In Re Sealed Case and the Goldsmith Memo

In addition to what I laid out here, comparing the 2006 White Paper with the May 6, 2004 Goldsmith memo on the warrantless wiretap program made me realize that the White Paper relies more frequently on In re: Sealed Case than Goldsmith does, at least in the unredacted portions. By my count, the White Paper refers to In re Sealed Case 9 times, whereas Goldsmith refers to it just 3 times (see pages 34, 47, 48; though technically one citation includes three quotes from it).

So I wanted to see why that might be–and what it might say about the program generally and the redacted sections of Goldsmith’s memo.

In Re Sealed Case: How Did the Patriot Act Change the “Wall” between Criminal and Intelligence Investigations?

In the PATRIOT Act, Congress expanded the limit on how the information sought in a FISA warrant could be used. It had required that foreign intelligence be the primary purpose of collection; in an attempt to break down the wall between criminal and intelligence investigations, PATRIOT allowed that foreign intelligence only be a “significant” purpose of the collection. In response to that change, Attorney General Ashcroft issued a memo finding that meant law enforcement could be the primary purpose of such collection and holding that criminal prosecutors could consult on the terms of the wiretaps to be used.

The FISA Court, noting that the FBI had misrepresented its goals in FISA collection in a number of recent instances (but citing only those from before 9/11) invoked its role in ensuring FISA collection meet certain minimization guidelines. It ruled that the government had to keep the Office of Intelligence and Policy Review in the loop in conversations between criminal and intelligence personnel, and criminal personnel could not direct wiretaps.

The FISA Court of Review reversed that decision, finding that the two functions were so intertwined as to permit the involvement of criminal personnel in planning wiretaps.

But its ruling also considered whether the change–allowing the government to use FISA to investigate “intelligence crimes”–was Constitutional under the Fourth Amendment. That discussion, while somewhat inconclusive, lays out some guidelines for what might be a reasonable search for a foreign intelligence purpose. It’s that discussion that provides ripe material for Goldsmith’s and the White Paper’s project of trying to claim the warrantless wiretap program was legal. But also, likely, caused big problems for the warrantless program as well.

The In Re Sealed Case Citations

Here’s how the unredacted parts of Goldsmith and the White Paper rely on In re Sealed Case.

Proof that “the wall” was a problem independent of 9/11

In attempts to dismiss the argument that the modifications Congress made to FISA after 9/11 prove Congress still intended the Administration to rely on its, both papers point to the discussion in In re Sealed Case about the problem of a “wall” between criminal investigations and intelligence. (Goldsmith 34, White Paper 28fn)

A claim that the opinion treats foreign wiretapping as an inherent authority

In a discussion of the President’s inherent authority to conduct warrantless searches of foreign intelligence, both papers cite In re Sealed Case on past Circuit discussions of the President’s power to use warrantless wiretaps to obtain foreign intelligence. Goldsmith does so in one discussion.

The Foreign Intelligence Surveillance Court of Review recently noted that all courts to have addressed the issue have “held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.” In re Sealed Case, 310 F 3rd 717, 742 (Foreign Intel. Surv. Ct. or Rev. 2002). On the basis of that unbroken line of precedent, the Court “[took] for granted that the President does have that authority,” and concluded that, “assuming that is so, FISA could not encroach on the President’s constitutional power.” (Goldsmith 48)

The White Paper cites the first quote on page 31 and again on 37, the second on page 8, and the third on page 35.

In addition to the general use of In re Sealed Case to argue inherent authority, there’s a footnote in In re Sealed Case that dismisses concerns Laurence Silberman raised during the original debate on FISA about the non-adversary process laid out in it; Goldsmith noted that footnote did not extend to Silberman’s larger complaints about inherent power. (Goldsmith 47fn)

Discussion of how “special needs” would permit the use of FISA for criminal wiretaps

The White Paper, unlike Goldsmith in his unredacted discussion of times when “special needs” allow the government to avoid a warrant, relies on In re Sealed Case’s discussion on the topic. The White Paper  includes this quote:

One important factor in establishing “special needs” is whether the Government is responding to an emergency that goes

beyond the need for general crime control. See In re Sealed Case, 310 F.3d at 745-46. (page 38)

It repeats that very reference later on the same page.

In re Sealed Case, 310 F.3d at 745-46 (noting that suspicionless searches and seizures in one sense are a greater encroachment on privacy than electronic surveillance under FISA because they are not based on any particular suspicion, but “[o]n the other hand, wiretapping is a good deal more intrusive than an automobile stop accompanied by


It cites the same passage again, claiming the FISCR had concluded that that passage held that foreign intelligence fit the definition of special needs.

And then borrows from what it claims the FISCR concluded.

