« Minimization, the Whitehouse Way | Main | Update on Gaming Intelligence to Justify War »

October 27, 2007


Will the legal eagles hanging around here, answer a question for me?

Does this statement that EW quoted above:

"or by the principal prosecuting attorney of any State or subdivision thereof

mean what I think it means? It seems to say that a State Attorney General has this authority, and further it seems to state any principal prosecuting attorney of let's say, the hamlet of East Goatf*ck, also has such authority.

Am I reading this wrong?

This is just the sort of thing they got away with when the Republicans were running the committee. It was one thing having to decipher these reports and turn over rocks looking for clues when Roberts was in charge. But now? I'm really disgusted (not with you, wheel, unless you ate, like, twelve pancakes, that would be sort of gross).

3 pancakes and 3 of our local butcher's sausages, all topped with the last of a bottle of our local syrup guy's maple syrup.

A note from Monica Goodling gets the telcoms, the DoJ, and the White House off the hook? Unbelievable, except that with these guys it is totally believable. I wonder if Jello Jay gets to see it - or a reasonable facsimile.

Nice work, emptywheel.

This begs the question, then. The telcos with their well informed lawyers must have sussed this out before they agreed to BushCo's requests. They had to know the WH approval was illegal. What's in it for them? even if and when a citizen journalist discovers and broadcasts the fact that they and the WH have acted illegally?

What's in it for them? By 2004, when they did this, Nacchio had already been fired and it was fairly clear DOJ was going after him.

What's in it for them? Like EW, I think it was carrots or sticks.

The Telco lawyers knew this was illegal. They weren't and aren't dummies. They decided to roll the dice.

Say "Yes" to Junya, Deadeye, "Add to Subtract" Addison and Fredo, you get the sweet payday of major US gubmint contracts.

Say "No" to 'em, you get the "wolf at the door" prosecutors.

Additionally, I'm sure the Telco lawyers predicated their play with the assumption that should they be "found out", they could "buy"...ahmmm...pardon me, "lobby" their pet Congresscritters to avoid any penalty.

The bottomline was "No risk and plenty to gain".

And we're watching the results of that right now.

The Committee has reviewed all of the relevant correspondence. The letters were provided to electronic communication service providers at regular intervals. All of the letters stated that the activities had been authorized by the President. All of the letters also stated that the activities had been determined to be lawful by the Attorney General, except for one letter that covered a period of less than sixty days. That letter, which like all the others stated that the activities had been authorized by the President, stated that the activities had been determined to be lawful by the Counsel to the President. [my emphasis]

Question Marcy:

In the bolded emphasis, was the Counsel to the President Gonzo or Harriet? I'm a little confused about which of them was counsel during the times in question.

Seems to me that this is likely the reason Harriet hasn't responded to the subpoena and this is likely the reason Gonzo has lawyered up, right?


The time we KNOW AG didn't approve of the program was March 2004. At that point Gonzales was still in the WH as Counsel and Harriet was still something else.

Why is the Senate working so hard to give George Bush immunity for violating the law? For example, for that sixty day period, only the president's personal lawyer - not the president (the vice president has no legal authority) - "authorized" Telcos to release reams of data to the government. That "authorization" was invalid. The president (or at least his staff) and the Telcos knew it, but continued to cooperate, expecting the president to clean up his administrative "glitch". Mr. Cheney is now trying to do that.

This is not a "glitch". It is actually the Constitution, the law and the DOJ working properly. The program in place prior to that sixty day period (and we only have Bush's word that it was changed and that those changes continue to apply) was so illegal that the top thirty or so officers in the Department of Justice refused to authorize it and threatened to resign. (Who knew about that then?)

That means that the Telcos may have a defense to liability for periods in which they had the correct authorization, and no defense for periods where they knew the "authorization" was invalid, the administration has no defense for its lawbreaking. Why does that scare the pants off the Senate? Is it simply a consequence of Cheney playing hardball, threatening to use his Hoover-like files to blackmail them all? Haven't a clue.

This elaborate game of hiding the legal sausage reminds me of the Dreyfus Affair. The government and French army's attitude was that they could do no wrong. When they did wrong in Dreyfus' case, and sent him to Devil's Island, the government and army denied and lied, denied and lied.

The French and international press finally did its job, thanks in part to Emile Zola and J'Accuse, which convinced the government to finally do its job and correct a manifest error. Dick Cheney considers that responsible course correction to be wimpy beyond bearing.

Who in the press will perform Zola's job today? Is it even possible to do? David Brooks certainly doesn't qualify. Neither does the traditional media, with few exceptions such as KO. IMHO, it is the nontraditional media, Marcy, Jane and Sid Blumenthal, Glenn Greenwald and Scott Horton, who are doing it. But there's a long way to go and a much bigger job to do.

