Jane Harman v. Jello Jay: Compare and Contrast
Jane Harman explained her response to the warrantless wiretap program over at TPMCafe. I’m interested in it not so much to determine whether Eric Licthblau or she is right about whether she "switched her view" on the program (I think Harman is actually too sensitive to the charge; as she tells it, she did drastically change her view, but not because of the publicity of Lichtblau’s reporting, but because of the new information she learned from it; though after writing this post, I’m a little sympathetic to Lichtblau’s claim). Rather, I’m interested in the contrast Harman’s narrative presents with what we know of Jello Jay’s evolving views toward the illgeal wiretapping program. After all, Harman and Jello Jay apparently learned of the program in the same briefing (Harman had just replaced Pelosi as Ranking Member on HPSCI; Jello Jay had replaced Graham as the top Democrat on SSCI). But the two have apparently taken dramatically different trajectories in their positions on the program, and the comparison offers an instructive view on oversight.
The First Harman/Jello Jay Briefing: January 29, 2003
Harman provides this description of the January 29, 2003 she and Jello Jay received (along with Pat Roberts, then SSCI Chair, and Porter Goss, then HPSCI Chair):
When I became Ranking Member of the House Intelligence Committee in 2003, I was included for the first time in highly classified briefings on the operational details of an NSA effort to track al Qaeda communications using unique access points inside the US telecommunications infrastructure. The so-called “Gang of Eight” (selected on the basis of our committee or leadership positions) was told that if the terrorists found out about our capability, they would stop using those communications channels and valuable intelligence would dry up (which had happened before).
This program was so highly classified that I could discuss it with no one, not even my colleagues on the Intelligence Committee or the committee’s professional staff. (See p. 169 of the Lichtblau book.) And I was assured that it complied with the law and that the senior-most officials in the Justice Department conducted a full legal review every 45-60 days.
At that point, then, she and Jello Jay appear to have learned that:
- The US was tracking Al Qaeda communication via US-based access points
- The program was legal and was reviewed regularly by top Justice Department officials
If Harman’s description is accurate, it suggests the Administration gave a very distorted view of the program. Yes, they were accessing Al Qaeda communication via US access points. But to do so, they gained access to all of US telecom traffic. And, yes, they were accessing Al Qaeda communications. But the means by which they determined that these were Al Qaeda communications–and not just a bunch of people ordering falafels from the same place–was grossly inadequate.
Similarly, yes, the senior-most official at DOJ (John Ashcroft) signed off on the program every 45-60 days. And Robert Mueller was telling people that Bush–not Ashcroft–had signed off on the program. But the only real review of the program by that point had been a typically shoddy John Yoo rubber stamp. Ashcroft hadn’t even been able to share details of the program with his aides to obtain their legal opinion with which to conduct a meaningful legal review. As Lichtblau reports,
Mr. Ashcroft complained to associates at the time that the White House, in getting his signature for the surveillance program, “just shoved it in front of me and told me to sign it.”
And the Administration wouldn’t even read Larry Thompson, then Deputy Attorney General, into the program. So the claim that senior-most officials (plural) had reviewed the program was an out-and-out lie.
One more note about this initial briefing (and all others up until the March 10, 2004 briefing). Harman claims the "Gang of Eight" was informed. At least according to the record provided by then-DNI John Negroponte, this is incorrect. Nancy Pelosi, while still Ranking Member of HPSCI, got briefed on the program. But the Administration did not brief the full Gang of Eight. And besides, as Mary points out, the Administration should have been briefing the full intelligence committees, not just the Gang of Eight.
So even though the Administration was deliberately misleading the Intelligence Committee leadership, there were still warning signs that the Administration was not complying with the law (though they pretty consistently briefed only Intelligence Committee leadership on their law-breaking).
The Second Harman/Jello Jay Briefing: July 17, 2003
We don’t, yet, have Jello Jay’s account of that first briefing, but we do know what he thought after receiving the second one he and Harman received, on July 17, 2003. The timing of that second briefing was rather important. As I’ve shown, the Senate was in the middle of a successful effort (save for Bush’s signing statement) to strip all funding from data mining programs targeting American citizens; the day after the briefing, the Senate voted unanimously to block TIA funding. So in addition to being troubled by some of the same things Harman expressed difficulty with–particularly the inability to consult with any aides on the program–Jello Jay noted that the program seemed to violate the intent of the law the Senate was in the process of passing. Here’s the letter Jello Jay wrote, after this second briefing, to memorialize his concerns.
