Details on Cheney's FISA Documents

by emptywheel

It appears that Dan Eggen has gotten a copy  of the letter from Dick's office, detailing which documents he has that respond to FISA subpoenas. Among other things, Eggen's report appears to suggest that the warrantless wiretap program operated illegally for 9 days (and possibly as many as 22 days) before it was amended to satisfy DOJ; previously, we had only know it had operated illegally for one day.

Here're the relevant details:

Nonetheless, Coffin identified by date a series of memos and orders that "may be responsive" to the Senate committee's demands. They include 43 separate authorizations from President Bush for the program, which had to be renewed approximately every 45 days beginning on Oct. 4, 2001.

The letter also lists dates, from October 2001 through February 2005, for 10 legal memoranda from the Justice Department. Although Cheney's office has copies of the memos, none of them "was rendered to the Office of the Vice President," Coffin wrote.

The disclosure of the existence of the documents and their dates sheds new light on some events surrounding the NSA program, including a now-famous legal dispute in March 2004. A half-dozen senior Justice officials threatened to resign if the White House did not agree to change parts of the program that Justice lawyers had determined were illegal. Coffin's letter indicates that Bush signed memos amending the program on March 19 and April 2 of that year. The details of the dispute have never been revealed publicly. [my emphasis]

By my very rough estimate, there should have been about 47 reauthorizations of the program--so 43 is at least close, if the documents cover up until today (though they shouldn't--they should only cover up until January 10, 2007, since that's when the authorization of the program changed). But very important: Eggen doesn't say whether or not those reauthorizations include the March 10, 2004 one that would prove--presuming it bears Bush's signature--that Bush reauthorized the program after DOJ told him it was illegal. This was the document Sheldon Whitehouse was seeking when Gonzales was last before the Senate.

The line "Cheney's office has copies of the memos, none of them "was rendered to the Office of the Vice President" may well be the dodge mentioned earlier--that Cheney is once again claiming that OVP (as distinct from the Vice President himself), is independent of Executive Office of the President. If that's what this line is about, it suggests the dodge they're trying to pull is to pretend none of this is in OVP, so it's all safely ensconced in EOP in some kind of faerie vault where they keep all the evidence of criminal wrong-doing.

And then there are details showing Bush signed memos amending the program on March 19 and April 2. Here's how that fits into the chronology from Robert Mueller:

Wednesday 3/10/04, 1920: Called by DAG while at restaurant with wife and daughter. He is at AG's hospital with Goldsmith and Philbin. Tells me Card and J. Gonzales are on the way to hospital to see the AG but that AG is in no condition to see them, much less make decision to authorize continuation of the program. Asks me to come to AG's hospital to witness condition of AG.

Wednesday 3/10/04, 1940: At hospital. [click through for the description]

Wednesday 3/10/04, 2010: Saw AG. Janet Ashcroft in the room. AG in chair, is feeble, barely articulate, clearly stressed.

Wednesday 3/10/04, 2020: Departed the hospital.

Thursday 3/11/04, 1200: Meeting at Card's office with him at his request. [6 paragraphs are redacted]

Thursday 3/11/04, 1240: Stopped by J. Gonzales' office after meeting with Card.

Thursday 3/11/04, 1315: Meeting with Comey, et al., at his office.

Thursday 3/11/04, 1450: Telephone call from J. Gonzales.

Thursday 3/11/04: Reauthorization of program "including as amended by the Presidential memoranda of March 19 and April 2"

Friday 3/12/04, 0945: The President called me into the side office off the Oval Office after we had concluded our morning briefing of him. [7 paragraphs redacted]

Friday 3/12/04, 1045: Met with Comey and others at DOJ.

Friday 3/12/04, 1606: Mueller first saves this file.

Friday 3/12/04, 1650: Called Judge Gonzales.

Friday 3/12/04, 1700: Met with Comey and others.

Friday 3/12/04, 1845: Called Judge Gonzales.

Saturday 3/13/04, 0955: Called General Hayden.

Sunday 3/14/04, 1500: Meeting at DOJ with Comey, et al.

Sunday 3/14/04, 1820: Called Comey.

Sunday 3/14/04, 1845: Called Gonzales.

Monday 3/15/04, 0850: Discussed issues with Tenet after morning briefing in Sit Room.

Monday 3/15/04, 0930: Called Comey.

Monday 3/15/04: New DOJ opinion

Tuesday 3/16/04, 1345: Call from Judge Gonzales.

