Can You Even Imagine How Bad it Must Have Been?

Can You Even Imagine How Bad it Must Have Been? by Marty Lederman
Wednesday, May 16, 2007
I want to put yesterday's incredible Comey testimony in some context, to demonstrate just how otherworldly this story is -- and what an extraordinary tale it tells about the nature of the officials who are running our government....

In March 2004, the NSA surveillance program had been operational for two-and-a-half years. According to the President and NSA, it had produced extraordinarily valuable intelligence against potential terrorist actions. (At the very least, it's fair to assume that the folks in DOJ understood this to be the case.) The NSA and the phone companies had been going full-steam ahead on the program, even though on its face it would be a crime to do so under FISA. See 18 U.S.C. 1809. Presumably they did so only because OLC had written one or more legal opinions concluding that the President had Article II authority to disregard the statute in wartime -- a legal theory not only critical to the operation of the program, but also at the very heart of the Vice President's passionately held philosophy of Executive prerogatives.

Jack Goldsmith was confirmed to be head of OLC in October 2003. He was a loyal Republican and supporter of the President. And yet almost as soon as he took office, he began reviewing much of John Yoo's handiwork, and found it lacking. Barely two months into his new job, for instance, Goldsmith called the Pentagon and told them that they must immediately cease relying on the critical Yoo Opinion that formed the basis for the Department of Defense's absuive interrogation policies in Iraq and elsewhere. (I've reviewed this fascinating story in detail here.)

According to Comey, "there were a number of issues that [Goldsmith] was looking at" as part of his "reevaluation" of past OLC advice, and the NSA program "was among those issues" under OLC review. "Demanding that the White House stop using what they saw as farfetched rationales for riding rough-shod over the law and the Constitution, Goldsmith and the others fought to bring government spying and interrogation methods within the law. They did so at their peril." (The quotation from the best account yet of this basic story -- the article in Newsweek in February 2006 by Daniel Klaidman, Stuart Taylor and Evan Thomas. That article obviously owes a great deal of debt to partial accounts published earlier by, e.g., the New York Times and this blog. Nevertheless, it is a taut, comprehensive and compelling account of what might be the most revealing aspect of the legal crisis within the Executive branch during the past six years. It is well worth reading.)

By early March 2004, OLC apparently concluded that the NSA electronic surveillance program could not be defended on the basis of OLC's prior legal opinions, and had convinced the Attorney General and DAG that DOJ had to refuse to sign off on the program -- i.e., they were compelled to inform the President that the program violated FISA and could not legally be continued in its present form. Ashcroft and Comey agreed -- or at the very least, they deferred to Goldsmith's legal judgment, which is what happens in 99% of all cases once OLC speaks.

It is extremely rare for OLC to reverse its own opinions within an Administration. And that unusual course would be especially disfavored in this case, because all the relevant DOJ officials -- e.g., Ashcroft, Comey, and Goldsmith -- undoubtedly understood that repudiation of this particular OLC advice would mean shutting down the very program that the President had described as the most important intelligence program in the war on terror. Moreover, the theory that OLC was repudiating appears to have been one to which the Vice President and his counsel were deeply committed, and one that appears to have formed the basis for the Administration's decision to disobey other important statutory constraints. Obviously, then, there were profound disincentives to such repudiation.

And yet repudiate it they did. Can you imagine the reaction from the White House and the Vice President's office when that happened? After all, as one friend remarked today, it's not as if Nadine Strossen or Ramsey Clark was the Attorney General. This was John Ashcroft -- and he would not sign off on the prior OLC legal Opinion, even though:

1. It was the sole legal basis for a critically important intelligence program that was purported to have saved many lives. Newsweek:

The rebels were not whistle-blowers in the traditional sense. They did not want—indeed avoided—publicity. They were not downtrodden career civil servants. Rather, they were conservative political appointees who had been friends and close colleagues of some of the true believers they were fighting against. They did not see the struggle in terms of black and white but in shades of gray—as painfully close calls with unavoidable pitfalls. They worried deeply about whether their principles might put Americans at home and abroad at risk. . . . Goldsmith was not unmoved by Addington's arguments, say his friends and colleagues. He told colleagues he openly worried that he might be putting soldiers and CIA officers in legal jeopardy. He did not want to weaken America's defenses against another terrorist attack. But he also wanted to uphold the law.
2. Repudiation of the theory would mean that the NSA and phone companies had been committing crimes for more than two years.

3. It meant DOJ doing a remarkable about-face and acknowledging profound error.

4. It was a rejection of the principal constitutional theory at the heart of the Vice President's program for executive aggrandizement (and was presumably the basis for several other practices and policies as well) -- and so it could be expected to be met with the considerable wrath of Cheney/Addington, to the point where one of the messengers of the bad news, Associate DAG (and former OLC Deputy) Patrick Philbin, had an expected promotion blocked (according to Comey's testimony). Newsweek: "It is almost unheard-of for an administration to overturn its own OLC opinions. Addington was beside himself [when Goldsmith repudiated the Yoo DoD Torture memo in late 2003]. Later, in frequent face-to-face confrontations, he attacked Goldsmith for changing the rules in the middle of the game and putting brave men at risk, according to three former government officials, who declined to speak on the record given the sensitivity of the subject."

5. The President demonstrated his profound committment to the program by personally calling the Attorney General's wife and urging her to allow the White House Counsel and Chief of Staff to cajole the AG in intensive care, where she had not been allowing visitors.

and

6. The White House told the DOJ officials that it was going to go forward with the program anyway, even after DOJ had opined that it was unlawful.