The stick might be a reason for the telcos to be cooperative (not to mention the money to be made if not caught and prosecuted). As earlofhuffington asks, however, why is the Senate so cooperative?

Since it now appears that the selective prosecution of Nacchio was a teachable moment to the telcoms in 2004, it makes me wonder were any 2004 court cases providing teachable moments to would-be whistleblowers at the NSA?

For example, was the 2004 prosecution of ex-NSA computer specialist (and former WH secret service agent) Kenneth Ford such a lesson for NSA workers? I have no idea whether Ford even worked on telecos' eavesdropping of Americans or whether he was planning to blow the whistle, but his White House Secret Service ties and NSA job suggest he could have been aware of the program.

from http://www.wtopnews.com/index.php?nid=25&pid=0&sid=649981&page=1

"A one-time uniformed Secret Service agent at the White House, Ford worked as a computer scientist at NSA from 2001 to late 2003.

Upon leaving his job, Ford signed a termination agreement that ordered him to give up all secret records he had. But prosecutors claim that before Ford left, he pulled his pickup truck to the loading dock of his building, loaded it with classified documents, and drove off. Assistant U.S. Attorney David Salem described the documents in court as "computer documents for computer people."

Acting on Tucker's [Ford's girlfriend of 8 weeks] tip, FBI agents searched Ford's Waldorf home in early 2004 and found the boxes, including one that was labeled "Top Secret." During the search, Ford confessed to taking the records, although he later claimed he was pressured by the FBI to sign a statement.

Hecht [Ford's lawyer] said Ford met Tucker on the dating Web site Blackplanet.com. [Tucker] testified that she [Tucker] spent 2003 Christmas week with Ford at his home and saw two cardboard boxes in his kitchen. Tucker looked in one and saw the word "classified." In early January 2004, she called the NSA and FBI to report what she had seen."

Truly excellent post, EW. As you've demonstrated, this report proves that the telecoms acted unlawfully for at least a period of 60 days. If they don't get their immunity now, this report absolutely screws them over because it confirms, in an authoritative document, key facts that were not previously confirmed (at least to my knowledge).

"(7) Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that—"

Well, I would read this to indicate that the AG, DAG, and AAG, as well as ANY, AND ANY NUMBER OF, investigators and/or law enforcement officers they so designate are authorized persons for purposes of making the certification and, further, that the Attorney General of each state, and the county attorney for each county of each state, are also authorized persons for purposes of state action pursuant to state laws. The last part, staking out the authorization for state actors, seems somewhat like a fish out of water here. I am not saying that it is impossible to create a scenario where the inclusion of state and county authorities would be provident; but you have to strain a little and I am having a really hard figuring out why Cheney, Addington et.al. would want this language because it gives state authorities power on their own without it being piecemealed out by the Federal Executive, which is very unlike Big Dick.

Even if state as opposed to federal DAs could authorize the program, any state DA doing so would have to have the appropriate security clearances, right? This seems very unlikely.

After reading Ishmael's comment, it strikes me that I should clear up something I said. It is easy to see why the state authorities are included in the ambit of 18 USC 2518(7); that is the general wiretapping statute for all criminal investigations so you would expect there to be provisions for state action. Utilization of the general wiretapping provisions for purposes of the TSP seems somewhat inapposite here though, for the reasons stated. This is certainly one area that, if the Congress is determined to allow wholesale data collection in the name of national security, ought to be cleaned up and regulated by it's own statute, probably under Title 50 with FISA, instead of under the general criminal wiretapping contemplating individualized and particularized situations.

As kind of an explanation, this section and the historical interaction of all levels of law enforcement with telcos pursuant to it and it's predecessor, are exactly why I have been saying for a very long time that the telcos are not stupid and have a LOT of experience in this type of thing that most people seem to think is all new fangled from the post 9/11 Administration snooping program. They have been working this issue since the dawn of the communications era, and are VERY experienced and good at it; and I can relate a good portion of that from personal experience from criminal cases (and civil rights cases after a criminal case was completed). When the telcos have certification documents in their hand that are presumptively regular on their face, and they almost always do, when the action is validly challenged as to propriety, the telcos simply point the finger back at the governmental entity and demand indemnification and/or assumption of defense on the matter by the government. They have that same ability here; thus there is NO need for the immunity provisions being driven down our throats. This is complete BS and serves no purpose but to shield BushCo when they least deserve it.