As explained by the Foreign Intelligence Surveillance Court of Review, the nature of the “emergency” posed by al Qaeda “takes the matter out of the realm of ordinary crime control.” In re Sealed Case, 310 F.3d at 746. (page 39)

In other words, the unredacted sections of Goldsmith do not rely on In re Sealed Case to claim warrantless wiretapping qualifies as a special need, whereas the White Paper does. Mind you, he does discuss special needs and his discussion covers most of the same cases as the White Paper–notably on page page 39 and to some degree on 105. But he doesn’t cite FISCR.

“The Government … Has Affirmatively Argued that FISA Is Constitutional”

Now, obviously, we can only compare the unredacted parts of Goldsmith’s memo with what the White Paper uses. And there are definitely places in his memo where it appears likely that he discussed In re Sealed Case in currently redacted passage.

For example, two pages following Goldsmith’s use of In re Sealed Case to claim FISCR had endorsed warrantless wiretapping as part of the President’s inherent authority are redacted.

I’m guessing that Goldsmith might have felt obliged to address this part of In re Sealed Case:

The government, recognizing the Fourth Amendment’s shadow effect on the FISA court’s opinion, has affirmatively argued that FISA is constitutional.

In the government’s initial brief in this case, they argued that FISA meets Keith’s invitation to provide for more flexibility, the need for which “applies with even greater force to surveillance (or searches) directed at foreign threats to national security.” In the hearing on the case, Judge Laurence Silberman effectively invited the government to return to the question of constitutionality, not just with regards to the changes to FISA, but the statute itself.

You’re responding to my constitutional questions by coming up with very good answers from FISA, but I’m raising the question whether I’m inclined to think it’s necessary for us to address the constitutional arguments. It surely can be argued that the Congressional adoption of or even the original statute or its adoption of significant was unconstitutional. And I for one would like a brief on the constitutionality question. [my emphasis]

In response to which, the government expanded its claims on constitutionality to include an argument about reasonableness (the same standard Goldsmith ultimately uses) as well as an assertion that,

In considering the constitutionality of the amended FISA, it is important to understand that FISA is not required by the Constitution. Rather, the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority.

It’s worth pausing for a moment to look at the personalities involved in this case. The names on these briefs were: John Ashcroft, who was briefed on the warrantless wiretap program but misleadingly so on some parts; Larry Thompson, who was not briefed on it; Ted Olson, who (according to Eric Lichtblau’s Bush’s Law) was not briefed on it; David Kris, who was not briefed on it; James Baker, who was briefed on it but had big problems with it; and Jonathan Marcus, who I assume was not briefed on the program. But both David Addington and John Yoo attended the hearing and presumably kept a close eye on the briefing in this case. And while Laurence Silberman surely didn’t need prompting to try to use this opportunity to eliminate FISA altogether, as the chief protector of illegal Republican Presidential actions in the DC Circuit for decades, I also don’t rule out the possibility that Addington had read him into the program.

In other words, there’s this weird tension where a bunch of lawyers–starting with Olson–are arguing for a maximalist interpretation of the use of FISA warrants, even while (presumably without their knowledge), Addington and Yoo may have been trying to make sure nothing argued here endangered the legal claims for the warrantless wiretap program.*

It’s that tension, I imagine, that produced such lines in the supplemental brief as this one.

This Court need not decide whether the “primary purpose” test would govern unilateral Executive Branch surveillance conducted today, because the surveillance at issue here is governed by FISA’s extensive procedural protections.

In any case, that tension still carries over to the FISCR’s opinion, even before any disagreements between the judges on this per curiam opinion were ironed out.

I think all this tension explains why Goldsmith cited the Silberman footnote. Here’s the footnote from the opinion.

In light of Morrison v. Olson and Mistretta v. United States, 488 U.S. 361 (1989), we do not think there is much left to an argument made by an opponent of FISA in 1978 that the statutory responsibilities of the FISA court are inconsistent with Article III case and controversy responsibilities of federal judges because of the secret, non-adversary process. See Foreign Intelligence Electronic Surveillance: Hearings on H.R. 5794, 9745, 7308, and 5632 Before the Subcomm. on Legislation of the Permanent Select Comm. on Intelligence, 95th Cong., 2d Sess. 221 (1978) (statement of Laurence H. Silberman).

And here’s Goldsmith insisting that that footnote doesn’t mean Silberman (and by association, whether there’s evidence or not, the complete panel) backed off his beliefs about inherent authority.

The 2002 per curiam opinion of the Foreign Intelligence Court of Review (for a panel that included Judge Silberman) noted that, in light of intervening Supreme Court cases, there is no longer “much left to an argument” that Silberman had made in his 1978 testimony about FISA’s being inconsistent with “Article III case or controversy responsibilities of federal judges because of the secret, non-adversary process.” [citation omitted] That constitutional objection was, of course, completely separate from the one based upon the President’s inherent powers.