Tuesday 3/16/04, 1840: Call from Comey.

Tuesday 3/16/04, 2000: Call at home from Judge Gonzales.

Tuesday 3/16/04, 2030: Comey called.

Wednesday 3/17/04, 1105: Comey called.

Friday 3/19/04: Bush amends program

Tuesday 3/23/04, 1200: Meeting with Vice President at his request in his Office.

Friday 4/2/04: Bush amends program

The chronology tells us two things. First, the program appears to have operated illegally for 9 days. And second, that meeting with Cheney at the end of Mueller's involvement actually happened before the second amendment during this period. Given that the amendments weren't entirely completed by the time of that Cheney meeting ("at his request"), I wonder how much arm-twisting was involved?

Update: Ah, didn't see the copy at TPMM. I've added updates to the chronology.

It appears that, after they altered the program, the retractively included that in the 3/11 reauthorization, to paper over the fact that Bush reauthorized an illegal program.

The business about OVP seems to be a two-fold thing. First, they're going to contest the Senate subpoena in the first place, claiming the Committee never authorized to send a subpoena to OVP specifically, as distinct from EOP, nor did it ask nicely for the documents first. This contest, presuming Cheney will launch it, will delay any subpoena for 4 more months, at the least.

But the document also seems lay out Cheney's novel theory of the Fourth Branch. Just so you know how he's going to defy Congress from here on out.

Comments

[Mad Dogs]

"First, the program appears to have operated illegally for 9 days."

Hmmm...it might be more accurate to say that it "operated without AG or DAG signature for 9 days". As to illegality, it has always been so.

[nolo]

hey marcy --

it appears that the tpmmuckraker
scooped the wa po, yet again -- it seems
the muck had a jpeg image of
the full letter (both pages) up, by
5:02 p.m. eastern daylight time, this evening.

i'm not sure where muck sourced it, as
leahy's site hasn't posted it yet. . .

but i thought you'd like to see it.

kind regards & goodnight,

-- nolo

[Squiddy]

Hi Marcy,

Not to be a knob, but lines 2/3 should probably read "warrantless wiretap," yes?

(knobbily yours)
-squiddy

[bmaz]

Wow. Where to start. How about why is the OVP responding to the subpoena on the merits at all? If the letter is correct that there was no subpoena authorized by the committee for the OVP, and I have no reason to doubt they have that wrong; it would be much more the Cheney/Addington style to tersely respond "You got no valid subpoena for this office, go screw yourselves." In fact, if it is true the committee didn't formally authorize for the OVP, that is how I would respond. This seems to be a disconnect how they have, in fact, responded. Why?

[bmaz]

There is a purported Presidential Authorization dated March 11, 2004 (indicated to be as amended on 3/19/04 and 4/2/04). Somewhat curiously, the previous Presidential Authorization to the purported 3/11/04 one appears to be on January 14; so it appears they really were at the far end of their time gap (although the dates kind of are all over the place as far as their relative time gaps).

This junk really needs to be fully investigated. There is no question but that Comey et.al. had declared "The Program" to be illegal and/or unconstitutional on March 10; with no formal amendment of the Program until either March 19 or April 2, how did the President authorize it on 3/11? Some kind of verbal understanding that they would all do it in some agreed manner? If so, why not put some amendment into the 3/11 action? This is bizarre. There should absolutely be answers under oath on this whole area. The facts as currently delineated give rise to a presumption to a clear presumption of impropriety. The continual refrain from the Administration and it's lockstep choir is "there is no evidence of anything improper". Well, here it is. Answers under oath are required.

[BlueStateRedhead]

Time for Comey to come(y) forth again? Now that the things he was keeping secret are public? dramatic testimony seems to be the one thing that gets MSM attention away from drunken celebrities.
anyway thanks marcy again.

[casual observer]

Another piece falls into the timeline. Another confirmation of prosecutable illegality, abuse of office, completely impeachable offense. Another thought that, if the shoe was on the other foot and this was either Clinton in the White House and a Republican congress, the judiciary committee would be voting out contempt, impeachment, and hanging orders before tomorrow's morning news.

But of course that is not where we are. We have Democratic Senators, good men and women, acting like your local-news weather forcasters. "There is a cloud over this White House". "There is a shadow over this Vice President". "There is a storm coming over the horizon". To which the White House chuckles and responds, "good--we'll fight in the shade then. In the meantime, fix this surveillance bill, and give me that damn appropriations bill, and it better be the way I want it, bitch".