They acted illegally more than 60 days.
They acted illegally and circumvented existing FISA law until January 2007.
Goldsmith told them the program was illegal in March 2004, and Comey, with Ashcroft's backing, refused to continue to allow DOJ to sign off on the illegal program. Instead, Gonzales signed off on the illegal program. This deliberately illegal period (where they had been told by the OLC and DOJ that the program was illegal) lasted for a period of "less than 60 days", then they apparently changed the program in some way to get the DOJ mutineers back on board.
They were illegal before March 10, 2004, flagrantly and knowingly illegal for 60 days thereafter, and probably illegal until they started using FISA again. Then FISA told them they were still illegal. So they had a tantrum and got congress to change the law. They are now trying to get immunity for the TelCos, but in reality, the immunity is for their sorry, illegal asses.

But make no mistake, the illegality was longer than the "less than 60 days".
TelCo immunity is essentially a sorry place to make a stand. It is jailing the hit men while the Don goes free. We need to go after the criminals who compelled the TelCos to collaborate with "presidential authorization". I hope that SJC will make a stand; the SSCI could just be a pass to let the matter get escalated in a more favorable venue. I have to believe that Whitehouse is playing smart. I have seen nothing else to suggest otherwise. Unfortunately, if it slips through SJC, immunity for everyone will likely be a done deal.

I've been wondering whether the notion of an ex post facto law is applicable to this retroactive immunity issue. Such laws are illegal since they allow for some act committed on day 1 to be made retroactivly illegal on thus prosecutable on day 2, and is manefestly unfair(even diabolical). Retroactive immunity works the opposite. An act committed on day 1, which is illegal and prosecutable is made retroactively legal and not prosecutable on day 2, the fact that the act was illegal when it was committed, notwithstanding. Your comment would be valued, as usual.

I do some work in this area. The correct interpretation of the provision is that state AGs and DAs (or the equivalent) can authorize surveillance, but only for things within their jurisdiction. (That is, a state AG can't invoke the provision for a suspected spy, since that's a federal offense.)

I have long thought that what happened here was that the requests were made to the classified divisions of the companies, probably from one guy who worked at NSA to another guy who used to work at NSA, and there was a bit of wink wink, nod nod between them. The classified divisions, as a rule, don't talk to the rest of the company about what the U.S. government buys from them, and I've always wondered if they operated under much oversight at all. (The top execs all are cleared, but that doesn't mean they ask a lot of questions.) It really wouldn't stun me if the first time the CEOs at AT&T and Verizon heard about this was when USA Today broke the story.

That said, the law is very clear on this issue - there are cases where people who were convicted of crimes successfully sued telecom companies for unauthorized surveillance - and I don't have any sympathy at all for either AT&T or Verizon. If they didn't have the institutional controls in place to prevent a violation of the law, that's their problem.

P.S. The ex post facto law prohibition generally is thought of as preventing penalties, not benefits. For instance, it's okay to pass a law that makes something that was a criminal violation no longer criminal. However, in those cases, there wasn't someone who lost something as a result of the law. That makes me wonder if those who lose the right to sue as a consequence of the law might have an ex post facto law claim.

RH Green - Pretty common question; unfortunately, the answer never is very satisfying. The ex post facto prohibition, along with the related prohibition of bills of attainder, is contained in both Section 9 (in general) and Section 10 (as to states) of Article 1 of the Constitution. Both provisions were included to prevent situations in which kings or other crown heads of governments simply enacted laws criminalizing previously legal behavior in order to punish and/or imprison opponents. So the prohibition, from the outset, has only ever been seen to apply against criminalizing legal behavior after the fact; and not applicable to the decriminalizing of previously criminal behavior. The provisions also have no particular applicability to civil matters. So, bottom line, no help to our situation.

randy-khan - Unfortunately, same answer as to RH Green; ex post facto will be of no help as the right to sue is a civil issue and not subject to the prohibition. As to your point on the interplay with state officials, from a practical and historical perspective, you are probably correct. My point is simply that the Bush Administration has taken a common, long standing criminal law provision and contorted it to cover their illicit program, which should be separate and distinct from the normal criminal provisions. Conflating the two creates issues. Now it is unlikely that a local county attorney is going to order foreign to foreign snooping, but arguably he could among other things. What really concerns me more though is the thought of state and local prosecutors ordering the large "drift net" type of collections the Bush Administration has clearly been doing. That is a scary thought; and by co-opting this language in the manner they have, I think the Administration has left that door at least somewhat open. And as I have said many times here, if the power to do something is available to law enforcement, they will use it, then abuse it, then exceed it; that is just a part of their DNA. As to the thought that the execs may not have been particularly in the loop; it would be easy enough to see that if it was normal criminal process at issue, but not there. Contracts related to the "Program" "TSP" whatever you want to call it, were not just legal issues, they were potentially huge revenue streams with political implications on a variety of areas including consolidation and conglomeration etc. From the reporting to date, it appears quite clear that the chief executives of all the companies were involved to a significant degree, and trust me, the general counsels would have demanded the same. At least in one case, the management saw the financial windfall potentials as a way to cover their unrelated illicit financial management decisions of their company. No way the critical upper management was too far out of the loop.