(If you’re missing the irony, btw, the “Olson” in Morrison v. Olson is Ted Olson. In that case on the unitary executive, Olson’s side–he was then head of OLC under Reagan–lost.)

Particularly given Goldsmith’s reliance on Silberman to argue that FISA had been unconstitutional from the start (see this post), I’d imagine he included this quote to try to pull the aspects of the opinion that most strongly represented Silberman’s views from the opinion.

With all that in mind, consider how the FISCR opinion was actually more nuanced than what Goldsmith (and the White Paper) use for the public versions of their argument. The context of the FISCR’s presumption of inherent authority is this one (this is in the context of Truong, which threw out some wiretaps used for criminal purposes, but for which the wiretaps were collected before the passage of FISA).

It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the

government’s contention that FISA searches are constitutionally reasonable.

That is, even as the FISCR invoked inherent authority, it admitted there were “boundaries” to it, which is what much of the second half of the opinion explores. In the part leading into the two redacted pages after his invocation of an abbreviated version of this passage, Goldsmith wrote,

Although the statement was made without extended analysis, it is the only judicial statement on point, and it comes from the specialized appellate court created expressly to deal with foreign intelligence issues under FISA.

I suspect at least some portion of the two pages following this statement explain why some of the ambiguities in the FISCR opinion–which after all only support a broad view of the President’s powers under FISA–don’t necessarily hurt his argument that–in spite of what the Bush Administration said about FISA’s constitutionality in 2002–it was unconstitutional in 2004.

FISCR’s Definition of Reasonable

Which brings us, finally, to the major use of In re Sealed Case in the White Paper that doesn’t appear in the unredacted sections of Goldsmith: to argue that the program was reasonable under the Fourth Amendment.

Throughout this discussion, remember that FISCR found the government’s use of FISA to conduct wiretaps for a primarily intelligence-criminal purpose was constitutional, though even under FISA, the opinion suggested it was a close call (note, this is one of those passages that lead me to suspect that Silberman may have been read into the program, since it brackets inherent authority in a way consistent with what we know of Yoo’s authorization of the program).

We acknowledge, however, that the constitutional question presented by this case–whether Congress’s disapproval of the primary purpose test is consistent with the Fourth Amendment–has no definitive jurisprudential answer.


Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close.

But the White Paper uses that discussion to argue that the warrantless wiretap program, with none of the judicial review of FISA, was constitutional.

Not surprisingly, then, the White Paper only focuses on the second half of the FISCR’s discussion of the issue, which considered whether warrantless wiretapping program qualified as a “special needs” search.

The real problem for the White Paper (and the reason I think we don’t see any discussion of FISCR’s discussion of reasonableness in the unredacted sections of Goldsmith) comes from the first part of the FISCR’s discussion, in which it argues that FISA serves as the kind of relaxed standard warrant envisioned in Keith.

That discussion starts by noting that the warrant clause requires three things:

  • Review by a neutral disinterested judge
  • A demonstration of probable cause
  • Specificity as to the things to be searched and seized

It then takes roughly 8 pages (four times as long as the special needs discussion) arguing that FISA generally meets these criteria.

Of particular note, it cites from the legislative record of FISA to assert that FISA would not allow for the surveillance of a range of people, some of whom (journalists in particular; note if Jane Harman was wiretapped under a FISA warrant that would be a problem here was well, though there’s no indication she was surveilled under the warrantlses program) we know the warrantless wiretap program to have surveilled.

Under the definition of “agent of a foreign power” FISA surveillance could not be authorized

against an American reporter merely because he gathers information for publication in a newspaper, even if the information was classified by the Government. Nor would it be authorized against a Government employee or former employee who reveals secrets to a reporter or in a book for the purpose of informing the American people. This definition would not authorize surveillance of ethnic Americans who lawfully gather political information and perhaps even lawfully share it with the foreign government of their national origin. It obviously would not apply to lawful activities to lobby, influence, or inform Members of Congress or the administration to take certain positions with respect to foreign or domestic concerns. Nor would it apply to lawful gathering of information preparatory to such lawful activities.

H. REP. at 40. Similarly, FISA surveillance would not be authorized against a target engaged in purely domestic terrorism because the government would not be able to show that the target is acting for or on behalf of a foreign power. As should be clear from the foregoing, FISA applies only to certain carefully delineated, and particularly serious, foreign threats to national security.

In addition, the opinion notes that FISA requires specificity with regard to the facilities tapped.

FISA requires probable cause to believe that each of the facilities or places at which the surveillance is directed is being used, or is about to be used, by a foreign power or agent. 50 U.S.C. § 1805(a)(3)(B).

I guess Goldsmith could argue that by Hoovering up all the signals entering the country, the warrantless program was directed specifically at facilities alleged terrorists were going to use (our telecom backbone) but that’s a stretch.

