Activities and Yoo
Anonymous Liberal is trying to sort through something I’ve been looking at for a while: to what degree was Ashcroft fully read into the warrantless wiretap program? I think there’s a two-part answer to this question. As I’ll show below, I think BushCo had Ashcroft approve the multiple aspects of "the program" in isolation from each other, giving him an incomplete picture of how the parts worked together. Furthermore, as they did with Congress, they made sure that no one who could offer any real advice on the program every got read into it, forcing Ashcroft to make his determinations from a position of ignorance. And all of this likely fits into a larger process, whereby Cheney and Addington worked directly with John Yoo to obtain the substantive approvals from DOJ, thereby bypassing Ashcroft on the larger issues. All of which might explain why Ashcroft raised the issue after Gonzales and Card tried to manhandle him while he was recuperating the ICU ward.
Contrary to what Spencer Ackerman claims, this is not "the first time" the allegation that Ashcroft wasn’t adequately read into this program has been made. Aside from Whitehouse’s questioning of Gonzales in his last SJC appearance and the correction Gonzales submitted after that appearance, a number of reports have laid out the Cheney-Addington approach to shredding the Constitution more generally.
Cheney and Addington’s MO
Take this article from December 2005, laying out how John Yoo bypassed normal review processes when writing opinions that justified these expansive policies (including the warrantless wiretapping program):
Within weeks [of 9/11], Mr. Yoo had begun to establish himself as a criticalplayer in the Bush administration’s legal response to the terroristthreat, and an influential advocate for the expansive claims ofpresidential authority that have been a hallmark of that response.
Whilea mere deputy assistant attorney general in the legal counsel office,Mr. Yoo was a primary author of a series of legal opinions on the fightagainst terrorism, including one that said the Geneva Conventions didnot apply and at least two others that countenanced the use of highlycoercive interrogation techniques on terror suspects. Recently, currentand former officials said he also wrote a still-secret 2002 memorandumthat gave legal backing to the administration’s secret program toeavesdrop on the international communications of Americans and othersinside the United States without federal warrants.
A genial, soft-spoken man with what friends say is a fiercelycompetitive streak, Mr. Yoo built particularly strong workingrelationships with several key legal officials in the White House andthe Pentagon. Some current and former government officials contend thatthose relationships were in fact so close that Mr. Yoo was able tooperate with a degree of autonomy that rankled senior JusticeDepartment officials, including John Ashcroft , then the attorney general.
[snip]
Mr. Yoo’s belief in the wide inherent powers of the president ascommander in chief was strongly shared by one of the most influentiallegal voices in the administration’s policy debates on terrorism, DavidS. Addington, then the counsel to Vice President Dick Cheney.Documents and interviews suggest that those views have been part of thelegal arguments underpinning not only coercive interrogation and theprosecution of terrorism suspects before military tribunals but alsothe eavesdropping program.
Some current and former officials saidthe urgency of events after Sept. 11 and the close ties that Mr. Yoodeveloped with Mr. Addington (who is now Mr. Cheney’s chief of staff),Mr. Gonzales, Mr. Flanigan and the general counsel of the DefenseDepartment, William J. Haynes II, had sometimes led him to bypass theelaborate clearance process to which opinions from the legal counseloffice were normally subjected.
[snip]
"They were not getting enough critical feedback from within O.L.C.,or from within the Justice Department, or from other agencies," oneformer official said of Mr. Yoo’s opinions. Officials said senior aidesto Attorney General Ashcroft also complained that they were notadequately informed about some of the Mr. Yoo’s frequent discussionswith the White House.
Mr. Yoo said he had always duly notifiedJustice Department officials or other agencies about the opinions heprovided except when "I was told by people very high in the governmentnot to for classification reasons."
So, we know Yoo wrote the opinion justifying the warrantless wiretapping program. We know Yoo sometimes bypassed normal clearance processes. And we know he did this when Dick Cheney "people very high in the government" told him not to share the opinions with others "for classification reasons." This method has been mapped in a number of articles since then, including the WaPo’s Angler series (though that article specifically maps what happened with military commissions). So we’ve known for some time that Cheney and Addington worked directly with John Yoo in an effort to bypass normal vetting processes and John Ashcroft himself.
