1. P J Evans says:

    If Bush allowed them to wiretap without the signoff (or encouraged them to do that), that in itself ought to be an impeachable offense, because it’s the President breaking the law and encouraging others to do so also.

    Not that Congress is likely to do anything about it, since they’re still trying to find their cojones (and I think they need both hands and a flashlight).

  2. bmaz says:

    There is no question but that liability concern by telecom companies is a factor in this whole equation. With the caveat that I am often a little slow, I still find it hard to believe that this concern by telecoms was a significant driving factor in the extraordinary actions surrounding the Showdown at the OK Hospital Corral. The provision from 18 USC 2511 cited is phrased in the alternative. Court order OR cerification by Attorney General. Once the DOJ (AG) had provided a certification to the telecoms, that provision would be covered. I am convinced that the 45 day cycle is a creature of the FISA Court and Judge Colleen Kollar-Kotelly. The telecom concerns and the FISA Court concerns are not necessarily conflated; and it would be in Bushco’s interest to keep them separate. Hell, Busco would just lie to the telecoms or guarantee they were covered or something in order to keep the program running. But Kollar-Kotelly and the FISA Court, now that is a different matter. There is far more to this mess than just dogged concern for the protection of telecoms.

  3. Ishmael says:

    EW – exposing the telecoms to mega-causes of action by potentially thousands, maybe millions of litigants would certainly cause their various general counsel no end of distress – but an individual lawsuit by an affected person or a class action by a group would be easily neutered by the usual state-secret, sources and methods, standing, venue and other arguments, particularly before many of the pliant judges Bushco has placed on federal appeals courts. However, does not the involvement of private companies who are subject to congressional oversight (and subpoena) not provide Congress with another avenue of discovery on the entire program? The private individuals who carried on the intercepts, the superiors who ordered the surveillance, there must be some paper trail of the information which was requested and the steps that were implemented by the telecoms to comply with NSA directives. I have this beautiful vision of all the telecom heads sitting in a row before Schumer, sweating and looking like Nuremberg defendants, like the tobacco execs, answering uncomfortable questions about what they did, and why they did it, perhaps even for hopes of future favours rendered (or denied) by the FCC or other factions of the Bush Administration? There is no executive privilege argument, although Bushco would no doubt try to limit or quash the subpoenas on the grounds of national security, etc. Quaere whether one branch of government has standing to thwart the investigations of another branch of government on national security considerations?

  4. Taechan says:

    Ishmael’s mentioning the telecom personel above gave me a notion for speculating about the FBI’s presence(assuming Comey’s testimony references the surveillance program). Could it be the FBI needed to issue National Security Letters to the telecoms to get their compliance with and silence about the NSA program?

  5. Mary says:

    EW – this is why I was asking about the telecom v. domestic wiretaps (’terrorist surveillance’) program. But since I asked I’ve read the transcript and this is why Specter pushed so hard on the statutory issue. The AG’s certification that no FISA warrant is required is a statutory requirement and Comey did dig in and say that what he was supposed to sign off on had no statutory underpinnings. He would have been very aware – to wildly aware – of that issue and it would have been disingenuous, parsing and pretty much fibbing to make the statements he did if they were dealing with the telecoms program.

    Still, it now opens the door for them to get more thorough judicial review.

    I also pretty much believe that â€the program†being reviewed every 45 days was likely not â€a†program but was all the warrantless/statute violating programs – everything that the FISA court required to be firewalled.

  6. Anonymous says:

    Mary

    The AG’s certification that no FISA warrant is required is a statutory requirement and Comey did dig in and say that what he was supposed to sign off on had no statutory underpinnings.
    I’m not sure it follows. Comey’s hesitation was made in light of the claims that Bush’s Article II supercedes the existing laws themselves. I understood that to be the basis of his hesitation.

    Further, the administration has made distinctions in the past between the diversion of the switches (bid out under Clinton), the datamining to find wiretap candidates, and the actual tapping program. So it’s not clear that the â€program†isn’t that middle step.

  7. Mary says:

    EW – He did have a problem with the presidential powers argument. He said that was pretty much all that was proffered as a legal basis. But don’t confuse the questioning as to legal basis with the questioning as to statutory effect of the certification.