In any case, this passage, which focuses on the importance of an independent review of whether or not the target was an appropriate one, ends with this passage.

We do not decide the issue but note that to the extent a FISA order comes close to meeting Title III, that certainly bears on its reasonableness under the Fourth Amendment.

In other words, the White Paper’s use of In re Sealed Case cherry-picked the bits that helped their case, but ignored how FISCR gave very ambivalent approval for the use of FISA for criminal searches with the judicial review and specificity required as part of the FISA process. The warrantless program, of course, had none of that.

Does Goldsmith Dedicate an Entire Section to Deal with FISC Problems?

The point is that In re Sealed Case presented a lot of problems with regards to the legality of the warrantless program as we understand it to have existed in 2002-2003. Some of those problems may have been what purportedly got fixed in 2004. But others remained.

Which is why I think (revising my earlier wildarsed guess) that one of the criteria by which Goldsmith reviewed the legality of the program but which is entirely redacted in this release of the memo is whether it was legal according to the analysis in this opinion.

At the very least, after all, Goldsmith would have to explain how it was that FISCR had found the issue of using FISA wiretaps for a primarily criminal investigative purpose might only “come close” to Fourth Amendment standards, but that in the absence of the judicial review in FISA, the warrantless program would be clearly legal.

Which is, I suspect, one of the reasons he had to bootstrap the inherent authority onto the AUMF; had he not done so, he would have had a much harder case on the reasonableness issue.

But that left a number of other problems: the collection of data from the telecom backbone, which would violate FISCR’s interest in specificity of facilities. The clarity that these targets were really agents of a foreign power, particularly when their selection came from data mining traffic patterns (though Lichtblau says that practice is one of the ones that was discontinued with this opinion). The involvement of an independent judge.

Ultimately, though, one of the most damning passages in the FISCR opinion–and one I suspect he dealt with in redacted discussion–is this one, cited in part by the White Paper. First, the opinion emphasizes that a recent SCOTUS case envisioned the prevention of an “imminent” terrorist attack to be grounds for an “appropriately tailored road block.”

The Court specifically acknowledged that an appropriately tailored road block could be used “to thwart an imminent terrorist attack.”

And then they find comfort in the comparative intrusiveness of wiretaps because, in the case of FISA, they’re based on particularized suspicion.

The Supreme Court’s special needs cases involve random stops (seizures) not electronic searches. In one sense, they can be thought of as a greater encroachment into personal privacy because they are not based on any particular suspicion. On the other hand, wiretapping is a good deal more intrusive than an automobile stop accompanied by questioning

Of course, none of these were evidently the case with the warrantless program. It’d be easy to argue the collection program was not “appropriately tailored,” being (like some of the road blocks found unconsitutional) too far from a border to be tied to the threat they were trying to guard against (though I wouldn’t be surprised if Goldsmith argued that, by picking up signals at backbones coming into the US, they were the functional equivalent of borders). And the warrantless program, by design, collected content from people against whom there was no particular suspicion, meaning they had the intrusiveness of a wiretap with the greater encroachment of lacking particularity.

As I said, the last passage was actually quoted in the White Paper, only in a way that really didn’t support its case. I suspect all of the White Paper references to In re Sealed Case on special needs searches show up in a currently redacted discussion of Goldsmith’s. But it’s one that has a great deal more rationalization to show how a program with none of the safeguards of FISA could be even as constitutionally sound as FISCR found the “close” case of FISA to be.

Laurence Silberman has helped Republican Presidents get out of legal problems for decades. But a per curiam opinion in which he participated appears to present as many problems as–in a much more limited area–it solved.

I would imagine Goldsmith’s efforts to get out of the problems created would rather amusing reading, if we were ever allowed to read it.

*Remember that when Olson resigned in June, 2004 (after the government lost the Rasul and Hamdi cases) the WaPo reported it was because he had not been read into OLC memos on torture.

Olson is known inside the Justice Department to be unhappy that he was not informed about controversial memos authored by the Office of Legal Counsel on the use of harsh interrogation methods on detainees overseas, according to a department official who declined to be identified because of the sensitivity of the issue.

The torture memos–two of which had been publicly released  by this point–had put Paul Clement in a terrible position when SCOTUS asked him if we torture. But the warrantless wiretap program–and the memos underlying it–had not yet been made public (and if Lichtblau is right that Olson wasn’t read into the program, then he wouldn’t have seen the memos either). If I were Ted Olson, I’d be at least as pissed about the fact that I had been made to argue blind in this case as I would be that my subordinate had had to do so in detention cases.

  1. Mary says:

    What do you mean by this: “to conduct wiretaps for a primarily intelligence-criminal purpose?”

    Did you mean vs instead of -?

