Dick versus Scottish Haggis: The Grudge Match

Arlen "Scottish Haggis" Specter took the opportunity yesterday to enter a letter exchange he had with Dick Cheney into the Congressional Record. Here’s that exchange (see below the letters for my analysis; h/t for Selise to alerting me the transcripts were up):



Washington, DC, June 7, 2006.
Hon. Richard B. Cheney,
The Vice President,
Washington, DC.

Dear Mr. Vice President: I am taking this unusual step in writing to you to establish a public record. It is neither pleasant nor easy to raise these issues with the Administration of my own party, but I do so because of their importance,

No one has been more supportive of a strong national defense and tough action against terrorism than I. However, the Administration’s continuing position on the NSA electronic surveillance program rejects the historical constitutional practice of judicial approval of warrants before wiretapping and denigrates the constitutional authority and responsibility of the Congress and specifically the Judiciary Committee to conduct oversight on constitutional issues.

On March 16, 2006, I introduced legislation to authorize the Foreign Intelligence Surveillance Court to rule on the constitutionality of the Administration’s electronic surveillance program. Expert witnesses, including four former judges of the FISA Court, supported the legislation as an effective way to preserve the secrecy of the program and protect civil rights. The FISA Court has an unblemished record for keeping secrets and it has the obvious expertise to rule on the issue. The FISA Court judges and other experts concluded that the legislation satisfied the case-in-controversy requirement and was not a prohibited advisory opinion. Notwithstanding my repeated efforts to get the Administration’s position on this legislation, I have been unable to get any response, including a “no”.

The Administration’s obligation to provide sufficient information to the Judiciary Committee to allow the Committee to perform its constitutional oversight is not satisfied by the briefings to the Congressional Intelligence Committees. On that subject, it should be noted that this Administration, as well as previous Administrations, has failed to comply with the requirements of the National Security Act of 1947 to keep the House and Senate Intelligence Committees fully informed. That statute has been ignored for decades when Presidents have only informed the so-called “Gang of Eight,” the Leaders of both Houses and the Chairmen and Ranking on the Intelligence Committees. From my experience as a member of the “Gang of Eight” when I chaired the Intelligence Committee of the 104th Congress, even that group gets very little information. It was only in the face of pressure from the Senate Judiciary Committee that the Administration reluctantly informed subcommittees of the House and Senate Intelligence Committees and then agreed to inform the full Intelligence Committee members in order to get General Hayden confirmed.

When there were public disclosures about the telephone companies turning over millions of customer records involving allegedly billions of telephone calls, the Judiciary Committee scheduled a hearing of the chief executive officers of the four telephone companies involved. When some of the companies requested subpoenas so they would not be volunteers, we responded that we would honor that request. Later, the companies indicated that if the hearing were closed to the public, they would not need

I then sought Committee approval, which is necessary under our rules, to have a closed session to protect the confidentiality of any classified information and scheduled a Judiciary Committee Executive Session for 2:30 P.M. yesterday to get that approval.

I was advised yesterday that you had called Republican members of the Judiciary Committee lobbying them to oppose any Judiciary Committee hearing, even a closed one, with the telephone companies. I was further advised that you told those Republican members that the telephone companies had been instructed not to provide any information to the Committee as they were prohibited from disclosing classified information.

I was surprised, to say the least, that you sought to influence, really determine, the action of the Committee without calling me first, or at least calling me at some point. This was especially perplexing since we both attended the Republican Senators caucus lunch yesterday and I walked directly in front of you on at least two occasions enroute from the buffet to my table.

At the request of Republican Committee members, I scheduled a Republican members meeting at 2:00 P.M. yesterday in advance of the 2:30 P.M. full Committee meeting. At that time, I announced my plan to proceed with the hearing and to invite the chief executive officers of the telephone companies who would not be subject to the embarrassment of being subpoenaed because that was no longer needed. I emphasized my preference to have a closed hearing providing a majority of the Committee agreed.

Senator Hatch then urged me to defer action on the telephone companies hearing, saying that he would get Administration support for my bill which he had long supported. In the context of the doubt as to whether there were the votes necessary for a closed hearing or to proceed in any manner as to the telephone companies, I agreed to Senator Hatch’s proposal for a brief delay on the telephone companies hearing to give him an opportunity to secure the Administration’s approval of the bill which he thought could be done. When I announced this course of action at the full Committee Executive Session, there was a very contentious discussion which is available on the public record.

It has been my hope that there could be an accommodation between Congress’s Article I authority on oversight and the President’s constitutional authority under Article II. There is no doubt that the NSA program violates the Foreign Intelligence Surveillance Act which sets forth the exclusive procedure for domestic wiretaps which requires the approval of the FISA Court. It may be that the President has inherent authority under Article II to trump that statute but the President does not have a blank check and the determination on whether the President has such Article II power calls for a balancing test which requires knowing what the surveillance program constitutes.