Cowed and Caving: The Democrats' Logo Forever

I think it's important, and I haven't seen EW address this directly, to underscore that State Secrets, the politics of redaction, and selective leaks are certainly not just a Republican MO. The democrats have been doing this consistently in the 109th and 110th Congress.

All of us are pretty interested and good at finding media sources. Some of you, particularly the ones who live in and around DC or used to, ya know who ya are--former US Attorneys in the DC area like Christy or former Congressional and Senate staffers who are attorneys are aren't but know all the kabuki dances around the cloakroom--how to avoid a hearing--how to avoid a markup, etc. etc.

What's struck me consistently is that I haven't gone down as many "dead end roads" since I was 16 and got my driver's license. Then I wanted to see where all the roads around my city led to, and I didn't have to ask anyone to do my exploring.

Every time I want to know what the hell is going on, I'm hit with a dead end sign that says "We'll discuss this in closed session." Nearly anything substantive is discussed in closed session. The Bushies of course selectively leak to the point of one big tautology, and the dems have done zip over diddly zip to stop them.

There's been a lot of ponderin' on Retroactive Immunity, and just as bad the enigma enshrounded in a mystery of SSCI's pathetic bill where it's left up to the AG to decide--not Congress--not the Courts whether there is any reason to call anything a violation--and baby not any AG you're ever going to see will--I don't give a damn who is in the white house (the Democrats went down faster than Pam Anderson in the back seat of a car after a high school football game and they always frigging do.

The government's arguments in the 9th Circuit State Secret cases against the Telcos has been pathetically stupid and one of the panel correctly invoked Alice in Wonderland at the last day of two oral arguments.

Again, again, the bottom line is I don't care who fillibusters and it's pathetic that it only seems to be Dodd--possibly Joe Biden willing to--but ya gotta have 60 votes to invoke cloture and with all the democratic defector sell outs the Administration has that as a slam dunk. This party's way over and the fat lady sang long ago.

Since as everyone knows, most of the switching and circuitry for any of these calls is located in the US I don't care what Mickey Mouse distinctions are made about calls overseas to and from yada yada and yada, your ass is tapped now and it's going to continue to be because your democrats have been completely cowed--completely runnover by the politics of fear. It is the one infrastructural mantra of the republicans. I see it constantly from the Bush administration, and I see it from Republicans on the local level.

The Rove email has gone out--use fear, fear and more fear. This weekend, in Georgia, in a case that caught national attention the Georgia Supreme Court freed a kid kept in prison 2 years serving a 10 year sentence for oral consensual sex. The Republicans in that legislature blocked retroactivity on a "Romeo and Juliet" change in the law that made oral sex in a country where the average age of first intercourse is about 14 a misdemeanor. They stupidly did not make the law retroactive for no good reason. but here's the one the Republicans gave then and yesterday. The Senate leader said "Everyone should be scared to death and more afraid than on Halloween that hundreds of sex predators would be roaming the streets now because of this opninion." This is an intentional lie on both the facts and the lawby an individual who lies nearly every time he opens his mouth. A handful of cases will be impacted where the consensual sex in minors 13-15 is "no more than 4 years difference in age." It has nothing to do with sexual predators.

But look what all the Republican fear mongers immediately invoked: "Hannibal Lecter is out there and he's gonna get ya because of a liberal decision."

It may be simplistic analysis but it's accurate. I would like to have anyone show me one good reason why this horrible Surveillance update is not a slam dunk done deal. It is because the Democrats will not lift a finger to meaningfully oppose it. Like lemmings, they can't wait to follow the Republican lead into the sea running from the bogey man.

Steny Hoyer, Pelosi, Schumer, Emanuel, the biggest cipher Specter, Feinstein who to me is Leiberman in frumpy drag, every one of them is cowed and caving. I'll repeat, if you want to characterize the Democrats in the House and the Senate they are cowed and caving at all times.

So here's what you can count on in the final analysis besides no sustained fillibuster on the Telco bill:

No significant resistance to the politics of fear pushed incessantly by the Republicans. It's working beautifully for them. They get whatever the hell they want.

