “suspicionless intrusions pursuant to a general scheme,” id., at 47, are far removed from the facts of this case. A warrant issued by a neutral Magistrate Judge authorized al-Kidd’s arrest. The affidavit accompanying the warrant application (as al-Kidd concedes) gave individualized reasons to believe that he was a material witness and that he would soon disappear.The existence of a judicial warrant based on individualized suspicion takes this case outside the domain of not only our special-needs and administrative-search cases, but of Edmond as well.
A warrant based on individualized suspicion in fact grants more protection against the malevolent and the incompetent than existed in most of our cases eschewing inquiries into intent.
Here’s Ginsburg’s response:
The Court thrice states that the material witness warrant for al-Kidd’s arrest was “based on individualized suspicion.” Ante, at 6, 8. The word “suspicion,” however, ordinarily indicates that the person suspected has engaged in wrongdoing. See Black’s Law Dictionary 1585 (9th ed. 2009) (defining “reasonable suspicion” to mean “[a] particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity”). Material witness status does not “involv[e] suspicion, or lack of suspicion,” of the individual so identified. See Illinois v. Lidster, 540 U. S. 419, 424–425 (2004).This Court’s decisions, until today, have uniformly used the term “individualized suspicion” to mean “individualized suspicion of wrong-doing.”
[12 cases--many of them the ones used to authorized warrantless wiretaps--cited]
The Court’s suggestion that the term “individualized suspicion” is more commonly associated with “know[ing] something about [a] crime” or “throwing . . . a surprise birthday party” than with criminal suspects, ante, at 6, n. 2 (internal quotation marks omitted), is hardly credible. The import of the term in legal argot is not genuinely debatable. When the evening news reports that a murder “suspect” is on the loose, the viewer is meant to be on the lookout for the perpetrator, not the witness. Ashcroft understood the term as lawyers commonly do: He spoke of detaining material witnesses as a means to “tak[e] suspected terrorists off the street.” App. 41 (internal quotation marks omitted).
And here’s Scalia’s retort to that:
JUSTICE GINSBURG suggests that our use of the word “suspicion” is peculiar because that word “ordinarily” means “that the person suspected has engaged in wrongdoing.” Post, at 3, n. 2 (opinion concurring in judgment). We disagree. No usage of the word is more common and idiomatic than a statement such as “I have a suspicion he knows something about the crime,” or even “I have a suspicion she is throwing me a surprise birthday party.” The many cases cited by JUSTICE GINSBURG, post, at 3, n. 2, which use the neutral word “suspicion” in connection with wrongdoing, prove nothing except that searches and seizures for reasons other than suspected wrongdoing are rare.
In other words, Scalia wants to broaden the Fourth Amendment to sanction searches (and arrests) of people suspected of knowing something or doing something (throwing a birthday party!), rather than just those suspected of doing something illegal.
Not only does Scalia’s novel interpretation of the word “suspicion” pre-empt future challenge to material witness warrants’ constitutionality, but it also lays a novel groundwork for sanctioning all the domestic surveillance the government has been conducting. After all, the government is wiretapping (or tracking the geolocation of) people who may or may not have committed a crime, but are suspected solely of talking to or hanging out in the vicinity of a suspected terrorist.
And because Kennedy didn’t tip his hand in either direction, that’s the kind of interpretation the government will use–no doubt in its secret interpretations of the laws–to claim it can surveill even those of us suspected of no crime.
Because suspicion doesn’t mean what it used to mean.
As Spencer reports, former Attorney General John Ashcroft just got named the-Company-formerly-known-as-Blackwater’s ethics chief.
The consortium in charge of restructuring the world’s most infamous private security firm just added a new chief in charge of keeping the company on the straight and narrow. Yes, John Ashcroft, the former attorney general, is now an “independent director” of Xe Services, formerly known as Blackwater.
Ashcroft will head Xe’s new “subcommittee on governance,” its backers announced early Wednesday in a statement, an entity designed to “maximize governance, compliance and accountability” and “promote the highest degrees of ethics and professionalism within the private security industry.”
And while Spencer catalogs many of the reasons this is absurd…
To some, Ashcroft will be forever known as the face of Bush-era counterterrorism, the official who vigorously defended the Patriot Act’s sweeping surveillance powers; told civil libertarians that their dissents “only aid terrorists“; and covered up the Spirit of Justice’s boob.
He misses one of Ashcroft’s key ethical highlights: how he benefited from close ties to his former subordinate Chris Christie when he won a tens of million dollar contract to monitor a medical device company after it signed a Deferred Prosecution Agreement with Christie.
Are federal prosecutors using corporate crime prosecutions to reward cronies?
That seems to be the case in New Jersey, where U.S. Attorney Christopher Christie appointed his ex-boss, former Attorney General John Ashcroft, to be the corporate monitor of a company involved in a $311 million deferred prosecution agreement (pdf) with Christie’s office. The company in question, Zimmer Holdings, along with several other medical equipment manufacturers, was accused of paying kickbacks to get doctors to use their artificial hip and knee reconstruction and replacement products.
Ashcroft’s consulting firm, the Ashcroft Group LLC, will earn between $29 million and $52 million (paid by Zimmer Holdings) to serve as a corporate watchdog for 18 months. It will oversee Zimmer Holdings, making sure it does not engage in misconduct and helping it adopt corporate reforms. As head of the Department of Justice, Ashcroft was Christie’s boss from 2002 to 2005. Christie also served on an advisory panel that consulted regularly with the Attorney General.
Effectively, DPAs under Christie were a means of privatizing justice; Christie even justified limiting fines by pointing to the huge contracting fees his former DOJ buddies would get for monitoring the deal.
And so it’s utterly appropriate that Ashcroft would head to the poster child for everything wrong with privatization to make sure it complies with some kind of ethics.
As MadDog and I were discussing on this thread, the May 6, 2004 Jack Goldsmith opinion on the warrantless wiretap program references an OLC opinion that appears not to have been publicly released or, even in the course of FOIA, disclosed.
Thus, this Office will typically construe a general statute, even one that is written in unqualified terms, to be implicitly limited so as not to infringe on the President’s Commander-in-Chief powers. Cf, id. at 464-66 (applying avoidance canon even where statute created no ambiguity on its face). Only if Congress provides a clear indication that it is attempting to regulate the President’s authority as Commander in Chief and in the realm of national security will we construe the statute to apply.19
19. For example, this Office has concluded that, despite statutory restrictions upon the use of Title III wiretap information and restrictions on the use of grand jury information under Federal Rule of Criminal Procedure 6(e), the President has an inherent constitutional authority to receive all foreign intelligence information in the hands of the government necessary for him to fulfill his constitutional responsibilities and that statutes and rules should be understood to include an implied exception so as not to interfere with that authority. See Memorandum for the Deputy Attorney General from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Effect of the Patriot Act on Disclosure to the President and Other Federal Officials of Grand Jury and Title III Information Relating to National Security and Foreign Affairs 1 (July 22, 2002);
This is probably a memo examining what kind of limits section 203 of the PATRIOT Act impose on Executive Branch officials. That section permits the sharing of Grand Jury and Title III wiretap information with the intelligence community–even information pertaining to US persons. But it requires that, “any Federal official who receives information pursuant to this provision may use that information only as necessary in the conduct of that person’s official duties subject to any limitations on the unauthorized disclosure of such information.”