If an accommodation cannot be reached with the Administration, the Judiciary Committee will consider confronting the issue with subpoenas and enforcement of that compulsory process if it appears that a majority vote will be forthcoming. The Committee would obviously have a much easier time making our case for enforcement of subpoenas against the telephone companies which do not have the plea of executive privilege. That may ultimately be the course of least resistance.

We press this issue in the context of repeated stances by the Administration on expansion of Article II power, frequently at the expense of Congress’s Article I authority. There are the Presidential signing statements where the President seeks to cherry-pick which parts of the statute he will follow. There has been the refusal of the Department of Justice to provide the necessary clearances to permit its Office of Professional Responsibility to determine the propriety of the legal advice given by the Department of Justice on the electronic surveillance program. There is the recent Executive Branch search and seizure of Congressman Jefferson’s office. There are recent and repeated assertions by the Department of Justice that it has the authority to criminally prosecute newspapers and reporters under highly questionable criminal statutes.

All of this is occurring in the context where the Administration is continuing warrantless wiretaps in violation of the Foreign Intelligence Surveillance Act and is preventing the Senate Judiciary Committee from carrying out its constitutional responsibility for Congressional oversight on constitutional issues. I am available to try to work this out with the Administration without the necessity of a constitutional confrontation between Congress and the President.

Arlen Specter.

Here’s Dick’s response:


Washington, June 8, 2006.
Hon. Arlen Specter,
Chairman, Committee on the Judiciary, U.S. Senate, Washington, DC.

Dear Mr. Chairman: This is in response to your letter of June 7, 2006 concerning the Terrorist Surveillance Program (TSP) the Administration has described. The commitment in your letter to work with the Administration in a non-confrontational manner is most welcome and will, of course, be reciprocated.

As recently as Tuesday of this week, I reiterated that, as the Administration has said before, while there is no need for any legislation to carry out the Terrorist Surveillance Program, the Administration will listen to the ideas of legislators about terrorist surveillance legislation and work with them in good faith. Needless to say, that includes you, Senator DeWine and others who have ideas for such legislation. The President ultimately will have to make a decision whether any particular legislation would strengthen the ability of the Government to protect Americans against terrorists, while protecting the rights of Americans, but we believe the Congress and the Administration working together can produce legislation to achieve that objective, if that is the will of the Congress.

Having served in the executive branch as chief of staff for one President and as Secretary of Defense for another, having served in the legislative branch as a Representative from Wyoming for a decade, and serving now in a unique position under the Constitution with both executive functions and legislative functions, I fully understand and respect the separate constitutional roles of the Congress and the Presidency. Under our constitutional separation between the legislative powers granted to Congress and the executive power vested exclusively in the Presidency, differences of view may occur from time to time between the branches, but the Government generally functions best when the legislative branch and the executive branch work together. And I believe that both branches agree that they should work together as Congress decides whether and how to pursue further terrorist surveillance legislation

Your letter addressed four basic subjects: (1) the legal basis for the TSP; (2) the Administration position on legislation prepared by you relating to the TSP; (3) provision of information to Congress about the TSP; and (4) communications with Senators on the Judiciary Committee about the TSP.

The executive branch has conducted the TSP, from its inception on October 4, 2001 to the present, with great care to operate within the law, with approval as to legality of Presidential authorizations every 45 days or so by senior Government attorneys. The Department of Justice has set forth in detail in writing the constitutional and statutory bases, and related judicial precedents, for warrantless electronic surveillance under the TSP to protect against terrorism, and that information has been
made available to your Committee and to the public.

Your letter indicated that you have repeatedly requested an Administration position on legislation prepared by you relating to the TSP program. If you would like a formal Administration position on draft legislation, you may at any time submit it to the Attorney General, the Director of National Intelligence, or the Director of the Office of Management and Budget (OMB) for processing, which will produce a formal Administration position. Before you do so, however, it might be more productive for executive branch experts to meet with you, and perhaps Senator DEWINE or other Senators as appropriate, to review the various bills that have been introduced and to share the Administration’s thoughts on terrorist surveillance legislation. Attorney General Alberto
R. Gonzales and Acting Assistant Attorney General for the Office of Legal Counsel Steven G. Bradbury are key experts upon whom the executive branch would rely for this purpose. I will ask them to contact you promptly so that the cooperative effort can proceed apace.

Since the earliest days of the TSP, the executive branch has ensured that, consistent with the protection of the sensitive intelligence sources, methods and activities involved, appropriate members of Congress were briefed periodically on the program. The executive branch kept principally the chairman and ranking members of the congressional intelligence committees informed and later included the congressional leadership. Today, the full membership of both the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence (including four Senators on that Committee who also serve on your Judiciary Committee) are fully briefed on the program. As a matter of inter-branch comity and good executive-legislative practice, and recognizing the vital importance of protecting U.S. intelligence sources, methods and activities, we believe that the country as a whole, and the Senate and the House respectively, are best served by concentrating the congressional handling of intelligence matters within the intelligence committees of the Congress. The internal organization of the two Houses is, of course, a matter for the respective Houses. Recognizing the wisdom of the concentration within the intelligence committees, the rules of the Senate (S. Res. 400 of the 94th Congress) and the House (Rule X, cl. 11) creating the intelligence committees mandated that the intelligence committees have cross-over members who also serve on the judiciary, foreign/international relations, armed services, and appropriations committees.

