Addington and the "Turncoat" Patrick Philbin

by emptywheel

In his stunning testimony before SJC today, Jim Comey said that, as far as he knows, no one ever retaliated against him for refusing to reauthorize the NSA Domestic Spying program. But he did explain a reference to a passage in his resignation speech. Here's the passage:

In all that, I worked side by side with a small subset of this Department: remarkable people who, in matters great and small, private or public, in times of relative calm or times of crushing pressure, displayed traits of character that are the best of this institution.  They were people who gave me rock-solid advice, people who made me laugh when crying was the only other option, people who came to my office, or my home, or called my cell-phone late at night, to quietly tell me when I was about to make a mistake; they were people committed to getting it right - and to doing the right thing - whatever the price.

These people know who they are.  Some of them did pay a price for their commitment to right, but they wouldn't have it any other way.  I don't intend to name them, because they know I am speaking directly to them.

And here's Comey's response to Russ Feingold's questions about the reference:

RF You made a moving address to your colleagues when you left. You stated some of them did pay a price for their commitment. What were you referring to?

JC One particular senior staffer who had been in the hospital, someone who had been blocked for promotion.

RF So you were referring to this.

JC That was Mr Philb[i]n.

Comey was referring to Patrick Philbin, whose participation in the hospital meeting prevented him from getting an expected promotion to serve as Deputy Solicitor General.

In March 2004, John Ashcroft was in the hospital with a serious pancreatic condition. At Justice, Comey, Ashcroft's No. 2, was acting as attorney general. The grandson of an Irish cop and a former U.S. attorney from Manhattan, Comey, 45, is a straight arrow. (It was Comey who appointed his friend—the equally straitlaced and dogged Patrick Fitzgerald—to be the special prosecutor in the Valerie Plame leak-investigation case.) Goldsmith raised with Comey serious questions about the secret eavesdropping program, according to two sources familiar with the episode. He was joined by a former OLC lawyer, Patrick Philbin, who had become national-security aide to the deputy attorney general. Comey backed them up. The White House was told: no reauthorization.

[snip]

Philbin, who had been the in-house favorite to become deputy solicitor general, saw his chances of securing any administration job derailed when Addington, who had come to see him as a turncoat on national-security issues, moved to block him from promotion, with Cheney's blessing; Philbin, who declined to comment, was planning a move into the private sector.

Understand--when Addington referred to Philbin as a turncoat, he meant it. Along with John Yoo, Philbin wrote some of the early justifications for aggressive measures after 9/11. And he was a stong defender of Bush's expansive powers as Commander in Chief during the GWOT.

Philbin was a law clerk for Judge Laurence Silberman of the District of Columbia Circuit Court of Appeals, and for Justice Clarence Thomas.

[snip]

Philbin served as a Deputy Assistant Attorney General in the Office of Legal Counsel. While there, he sent a number of memoranda to then White House Counsel Alberto Gonzales regarding the establishment of military commissions, the purported lack of federal court jurisdiction over Guantanamo, and other matters relating to dealing with purported terrorists. Philbin's work is among the infamous "Torture Papers" assembled by Karen Greenberg.

While only a few of Philbin's memos have been made public, The New York Times, looked at a November 6, 2001 memorandum in which he claimed the President had "inherent authority" as commander in chief to establish military commissions. The reporter found that Philbin had relied on the authority of Ex Parte Quirin, the 1942 Supreme Court ruling upholding President Franklin Roosevelt's decision to try eight Nazi saboteurs by a military commission - and a holding not considered among the finest of the High Court. According to news accounts, Philbin also argued that trying detainees for violations of the laws of war did "not mean that terrorists will receive protections of the Geneva Conventions."

So Philbin's objection to the domestic spying program must have been regarded by David Addington as nothing short of treasonous to the idea of the Unitary Executive. Which really makes you wonder precisely how bad the domestic spying program was, to make Philbin intercede with Comey.

Comments

[zhiv]

Great work today EW. I wasn't expecting much in my morning surf but when I saw your liveblog and the session just starting up, I figured something was up. Got the player going just as Comey was saying "I was stunned when (Ashcroft) raised his head etc..." and it was great to see the whole thing.

Part of what I get from the post above is that we've reached a far country when a guy like Ashcroft is looking this good. Comey is the hero of the day, and it's funny how you can sense such a huge difference when a witness isn't lying his ass off. But I keep remembering that Comey was working for, well, John Ashcroft. Just astonishing, the fact that we're so grateful that a number of extremely conservative lawyers just happened to decide not to cross the line into an all-out secret police effort. I guess that one of my questions, easy enough for me to figure out, is where did Cheney dig up Addington, the guy on the other side of this fence. And I wonder where guys like Roberts and Alito would have come out in similar circumstances, and if they're eventually going to weigh in on it all.

Also noted your intrigue at the Mueller-Bush interview. As much as I'd like to think it had a JEHoover slant, it seems like it had to be more about expediency and "do what you gotta do."

[bmaz]

So Yoo2 (Philbin) had one isolated deviation from the script of the evil empire and he is immediately persona non grata? Pardon me if I shed not a single tear. EW, you really could have included that last sentence a little earlier in the piece; I was sure you would get to it, but my head was ready to explode by the time you did.

[Quzi]

It was a great day of testimony today, especially compared to the HJC testimony. But I wanted to hear more from Comey -- like what he will tell behind closed doors.

[Rayne]

bmaz 16:49 -- if it's any consolation, we don't know everything about the entire body of work that Philbin has done under this administration, do we? Perhaps his work immediately following 9/11 was the aberration. I think I'm going to wait it out a bit if Comey was talking about Philbin before I make more judgments; the the assessment of turncoat could have been based on more than one decision.