The Democrats can't cave fast enough, quickly asking if they can "have another one."

In the category of the only things the Republicans don't continue to control for lack of a conviction in the Democrats (and a spine):

Pelosi will keep wearing the Tahitian pearls.

Feinstein who caves every minute and votes whatever the Republicans want will keep her feet of clay in Feragammos.

Pelosi has made a paradigm shift in public from Armani to Mizrahi, but still wears the several thousand buck Armani outfits out of the spotlight.

St. John Beltway uniform--on a downturn, but not as exponentially as the housing and mortgaging business.

The four day work week is back in with the blessing of the Democrats who want to corporate jet out of there on Wednesday and Thursday.

If you want to follow individual Committee or House and Senate votes, WaPo has this site:

Vote Database

Pete Pierce

Thank you for your honesty. As you say, the game is up. I waste so much of my precious time worrying about when honesty and true government will be returned to us that it sometimes makes me sick in the stomach, and certainly in my emotions. The answer is never. The system is broken, debauched, and is in its end state. All that remains is the long wake and the eventual funeral. In the meantime everything else we depend on for our wellbeing is like an old, broken down car that keeps getting worse and worse and worse until it too finally and completely collapses.


I fully agree that the companies acted illegally for more than 60 days. My point was that the Senate Report proves that they acted illegally for at least 60 days. For those 60 days, the companies relied on an obviously deficient certification of legality. The report should be admissible in a summary judgment motion.

1. Keep in mind that Judge Taylor, in one of the only rulings “on the facts” to date, held that at least one part of “the program” that she was briefed on violated the Fourth Amendment. Discussions of ex-post facto aside, a relevant question might be, “Can Congress legislate ‘color-of-law’ actions for Constitutional violations (Bivens) out of existence via statutory immunity” Congress and the telecoms seem to want to claim color of law as their mantle – they were acting under orders from the Attorney General and so should be “exempt” but that actually is the stepping stone to a Bivens action.

2. While normally ex post facto discussions wouldn’t be very applicable to an amnesty approach, the FISA legislation created not just a criminal aspect, but a civil cause of action and penalty. I don’t think there is any question but that criminal amnesty’s can be given, ex post facto (remember Carter letting the draft dodgers return to the US?) However, to the extent that the legislation is seeking to deprive litigants of a civil law right of recovery – ex post facto - and while those claims have been adversely impacted by actions to obstruct those lawsuits, then I think there are some interesting issues raised. I don’t think they are great arguments, but worth the shot arguments.

3. "(7) Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that—"

The “principal prosecuting attorney of any State” would be the State AG, but this carve out, along with the subdivisions, is only to the extent such a state AG or subdivision head is acting under a State statute and whatever rights it gives to engage in warrantless wiretaps (remember that some State’s allow one party to the conversation to give consent and there are lots of administrative aspects covered by subdivisions and allowing for things like taping of state government employee recordings at any time, etc). No right for a state AG or other officer to proceed under federal statutes there.

4. There is something very off about either what the committee is saying or Comey’s testimony (or both).

The Committee is acting as though “the program” renewals including a representation that would satisfy 18 U.S.C. § 2511(2)(a)(ii) and the posit here is that when Comey refused to sign off, there was no longer a qualifying document, for a period of around 60 days.

Comey’s testimony seems to be at odds with the Committee’s premise. He specifically testified that what he was being asked to sign off on was not a document that was needed for or being issued in compliance with any statute. There is no way, with the telecom issues, that he would have just “blanked” on this imo.

Here’s the exchange:

SPECTER: Was the program reauthorized without the requisite certification by the attorney general or acting attorney general?


SPECTER: So it went forward illegally.

COMEY: Well, that's a complicated question. It went forward without certification from the Department of Justice as to its legality.

SPECTER: But the certification by the Department of Justice as to legality was indispensable as a matter of law for the program to go forward, correct?

COMEY: I believed so.

SPECTER: Then it was going forward illegally.

COMEY: Well, the only reason I hesitate is that I'm no presidential scholar.
But if a determination was made by the head of the executive branch that some conduct was appropriate, that determination -- and lawful -- that determination was binding upon me, even though I was the acting attorney general, as I understand the law.

The point that I'm trying to determine here is that it was going forward even though it was illegal.

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.

SPECTER: Well, Mr. Comey, on a matter of this importance, didn't you feel it necessary to find out if there was a statute which required your certification or a regulation which required your certification or something more than just a custom?

COMEY: Yes, Senator. And I...

SPECTER: Did you make that determination?

COMEY: Yes, and I may have understated my knowledge. I'm quite certain that there wasn't a statute or regulation that required it, but that it was the way in which this matter had operated since the beginning.