[casual observer]

Also--Now I think I understand why, at yesterday's press conference, Leahy kept saying things to the affect of: "we can't legislate further changes to FISA in the dark--we need this information". He was responding directly to Cheney's Barenblatt v. United States assertion as to why congress had no right to probe beyond their legislative needs.

[p_lukasiak]

There is no question but that Comey et.al. had declared "The Program" to be illegal and/or unconstitutional on March 10; with no formal amendment of the Program until either March 19 or April 2, how did the President authorize it on 3/11?

According to Comey's testimony, there was no actual statutory or regulatory requirement that Program X be reviewed and approved by the DoJ prior to its reauthorization by the President every 45 days. In other words the approval process was part of Program X itself.

Comey testified that the DoJ could find [paraphrase] "no legal basis under which the program could be authorized." In other words, the program itself had been operating illegally, and continuing it without DoJ approval did not change its legal status.

SPECTER: Well, you don't have to. If the certification by the Department of Justice as to legality is required as a matter of law, and that is not done, and the program goes forward, it's illegal. How can you -- how can you contest that, Mr. Comey?

COMEY: The reason I hesitate is I don't know that the Department of Justice's certification was required by statute -- in fact, it was not, as far as I know -- or by regulation, but that it was the practice in this particular program, when it was renewed, that the attorney general sign off as to its legality.

There was a signature line for that. And that was the signature line on which was adopted for me, as the acting attorney general, and that I would not sign.

So it wasn't going forward in violation of any -- so far as I know -- statutory requirement that I sign off. But it was going forward even though I had communicated, "I cannot approve this as to its legality." And given that, I just -- I couldn't, in good conscience, stay.

Also, on the question of the program operating for another 22 days -- this is also part of Comey's testimony.

FEINSTEIN: For approximately two weeks?

COMEY: I don't remember exactly. It was two or three weeks I think that it took us to get the analysis done and make the changes that needed to be made.

[emptywheel]

p luk

Yup, I had that in mind when I wrote this.

Though, curiously, Comey's estimate was on the low side...

[jackie]

Odd tie-in, someone on an earlier thread commented,
'wonder if some form of electronic communications was taking place off of any official government servers.'

I remember a story about a contract for someone to set up a 'secure' communication system for the White House.
It is one of the companies now being looked at closely by Justice, etc and it was done very soon after Bush and Co got there. I want to say it is MZM?, they supplied the 'furniture' for Cheney. I had the link, but can't find it..but it is out there...

[sojourner]

Jackie, I cannot remember the name of the company, for sure, but you are close on target. The owner of the company is a Republican "friend" who provided server hosting and Internet services for the Bush campaigns and the Republican National Committee.

That may have been me you are referring to... There has been an extreme amount of coordination going on, in my opinion, and the only way it could be done is through back-channel communications. There was a lot of dust stirred up about the use of RNC and GWB domain email by government and DoJ employees concerning the U S Attorneys. My thought is that that is the tip of the iceberg, and that there has been a lot more going on off of official channels to evade any chance of it being captured.

Since it all came to light, though, in the U S Attorney mess, I suspect that it is being dismantled. I have to wonder if Rove outlived his usefulness, as he was probably the 'glue' that held it all together. That may be one of the reasons he resigned, not to mention that there may be a fast-moving freight train that is about to deliver an indictment or something. Bradley Schlozman's resignation last week might add some impetus to that theory.

[drational]

Compartmentalization?
There are 6 legal memoranda pre-dating the March 10, 2004 Hospital Showdown that allegedly pertain to the NSA-driven Surveillance Program. Cheney's letter notes that these memoranda "were not rendered to the Office of the Vice President (suggesting they may be retained within the White House, presumably to be covered by a future claim of Executive Privilege). However, Comey's testimony asserts that he was unaware of the existence of any legal memoranda prior to March 10, 2004.

d. Did the response include any legal opinion or memorandum from the White House, or any other federal agency related to the classified program? If so, please identify what individual(s) or entities prepared and reviewed the legal opinion or memorandum.

I am not aware of any other such memorandum or legal opinion prior to March 10, 2004. Some time shortly after March 10, I received a memorandum from White House Counsel Gonzales.