Both in performing the legislative functions of the Vice Presidency as President of the Senate and in performing executive functions in support of the President, I have frequent contact with Senators, both at their initiative and mine. We have found such contacts helpful in maintaining good relations between the executive and legislative branches and in advancing legislation that serves the interests of the American people. The respectful and candid exchange of views is something to be encouraged rather than avoided. Indeed, recognizing the importance of such communication, the first step the Administration took, when it learned that you might pursue use of compulsory process in an attempt to force testimony that may involve extremely sensitive classified information, was to have one of the Administration’s most senior officials, the Chief of Staff to the President of the United States, contact you to discuss the matter. Thereafter, I spoke with a number of other Members of the Senate Leadership and the Judiciary Committee. These communications are not unusual–they are the Government at work.

While there may continue to be areas of disagreement from time to time, we should proceed in a practical way to build on the areas of agreement. I believe that other Senators and you, working with the executive branch, can find the way forward to enactment of legislation that would strengthen the ability of the Government to protect Americans against terrorists, while continuing to protect the rights of Americans, if it is the judgment of Congress that such legislation should be enacted. We look
forward to working with you, knowing of the good faith on all sides.


And here are my comments:

First, have I mentioned that Dick Cheney is an asshole? Oh, you already knew that?

Scottish Haggis accuses Dick of several things:

  • Blowing him off at a luncheon and then going behind his back to conspire with (presumably) Orrin Hatch and others
  • Refusing to fulfill the law mandating that the Administration inform Congress of its activities
  • Violating FISA with the Administration’s warrantless wiretap program

And Cheney’s response is a breathtaking "go fuck yourself."

  • He pretty much says, "yeah, I’m lobbying other Republicans behind your back–what are you going to do about it?"
  • He ignores the laws regarding informing Congress and says simply that "inter-brach comity" requires that only the Intelligence Committees get to exercise any oversight.
  • He states simply that the Administration doesn’t need any legislative sanction for his warrantless wiretap program (it’s as if Obi Ben Kenobe said, "these aren’t the legislative droids you’re looking for," and Haggis was appropriately swayed).
  • And oh, by the way, if Haggis doesn’t like Dick’s interpretation of the Constitution, then tough, because Dick is the Fourth Branch and that gives him superior wisdom.

Like I said. Dick’s an asshole.

Two more details I highlighted that appear important, given the current debate on whether or not the telecoms had adequate reason to believe the warrantless wiretap program is legal.

  • The telecom companies would have happily come and testified to Congress, but Dick wouldn’t let them.
  • Dick says that the warrantless wiretap program was run "with approval as to legality of Presidential authorizations every 45 days or so by senior Government attorneys."

If find that last bit particularly curious, since it suggests that there’s more than one authorization signed not by the AG, but by "senior Government attorneys," which could mean Alberto Gonzales as White House Counsel, or could mean John Yoo as Dick’s personal Unitary Executive Handmaiden.

Oh. And have I mentioned that Dick is an asshole?

66 replies
  1. Richmond says:

    And, on this, what ESPECIALLY gets my goat about snarlin Arlen is that in the end he will support Cheney and Bush as he always has. Big snarl no bite. With Specter – like Lieberman – I think, his perceived “debt” to the Bush admin for pressing the country into war through the neo-con, AIP*C hyped mid-east agenda (presumably Iran is still in play for this group) leaves him in the end with little choice but to run under the Bush/Cheney skirts. And, what do they know about snarlin on related issues that they could put out there should he turn tail, we will never know most likely.

  2. PJEvans says:

    And if I remember correctly the discussion about who could sign off on letters authorizing whichever-program-it-is, Gonzo as WH counsel and Yoo are not on the approved list.

    Dick has been an a**hole for years. It’s just that now he’s forgotten any other way to behave.

    I’m voting for an autopsy on Dick which includes impaling whatever is left of his heart with wooden chopsticks that have been soaked in garlic juice and wrapped with silver wire, then stuffing some more garlic in his mouth, just to make sure he can’t come back.

    (There’s also the Dante Alighieri school of thought: when someone commits an act of treachery, their soul is immediately taken to whichever circle of the Alternate Destination that gets them, and a demon takes over the living body for the rest of its natural lifespan. Of course, Dante didn’t have pacemakers and stents to deal with ….)

  3. Ishmael says:

    Do you suppose there is any significance in the phrase “45 days or so? Perhaps there were other times besides the Ashcroft hospitalization when the 45 day re-certification period was not met within the prescribed time? Or maybe this is more “we don’t need no stinking badges” snarling from Dick about the quaint little paper trails, which don’t matter because they don’t need any legislation to do this in the first place? I just found the use of the qualifying “or so” to be interesting given the a**holish tone of the rest of the letter.