Reports of Yoo’s â€compartmentalization†also answer the question that the OPR investigation Bush personally killed sought to illuminate. The proper channels within DOJ, established to ensure professional responsibility, were evaded.
Why don’t they just call Mr EX Attorney General John Ashcroft in himself to testify as to what he did or didn’t know??
Excellent post as usual, EW. One thing to keep in mind re: Yoo is that he didn’t necessarily have to have been read into the program in any detail to write opinions justifying these kind of activities. This kind of stuff can be done at a more abstract level through the use of hypotheticals and assumptions. It’s possible that the folks at the OLC just drafted generalized opinions regarding the president’s authority and it was left to Ashcroft to certify that the program was consistent with those OLC opinions.
I don’t know that it worked that way, but it’s possible.
Wow. Are the TPM crowd that dense, or are they afraid of linking to a GIRL, or what?
Is it Treason to hide Executive Branch criminal activity behind the veil of ’state secrets,’ kept according to an arbitrary, self-managed Executive Branch ’compartmentalization’ scheme?
Now we know why Addington is such an expert with Security Clearance issues – it looks like he authored the ’Classification Shell Game’ system that:
– provided a secure channel for Yoo to secretly by-pass Ashcroft
– allowed Bush to ’reveal in parts’ – ’activities’ – to Ashcroft, the Gang of 8, Congress and the people what he selectively wanted to show, while keeping hidden the full extent of ’the Program’
– Masked Cheney’s involvment
– Prevented ANY review of the entire program for Constitutional Compliance outside the Executive Branch
I think you are right on – Ashcroft was angry (like all of us would be) because he was duped into ’certifying’ the sell-out of our basic political rights on the basis of being fed half-truths and lies by Bush.
Ashcroft wasn’t in the Kingdom – he was only allowed to peek at ’the activities’ and not ’the Program.’
But, Bush was more than willing to use him to off-load any downstream criminal liability onto the DoJ.
Ashcroft was no different than Judy Miller – a useful idiot – ooohed and aaahed by ’classified’ information. So far as vigilance for our freedoms go, the thefts are being kept out of sight while using ’mouth organs’ with ’credibility’ to make the rest of us think otherwise.
Thanks for the best explanation of these issues, EW. Yoo is a real piece of work, but as you have written before, Addington, the apparent â€legal†genius behind this, is the epitome of Hannah Arendt’s banality of evil.
Is it fair to assume that while the Department of Justice was–to an astonishing degree of deniability–compartmentalized, the White House was engaging in an incestuous orgy of information-sharing?
Is it fair to assume that Gonzales, Rove, Miers, and Cheney (and even Bush, to the extent that he could comprehend) had a comprehensive picture of planned as well as executed â€activities†as well as the overall program(s)?
This one really connected the dots for me! You really laid it out well!
I would love to know what went on in DoJ when Ashcroft and Comey connected the dots…
AL
One thing that would support that argument is Brad Berenson’s description, in the Angler series, that there was a triumvirate of Cheney, Addington, and Flanigan, and that Yoo was just an add-on.
The parting out of the information would also help to explain why, after two years, much of the DOJ was prepared to resign in the face of this particular reauthorization. They just figured out themselves the extent of â€the programâ€. If it had been reauthorized periodically, why this particular time to revolt?
The only other reasons I can think of would be an actual change to the program, or that Comey had more scruples than Ashcroft.
from Sojourner…
I would love to know what went on in DoJ when Ashcroft and Comey connected the dots.
Comey met with Ashcroft for one hour on March 3, 2004 to explain the finding of Goldsmith and Philpin. Remember that Jack Goldsmith replaced John Yoo in OLC at DOJ. Comey had to intervene with Cheney to gain security clearance for Goldsmith because even though he was very conservative, he was not a â€true believer†like Yoo.
It was immediately after this meeting (â€within hoursâ€) that Ashcroft was rushed to the hospital. According to Comey, they had worked out â€a plan of actionâ€.