Ok, I’m not the biggest Comey fan around, but I do think he was trying to be forthright and relatively forthcoming at the hearing and I also think he’s not an idiot. And despite the elbows he takes, Specter isn’t an idiot. IMO, this was some of the most important questioning they had, given the telecom statutes and telecom issues.

Something’s very rotten.

I wanted to leave some helpful links for the curious. One is a CDT-EFF amici brief in the 2006 TX case regarding the controversy in the narrow domain of post cut-through dialed digits; as usual with a thorough court brief, much value is available in the elaborated case history and footnoting. Another time machine glimpse is a cameo interchange among principals including Sen.Leahy and Gperson agency leader Freeh in 1994 there, in a composite hearing of both chambers' telco oversight committees.

Mary - Little question as to the answer on your Number 1. The sovereign is immune, and can only be sued upon it's allowance of that right; since the sovereign can only be reached by statutory permission, there is absolutely no bar to removal of the same. Although, if "color of law" is the entry point on this argument, we might want to consider any variances under Sections 1983 and 1985 as well, since they contemplate action under color of law. If, however, you research the history of Bivens claims, the FTCA etc., sovereign immunity unless exception is affirmatively granted is the foundation you come up with. If you got something that changes that, I sure wish I had it about ten years ago.....

Most unfortunately, I see the same problem with Number 2. The parameters of ex post facto as applying to only criminal and not civil issues and recoveries, have been rather consistent since the early decision in Calder v. Bull. Personally, I agree with the thought that the principle ought to apply to civil as well as criminal matters. Laws and regulations are meant to give a society and it's actors a stable and predicable platform within which to conduct their lives and businesses; when the law can be changed after the fact, the predictability is removed, often in an unfair or arbitrary manner. Put another way, the historical basis for ex post facto is that no man should be later deprived of his liberty for conduct that was legal at the time; to do so would constitute an unjust taking from him. although the right involved is somewhat attenuated from the right to liberty, how is the taking of civil rights any less egregious as a matter of principle? Well, it turns out the law firm of Mary, bmaz et. al is not as crazy as you might would think. The authors of the Federalist Papers appear to have contemplated the ex post facto principle to flow to both civil and criminal concerns; as James Madison noted in Federalist No. 44:

Bills of attainder, ex-post facto laws, and laws impairing the obligation of contracts are contrary to the first principles of the social compact, and to every principle of sound legislation.... [T]he sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more industrious and less informed parts of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measure, inspire a general prudence and industry, and give a regular course to the business of society.

The references to "prudence and industry'' and giving a "regular course to the business of society'' suggest that the constitutional prohibition against ex post facto laws should be seen as applying to both civil and criminal laws because of public policy reasons. In Federalist No. 84, Madison also refers, separately, to criminal laws:

The establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of titles of nobility, to which we have no corresponding provision in our Constitution, are perhaps greater security to liberty and republicanism than any it contains. The creation of crimes after the commission of the fact, or ... the subjecting of men to punishment for things which, when they were done, were breaches of no law ... have been, in all ages, the favorite and most formidable instruments of tyranny.

Taken together, these passages strongly suggest that the authors of the Federalist Papers intended the prohibition against ex post facto laws to apply to both civil and criminal laws. I'll bet Scalia, Roberts and Scalito will be having none of this original intent anytime soon....

As to your Number 3, I agree on the parameters of state actors; it is still lame to have such an important concept refer to collateral provisions with superfluous language.

On Number 4, I agree completely, I have had a hard time with that statement by Comey since the second he made it. I also agree with the thought that, irrespective of the ultimate opinion on Comey, I don't believe he was trying to be dishonest or unduly cover for the Administration during that committee hearing. I almost wonder if he wasn't engaging in some unintentional inner self preservation of ego here. By this, I mean there was the story of how he and a bunch of others almost walked out in unison over the illegality of the program. But they didn't. In spite of the fact that they knew Bush was continuing on his merry way without the signature from them. How can they intellectually justify not leaving over that fact alone, absent some way of rationalizing a legal basis behind Bush continuing? So they must have conjured up some rationalization, and I am going to guess that the hook they are hanging their hat on here is nothing more than the AUMF + Commander in Chief War Time Powers nonsense. Now, I don't accept that argument, but it is the best I can come up with that they might be using.