And yet not only would Ashcroft, et al., not budge -- they were prepared to resign their offices if the President allowed this program of vital importance to go forward in the teeth of their legal objections.

In light of all these considerations, just try to imagine how legally dubious the Yoo justification must have been that John Ashcroft was so profoundly committed to its repudiation. It's staggering, really -- almost unimaginable that anything such as this could have happened, especially where the stakes were so high.

And recall this, as well: These are hardly officials who were unwilling to push the legal envelope, or who were disdainful of the objectives or need for the NSA program. Two or three weeks later, OLC did develop an alternative legal theory that permitted a narrower version of the surveillance program to go forward. By all accounts, that legal theory is some version of the argument that the 2001 Authorization for the Use of Military Force against Al Qaeda authorized this form of electronic surveillance, notwithstanding FISA. That is a theory that I and many others have harshly criticized (see, for example, the letters collected here). It is, to say the least, an extremely creative reading of the relevant statutes -- a reading that not a single member of Congress who voted for the AUMF could possibly have imagined, and one that (to my knowledge) not a single member of Congress has approved once reading of it in DOJ's "White Paper."

These DOJ officials were willing to sign off on that very tenuous legal theory. What does that tell us about the OLC theory that they inisted upon repudiating?

Moreover, the "revised" NSA program that OLC and DOJ approved some weeks after the March incident apparently was narrower in some fundamental respects than the program that had been authorized under the previous OLC advice. And yet, according to AG Gonzales, that new program still allowed electronic surveillance of communications as long as the NSA had a "reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda." Presumably this extremely generous guideline was required by the need to bring the program under the aegis of the AUMF, which authorized the President to use "necessary and appropriate" force against "those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."

If that's the narrow version of the NSA program, just how broad and indiscriminate was the surveillance under the program that Ashcroft, et al. would not approve? [For more along these lines, see this terrific post by Orin Kerr. Here's one speculation just suggested to me by a fellow B'zation blogger: Perhaps under the Yoo-approved program, once a U.S. person received any phone calls or e-mails from a "covered" person overseas, the NSA was authorized to intercept all of that U.S. person's future phone calls. (After all, what the Administration was most interested in would not be overseas calls, but instead calls that might reveal activity of Al Qaeda cells here in the U.S.) Under the Goldsmith-approved, AUMF-based program, however, only international calls with actual persons covered by the AUMF could be intercepted. Who knows? -- this is only speculation.]

This is the real heart of the Comey story -- What happened between September 2001 and October 2003, before Comey and Goldmsith came aboard? Just how radical were the Administration's legal judgments? How extreme were the programs they implemented? How egregious was the lawbreaking?

It is imperative now that the Senate do all it can to obtain and investigate the entire paper trail that led up to the events described yesterday. There is no longer any excuse for the legislature to be denied the OLC opinions, at least pre-Goldsmith, that were the basis for the Executive branch's regime of extra-legal conduct. Not only the OLC Opinions and the Executive orders on the NSA program, but also the all-important Yoo Opinion signed on March 14, 2003, the day after Jay Bybee left OLC, which was the genesis for the terrible abuse that occurred in the Department of Defense during the remainder of 2003. (More on this in the last few paragraphs of this post.)

Of course, before the OLC opinions are made public, they should be redacted so as not to reveal important but secret NSA capabilities. But those redactions shouldn't be extensive, and should not obscure the basic legal analysis that is the critical basis for the conduct of the Executive branch in some of its most dubious activities. (OLC memos that say "no" -- that tell the President that he cannot do something, such as, presumably, Goldsmith's memo(s) in early 2004 -- are a much harder call. My basic view is that those are the sorts of OLC memos that presumptively remain confidential, at least until they are only of historical interest, for two basic reasons: (i) because they did not form the basis for any Executive branch conduct that occurred; and (ii) because those are the very most important memos that OLC issues, and nothing should be done to deter Executive officials from asking OLC about the legality of questionable proposals, or to deter OLC from feeling free to candidly tell the President "no." As my colleagues and I wrote here: "Ordinarily, OLC should honor a requestor’s desire to keep confidential any OLC advice that the proposed executive action would be unlawful, where the requestor then does not take the action. For OLC routinely to release the details of all contemplated action of dubious legality might deter executive branch actors from seeking OLC advice at sufficiently early stages in policy formation."

On the other hand, in this case the President went ahead with the conduct in the teeth of DOJ advice that it would be unlawful, and so this ordinary guideline is not quite on point. Moreover, here the Goldsmith Opinion rejecting OLC's prior advice (assuming it exists) is likely to be critical to a full understanding of the development of the Executive's programs and their legal justifications -- and therefore perhaps it, too, should be shared with Congress.

[DISCLOSURE: I worked at OLC, including for a time with Pat Philbin, until November 2002, and I have gotten to know Jack Goldsmith since he and I both left OLC (our tenures there did not overlap). Nothing in this or any of my other posts on these sensitive matters, however, reflects any information I learned while at OLC -- I was not aware of any of the programs discussed in these blogposts while I worked there -- and neither Pat nor Jack (nor anyone else) has ever revealed any classified or otherwise confidential information to me about these programs -- in the best OLC tradition, they have to my knowledge been scrupulous about preserving all confidences. All the information herein is taken or extrapolated from public sources.]