  4. Jeff says:

    Also interesting: Cheney appears to acknowledge that there had been, up through the time he was writing his letter, one and only one TSP Program:

    The executive branch has conducted the TSP, from its inception on October 4, 2001 to the present

    Might this not prove a little bit troublesome for Alberto Gonzales and the question of whether he lied to Congress, his defense against which hung in part, if I recall correctly, on whether there was one or more than one program, whether there was a distinction of identity between the program before Jack Goldsmith got his hands on it and after?

    Or am I misrecollecting?

    • looseheadprop says:

      nope, jeff i think you are spot on

      david kris has said there is only one program. judge keenan talked about one program.

      I think AGAG will find his goose cooked when this finally comes out.

      Lying to Congress will be the least of it

    • bmaz says:

      In addition to what Rayne and LHP said, note that in the paragraph directly above the one you quoted Cheney from, he proscribes his discussion this way:

      This is in response to your letter of June 7, 2006 concerning the Terrorist Surveillance Program (TSP) the Administration has described. (my emphasis)

      So, it is both troublesome for AGsquared in some respects and the same bullshit clever device to disingenuously alter the subject to only “the program the President described” that AGsquared used so many times.

      • Jeff says:

        Good point. I’d missed that contextualization of it, which makes all the difference. So the program described by the administration has been the same, but it’ not the only program that has existed. It is an existentially impossible situation, but legally the only tenable position they can take, and maybe it will work.

  5. looseheadprop says:

    Two things I noticed. The cheney reply is the very next day. That is a long letter. Somebody spent almost a whole working day on this.

    What else was going on in that time period?

    • emptywheel says:

      Hold on a second. You’re trying to trick me into another timeline, you are. I know your ways.

      Well, it’s just going to have to wait. I havent even posted the Waxman letter to Mukasey yet. And there’s more from yesterday’s debate I want to hit on.

      Maybe, if you’re good, in time for Christmas.

      And Jeff, yes, I do think that’s significant. There was an effort made in early 2006 to pretend that TSP didn’t include the really bad stuff. But Dick the Asshole says it does.

      • looseheadprop says:

        I loved the letter to Mukasey. There are wiffs of snark therein. I love it when somebody snarks at an ex-judge. It’s been so long since they’ve been on hte recieving end of snark, that……

        Well, let’s jsut say, it brings home how much the world view changes when you leave the bench.

        Henry seems to be aware of every promise that was made to get Mukasey confirmed, and is gonna hold himto the deal. Bless you Henry.

        Ba da Da da Da da Ba da Da da Da da WAXMAN! (riffing on the batman jingle)

  6. Rayne says:

    Shocking, to discover all these years later that Dick “I have other priorities” Cheney is a fecking arsehole.

    Not really, I mean, about the shocking part.

    Jeff (5) — “Program” by definition doesn’t have to mean only one methodology; it could mean a collection of projects or sub-programs. I think they have been parsing this all along (and I’ll point to Rumsfeld’s alleged termination of the OSI as an example).

  7. emptywheel says:

    I also think the quick response was probably related to teh telecom testimony. They have, finally, testified (though I think it was this fall). But Dick was pretty insistent that they not testify…

  8. cboldt says:

    Administration, June 8, 2006: “there is no need for any legislation to carry out the Terrorist Surveillance Program”

    Administration, May 2007 to present: “There is an URGENT need for legislation and it MUST include amnesty for telecoms.”

    Me: What changed?

      • MadDog says:

        From EPIC:

        On January 31, 2006, the Electronic Frontier Foundation (EFF) filed a class-action lawsuit against AT&T, accusing the telecommunications company of violating the law and the privacy of its customers by working with the National Security Agency (NSA) in its warrantless domestic spying program. AT&T and the government filed motions to dismiss the case, but a federal judge denied these motions on July 20, 2006, allowing the case to go forward.

    • Jeff says:

      Well, isn’t part of what changed the adverse FISA court ruling in May or March 2007? Also what changed was congressional control. The administration may have figured it had better get new legislation rather than subject the TSP as was to meaningful congressional oversight.

    • bmaz says:

      At least Spectre’s letter, if not the Dick’s response as well, has been public for q long time. Is this the first time Haggis put it into the record?

    • looseheadprop says:

      Maybe it was his own way of supporting the fillibuster? Was he trying to signal to Cheney or his fellow republicans, that…..?

      • Phoenix Woman says:

        That’s what I was thinking, LHP: Specter doesn’t dare actually vote against BushCo, but some long-lost remnant of spine fragment made him do his bit for the filibuster.

    • phred says:

      When did he actually enter them into the record — I don’t remember him speaking yesterday, but maybe I missed it. Perhaps he did it without having to speak?

      I agree with LHP, I think Specter launched a shot across the bow. He’s been chafing for awhile now (despite his chronic capitulation). I suspect there are serious fracture lines in the Congressional Republican ranks that are fit to burst, with what appears to be the impending Rethug bloodbath next November. I suspect Arlen and others are ready to stage a revolt before they sink along with HMS BushCo. I don’t think Specter has the nerve to follow through, so I wouldn’t be surprised if entering the letters into the record is as much of a revolt as Haggis is able to muster.