We know that Jack Goldsmith, Patrick Philpin, and Comey met with Cheney, Addington, Card, and Gonzales on March 9th which was one day before the hospital visit. It was at this meeting at the WH that Cheney was told â€finally†that the program would not be re-authorized. Note that there was lots of other meetings that day also which Mueller outlines in his meeting notes to the judiciary committee that came our yesterday.
Emptywheel, great diary. I had posted a few comments at TPM and Dailykos that agree with the basic format of your analysis. I would just add that this is exactly the way Cheney has gained the system to his advantage at DOD, State, Justice, and Interior Depts. Place a strong loyal person in a high position who you can control to influence policy in your favor. In DOJ it just happens to be Gonzales.
NC Dem
Actually, Comey has said the Ashcroft meeting was on the 4th, the day he was hospitalized.
Comey also suggested that he gave BushCo a final no on the 10th, not long before the hospital scene. It’s quite likely that this meeting was not recorded by Mueller, bc there’s no reason he was involved in it. What I want to know is whether it came before or after the Congressional briefing.
So they added Yoo as another firewall once Flanigan was added to the triumvirate, in order to partition the EOP, not only as a partition but a weighting by department or function. For every compartment in the activities, they were also adding compartments and firewalls in the team. I wonder if there was a correlation between certain activities and specific firewalls, not only to segregate the EOP from the activities, but to ensure OVP control.
i keep stumbling mentally each time i read
â€compartmentalizedâ€
or
â€not read inâ€
in a sentence referencing the u.s. attorney general or senior congressmen.
compartmentalization is the technique used by intelligence organizations to insure that no one person (except those directing it) have a comprehensive idea of the entire â€activityâ€.
this is how one treats super-duper-double-secret info.
so
did pres bush know of this â€activity†in its entirety, or might he, too, not have been â€read inâ€?
is it possible that vp cheney undertook and supervised an illegal spying activity without the knowledge (that is, without the knowledgeable understanding) of and with only a pro forma authorization from the president?
as for johnny loo yoo,
it seems to me more in the cheney modus operandi to use someone like yoo rather than partner with him. cheney don’t partner with anybody he hasn’t known for years – and i’m beginning to wonder if that doesn’t include his president.
but back to compartmentalizing.
cheney and gang employing that technique would be consistent with the use of other counterintelligence techniques against the american people and government
such as setting up propaganda units within dod and the white house to conduct a cia-style misinformation campaign with the intent of arousing public fear and indignation to generate public support for the iraq invasion.
personally, i think we have been cia-ed by cheney and his gang of domestic spooks.
sure as god made little green apples, v.p. cheney has been running a comprehensive shadow administration that has been making all critical decisions in american domestic and foreign policy since jan 2001.
i’m not much on impeachment right now, but if what i have speculated is true,
never was american official more deserving of impeachment following his term of office than v.p. cheney.
impeach him, convict him, remove his pension, jail him.
there has to be a hard lesson taught for future architects of stealth governments and silent coups in the u.s.
A system of information management like this – with complex processes and closed content – requires a referee or director with the power to command the system.
Nominally, that would be Bush, but factually that almost has to be Cheney. Bush isn’t smart enough and this is just the sort of power-mongering that turns Darth on.
This isn’t a bottom-up organization of compartments to assemble whole information, it’s just the opposite.
This is a top-down organization of All-Knowledge into compartments to limit disclosure and exposure.
The Big Secret could be that Bush switched-on full spectrum warrantless domestic and foreign surveillance right after 911, and has been trying to keep that cat in the bag all along through ’compartmentalization’ into ’activities.’
The top-down design explains why ’underlings’ always seem to have plausible deniability – it’s built-in to the architecture of the compartments. The only identifiably responsible person in the whole scheme is Bush, and he’s protected by privilege – as long as the scandals don’t lap-up against his door, they can ’cover’ anything, and make sure a ’loyalist’ doesn’t suffer from the Rule of Law when serving Bush’s Kingdom.
These guys have thought this through.