[ab initio]

Thanks EW for providing us the "spinless zone" on all these legal and contorted matters.

The warantless spying on Americans must be real bad considering that torture supporter Philbin objected. There must be some serious shit down there! This makes me even more worried now that Hayden is running CIA and that other general is supposed to run counter-terrorism at State and who knows which other "unitary executive" true believer military man is running other state apparatus that can easily strip a citizen of his rights and shove them into a gulag.

Who would have ever thought that the USA would be recreating Stalinist Soviet Union. We have the corporate media with the Judy Miller's doing one better than Pravda; spying with impunity that may make the KGB blush; arrest, detention and torture with no charges except possibly a propaganda tool for disseminating fear or a perceived "enemy" of the "unitary executive".

How can Congressional investigators penetrate this facade when "national security" and classified information would be used to thwart any real investigation? I am suspicious that the Dems know a lot more but are not willing to pierce the bubble specially considering Durbin's mea culpa on the lack of credible intelligence justifying the invasion of Iraq.

[earlofhuntingdon]

It seems unlikely Comey believed the cocktail party politeness from men like Card and Gonzales; it would be even less credible from Cheney or Addington, men renowned for seeking Biblical levels of retribution even unto Pharaoh's slaves.

Of course, Comey knew there would be consequences. In a bureaucracy, when you are top dog of something and your personal team's careers get derailed by your enemies, that's payback, and a warning to anybody who might join you that doing so would be the wrong move.

Comey got out and makes over a million/year; Philbin waited too long, but that doesn't make him worthy of sympathy. Like Gonzo, he joined the pack; he just didn't get the rewards he expected. What makes it tragic rather than sympathetic is that too late he discovered a conscience and his duty as a lawyer. Those are supposed to be the minimum qualifications, not what gets you fired or denied promotion.

[bmaz]

Rayne - Agreed; however, this was not my first instance of exposure to Philbin's name. I recall his handiwork quite clearly back from around 2003 or so when reviewing the literally near fascist memorandums written by Yoo and Jay Bybee. To be honest, I first used the satirical name "Yoo2" to refer to Bybee back then. He is no friend to what you and I would consider the essence of the US Constitution.

[bmaz]

Rayne, reading the earlofhuntingdon's post reminded me I should have included another sentence or two in my last post. Jay Bybee was made a judge on the Ninth Circuit Court of Appeals. That would be my Circuit and I sure don't want Bybee sitting on any panel considering anything I am involved in. One of the promotion possibilities Comey was indicating Philbin was "deprived" of is, without question, a judicial appointment. I can assure you that Philbin is not someone we want possessing a lifetime seat on the federal bench.

[Veritas78]

I would like someone to ask any of these bastards if any Democratic politicians have been wiretapped without a warrant. I am amazed that no one ever asks this, because I am 100% certain what the answer is.

[bmaz]

Veritas78 - I think that is coming. There are rumors gaining strength that some of the abuse of National Security Letters has been against political opponents, but the classified nature of NS letters probably makes it inappropriate for specific questioning in a open public forum.

[Canuck Stuck in Muck]

Turncoat. Curious word. Reminds me of Redcoat, George III (not Bush II), the Minutemen, Valley Forge. Since I'm virtually anonymous, albeit of little brain, I can propose that we are participants in another war for the soul of this nation (I guess I'd have to be considered an unpaid mercenary, being Canadian, and all). OK. Turncoat. But, why did they screw just Philbin? Why not Comey? Perhaps Comey has too many good and influential friends to be fucked with, and Philbin was just a middle manager. That's not saying that Comey's dirty. It's just stating a possibility that would explain why him, and not the other.

But ooooooh, what they both must know! I'll bet Philbin has stories that would curl your hair. Comey? Probably has good stories, too. Just guessing, mind you. But he has no reason to want to avenge a wrong. Philbin, on the other hand.....

Finally, FWIW, I'm impressed by Comey's candor, and by Philbin's backbone. Likewise Mueller, and (wot!) Ashcroft. I'll bet you any money that Ashcroft would've gotten out of bed that night and never resigned if he'd known that grovelling, grasping, smirking, Abu Gonzales would become the next AG! [BTW, is it a prerequisite to getting on Bush's good side to be able to smirk like the smirking chimp in chief?]

[orionATL]

it's late,

and the documentation would take more time than i am willing to spend right now,

but

george bush is,

and has been since 2001,

the first DICTATOR of the united states.

i do not use the term analogously or hyperbolically,

i use it literally,

as a description of the bush presidency.

we have never seen anything like this in our history.

it really is time to call a spade

a spade

and a (presidential) fraud

a fraud.

we americans have a dictator as our president

[tekel]

earlofhuntingdon: when you are top dog of something and your personal team's careers get derailed by your enemies, that's payback [...]

right. and it's not illegal, in and of itself, and it's not really uncommon either. Just about everyone with a shred of personal integrity in any kind of corporate or government organization runs the risk of getting blackballed when the wrong sorts of leaders are in charge.

The only ray of hope is that this epic isn't over with yet. There is still hope that Comey will have the last laugh when Cheney and Rove are convicted for their treason.

[Elliott]

Wheelie, you are a goddess and I worship at your feet. Oh, and you were absolutely fabulous yesterday, THANK YOU! my heart was racing! It's grand to have your insight keep it clear for me, and frankly, for most of us.
how you can liveblog and hear what they are saying is beyond me (that really does make sense)