July 17, 2003
Dear Mr. Vice President,
I am writing to reiterate my concern regarding the sensitive intelligence issues we discussed today with the DCI, DIRNSA, and Chairman Roberts and our House Intelligence Committee counterparts.
Clearly the activities we discussed raise profound oversight issues. As you know, I am neither a technician or an attorney. Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities.
As I reflected on the meeting today, and the future we face, John Poindexter’s TIA project sprung to mind, exacerbating my concern regarding the direction the Administration is moving with regard to security, technology, and surveillance.
Without more information and the ability to draw on any independent legal or techical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received.
I am retaining a copy of this letter in a sealed envelope in the secure spaces of the Senate Intelligence Committee to ensure that I have a record of this communication. [my emphasis]
While the wording is a little–shall we say–wobbly, the intent is still clear. Jello Jay was withholding his approval of the program, not just because he could not, fairly, approve it, but because it seemed disturbingly similar to the data mining program that Congress was in the process of making illegal.
Now, Harman records none of these concerns in her account–not even the concern, or the awareness, that the Administration was engaging in data mining. Which leads me to add one thing to the sound list of suggestions Marty Lederman offered to make Congressional intelligence oversight more meaningful–given the severe restrictions on information sharing the Administration imposed, don’t you think leaders of the Committees could at least talk to each other?!?!?! Jello Jay had some pretty clear concerns about the program at the time–concerns that rise to the level of defying the will of Congress. But Harman appears to have had (or at least claims to have had) none of that awareness.
The Third Harman/Jello Jay Briefing: March 10, 2004
As I’ve described before, the Administration then skipped a briefing that should have occurred given its regular pattern of brieing–even according to its own limited briefing approach, it should have briefed the Congressional leaders in January 2004, after the Administration had ignored Congress’ demands not to continue data mining. Instead, the next briefing did not occur until March 10, 2004, on the day of the famous hospital confrontation. The was the first time full Gang of Eight received a briefing, and they got one specifically because the Administration wanted legislative approval to continue the wiretap program in the absence of approval from John Ashcroft or Jim Comey; barring legislative approval, they wanted permission to go forward without it.
Mr. Gonzales, in an acrimonious hearing before the Senate Judiciary Committee, said that hours before the hospital confrontation, the White House had summoned Congressional leaders to an emergency meeting to discuss ways to head off a revolt at the Justice Department against the security agency program.
Mr. Gonzales said that he and Andrew H. Card Jr., then White House chief of staff, had tried to obtain Mr. Ashcroft’s approval as a last resort, after the lawmakers rejected emergency legislation but recommended that the program should continue despite the Justice Department’s opposition.
Now, the record on how Harman and Jello Jay responded to these requests is not entirely clear. Jello Jay accused Gonzales of lying about what happened in the meeting.
Senator John D. Rockefeller IV, who attended the 2004 meeting as the top Democrat on the Senate Intelligence Committee, called Mr. Gonzales’s account “untruthful.” Mr. Rockefeller said he believed Mr. Gonzales was deliberately misleading Congress about the showdown over the N.S.A. program inside the Bush administration.
And Pelosi made it clear that she did not support the program going forward over Comey’s objections.
Speaker Nancy Pelosi of California, who attended the 2004 White House meeting as House Democratic minority leader, said through a spokesman that she did not dispute that the majority of those present supported continuing the intelligence activity. But Ms. Pelosi said she dissented and supported Mr. Comey’s objections at the meeting, said the spokesman, Brendan Daly.
If Pelosi agrees "a majority" of the eight people who attended the briefing approved its going forward, and Jello Jay claims he made his objections clear, it suggests that Harman approved of continuing the program, even though, by all appearances, she had learned of Comey’s objections. Now, I don’t know that for a fact–and unlike her colleagues, Harman has neither confirmed nor denied whether she approved that the program go ahead. But I am puzzled by her insistence that no one in the Gang of Eight was informed that the Administration was bypassing FISA.