Does this Comey statement indicate that the DOJ Lawyers charged with reviewing the legality of the NSA-driven Surveillance Program were not given existing memoranda on the legality of The Program when they were conducting their analysis?
Is the conflict between the Comey Testimony and the newly disclosed existence of DOJ memoranda evidence of the "compartmentalization" that was hindering effective review, and the source of Ashcroft's March 10, 2004 complaint noted in the Mueller notes?

[emptywheel]

drational

What are you getting that from?

[radiofreewill]

If the dates of each of the re-authorizations are known, it might be useful to correlate them with other metrics, such as:

- tracking the Terror Alert Level
- mapping a timeline of Major News and Crises
- dates of introduction/debate/vote on Major Legislation - Iraq Supplementals, MCA, Immigration, Wiretapping, etc
- subpoenas
- Congressional testimonies
- how many re-authorizations fell on Thursdays, followed by a Classic BushCo Friday BSO News Dump?

Since we know the BushCo MO, why not look for patterns of politicization?

[lambert strether]

s there method to Shooter's madness? Note this part of the letter. Shooter's wearing his legislative hat, for now:

In the performance of legislative functions, the Vice President respects the legal privileges afforded to the Constitution by the Senate, such as preservation of the confidentiality of a session with closed doors over which a Vice President can preside.

As is consistent with the institutional interests of the Senate, the Office of The Vice President construes the subpoena as seeking responsive records possessed by the Office of the Vice President in the performance of the Vice President's assigned executive functions, but not in the performance of his legislative functions. As a practical matter, the Senate records could not be expected to contain any responsive records.

Now, a real lawyer like Marcy would be needed to translate this rawther opaque language.

But it reminds me immediately of the Spector's statement, which Leahy called him out on, that Shooter told him they weren't "allowed" to issue a subpoena.

Did Shooter tell this to Spector wearing his legislative hat? And, if so, what else did Cheney tell the Senate wearing his legislative hat? What, for instance, did he tell the intel committees? What did he tell the Gang of Eight? What did he tell Reid and Pelosi? Is the curious silence of the Democratic leadership on FISA and their reprehensible passage of the Orwellian "Protect America" act explained by something Shooter sucked them into?

[lambert strether]

Jackie, emptywheel:

I believe the company for the RNC was SmartTech (backup by Coptix). WARNING: We got badly burned when we got close to Coptix on the whole gwb43.com thing (I'll tell how, if you want) -- which I thought indicated we hit a nerve.

We never did find an MZM connection. Doesn't mean it's not there, the whole thing is a shell game...

[NC Dem]

Emptywheel, I would propose that the "program" operated illegally until May 5th, 2004. That is 56 days from March 11th. Look at the dates given from the letter from Coffin to Leahy. The amendments on March 19th and April 2, 2004 were still not authorized by DOJ. Note that it was next authorized on May 5th with a legal analysis from DOJ (we assume) on May 6th, 2004. May 6th was the first legal analysis since the one issued by Goldsmith and Comey that was dated March 15th. We know from written testimony from Comey that this legal analysis from both was submitted as one a few days after the bedside visit. Thus, the document on May 6th would have substantiated the authorization on May 5th.
We need to have some legal beaver to review the Barenblatt v US decision since it will become part of Cheney's defense for not allowing inquiry/subpoenas into the OVP. One commenter above refers only to restricting the inquiries in what they legislate but the case also involves appropriations. Thus, this reference should not hold water since certainly Congress controls appropriations for the OVP.

[drational]

EW:
from Comey written response, leahy website:
http://www.leahy.senate.gov/press/200705/052507ComeyResponse.pdf

I posed question at balkinization, and lederman suggested the response was isolated to the events surrounding march 10, and that Goldsmith et al certainly had prior OLC opinion.

I am still not so sure though.

[drational]

EW, from the same document:

b. Why was the review started? Was the review started at the request of any individual
or entity? If so, who or what entity?
I believe it was started at the initiative of Jack Goldsmith and Patrick Philbin.

[Does this mean that if the review was started by Goldsmith, he for sure had access to prior Yoo memos?]

Did any individual or entity from outside DoJ participate in the review? Were there
any individuals from the White House, the Department of Defense (“DoD”), or other
federal agency who participated in the review? If so please identify those individuals
and/or entities?
I believe Goldsmith and Philbin coordinated their effort with lawyers in the
intelligence community.

[So the review did not include help from the WHO or OVP? What else was off limits?]