EW, I find your read more credible than AL’s. The most persuasive, though circumstantial, evidence is Cheney-Addington’s MO. It’s useful to remember that circumstantial evidence, while not as powerful as direct evidence, is powerful; it may send Jose Padilla to prison for life.
Fundamental to Cheney’s exercise of Oedipal levels of authority over Shrub is his network of dozens of top appointments throughout the administration. It keeps him informed, often ahead of cabinet heads, Congressional leaders and others in the WH. The people comprising it are loyal to him above all else and constitute a fifth column, a shadow government. John Yoo seems to have been one of his top appointments at the DOJ.
Yoo was the number two at the OLC (with a head whose name escapes me, but who is now a federal appellate judge), which acts as the senior legal consultant on federal law to the AG and top govt departments. Yoo was crucial in providing legal cover for highly questionable conduct. His return to Berkeley coincided with Goldsmith and Philbin and Comey’s ascendancy, which is when Ashcroft began to learn what his department was authorizing, and how little he really knew about it, and how little the White House respected him. Yoo’s CYA memos were repudiated, precipitating the rebellion. It seems logical that the rebellion over the â€program†was not the first or an isolated problem, but one of many. It confirmed a pattern of behavior and for many at DOJ, was the straw that broke the camel’s back. Hence, the rebellion of so many, even though its consequences would have been predictable.
After the rebellion and the purported sorting out of â€the program’s†excesses, within short order Ashcroft, Goldsmith and Comey left, and Philbin was sidelined. A more reliable Gonzales was installed, and reliable, young, ambitious and/or stupid juniors were installed as staff and WH liaison. And a more extended and thorough house cleaning was strategized and at least partially implemented.
Here’s my take on your article.
Police Officer: Is it legal for me to carry a gun?
Authority1: Yes.
PO: Is it ever legal to kill a civilian?
Authority2: Yes, in some situations.
PO goes out and shoots everybody he sees.
SenateJudiciaryCommittee: PO, were you authorized?
PO: Yes, my activities were authorized.
SJC: A1, did you authorize him?
A1: I authorized certain activities.
SJC: A2, did you authorize him?
A2: I authorized certain activities.
NC Dem, thanks for the explanation! Actually, I was being somewhat humorous in asking that question. What I would have given to have been a fly on the wall…;-)
EW
The Program was reauthorized as a single entity every 45 days, so why would the different activities contained within The Program be submitted to the AG in parcel for review? Gonzales et al want everyone to think about â€The Program†as the relatively uncontroversial TSP. However, the TSP is just a convenient grouping of activities within â€The Programâ€. The SJC got burned in 2/6/06 when they let Gonzales speak only about the TSP, and â€other activities†within the original â€Program†were taboo.
So now Whitehouse (And Mueller too) are fed up with that parsing and speak generally of activities, to try to encompass the entirety of The Program.
Something in the Non-TSP activities was apparently troublesome to Ashcroft, or their were grumblings from below (Comey Philbin Goldsmith). At any rate when Comey was tasked with determining the legal basis of The Program, the compartmentalization prevented the analysis group (Comey, Philbin, Goldsmith) from getting the details.
Hence Comey’s â€no legal basis†rather than illegal. The could not determine legality without knowing the details of the program. Ashcroft may or may not have been read in to the entire set of activities in the program- Goldsmith’s arrival from the DOD may have brought new details of a compartment that Ashcroft was not fully apprised of?
Regardless, up until 3/04, I think it was likely argued that the legal basis â€Authorization†for the all the activities of The Program was the AUMF, and the details approved by Cheney.
Only when Comey et al were about to resign was the president brought into the mix.
Reading the 2/6/06, Gonzales talks about â€the program authorized by the President†and intimates that this is the TSP. If the all encompassing pre-2004 Program never had direct Presidential Authorization (but rather was delegated to the OVP) then Bush is out of the way of impeachable criminality if The Program is ever disclosed and found to be illegal. With the Comey resignation crisis, Bush read into the least unsavory part, it is selectively declassified and named the TSP, and the â€other activities†remained buried in Cheney’s dark world.
drational = I think much of what you have here is a plausible path. I, however, tentatively take issue with two details. I am not so sure that the â€Program†was what was apparently reauthorized every 45 days; I find it hard to believe that they ever put the entire scope in such a process. Secondly, you sure don’t need criminality for impeachment of Bush; and even if you assume Bush was partially out of the loop (which I refuse to do at this point); he is still plenty impeachable for this.