    A certification from the AG that a FISA warrant is not needed is an explicit statutory device that serves as a safe harbor (although probably not in the overal context of the massive scope of the telecom program that has been described – which is why a few telecoms reportedly had big issues).

    So whether or not to give the certification (for the telecoms program) goes to the legal basis for giving it. Is there one or is the only basis â€if the president says do it, it’s legalâ€

    That was one part of Specter’s questioning. BUt another part went to the magic 45 days and the actual legal effect of the certifications. Did a statute require an AG cerfitication? Comey said no. If they were talking about the telecoms issue, that would have been more than fine parsing – it would have been incorrect.

    *****************

    SPECTER: Well, you don’t have to. If the certification by the Department of Justice as to legality is required as a matter of law, and that is not done, and the program goes forward, it’s illegal. How can you — how can you contest that, Mr. Comey?

    COMEY: The reason I hesitate is I don’t know that the Department of Justice’s certification was required by statute — in fact, it was not, as far as I know — or by regulation, but that it was the practice in this particular program, when it was renewed, that the attorney general sign off as to its legality. There was a signature line for that. And that was the signature line on which was adopted for me, as the acting attorney general, and that I would not sign. So it wasn’t going forward in violation of any — so far as I know — statutory requirement that I sign off. But it was going forward even though I had communicated, â€I cannot approve this as to its legality.†And given that, I just — I couldn’t, in good conscience, stay.

    SPECTER: Well, Mr. Comey, on a matter of this importance, didn’t you feel it necessary to find out if there was a statute which required your certification or a regulation which required your certification or something more than just a custom?
    COMEY: Yes, Senator. And I…
    SPECTER: Did you make that determination?
    COMEY: Yes, and I may have understated my knowledge. I’m quite certain that there wasn’t a statute or regulation that required it, but that it was the way in which this matter had operated since the beginning. I don’t — I think the administration had sought the Department of Justice, the attorney general’s certification as to form and legality, but that I didn’t know, and still don’t know, the source forthat required in statute or regulation.
    SPECTER: OK. Then it wasn’t illegal.
    COMEY: That’s why I hesitated when you used the word â€illegal.â€
    SPECTER: Well, well, OK.

    **********
    Then there’s more and Specter dances around the two separate issues – illegal/unconstitutional and a regulatory or statutory requirement of a certification.

    But if Comey was talking about the telecoms program, then he pretty much fibbed when he said there was no statute or regulation requiring that certification that had a legal impact if he didn’t give it. I don’t think he did fib and I think he knows how to be evasive and would have been much more so on this issue if it involved the telecoms certification.

    But I do still think it will give a toehold to the telecom claims to get more info and I can’t imagine there were two sets of certifications being given, so the questions are out there and will get more kicking around. All of which does go back to why the 45 days was so important to the WH and I don’t think that’s been nailed yet. IMO, it had a lot to do with what was going on concurrently at the FISA court. Members of DOJ in the FBI or Main Justice – up to possibly the AG – were looking at a Judge claiming perjury before the court.

  8. G_schauf says:

    the following is a quote from an article in NetworkWorld dated 5/12/06:

    http://www.networkworld.com/ne…..g-nsa.html

    â€Qwest declined to turn over phone records to the NSA when it discovered U.S. agents would not seek court approval, said Herbert J. Stern, lawyer for Joseph Nacchio, a former CEO at Qwest.

    The U.S. government approached Nacchio and asked for customer phone records in late 2001, Stern said in a statement released Friday. The phone records requests continued until Nacchio left Qwest in June 2002, Stern said. A federal grand jury in Colorado indicted Nacchio in December on 42 counts of insider trading.

    Qwest asked â€whether a warrant or other legal process had been secured in support of that request,†Stern said. â€When he learned that no such authority had been granted and that there was a disinclination on the part of the authorities to use any legal process… Mr. Nacchio concluded that these requests violated [federal] privacy requirements. Accordingly, Mr. Nacchio issued instructions to refuse to comply with these requests.â€â€

    my questions;

    1) how does this fit into the timeline for the nsa program? and
    2) was the insider trading prosecution retaliation for not turning over Qwest phone records?