The Gang of Eight was not told – nor did it occur to me – that the Administration was violating FISA, despite Congress’ clear legislative intent when FISA was passed that it was the “exclusive means” for monitoring the communications of Americans connected to foreign intelligence.
If, as Pelosi suggests, the March 10 briefing included some reference to Comey’s objections, wouldn’t you at least begin to wonder about whether the Administration was breaking the law?
The Fourth and Fifth Harman/Jello Jay Briefings: February 3, 2005 and September 14, 2005
There is no record of either of the fourth or fifth briefings Harman and Jello Jay attended, both of them in 2005. Though once again, I wonder whether they noticed that there was a break in the normal briefing pattern–there should have been a briefing in September or October 2004. This, of course, is right during the time when the Administration likely first learned that Risen and Lichtblau might write a story on the illegal wiretap program.
The Sixth Harman/Jello Jay Briefings: January 11 and January 20, 2006
Up until the program became public in December 2005, it appears that Jello Jay took a more active oversight role than Harman, objecting in writing on at least one occasion, and recognizing that the program probably violated the intent of Congress.
But all that appears to have changed after Risen and Lichtblau published their story on December 16, 2005. As Harman describes, she immediately started calling for more oversight–only to be stymied by Dick Cheney.
The New York Times story ran on December 16, 2005. The next day, President Bush publicly confirmed the program’s existence in his weekend radio address. That day, a Saturday, I did two things: I tried to get our full Committee briefed and I consulted experts on the law.
I tracked down NSA Director Michael Hayden, who was shopping for holiday presents in Annapolis, and asked him to brief the full Intelligence Committee later that day. He said yes, provided the White House signed off. Bush Chief of Staff Andy Card at first agreed, but called me back an hour later saying the briefing was off. (It was months before the White House briefed additional Members of the Intelligence Committees. I even spoke with Vice-President Cheney about the need for a full Committee briefing, but he turned me down flat. Finally, on the eve of Gen. Hayden’s confirmation hearing to be Deputy Director of National Intelligence, the Administration agreed to brief all committee Members.)
Additionally, as the President had disclosed the program, I was finally free to consult constitutional experts on the legal issues it raised. My call to a former CIA general counsel that Saturday provided the first inkling that the program was in not compliance with FISA but was conducted pursuant to claims of “inherent” executive power. To this day, I have not been shown the memoranda produced by the Office of Legal Counsel to support the basis for the program! [my emphasis; incidentally, I wonder if that "former CIA general counsel" was Scott Muller, who would have known of the program, and who also opposed destroying the torture tapes]
Jello Jay has given no public account of his response to the revelation of the program. But where he once opposed the program as potentially violating Congressional intent, he has become a champion of the Administration’s cause, going so far recently as to publicly boast of "victory" in the Senate.
"I think we will prevail," Rockefeller said on Wednesday, adding that he hoped the Senate will finish the bill by next week. The FISA legislation expires in February, and both President Bush and GOP congressional leaders have demanded that new legislation be in place by that time.
"It’s a pretty bad idea to appear cocky," Rockefeller noted. "I am not pessimistic."
Which makes me all the more curious about the two briefings the Administration gave in January 2006, after the program (and the real urgency of the hospital confrontation) became public. The Administration held two sets of briefings after the program became public. One, including the Republican members of the Gang of Eight (then Denny Hastert, Bill Frist, Crazy Pete Hoekstra, and Pat Roberts) plus Jello Jay on January 11, 2006. And one, with the remaining three members of the Gang of Eight (then Pelosi, Reid, and Harman), along with Roberts again. Why have Roberts attend both briefings if the content of the two was the same? Is it possible that the Administration held two different briefings, one with those it found reliable (the Republicans and Jello Jay) and one with those it found unreliable (the Democrats, babysat by Pat Roberts)? Did Dick Cheney, miffed that the up to then reliably-complacent Harman was demanding committee-wide briefings, insist that she get the same briefing as those who had already objected to the program? Did the Administration continue to keep secrets from the Democrats who opposed the program?
Obviously, I don’t know, though Harman’s account of her 180 degree turn, once she realized the program was illegal, certainly raises interesting questions about those two briefings.