    • emptywheel says:

      I was using shorthand.

      At issue was intelligence v. criminal.

      But in the hearing, Olson argued broadly that any crime might have an intelligence purpose. He actually argued that they could use evidence of rape to force someone to become an informant.

      JUDGE SILBERMAN: Try rape. That’s unlikely to have a foreign intelligence component.

      SOLICITOR GENERAL OLSON: It’s unlikely, but you could go to that individual and say we’ve got this information and we’re prosecuting and you might be able to help us. I don’t want to foreclose that.

      JUDGE SILBERMAN: It’s a stretch.

      SOLICITOR GENERAL OLSON: It is a stretch but it’s not impossible either.

      The decision itself limited it to crimes with a foreign intelligence component–generally things like terrorism and sabotage, but also things like money laundering that was clearly done to finance terrorism (any bets on whether it has stopped our govt from using evidence of petty crime picked up on warrantless surveillance to blackmail people, which is why our informants are all such assholes?)

      • Mary says:

        Yeah – and we know it’s actually not that much of a stretch given the DOJ/US fasciation with rape as a “tool” of intelligence. Whether it was the threats to have Higazy’s sister picked up and raped;, to have CIA agents rape al-Libi’s mother; to have GITMO detainees mothers brought to GITMO and interred with all male populations; realized rape of Algerian women by a CIA station chief; kidnapping and hostage taking of wives and daughters as a military strategy in Iraq; fixation on the anal rape aspects of “the preliminaries” as part of the interrogation programs; etc. – one thing we know is that the DOJ and CIA have been joined at the hip in their equation of rape and “intelligence.”

  2. Mary says:

    Weren’t there references in the protective missiles fires by Yoo and Bybee to Thompson knowing about the warrantless program? I kind of remember being struck by that – that they were listing Thompson as in the know. Am I misremembering again?

    I think you are probaly right about a redacted section being the opinion, but I am still bumfuddled (yes, I can be bumfuddled if I want) about the firewall orders of the two Chief FISCt judges, Lamberth and Kollar-Kotelly. I don’t even begin, without reading any of this in particularly, but not even if I had – to spec on whether he talks about those orders in his memorandum, but I will say that if he didn’t, it was horrible practice.

    In essence, we’ve talked about the two visions/versions of the FISA as unconstitutional before. On the one hand is the argument that FISA is unconstitutional bc it purports to restrict how the President can conduct “foreign agent” surveillance (which somehow, in the Congressional hearings, became “foreign in any way” surveillance it seems like) and on the other, bc it purports to make valid non-Article III orders allowing for interception of US persons information without specifidicty and withotu probable cause to suspect criminal wrongdoing.

    IOW, on the one hand, the President does want to say that FISA is unconsitutional to the extent that Congress is telling him that he has to act under supervision of a Secret Court. BUT – and a very big but it is – to the extent the President is engaging in massive surveillance programs that violate the 4th amendment, the President and his crew want to be able to blink innocently and whine that they are protected from a Bivens or other action because they were acting in “good faith” under the FISA statute that allowed them to delve into U S persons information without any showing of probable cause to believe that person was engaged in a crime.

    So there is an important “get out of jail free” card aspect to FISA being “constitutional.” Which is what makes the warrantless, naked program, a little different. And while DOJ had the ability to do just what it did in this In Re Sealed Case (not to be confused with others) and take an adverse order from the FISCt and use a non-advocacy, hide the ball from the judges, not real “appellate” panel, and put it through a handpicked review process to get an override that impacts the 4th amendment but is not appealable to the Sup Ct — in the warrantless program they had no ability to bootstrap in any fashion to get a color of validity to what they were doing.

    The whole purpose of it being a warrantless program was to not have it in front of the FISCt, and if it wasn’t in front of the FISCt, well, then they had a real problem vis a vis the firewall orders from the Chief Judges.

    Bc, there, the facts of the program were presented to two different judges and each one ruled that the program was unconstitution and put into effect firewall orders. But DOJ wasn’t putting “teh program” before the court to get an order – it was saying nanner nanner we’ll go forward on our own, just thought we’d let you know in secret and as a classified matter.

    So. Now the only response of the judges who have been briefed on ‘teh program’ (Lamberth, Kollar-Kotelly and, even after the “Comeychanges” Digg-Taylor) has been unanimously that it was unconstitutional.

    What I don’t understand is how, starting with the first response from Lamberth, anyone at DOJ writing up a memo on the legality of the program ignores discussion rulings of the FISCt Chief Judge (judges by the time of Goldmsith’s memo) that the program is unconsitutional and which result in firewall orders?

    How does that not get discussed? And if it does get discussed, how does it not get passed on to the telecoms being asked to partner in the criminal activity? And if it is passed on to the telecoms, how was ANYONE EVER claiming good faith? How do you say you relied in “good faith” on a memorandum that tells you the only Judicial Branch members exposed to the program say the program is unconstitutional?