    • TheraP says:

      I’ll throw my little thought in here:

      Is is possible that Specter’s timing was an effort to both reveal and conceal, consistent with his character? So, he puts this in, as said above, as a “shot across the bow” but at the same time does it on a day when everyone is expecting a filibuster and a deluge of info flowing into the public record, thus burying his entries?

      So, was he both “sending a message” and trying to hide it at the same time? That might be the strategy of an extremely cautious man.

      But history intervened….

      (As an aside, WOW! I’m so impressed with the thinking going on here. Trying to follow/keep up. But the 62 year old brain, coupled with the deluge of info, is overloaded, horrified, and in awe – all at the same time.)

  9. biggerbox says:

    Ya gotta be impressed by the artistry in the way Dick combines the “we don’t need no stinkin’ legislation” for the TSP with the “we’ll call you if we ever do decide we need some legislation in the future. (As if.) Don’t call us. We’ll call you. Now, get outta here, kid, ya bother me.” That’s some Grade A Prime Asshole. He’s really committed to excellence in assholeistry.

    Sadly, the Haggis will merely nod, and say “yes sir, may I have another?”

  10. LS says:

    That furthers my suspicions that Ashcroft was never part of the Telco letters…that Comey might have discovered that it had been going on for a long time and he and Ashcroft realized immediately that it was illegal…when Comey for some reason (perhaps something from the Telcos attorneys got to him to question something and he looked into it and found out the AG was not an authorizer, even though the letters “stated” that he was) anyway when he found out that the AG had not actually been involved in the Telco letters..maybe they approached the WH, who then asked Ashcroft to certify the legality and, because it was illegal, Comey and Ashcroft wouldn’t agree to that.

    Remember, the whole bunch of them were ready to resign over something big. Comey definitely didn’t want Ashcroft to sign anything…..so when Gonzo and Card were headed toward the hospital to force Gonzo to sign on, he feared for Ashcroft…put his lights on, and sprinted to Ashcroft’s bedside.

    This is just my imagination of what could possibly have happened.

    • looseheadprop says:

      AG had not actually been involved in the Telco letters..maybe they approached the WH, who then asked Ashcroft to certify the legality and, because it was illegal, Comey and Ashcroft wouldn’t agree to that.

      In Comey’s testimony he said that the time from the last authorization was running out and it was time for Ahcroft to RE AUTHORIZE. So, I think Ashcroft was doing sumpthin before the Comey intervetnion.

      • LS says:

        Aha! I see…hmmmm…but maybe he wasn’t told “what” he was really authorizing…because Dickaroony is big on compartmentalization of information….

        Comey did suggest that somebody did something that made it okay to certify eventually…the question is…what was making it illegal, and what made it seem to be legal? What changed?

        Something just doesn’t match up…

        Ashcroft resigned a few months later.

        • Richmond says:

          Way off base here, but maybe if it became known that the earlier and ongoing wiretaps were harvesting all US citizen correspondence (kept out of his sight by compartmentalization earlier) he said enough is enough. But then, what I wonder, is why the whole lot of them decided NOT to resign. What changed at that point, or was it simply a matter that if it was going to continue, they would have to know it was illegal.

      • LS says:

        Look at what Ashcroft just wrote in November, 2007:

        “Whatever one feels about the underlying intelligence activities or the legal basis on which they were initially established, it would be unfair and contrary to the interests of the United States to allow litigation that tries to hold private telecommunications companies liable for them.”…..

        “The Senate bill would confer immunity in only two limited circumstances: if the carrier did not do what the plaintiffs claim; or if the carrier did do what the plaintiffs claim but based on explicit assurances from the highest levels of the government that the activities in question were authorized by the president and determined to be lawful.

        Longstanding principles of law hold that an American corporation is entitled to rely on assurances of legality from officials responsible for government activities. The public officials in question might be right or wrong about the advisability or legality of what they are doing, but it is their responsibility, not the company’s, to deal with the consequences if they are wrong.

        To deny immunity under these circumstances would be extraordinarily unfair to any cooperating carriers. By what principle of justice should anyone face potentially ruinous liability for cooperating with intelligence activities that are authorized by the president and whose legality has been reviewed and approved by our most senior legal officials?

        As a practical matter, in circumstances involving classified intelligence activities, a corporation will typically not know enough about the underlying circumstances and operations to make informed judgments about legality. Moreover, for an initiative like the terrorist surveillance program — which the Office of Legal Counsel made clear was based on the Congressional authorization for the use of military force and the president’s war powers under the Constitution — a telephone company simply has no expertise in the relevant legal issues.

        If the attorney general of the United States says that an intelligence-gathering operation has been determined to be lawful, a company should be able to rely on that determination.

        “John Ashcroft was the United States attorney general from 2001 to 2005. He now heads a consulting firm that has telecommunications companies as clients.”