And curiously, at least through May 2006 (Harman would continue as Ranking Member of HPSCI for another seven months after Negroponte’s briefing list ends), Jane Harman and Jello Jay never received a briefing on the illegal wiretap program together again.
Has that been one thing she has been pretty steadfast about? And do we not also know Jay has taken a lot of money from the companies asking him (or paying him) to protect them?
I had the impression from one of her first statements that she left much unsaid due to the responsibility to the secrecy aspect. She did seem to make a statement that contradicted the data provided and conclusions drawn, leaving much for interpretation about her words. It was carefully constructed to bring attention to the stink, without pointing at the rotting carcass directly.
A timeline! Yipeeeeeee
I went to Barnes & Noble today and read a couple of the chapters of the Lichtblau book and was more struck with the complicity of the FISA Court in this whole affair. Royce Lambeth is pictured as an independent thinker and a harsh critic of 4th Amendment violations but when he was called into Ashcroft’s office shortly after October 4th, 2001 (signing of the “program” by Bush) where he was informed of the some elements of the program. According to Lichtblau, he made no objections. His main objection and I share it was that elements of the illegal wiretapping should not be included in future requests for warrants in order to keep the “man” at bay.
But, it was agreed that any future warrants where individuals were being wiretapped that had first been prompted by the illegal program should come directly and only to him. He would then review with a more fine toothed comb to make sure it passed mustard. How could it? If a person was being surveilled because he was noticed by an illegal operation, then any further surveillance was illegal and not admissible in court.
Also once Lambeth resigned at the conclusion of his term, Colleen Kollar-Kotelly was read into the illegal program and assumed Lambeth’s previous role. Based upon Lichtblau, the co-mingling of the FISA requests and the illegal wiretapping became more prevalent and bold as time marched on. She finally called “bullshit” on the program in January, 2004 and warned the FBI that any future requests that were based upon prior illegal knowledge would shutdown the program.
I find it interesting that Colleen K-K found her gumption at the same time that Jack Goldsmoth, Patrick Philbin, and James Comey were beginning to form their opinion that the program could not be renewed as currently written. James Baker in the DOJ was the person charged with looking at the FISA requests and crossing all t’s and dotting the i’s before it went to K-K. There had to be some communication among these 5 people to bring the drama of March 10th to unfold. I have seen nothing in book nor newspaper articles to support this but I find it unrealistic to believe that without discussion, both the FISA Court (K-K) and the DOJ grew a backbone.
I would like to know more about the conversation between Comey and Ashcroft on March 4th, 2004 where Comey “shared” his concerns about the legality of the program with Ashcroft. All Comey has testified to was that they met for an hour alone and agreed on a “plan” Based upon the fact that Comey was so quick to lead the “revolt” against the administration with the threat of mass resignations from DOJ, I would conjecture that Comey in his meeting with Ashcroft basically told him he was in legal jeopardy and that if he didn’t support Goldsmith, Philbin, and himself on this then he was prepared to resign and allow the press to raise questions. Although, there was no love lost between Ashcroft and Yoo, it is clear from Lichtblau’s book that Ashcroft knew what was going on but like the press and much of the Congress, there was a permissive view of what had to be done to keep America safe.
This is a great timeline and it adds a lot of clarity.
While I am not a big Harman fan on many fronts and could have gladly pulled her hair out when she said the NYT should be pursued for the leak, I will say that once the program came “out” she seems to have done much more and been more constructive than Reid, Rockefeller or Pelosi.
One thing she did was to immediately turn Congressional Research Services loose on the issue of who should get briefed, with this result (dated Jan. 18, 2006 for timeline purposes).
I still (even more so with the Thompson disclosures) trend towards the problem that Comey highlighted being how DOJ officials like Ashcroft, Mueller and – well, Comey – could keep from being in violation of the FISA court rulings when they signed off on FISA applications because the program was not set up in a way that allowed them to know if the illegal program did instersect with their FISA requests (which FISA was prohibiting) and so I think that the briefing may have had more a focus on problems/issues with the FISA court and orders there than the illegality of the program itself (which Comey et al seem to have happily signed off on and which, upon review AFTER their “changes” had pretty much everyone who saw it still saying it violated not only FISA laws but the 4th amendment).