Mark H – I have given similar examples. What is â€legal†in one scenario doesn’t need much change to become illegal in another.
NCDEM: Jack Goldsmith replaced John Yoo in OLC at DOJ.
Actually, I think technically Goldsmith replaced Bybee – the titular head and other sign off on torture. Bybee go his appointment to the Circuit Court after his compliance in the torture memos. Before that Goldsmith had worked closely with Jim Haynes, the Pentagon General Counsel who supported torture over the objections and concerns of Alberto Mora and others. Haynes and Addington were close friends and Goldsmith has certainly had his toe in the GITMO waters, as well as being tied to a reported draft of a very dicey opinion re: Article 49 and whisking civilians out of country for abusive black hole interrogations.
I don’t remember hearing that Comey had to â€intervene with Cheney to gain security clearance for Goldsmith†though.
?
And as a by the Bybee,
http://www.harpers.org/archive…..c-90000163
No one seems all that interested in having Judge Bybee come and explain his torture theories.
bmaz.
I assumed the One Program part from the McConnell letter:
http://www.washingtonpost.com/…..073107.pdf
â€A number of these intelligence activities were authorized in one order, which was reauthorized by the President approximately every 45 days, with certain modifications…. One particular aspect of these activities, and nothing more, was acknowledged by the President and described in December 2005…†(The TSP).
Well this shoots my presidential authorization hypothesis. He authorized it and thus owns it, but I suspect Cheney was running it.
drat – I am with you all the way on that. Bush owns it ALL anyway. He either knew, should have known, or is plain to stupid to know; whatever, he is the self proclaimed â€Decider†and is therefore responsible for the decisions made in his name. The buck stops with the Dumbfuck.
bmaz, et al
i don’t have any problem with â€the buck stops at dumfuck†assignment of presidential responsibility
but
a question that interests me is what if the president were not well-informed about a program or policy he lent his ok to, say the spy program?
it’s fine to say he owns it
but what if a president were too ignorant of details to make a â€sound†decision?
or was conned or misinformed into making a very bad decision?
how uninformed/ignorant of a particular policy must a president be to have his decisions on that policy rendered unimplementable or determined harmful to the national interest?
and who bells that cat?
how misinformed must a president be for his state of misinformation to constitute an effort to deceive by his subordinates, including his vice-pres?
irrelevant you say?
then we are back to â€if the president says it’s ok, it’s okâ€, even if he has no idea of the consequences of his action.
apply the same questions to ken lay at enron, for example.
OrionATL – Well, actually that has come up for before, and the only standard is that of declared disability under the 25th Amendment.
bmaz,
thanks.
i was thinking less of succession than of assigning responsibility during and following an impeachment inquiry.
and, more generally, of the lack of â€evaluative standards†for presidential performance, apart from â€the prez is a dumbassed, lying son of a bitchâ€, and the like.
normally, we expect extremes of public opinion and congressional push-back to guide a president’s behavior, but with this president, that doesn’t hold.
perhaps such concepts as â€willful ignorance†or â€lack of due diligence†on the part of the president
or
of â€misleading/deceiving the president†or â€usurpation of presidential prerogatives†on the part of the vice-president (or any cabinet official).
apparently cheney may have been thinking of this too, which may be why he engineered his special agreement with bush at the beginning of the bush plague.
even if we lay impeachment off to the side,
given the presidency the american people face,
what can we do if, for example, bush makes the incredibly dangerous (not to mention immoral) decision to bomb iran in the next 16 months?
I should have been more articulate. It is actually Article 2, Section 1 in conjunction with the 25th. The issue of the President being â€crazy†has been raised before, and it is my recollection that the best opinions at the time were that absent a self declaration of incapacity or certification by the VP et.al. under the 25th, there are no other standards or methods to address it. Impeachment was considered to be a fairly inclusive remedy and, really, that is about it.