        Nowhere in his article does he say “he” made a determination of legality. Nowhere. His reference at the end to the AG…seems to be referring to Mukasey.


        • Hmmm says:

          Quoth Ashcroft:

          If the attorney general of the United States says that an intelligence-gathering operation has been determined to be lawful, a company should be able to rely on that determination.

          One possible interpretation, putting this together with LS & LHP’s breakthrough from earlier:

          – Gonzo determined The Program had a proper legal basis, unfortunately probably relying on deeply iffy OLC opinions arising from Team Dick’s exaggerated Article II wartime powers theories. Unfortunately at that time Gonzo was only W’s attorney and not the AG, not the DAG etc., nor indeed was he even working for DOJ, and so that determination was legally irrelevant as far as authorizing the program to the telcos. In other words while the legal theory came from DOJ in the form of OLC, OLC did not have the program approval authority, just the top of the AG command chain. AG–> Telco means something, but Yoo–>Gonzo–>Telco means nothing.

          – Nonetheless, Gonzo or some other USG attorney (maybe DOJ maybe WH maybe NSA) presented Gonzo’s determination to the telcos — fraudulently, I might add — as their certificate of lawfulness, in lieu of a proper AG determination. Unfortunately most of the telcos bought it. We can infer there may have been some recurring lite pro forma but heavily compartmentalized endorsement of Gonzales’ determination by AG Ashcroft, unfortunately for Ashcroft.

          – At some point DOJ beyond Yoo and Ashcroft found out what had been going on — probably because Goldsmith succeeded Yoo in OLC — and raised high holy hell — the mass resignation threat, because Addington and Yoo and Gonzales had been making a monkey out of Ashcroft and DOJ generally, and endangering them personally, FISA liability and malpractice and career-wise. As a result the recurring lite pro forma compartmentalized approval is suspended. Ensuing ICU confrontation between Ashcroft and Gonzales is oh so rich when viewed in this context — Goldsmith and Comey racing to make sure a near-death Ashcroft doesn’t unknowingly get hoodwinked into signing a direct AG authorization, which would pretty much cap him right there. AG Ashcroft refuses, acting AG and DAG Comey refuses — hey look, it’s the required approval chain! — and so Gonzo and Andy Card go away real mad.

          – Next day Comey & Goldsmith visit the WH, W listens and then caves on getting real AG chain approval, and then either approves it himself (already relying on the wingnut Article II play so why not go all the way?) or has Gonzo do it (essentially the same as before but without the light AG Ashcroft gloss because really how much worse can it get at this point?) — I forget which way that went. Doesn’t matter much.

          – Soon Ashcroft is gone and Gonzo -is- the AG. Now he can sign the authorizations himself with no fraud involved (though still deeply iffy legal foundation). Authorization problem solved going forward.

          – At this point, with Gonzo as the AG, re-read Ashcroft’s sentence: “If the attorney general of the United States says that an intelligence-gathering operation has been determined to be lawful, a company should be able to rely on that determination.” AGAG told the telcos that the program had been determined to be lawful. Albeit erroneously determined, and fraudulently represented as valid legal authority, but it was the AG making the statement nonetheless, so Ashcroft’s statement (the predicate anyway) might be true.

          Of course eventually Gonzo crumbles and breaks under the weight of the tortuous logical construct the deceit required.

          Of course Ashcroft’s statement also attempts to conveniently cover his own butt.

          And of course as Feingold pointed out, the telcos still needed a FISC warrant — so actually Team Dick was letting it all hang out there both on the missing but required AG authorization .and. the missing but required FISC warrant.

          In all, I kind of think we have a sensible story at last, all the pieces seem to be aligning.

          Now… what’s Team Dick’s countermove?

  11. emptywheel says:


    11:28 to 11:30. I noticed when he introduced them, and have tried to call Specter’s office this morning (it’s been busy), but then found them in the CSPAN version of the Congressional Record.

  12. emptywheel says:

    Okay, Specter starts his letter with:

    I am taking this unusual step in writing to you to establish a public record.

    It’s a similar effort as Jello Jay made–to make sure he had his objection to Cheney’s actions in writing.

    If you look at this accompanying speech (linked above), it appears he’s trying to do this to establish, just at the beginning of the whole FISA debate, that he thinks Cheney broke the law (rather, the Administration more generally, but funny how both Jello Jay’s letter and Haggis’ are addressed to Cheney, huh???).

    So I would suggest that’s a shot across the bow saying that Specter is still seeking a way to have Cheney held accountable.

    Also note–it’s interesting that hte letter refers to the telecom testimony, since so much of what we’er debating pertains to their willingness or unwillingness to do what the Administration asks. They wanted teh chance to explain their side, Cheney prevented that.

    • MadDog says:

      Just a swag here, but there does appear to be a bit of animus on Scottish Haggis’s part with Deadeye.

      Perhaps like Senator Leahy, Deadeye has been giving the bird to Scottish Haggis too.

    • phred says:

      Perhaps, and I do hope your right.