Mary, I am coming back to your attempt to fashion some sort of argument in response to the anticipated retroactive immunity application because, one, I agree with you that it sucks; and, two, it is a pretty interesting exercise. As I said above, "Laws and regulations are meant to give a society and it's actors a stable and predicable platform within which to conduct their lives and businesses." In this regard, laws are a form of a social compact/contract between a government and it's people, and in between the people themselves. People rely on these guidelines; often to their detriment. In this regard, I offer that there are undoubtedly some (although probably not a lot) people who based their choice of communications carriers based upon the concept of how well they treated privacy; and, indeed, may have only engaged in use of telcos etc at all only because there were known laws and penalties against them if the customer's privacy was not protected. Retroactive immunity has invaded the province of that "contract". (Heh heh could there be some kind of bastardized "Contracts Clause" argument too?)

But this little hypothetical need not rely on something so etherial and, well, hypothetical, as the invasion of the contract alone. What about those citizens and entities that have already availed themselves of the court system in these cases that would be putatively wiped out by retroactive immunity? Now you are talking about taking not just a right that could be exercised, but a right that HAS BEEN exercised. These plaintiffs have relied, in a big way, and to their heavy detriment, on this right and their ability to exercise it. They and their attorneys have been in court for a long time, some years, and there have been thousands, if not hundreds of thousands, of dollars expended in costs; and hundreds of thousands, if not millions, of dollars of attorney fees accumulated. If their causes of action are wiped out, who will pay for this? This constitutes an "unjust taking". That does not even yet include the moneys that they were entitled to collect as damages. Conceptually, how does this intellectually differ from governmental seizure of property without compensation? Sure seems that you could at least fashion an argument based on the 5th and 14th Amendments like utilized in condemnations cases.

My next not so brilliant idea is that, assuming they slam through the immunity provisions, maybe the existing plaintiffs and other aggrieved individuals could initiate a "Tucker Act" claim under 28 USC 1491, which gives the Court of Federal Claims jurisdiction to render judgment on any express or implied contract claim against the United States. I guess there would be a couple of ways to bootstrap into this claim, neither of which are overly promising, but what the heck, this is for fun anyway. First, you could argue that by invading the contracts, and legal framework they were entered into between the customer/plaintiffs and the telco/defendants, the government has, by implication, agreed to assume, and stand in, the shoes of the telcos and must therefore honor the claim. Secondly, you could claim that the legal framework in existence, and the public statements of the Administration that their actions were all legal and above board, were an implied social contract with the citizenry that the US has violated by the wrongful intervention of immunity.

All of the above is pretty dubious and out there. What does appear clear to me though, is that imposition of retroactive immunity is absolutely an unjust taking under the circumstances, and a huge one at that for the existing plaintiffs.

So here we have telcos and rethugs pushing for immunity, but from what? Will someone please tell me why congress doesn't pull a few of these cats in for questioning in exchange for immunity. I suppose the executive would block that under state secrets.

Which brings us back to impeachment. Right? At this point it's abundantly clear that the law was broken. Is no one interested in enforcing the law? This just continues to boggle my mind. Government really is very broken at the moment. Where's the path back.

That's what I want to know. Government is broken. Our dems are complicent. Where's the path back? I think our focus on procecution, and pursuit of justice and accountability has become a waste of time. We've got to look for a path back to where the mechanisms for the pursuit of justice and accountability are even in place! Some one tell me what's the path? It's hard to have a trial when the courthouse is gone.

Mary and bmaz, what do you mean by "color of law"? I followed the rest of your discussion, but that's a term I have not run across before...

Dismayed - I have the same frustrations every hour of every day. Government is broken right now. I disagree that any of the mechanisms are gone though; they are there, just un-utilized, under-utilized or misused. The path back, and really the only path back is us, the people, as a collective. A social awakening to our history, our foundation, what the principles stand for and why, and how the actions of the past 25 or so years, but especially the last 7 years, have lessened our standing and value as a country and as a people. You have to want good government, and be willing to sacrifice and work for it; americans have come to be deluded with self perfection and that the social fabric of our society comes not only free, but with a tax cut. That is not the case.

Phred - "Color of Law" is simply a term of art in the legal field that means the appearance or presumption of legal authority. For instance, a police officer may, in his duties, commit an act that is illegal; but he is presumed to be acting under the "color of law" because he is a lawfully appointed peace officer.

Dismayed, I share your frustration, but I don't think our focus on the rule of law and pursuit of justice is a waste of time. I think a lot of Americans believe, as I did once, that there are laws in place already that we can use to address pretty much anything that comes down the pike. Clearly, this is wrong. There are massive loopholes that people in power manipulate to their advantage. Such people have the further advantage that the rest of us are clueless about what they are doing and have done.