Interesting that no one has bothered to try to talk to Thompson, eh? Considering he was willing to sign of on sending Maher Arar to torture, but balked at signing off on necessary FISA applications because of concern that he might PERSONALLY end up on the wrong side of the FISA court’s orders and have contempt/perjury types of issues – – I go back to the default that if and when anyone in the Bush DOJ even began to try to do the “Right Thing” it was only due to concerns that the courts would impose liablity on them directly in some shape or form. As long as they could just pull the torture strings, they were happy campers.
3 – interesting cross post.
Where you say:
this is a point I’ve been making for a long time now.
I do think that Lamberth and Kollar-Kotelly had nothing they could do when they were briefed on the program, other than issue orders regarding what would happen in their court, which they did. I don’t see that as complicity, but as a very screwed up arrangement (based on the role of the courts, cases in controversy, the secret and odd ex parte nature of the FISA court, etc.) and the people who could speak and do something were the members of Congress who were briefed.
They had, constitutionally, full protection if they said something on the floor and could have been cryptic. They also knew that Hayden was not being truthful when he testified to the joint committees investigation, saying that the NSA was operating after 9/11 the same as it had before 9/11 – and yet, they let him get by with it.
In any event, though, I always thought that Leonig’s story on the FISA court (something, btw, I don’t remember Lichtblau ever bothering to report on) was one of the most important and under reviewed stories out there.
What were members of congress and the telecoms told – if anything – about the FISA Chief Judge’s determination that the program was illegal and unconstitutional? And the NEXT FISA Chief Judge’s determination to the same effect?
How could telecoms claim good faith if they were told that the FISA court thought the program was illegal? Hmmm? And if the telecoms and/or Congress were not told – who made the decision to cover that up? Hmmm??
And wouldn’t some focus about the court’s input that the program was illegal have better served us all back when Lichtblau found out about it than now?
Based upon Lichtblau, this entire program was Cheney. It was Cheney who questioned (read pushed) Hayden to see what else NSA could do for the US. Cheney was/is a master of keeping programs secret and compartmentalizing what information has to be shared. I’ll wager that no one in the Gang of 8 has ever discussed this with K-K or Lambeth. Have either these two or others on the FISA Court ever had discussions with Congress. No. It would be like Leahy calling Roberts and saying our Judiciary Committee wants you to testify about a recent ruling. It just doesn’t happen. But I think it is way past time for someone to contact K-K and ask them to share a beer one evening. The framers of the FISA legislation should have devised a mechanism for briefings among all three branches. As it now works, the Executive branch plays the others off and moves on with its illegal work.
One point from Harman’s response…
If the Gang of 8 is seen as a “strong …. oversight” committee then the Bush administration has played them a fine tune. What was given them by Cheney, Gonzales, and Hayden was not robust. I see the committee as a dirty urinal in an aging bathroom where our Congress critters allowed Cheney to leak all over them.
This whole process reminds the infamous Cone of Silence in the TV series Get Smart. Nobody can talk to anybody is a perfect game for the Fascist government we are stuck with. The leading Dem, Lilly Liver Jay isn’t a lawyer and can’t figure out by his own reasoning power, if a program is unconstitutional, while our girl Jane is an attorney, a graduate of Harvard Law and chief counsel and staff director, United States Senate Judiciary subcommittee on constitutional rights for two years and is similarly unable to discern the legality of a program on her own.
5 – And if the telecoms and/or Congress were not told – who made the decision to cover that up? Hmmm??
7- This entire program was Cheney.
I wouldn’t think so, but I do think that when Congress was “briefed” on the program, if that information was suppressed there ought to be a head ready to roll over that. If the whole FISA application process was screwed up because Thompson has cya and career fear because there was no way he could comply with the FISA orders (something that apparently didn’t worry Ashcroft – he was too busy playing Basketball with Kevin Ring and helping his COS pass off classified info to Abramoff and directing the initial Rove aspects of the Plame investigation, etc.) then you’d think someone should have mentioned something, somewhere. Whether it was in the briefings to Congressional intel committees on FISA stuff in general (uh, we have this problem with not being able to get DAG signatures on applications…) or the gang of howevermany briefings on teh program, having one branch of govt declare that they believed the actions being taken by another were illegal is something that the third part of the Sybilesque crew should know.