To me, this is a review initiated by lower-downs at the DOJ, perhaps without the clearance needed to get access to the full program. We know from Mueller's notes that there was a "Compartmentalization" problem for Ashcroft. I wonder whether these guys really had access to the Yoo memos? This might explain why they were reluctant to sign off on a program in which they did not know all the details....

[jackie]

I believe the company for the RNC was SmartTech (backup by Coptix). WARNING: We got badly burned when we got close to Coptix on the whole gwb43.com thing (I'll tell how, if you want) -- which I thought indicated we hit a nerve.'

I think we are getting really close to be able link so many things/people together that there is no where for them to go..

Re; 'Coptix on the whole gwb43.com thing (I'll tell how, if you want'
Yes please :)

[William Ockham]

I really have to object to the notion that this program operated illegally for a short period of time. The "program" was clearly illegal from its inception (apparently Oct 4 2001) at least until Jan 2007. It's probably still illegal and unconstitutional, but that's not entirely clear. I hate to see intelligent folks accepting the administration's idea that they (the administration) gets to decide when something is illegal.

[jackie]

opps, re; my comment above.
I was responding to lambert strether.
Sorry, left your name out....

[NC Dem]

"I really have to object to the notion that this program operated illegally for a short period of time. The "program" was clearly illegal from its inception (apparently Oct 4 2001) at least until Jan 2007"
by William Ockham

I agree but knowing the way the "program" was designed with 45 day re-authorizations by DOJ gives the administration a free pass unless you can "prove" illegal domestic wiretapping. Thus far, these arguments are working their way through the courts. The most recent arguments in the 9th Circuit Court is just one example. However, this window of operating the "program" without DOJ approval is clearly criminal whether we can prove domestic surveillance or not. It does not rely on this point to make the case for "high crimes" in the Senate.

[emptywheel]

drational

Thanks for the link.

Here's the context:

c. Did you or others at DoJ receive any response to these views from the White House? If so, please identify whether the responses were made orally, in writing, by electronic communication, or other means; and to whom and when was the response was made.

I directly received oral responses during discussions at the White House on March 9, 2004. I know there were a variety of discussions in early 2004 in which I did not participate but that involved Jack Goldsmith and Patrick Philbin.

d. Did the response include any legal opinion or memorandum from the White House, or any other federal agency related to the classified program? If so, please identify what individual(s) or entities prepared and reviewed the legal opinion or memorandum. I am not aware of any other such memorandum or legal opinion prior to March 10, 2004. Some time shortly after March 10, I received a memorandum from White House Counsel Gonzales.

So Comey is answering a very specific question, designed to elicit details about whether there are documents from the White House recording their objections to Comey's refusal to reauthorize the program.

Also note, Goldsmith was in no way a "lower-down." He was higher ranking than Yoo ever was--he replaced Yoo's boss, Jay Bybee.

The story--as reported publicly--was that OVP kept Ashcroft and Larry Thompson out of the review process along the way, which was successful so long as Yoo and Bybee were in place. When Goldsmith replaced Bybee, he effectively took over their opinions and saw that they were ridiculous. Since Goldsmith's tenure preceded Comey's, he was read into the program from the start, or nearly so.

I think what Ashcroft is objecting to is that his own deputies could not be read into the program (or not all of them on the whole program) so he was stuck trying to make an assessment on his old man's understanding of computers. Just from having been so actively involved in so many terrorist cases, I suspect Comey came in with a better understanding of the legal borders of wiretapping.

[bmaz]

WO - As you probably know, I agree with you completely on your statement; But I am doing pretty much the analysis NC Dem described by looking for holes even in their BS.

[drational]

EW
thanks for context and education....

[MarkH]

What's with Cheney's OVP "construes the subpoena" to demand documents related to the office's Executive duties and NOT it's Senatorial duties?

Isn't that pretty much like a Bush 'signing statement' where he construes the law to mean nothing?

"assisting in the facilitation of an accomodation that protects the constitutional interests of all concerned" is certainly a curious thing to say when 'We will deliver the documents you demand.' would be more to the point.

At this rate it won't be long until we'll be hearing those famous words, "it depends on what your definition of 'is' is".

[bmaz]

MarkH - I dunno. It actually is possible that they were semi-straight up here. There really is no reason to believe that there would be any relevant documents that would be produced or held in his capacity as President of the Senate. However, even if this is true, they do use this as a another opportunity to pimp their "Fourth Branch" BS. I am not sure this is the explanation by any means, but it is quite possible.