      Alternatively, it may also resemble Jello Jay in being a CYA maneuver on Haggis’ part. That is, when the shit hits the fan, as appears inevitable now, Specter and Jello Jay can point to the record and say… “See, right there, I objected. I did my job.” Which is horseshit of course, but that won’t stop them from trying.

      • nolo says:

        . . .“See, right there, I objected. I did my job.” Which is horseshit of course, but that won’t stop them from trying. . .

        true — but this is as plainly-put
        as i’ve ever seen the evidence that
        yes, many, many republicans KNOW cheney
        intentionally broke post-watergate
        criminal statutes by operating at
        least parts of the TSP in the way
        he did. and remember, he was there,
        when those statutes were written, pre-
        cisely to prevent, in the future, all
        the sorts of horsesh!t he, and like-minded
        others (rummy in particular) pulled, as
        junior staffers/members of nixon’s white house. . .


        this really is a mother-lode.

    • nolo says:

      is there any doubt — anywhere — any
      longer, that cheney literally runs everything?

      this is an excellent exposition, EW,
      as well as beautiful — beautiful! — evidence
      of a very-fascinating form of semifore,
      from the ole’ scottish law/haggis boy, no?

      w i l d. . .

      he’s made a point of crossing cheney
      in the most public way any republican
      could ever imagine — and to be clear, i do
      not mean the letter, itself — i mean the
      entry of it into the congressional record
      of the FISA pre-filibustering debate. . .

      for someone as careful about crossing the
      administration as specter is, i can only
      take this move to mean that he is — as he
      wrote in his letter — absolutely convinced that
      cheney & co. willfully, and openly, broke the
      applicable criminal laws of the united states,
      in one or more operations under their TSP.

      the part you bolded on this really tells it all.

      specter is plainly saying “when someone has
      to wear orange for this, i will say ‘told you so,
      nah nah!’
      . .

      i love it! — i hope you won’t mind if i
      download it from cspan.org, run the text
      recognizer over the PDFs, remove the hard
      line breaks and set these two letters, with-
      out any other comment — save a link here — on
      my hot and cold running cheney-mania
      . . .

      what a great christmas gift!

      p e a c e

  13. emptywheel says:

    One more point.

    I’m curious what Arlen’s take on the authorization letters is. He entered this after Reid asked for the letters to be made public again. This could also be a shot across the bow saying that he will definitely support Reid in his effort to get the letters.

  14. LS says:

    Who was head of the Office of Legal Counsel in October, 2001? Because Ashcroft says:

    “which the Office of Legal Counsel made clear was based on the Congressional authorization for the use of military force and the president’s war powers under the Constitution”.

    That has to be what the Telcos were told, and without taking it to the SCOTUS, how could they argue that?

    Does W really have “war powers” without there being a Declaration of War by Congress – or is the argument that the AUMF is, in fact, a declaration of war? That is always confusing to me.

    • emptywheel says:

      I’m not positive, but I think Ashcroft is lying. OLC head in 2001 was technically Jay Bybee, but John Yoo was writing all the national security opinions, with ghostwriting help from Addington.

      But as I understand it, their initial (2001) justification for the Program was based solely on Article II power (as Cheney’s letter is as well). Later, when it because clear that FISA probably overrides Article II in this case, they added AUMF in as a kicker. But, again, IIRC, they only did that later.

      It’s quite clear AUMF did not include authorization for this, for two reasons. One, because BushCo didn’t ask for autoritzation to do this in context of PATRIOT, which owuld have been teh approrpriate way to do so. And because Daschle directly refused to add this into the AUMF.

  15. SaltinWound says:

    Specter is often puzzled by people not approaching him to discuss the constitution in casual settings. During the Alito hearing, he was peeved that Kennedy made a formal request when he could have easily approached Specter in the gym. Doesn’t Cheney’s letter read like it was written by Addington, and it’s one he was looking forward to writing for a long time?

  16. LS says:

    Why did they want to know if the DAG could grant approvals…


    “You have asked for our opinion whether the Deputy Attorney General has the authority to grant approvals under section 2.5 of Exec. Order No.12333, 3 C.F.R. 200 (1981 Comp.). We believe that he does.

    Executive Order No. 12333 addresses the conduct of intelligence activities. Section 2.5 provides:

    The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such technique shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978 [”FISA”], shall be conducted in accordance with that Act, as well as this Order.

    Under the Department’s regulations, the Deputy Attorney General “is authorized to exercise all the power and authority of the Attorney General, unless any such power or authority is required by law to be exercised by the Attorney General personally.” 28 C.F.R. § 0.15(a) (2000). That regulation rests on the Attorney General’s statutory authority to “make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.” 28 U.S.C. § 510 (1994). Consequently, the Deputy Attorney General may exercise the Attorney General’s power under section 2.5 of the Executive Order, unless by law the Attorney General must exercise that power personally.”

  17. DeadLast says:

    If Cheney is a member of the Senate, every time he thinks of something, he has informed the Senate. Similarly, Bushie just has to knock on Dick’s door and he has fullfilled his responsibility to inform congress.