Actually, it has kind of started to happen, in that Leahy has been asking for copies of the FISA opinions, which FISA said it was happy to give but which DOJ hasn’t wanted to ante up.
A-Freaking-men and this is where some of the grown up discussions of amending FISA (and, for that matter, the National Security Act) should be heading.
There should be ways for members of Congressional intell committees to access counsel as well, and probably the inclusion of the head and ranking members of Judiciary into the “gang of 8″ if full intel committee access is not being granted. And there should be teeth put into the Nat Sec Act for violations – lawyers and other invovled in programs which they know have not been briefed to the committees or Gang (of 12) should have duties to come forward to those committees (or gangs) within x period of time or have it treated as obstruction, etc. And they should spell out what happens when the Executive covertly plants domestic propaganda for to influence domestic politics. Teeth to the violations.
But it doesn’t seem to be happening. I will say for Lamberth, when all this came out and Congress started to belly flop on giving Bush anything he wants, Lamberth made some uncharacteristically public statements about having seen things Bush’s way and FISA’s way and FISA being infinitely better. But Congress ignored Leonig’s piece, has refused to question Mueller and Ashcroft about the DOJ violations of FISA orders, and ignored Lamberth.
In laying fault between Congress and the FISA court, I’d say the ball is in the Congressional court.
OT – on a day of admissions, apparently one of the previously unreleased Yoo torture memos surfaces:
Lederman’s input and he links the memo in two parts.
The memo was issued out the day after Bybee left, on a weekend, bypassing both the acting head of OLC (Whelan) with Bybee out and the AG – instead, Haynes and Yoo share the straws in this milkshake.
Doesn’t it give you the warm, fuzzy feelings about Comey, Philbin, Thompson and Goldsmith trying to help force Haynes onto the Fourth Circuit? They could look at pictures from Abu Ghraib – read about the detentions of children there as hostages – and know about the human trafficking victims at GITMO and the coverups there – and still get together and put a giddy recommendation together for Haynes.
There just aren’t enough showers you can take.
Agree with all of the above; pretty much what we have been saying all along, just a little more clarity and meat in the timeline. However, there is one fact missing here that has always bugged the hell out of me. Hot Tub Tom DeLay was also briefed in on the program either on hospital encounter day (3/10/2004) or first thing the next day (as I recall). Why was this done? Is it possible Harman did object, which would make a 4-4 Mexican Standoff, and they needed DeLay so they could say “a majority approved”? I don’t know, but the DeLay deal has always bugged me. As to the lawyers, I believe somewhere in there (although it may have been earlier, I can’t remember the timing exactly) at the behest of DOJ/Administration lawyers, there was a change made to the DC Bar Ethical Canons/Rules regarding threshold for culpability of government lawyers.
Here are the proposed changes in DC Bar from 2005. There may have been some before that…..
Well see, that right there is where she went wrong–she made the mistake of trusting them. It’s scary how politicization and corruption have seeped into government institutions to the point we must question every single action they do now. No benefit of the doubt can be offered with the sociopaths in power.
Our government is diseased and we must apply the cure. Same goes for the spineless Dems. Schumer can take a flying leap with his buddy Mukasey.
I agree with the bloggers who suggest that Harman, as a trained lawyer and CongressCritter who’d made her way to the top of the Intel committee, has an awfully convenient memory. More importantly, and I think this comment is from Jack Balkin’s blog, the process is dreadfully broken. CongressCritters, no matter how skilled, can’t perform their committee assignments without access to the expertise of properly trained and security-cleared staff. A process that denies them that intends that their oversight be ineffective.
That process is disturbing in many respects. Take one: Ashcroft signed off on a program he knew virtually nothing about, briefed by, apparently, a single lawyer. He knew as little about national security law as Alberto Gonzales did before leaving Texas. But he was “not allowed” to brief his second-in-command, who might need to step into his shoes at any time. It’s also not clear to me whether he knew the advise was so double secret that the NSA’s own inherently national security-trained lawyers weren’t briefed on it. An executive, not Congressional, process ripe for abuse; given what we now know, purposely so. An executive at war with itself.