    I didn’t understand that then or now. And no one asks these guys what they did about the Chief Judge’s reactions and input.

    The redacted section might be a combo of looking at the In re Sealed Case opinion and using it as a reason the Chief Judges were wrong to claim the ability to impose the firewalls, but given the panel was not briefed in on the program (or maybe Silberman was, as you spec, but secretly and off the record) and none of the facts of US persons and US lawyers interceptions were being made available, it’s hard to see how they pull that off.

    And I’m wondering, as well, about the argument that “terror” is a foreign power, as DOJ moved the original Keith-based reference to foreign powers or their agents, into a reality where ideologies that are foreign are deemed to be foreign powers.

    Anyway, here’s another really important point to note. What Silberman did, with respect to claims regarding the President’s “inherent” powers to wiretap or otherwise conduct himself vis a vis foreign powers – was to pretty much say this: neither Congress nor the Courts have any authority when the President is conducting national security surveillance of a foreign power. The logical extension of what Silberman was saying about FISA itself being unconstitutional at that point, was that he was also saying that Judicial orders with respect to DOJ lawyers in such a setting were … unconstitutional as well. He really dipped the judicial toes into the swamp and told DOJ lawyers – you don’t have to follow court orders where national security powers are involved. A really disturbing concept.

    Anyway – I still want to know who in DOJ, if anyone, and when, if ever, discusses the fact that the FISCt Judges issued firewall orders based on their determination that the program was unconstitutional, but it’s ok for DOJ to go on anyway because …

    fwiw – back to real work.

  3. emptywheel says:

    Thompson was read into torture. Not wiretapping, I’m pretty sure (remember he refused to sign the orders bc he didn’t know what was in them).

    I didn’t deal with Lamberth and K-K bc it got so long.

    But that’s another level of the weird tensions here. Lamberth’s opinion had this sentence:

    The members bring their specialized knowledge to the issue at hand, mindful of the FISA’s preeminent role in preserving our national security, not only in the present national emergency, but for the long term as a constitutional democracy under the rule of law.

    For him, it was pretty clearly a way to get some review on this. But one of the reasons I noted that they only described the pre-9/11 FBI lies is because the FISCR said, “well, they were so long ago, don’t worry about it. Oh, and there’s an OPR investigation.”

    In other words, Lamberth was fucked bc he couldn’t–or chose not to–bring up the current stuff.

    And obviously, his order to enforce OIPR as chaperone was all about the illegal program–all about making sure the firewall COULD work. But that was thrown out too. (Another reason I suspect Silberman was read in–but this was an easy one for him bc it was about old-style unitary exec stuff).

    Also note, I don’t so much think it was the FISC firewall orders, per se, that blew up DOJ. It’s that K-K used the remedy suggested here–to force the senior execs to sign orders attesting to the truth of the apps–to force Ashcroft/Comey to do something about it (as you’ve said, they had their ass in a sling so were paying attention). Per Lichtblau, that shut down the DOJ apps (sort of like, I imagine, mortgage foreclosures are finally being shut down now, bc judges are making the lawyers sign statements saying they told the truth).

    Remember that I think they moved the data mining stuff into DOJ, using Section 215. So that could be a way to clear up the DOJ stuff, by making sure you were doing the exact same data mining, but doing it via other means, so that you were using bad FISA to get good FISA.

    • Mary says:

      I knew that Kris had kept him from signing off on some applications, but I thought I saw something else indicating that he did find out about it at some point. That’s unreliable though – I’m misremembering my name lately.

      Lamberth and KK would have been too long, especially since they basically involve the court’s response to the warrantless program v. to the Under Fisa but for criminal investigations where a criminal warrant can’t issue program.

      Lamberth was screwed, both because he was advised all the info he got was classified and he couldn’t breach classification, and also because the case in controversey aspects of what they were dealing with in the chaperone orders didn’t allow for him to go off on tangents about his firewall orders for a prgram that wasn’t – quite deliberately wasn’t – before the court.

      I don’t really think the chaperone order had much effect on whether or not the firewall order could or would work since the settings were so different. But I do think – (old kos diary) – that it was KK threats that suddenly inspired the showdown.

      After all, what was another 45 days going to hurt (except vis a vis the funding aspects you’ve touched on) and why was it suddenly so important to have a showdown? Because K-K was threatening consequences for the firewall breaches that seemed to keep happening (likely because what was passed on to Baker was disingenous in parts at least). The chaperone orders were known by all the FISCt jduges – the firewall orders weren’t. And there was no way for DOJ to get the firewall orders in front of a review panel to strike them down, without bringing the program itself before the FISCt.