    I am sure the Federalist Society concurs 100% that such communication meets the expectations of the founding fathers. I can’t wait till President Hillary starts shredding the constitution using the exact same tactics. Only then will these assholes claim offence.

  18. butterbeer says:

    This is OT but somewhere along the line I missed this: why is Specter referred to as “Scottish Haggis”? It’s an insult to Scotland and an insult to haggis.

    • nolo says:

      it refers to his perennial habit
      of splitting the middle — never
      taking a definitive stand — voting
      “present” — was it robert the bruce
      who is most notorious for this? i am
      sure the scottish historians here will
      correct me if i am wrong. . . but today,
      i LOVE me some scottish haggis — as he’s
      makin’ it from cheney/addington’s own entrails. . .

      mmmm-mmmm — nuthin’ spells luvin’,
      like republicans in the oven. .

      [warbled to the old campbells
      soup jingle-melody. . .]


    • emptywheel says:

      He acquired the name “Scottish Law” from me, in memory of his hacktackular position on the Clinton impeachment (he voted “not proven” which is a judgment available in Scottish law).

      And then, after I got fed up with his false compromises over and over again, I turned it into Haggis.

      Also, I’m Irish, so I’m allowed to beat up on Scotland, even though I do like Haggis (the food).

      • looseheadprop says:

        even though I do like Haggis (the food).

        You canNOT be serious. Chopped animal guts mixed with oatmeal and steamed in a stomach?

      • Phoenix Woman says:

        He acquired the name “Scottish Law” from me, in memory of his hacktackular position on the Clinton impeachment (he voted “not proven” which is a judgment available in Scottish law).

        Oh, geez, I’d forgotten about that little bit of bogus rebellion against the party line. Such a piece of worthless wankage.

        And then, after I got fed up with his false compromises over and over again, I turned it into Haggis.

        Also, I’m Irish, so I’m allowed to beat up on Scotland, even though I do like Haggis (the food).


  19. Watson says:

    Kinda OT, but I’d be interested to know how you guys would characterize Specter.

    Crook? Hack? Fixer? Trickster? Coward? Garden-variety influence peddler? Permanent-government apparatchik?

    He reminds me a bit of the pompous sot who preceded Hillary – Daniel Patrick Moynihan. Moynihan appeared to sincerely though delusionally believe that he was actually a great statesman.

  20. selise says:

    phred and emptywheel –

    re: record of yesterday’s senate floor proceedings.

    this may have already been covered, if so i apologize for the repeat (power outage here today and i’m behind).

    congressional record of yesterday’s events in thomas is here. this is the source of the transcripts for the video clips in c-span’s new online archive (link for yesterday’s congressional chronicle)

    1) the c-span transcript is incomplete – lots of one-liners are missing. i think they only post statements of 30 sec or more. so if you want the complete transcript go to the congressional record.
    2) the congressional record has more than what was actually said. that can be helpful (for inclusions like the letters in EW’s post) or it can be confusing as to what really occurred (that “extent and revise remarks” thing).
    3) the c-span video is the best record of what actually happened (no “extend and revise”) and i once even found an error by comparing the video with the congressional record.

    … and this reminds me. the congressional record also includes the text of amendments “submitted and proposed” (links here). including, i expect, difi’s possibly brilliant amendment. haven’t read anyof this, but wanted to make sure everyone knew where to find it.

  21. WilliamOckham says:

    On behalf of rectums everywhere, I would like to object to the constant association with Richard Bruce Cheney. In fact, a rectum has pointed out to me that they are clearly smarter than us. They know when to expel disease-carrying waste material and have asked why we haven’t done the same with Mr. Cheney. I had no answer.

  22. Hmmm says:

    Shorter Ashcroft: “As AG I authorized it, kind of, but I just was a dupe of Team Dick. As AG Gonzo authorized it for real, but he was just a lying stooge of Team Dick. In between him and me, well, you’ll have to go digging for yourself.”

  23. readerOfTeaLeaves says:

    Agree with LHP that this was Arlen’s shot across the bow. And good for Arlen. He should be p*ssed as hell that Cheney told the telco’s they didn’t have to waste time talking to Congress. Too bad Arlen didn’t move for impeachment on the spot.

    So Dick:
    1. Claims, in InstitutionalAsshole that TSP never required any legislation; it’s out of Arlen’s authority.
    2. Argues that even if legislation were required, Dick has a better understanding of how all this works, because he has served in more positions, has more experience, and straddles two branches of gov’t; whereas weenie little Arlen teeters precariously on only only one thin branch of government.
    3. Claims ‘High Level Admin Attys’ are all that’s needed to approve TSP; another reason it is outside Arlen’s authority.
    4. Claims authority to instruct the telcos that they can not speak to Arlen’s Judiciary Committee , b/c if they spoke they would violate the law by ‘revealing classified info.’

    Isn’t ‘obstructing Congress’ a crime?
    Cheney violated told the telecoms not to testify.
    Isn’t that a crime?

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