  9. hauksdottir says:

    In order for there to be a statute or regulation requiring such a signature for a program, would there not have to be awareness of the existence of a program?

    Congress makes the laws. Let’s say they make a law establishing a program under a particular agency with the requirement that it be justified and certified on a regular basis. OK, there would be a few meetings and memos and votes and a paper trail with a nice statute number… which could be checked by those with sufficient security clearance. Even if the details of the program were top secret (spying, assassinations, bribery, or torture), there would be a name and a responsible agency. But if no congress-critters, not even the ones on the Intelligence Committees, are aware of the existence of a program, there would never be a statute authorizing it or containing provisions for making and keeping it legal.

  10. bmaz says:

    Hauksdottir – Probably only the group of 8 in Congress, 4 from House 4 from Senate, are read into the program. The signature requirement may be necessary from OLC as the opinion determination point on executive programs. Also probably part of certification process demanded by FISA Chief jusge Colleen Kollar-Kotelly. Now it is possible that Bushco made end around even those people; who knows with this criminal cabal.

  11. bmaz says:

    [email protected] – I agree with your last two paragraphs totally at this point. I’ll go so far as to say it runs higher that AG and Bush and Cheney feared Kollar-Kotelly. Their whole gig was staring them in the face. The one blank spot in the theory is, if FISA/Kotelly was such a fear, what happened? Because they didn’t get any signature for two weeks and now Kollar-Kotelly knows the whole hospital story, if she did not before. There should be repercussions; where are they?

  12. Mary says:

    bmaz – I’m going to do a kos diary on that sometime when I have a chance. I did one awhile back (1stof May or so) that wasn’t as complete as it should be. I’m pretty certain we were looking at continuing certifications to the court and that’s why Comey’s testimony – both as to the program review and as to Ashcroft’s â€stunnning†revival – both dwell a bit on fact as well as substance and law. He was careul to talk about the actual review ofthe program, we know that Baker had to tell the FISA judge that, factually, the firewalls were being disregarded, and Comey also spoke to Ashcroft’s hospital bed speech being rich in substance and FACT.

    Anyway – a more detailed examination later, but as much as I’d like to see the telecoms nailed, and as happy as I am that this may give them a toehold to demand more on the state secrets front – I don’t think that a lawyer would have said what he did, under oath, if the certifications had been the ones required under 18 USC 25112(a)(ii)(B).

  13. qwerty says:

    Hope this is germane…
    WRT …or â€a certification in writing by … the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required.â€â€¦

    Note that the OLC opined [2004?] officially that IIRC the POTUS can delegate someone else to sign documents, by signing the POTUS’ name.

    I read that on a .gov website for the OLC in a list of recent OLC opinions [or papers?].I was searching for who is current chief at OLC.

    It seemed an odd subject for an opinion and no specific reason was given for the request.
    IANAL, but a a scan of several pages of the opinion, allowing delegation, cited only obscure cases that were far below the profundity of a POTUS delegating his signature.

    Guessing, of course, but OLC opinion allowing a POTUS to delegats his signarture on docs could be argued then to allow alllesser creatures, as say AG Ashcroft, to delegate and VOILA, â€certifications†per above paragraph appear everywhere and would be very awkward and difficult to doubt or challenge.

  14. orionATL says:

    g-schauf’s question is one that interests me also.

    nacchio was recently tried and convicted of some sort of stock manipulation,

    but it seems inescapable that the investigation and subsequent prosecution of nacchio was retaliation for daring to question,

    even temporarily and for legitimate corporate reasons (liability),

    the bush spying efforts.

    and of course, as with the firing of the u.s. attorneys,

    this type of action is a twofer:

    you get rid of a human obstacle

    and

    you send a warning to others.

    this is a game the bush admin plays in most instances of opposition, large or small.

    it is really an integral part of their governing activity and a further indication of the dictatorial nature of the bush presidency.

  15. Mary says:

    qwerty – pull up the opinion that was given with the Gonzales delegation to Monica/Kyle issue. It speaks in terms of the â€open†issue as applying to Presidential and head of dept delegations IIRC and has the caveats of how things can be done in the name of the Dept head and they gave the requirements they thought should be met – those seem to be of general application.