      Keep in mind that it was the “cleaned up” program that Diggs-Taylor was briefed on and she still found it resoundingly unconstitutional, although she indicated that there was something other than data mining going on with that program, since IIRC she didn’t rule on the data mining aspect.

      Basically the firewall orders seem to have required that, where someone’s (most likely a US person’s) information was searched and seized under the warrantless program, and later someone came to FISCt to get a FISA order to search and seize this persons information – those applications had to be filed directly and only with the FISCt Chief Judge so that there could be follow up as to the extent of the fruits of the unconstitutional program being laundered used to make the case for a FISA warrant.

      But instead applications were going to other FISCt judges with information from the domestic, unconstitutional program being laundered used to make it sound as if it had come from intell sources to make the case (STILL not a criminal probable cause case) for the FISA warrant.

      One other thing that no one discusses is that in the context the Keith Case was talking about intelligence surveillance – spies were kicked out of the country or swaps were made etc. and they had to really be spies. Now, we have engaged in widespread unconstittutional surveillance for the purpose of not just obtaining intel, but to engage in torture programs and programs of disappearances, etc. -IOW, one of the facts that was on the periphery of the Keith case was that there were real and valid consequences to an indivdiual who might be the subject of a criminal case follow up – loss of liberty and maybe even loss of life. But here, the intel surveillance consequences are even more dire – being disappeared into torture. WIth no safeguard.

  4. MadDog says:

    Just curious EW, but have you asked Cap’n Jack for comments (public or private)?

    I wouldn’t expect him to join this blog and duke it out, but outside of still classified stuff, I would think he’d have an opinion or two (why yes, that is OLC humor *g*).

    • MadDog says:

      While I’m comparing EW’s copy of Cap’n Jack’s opinion and the one now up over at the OLC, I ran into this juicy bit, and unless I misremember (a not unusual occurrence for me *g*), this too is another OLC opinion we’ve never seen (from page 15):

      …F. Prior Opinions of this Office (U)

      This Office has issued several opinions analyzing constitution and other legal issues related to the [redacted – several words] program. On October 4, 2001, [redacted 5-6 words] we evaluated the legality of a hypothetical electronic surveillance program [redacted sentence]…

      • emptywheel says:

        We’ve known ABOUT it for some time. It’s the first opinion on this, but lots of people (like the IG report) say it was just hypothetical–which is interesting that Cap’n Jack sees it as official.

        • emptywheel says:

          Yup. THe only thing new with this, IMO, is that given that Goldsmith’s memo is derivative of the Presidential authorization, then so, likely, was Yoo’s memo.

          Meaning they didn’t even pretend they got approval first before they implemented it.

          Also note, as I’ve written a couple of times, October 4 is precisely the 16th day after the passage of the AUMF. That suggests, to me, they had already started the program, but gave themselves some kind of legal cover on the 16th day. Problem with that is, if they used the 15 day window, then they are implicitly endorsing FISA.

        • MadDog says:

          From your Warrantless Wiretap Memos Timeline, you have a link to a March 30, 2008 Eric Lichtblau NYT article regarding folks discovering the program on or about Oct. 7, 2001:

          …Inside the Federal Bureau of Investigation, meanwhile, technicians stumbled onto the N.S.A.’s program accidentally within 12 hours of its inception, setting off what officials described as a brief firestorm of anxiety among senior officials. Some who had not been told about the program were concerned that the agency was violating laws that required a court order for the singling out of Americans in wiretaps, and they immediately alerted higher-ups to what they had discovered. “What’s going on here? Is this legal?” one F.B.I. official asked after learning of the N.S.A. operation on American soil.

          Robert S. Mueller III, the F.B.I. director, assured nervous officials that the program had been approved by President Bush, several officials said. But the presidential approval, one former intelligence official disclosed, came without a formal legal opinion endorsing the program by the Office of Legal Counsel at the Justice Department.

          At the outset of the program in October 2001, John Ashcroft, the attorney general, signed off on the surveillance program at the direction of the White House with little in the way of a formal legal review, the official said. 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.”

          Aides to Mr. Ashcroft were worried, however, that in approving a surveillance program that appeared to test the limits of presidential authority, Mr. Ashcroft was left legally exposed without a formal opinion from the Office of Legal Counsel, which acts as the legal adviser for the entire executive branch.

          At that time, the office had already issued a broad, classified opinion declaring the president’s surveillance powers in the abstract in wartime, but it had not weighed in on the legality or the specifics of the N.S.A. operation, officials said.

          The nervousness among Justice Department officials led the administration to secure a formal opinion from John Yoo, a deputy in the Office of Legal Counsel, declaring that the president’s wartime powers allowed him to order the N.S.A. to intercept international communication of terror suspects without a standard court warrant…

          Based on Eric’s article, that missing opinion on a “hypothetical electronic surveillance program”, of Oct. 4, 2001 doesn’t quite sound like the Yoo formal opinion.