Yet when Comey, a very conservative lawyer (in the pre-Bush sense) became acting AG for a brief period, all hell broke loose. The difference is not just Comey’s brains, energy and professionalism, but also those of Jack Goldsmith, another very conservative lawyer, who replaced the medieval canon lawyer (God and hence, the pope, can do no wrong) John Yoo at the OLC. But because both Comey and Goldsmith were such staunch conservatives, the program had to be overwhelmingly and obviously illegal to any lawyer who’d passed the bar, barring Addington, Libby and Yoo.
14 -those are pretty intersting. But could DOJ claim the WH or OVP or CIA as clients? I guess maybe counsel for FBI, CIA, etc. could claim their agencies as clients, but if there is wrongdoing by the agency heads or other individuals – to whom do those counsel really owe their duty?
15 – I still don’t buy that Comey and Goldsmith caused the ripple. I think they responded to the ripple caused by the FISA court which was making threats against those at DOJ who were signing off on FISA applications without complying with the FISA court orders (which could not be complied with bc the program was not set up in such a way that Mueller, Ashcroft or Comey – the guys who could sign off – actually knew if the person on their application had been part of the illegal program) I think the problem was that no one could comply with the FISA orders without changes to the program. Thompson had already run scared on that front. Goldsmith and Comey were there telling Ashcroft that Thompson had good reason to run scared on that front and about then FISA discovered violations of their orders — and since Thompson had refused to sign off, that would track back responsiblity to Ashcroft and/or Mueller.
With FISA ready to hold people in contempt or take action, Goldsmith and Comey didn’t want to be in the loop for violating the Court orders. Gonzales was likely saying that the court couldn’t do anything to reveal any of the classified info and likely even saying that if the President could defy law bc of the “war powers” he could also defy the FISA court.
IMO the showdown basically boiled down to whether or not the President could tell lawyers and DOJ to violate court orders and that is where Comey and Goldsmith and Ashcroft and Mueller drew the line and where they got support for a walkout (bc not too many lawyers want to traipse into court and tell a crew of Fed Dist court judges that they just don’t have to follow their orders – ultimately, even when you own the prosecutorial apparatus, that can come back to bite you personally on the butt and when it was the DOJ crew’s personal butt on the line, vs. the telecoms or NSA employees or CIA torturers butts – they suddenly realized the butt had a spine attached)
After all the things Comey and Goldsmith are both tied to, I have a hard time putting them in the camp of lawyers whose professionalism would blow you away.
Well, yes I think so. I was working on en ethics compilation and it kept expanding geometrically, and there is one critical piece it looks like I need that I have to try to get from Laurie Levenson personally (can see that it exists on the web, but can’t get the text) and blah, blah, blah… I got distracted by some real work and have yet to go back at it. Bottom line though is yes it was looking to me like just that, i.e. the client would be the administration/agency, not the public. Furthermore, it was looking to me as if there were changes specifically made to the canons to clarify for exactly this purpose; although that effort may have started in 1999 if I recall correctly.
Don’t have time to read this post right now (Thanks for the rundown EW) or Jane Harmon’s whatever it is she wrote at TPM.
I just have to say that I trust her about as far as I could throw her.
Here’s a post D-Day did @ Calitics about 10 days ago
And don’t forget that she is the author of the Thought Crimes Bill which was written by (?) The Rand Corp and that she came up with this bill after a talk by Chertoff at USC Center for Risk and Economic Analysis of Terrorism Events
Mary and others, I don’t mean to question your deeper thoughts, but I’m remembering two things. Goldsmith didn’t join OLC until October 2003, and Comey was even later — December. I dunno — maybe other people live faster than I do (ok: most people live faster than I do), but to me it is a pretty short short time between December and the second week of the following March to get up to speed on this stuff.
Second, I recall that Goldsmith has implied (book, testimony, Moyers interview) that Comey was not read into “the program” / “the ‘other’ intel activities” until very late. Goldsmith, anyway, seemed to me to be claiming that he was stewing over the “other” intel activities all on his own for a time. I don’t have his book, but I know that EW and others do. Perhaps someone could check this.
Got the coincidences with the alert from FISC and the Arar filing fixed in tiny mind, though.