        • emptywheel says:

          A) That’s a really old article.

          B) There are competing stories about how formal the opinion was. As I said, several official sources claim it was just a “hypothetical” opinion. Me, I assume that means it was so embarrassing they want to count Yoo’s second shot, the November , opinion, was his “real” one.

        • MadDog says:

          From what I can tell reading Steven Bradley’s Declaration (80 page PDF), that missing opinion on a “hypothetical electronic surveillance program”, dated Oct. 4, 2001 is OLC 132 (from page 22):

          …h. (U) OLC 132, which consists of two copies, one with handwritten comments and marginalia, of a 36-page memorandum, dated October 4, 2001, from a Deputy Assistant Attorney General in OLC to the Counsel to the President, created in response to a request from the White House for OLC’s views regarding what legal standards might govern the use of certain intelligence methods to monitor communications by potential terrorists…

          And as you’ve said, the White House probably already had the programs underway not only before this OLC opinion showed up on Fredo’s deck, but also before there was that formal October 4, 2001 “Presidential Authorization for Specificed Electronic Surveillance Activities During a Limited Period to Detect and Prevent Acts of Terrorism Within the United States”.

        • MadDog says:

          Typical Repug modus operandi. First do the crime and then try to paper it over and cover it up.

        • lysias says:

          Hasn’t there been evidence that this warrantless surveillance started well before 9/11 in 2001, just a couple of weeks after Bush and Cheney took office?

        • MadDog says:

          Also, Ms. Timeline, I would note that the date of this missing OLC opinion on a “hypothetical electronic surveillance program”, of Oct. 4, 2001, is the very same date as Bush’s initial actual warrantless electronic surveillance authorization (from page 7):

          Presidential Authorization for Specificed Electronic Surveillance Activities During a Limited Period to Detect and Prevent Acts of Terrorism Within the United States[redacted 7-8 characters](Oct. 4, 2001) (TS/SI/COMINT/[redacted 3 characters – probably GST]/NF) (“October 2001 Authorization”)…

        • MadDog says:

          Presidential Authorization for Specificed Electronic Surveillance Activities During a Limited Period to Detect and Prevent Acts of Terrorism Within the United States[redacted 7-8 characters](Oct. 4, 2001) (TS/SI/COMINT/[redacted 3 characters – probably GST]/NF) (“October 2001 Authorization”)…

          I would also note, that, at least to me, this is the first time we known the actual title of the warrantless electronic surveillance authorization. I’m willing to be corrected. *g*

          And I would add that the title is surely the product of David Addington’s feverish mind whilst typing on his TEMPEST-shielded computer with Deadeye Dick Cheney kibbitzing over his shoulder.

  5. lysias says:

    Jack Goldsmith is a captain? Could someone please explain the “Cap’n Jack” talk to me?

    I actually once had lunch with Goldsmith in the Pentagon, but I thought he was strictly a civilian, and there doesn’t appear to be room for a military stint in his C.V. Is or was he a reservist?

    • MadDog says:

      I’m not positive, and happy to be corrected, but I think bmaz came up with the Cap’n Jack nickname for Goldsmith.

      Probably in reference to this Cap’n Jack.

    • emptywheel says:

      One of Goldsmith’s big legal things is the Law of the Sea. So the full nickname, according to bmaz, is “Cap’n Jack, Law of the Sea.” Or something like that.

      It’s about his legal work, not his rank.

  6. scribe says:

    One is compelled to wonder when it dawned on Olson that he hadn’t been read in on the warrantless wiretapping despite having to argue for it. Or if his reading this here will be the event that causes the scales to fall from his eyes.

    First, they used his dead wife to justify their crimes, then they punked him into arguing for their crimes.

    Someone should ask him….

    • emptywheel says:

      Nah, I’m pretty sure he figured out they had hung him out the night of the hospital confrontation. Remember that Comey made him come w/him to the WH, but that Andy Card made him wait outside.

      Also, there’s a quote in Lichtblau on the topic.

      Bush appointed Olson to his kabuki privacy commission in 2006, along w/Lanny Davis. But they weren’t read into the program even then.

      Here’s Lichtblau:

      Hayden claimed that he wanted to let members of the White House panel look behind the NSA curtain, but he was being blocked by higher-ups at the White House–presumably Cheney. Even Ted Olson, a legal icon in the conservative community who served on the privacy panel, found himself shut out. “If we’re not read in,” he told Hayden, “we might as well disband, because we’re useless.”

      I suspect it was meant to be a loaded comment.

      • scribe says:

        Gotta wonder if the appointment to the privacy panel was a way of shutting him up.

        As in, the best way to silence a critic is to give him a job.