I can certainly talk a lot more intelligently about how the administration and Congress are abusing their power than I could in the past. The usefulness of that is first I can let my friends and family know what I have learned (and point them in the direction of particularly helpful blogs). And second, it makes it a lot easier to put politicians on the spot. Ultimately our elected representatives are answerable to us at the ballot box.

In my experience, Americans care deeply about our rule of law. We pride ourselves on it. Honest people may disagree on policy, but you rarely will run into anyone who thinks the separation of powers is a bad thing. It is equally rare to find someone who thinks the laws ought not to apply to powerful people. Hammering home the illegality of Bush's conduct (and even Pelosi's rewriting of the Constitution that removes the impeachment clauses) seems to me to be the best approach to use in unseating ALL incumbents who treat the laws as if they only applied to us little people. The more we know, the better we can make that argument. Congress has let us down. Now it is our turn, We the People, to restore the rule of law at the ballot box and in the courts. For the latter, I must depend on the guidance of our lawyer friends here to fill us in on how exactly the latter might proceed.

You asked someone to show you what path we can take. I don't know, but the only path I see is the arduous one of informing ourselves and everyone else as best we can and try to wrest control of our country back from those who are working so hard to take it from us.

Thanks for the definition bmaz -- I appreciate it! And, uh, 1-0 :) Boy am I glad I am lousy at making predictions ;)

bmaz, could 'privacy' itself be construed as 'property'? That is to say, Property was very important to the founders of the constitutions becauase property is the way to separate public space from private space where the government cannot intrude. Property is mentioned several times in the constiution. I do not think it been narrowly defined, has it?

Are the telcos (and the government by extension) responsible for the loss of property in allowing peoples' privacy to be taken?

(Or would the Supreme Court argue, like in Munn v. Illinois (1877) that this is a case where the answer between the privacy of an individual and the right of the society to be protected has to be decided by the legislature? --even when the 'individual' privacy in the case includes the ENTIRE society?

The entire society's privacy vs. the entire society's right to protection--I don't think today's situation has ever come up before.

Maybe it is time to bring back Lochner!? ;-) (again IANAL, but I would hope that the US Supreme Court realizes that the War President got to be a war president in 2001 because of neglect of duties at the very least. What was that again, Condi? No one would have predicted?????)

On a similar rant: I was annoyed listening to John Yoo this weekend on CSPAN.
He was on some panel about privacy in the war on terror (a rebroadcast of a Sept 2007 panel at William and Mary or William College Law School, sorry I forget).

All Yoo could talk about over and over was 'the powers of the the President in war time'--conveniently omitting the fact that wartime occured because of Bush's negligence. Remember, after the 2000 election Richard Clarke talked till his was blue in the face to Bush, Rice, Cheney to get some action at the Principals' level to address the threat of Al Qaeda. He was unsuccessful at moving anyone in the Bush Administration to action until just before 9/11.

Yoo also made a snide remark that the US Supreme Court seems to think itself above the other branches of goverment choosing for itself the role of Constitutional review (which as we know has been the case traditionally since Marbury v. Madison (1803). Yoo made a stupid comment that if the US Supreme Court thinks it can do a better job coming up with rules for Guantanamo detainess then let it try, but HE would not trust the US Supreme Court to make those rules. Give me a break. I think Ms. Greenhouse (NY Times legal reporter) and fellow panel member made the excellent comment that this is a false dichotomy. There is a whole spectrum between having the scenarios of having Executive branch make these determinations OR the US Supreme Court. Why not have the Executive branch make choices that are within the law? including Habeus corpus?, etc?

pdaly - Tough question; it would be an uphill battle that is for sure. In the first place, it would be against the tide of thought for a long time now; secondly, the Republicans and conservatives have a real bug up their butts over "privacy issues". You might as well just say "abortion" because they consider the two synonymous ever since Griswold v. Connecticut; although most of their venom is misdirected and illogical even if you were to assume that there was indeed a flaw in the Griswold ruling. so, there would be a lot of impetus to overcome.

The concept is not unheard of though; For example, in his opinion in Boyd v. United States (1886), a search and seizure case involving a businessman, Justice Joseph Bradley wrote that the constitutional guarantees securing people in their persons, houses, papers, and effects transcend the concrete case and "apply to all invasions on the part of government and its employes of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging in his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property."

Bottom line is that this is, unfortunately, probably a hypothetical consideration at best. I agree wholeheartedly with Mary that this issue should be fought vigorously, even if immunity is passed, especially by the existing plaintiffs; they will lose an awful lot financially in addition to their privacy.

Driveby -

bmaz - item #2 was just some meandering and I defer to you on whether or not ex post facto has any appliation to civil recovery for a concommitant criminal wrong. It seems to me that the holder of a right to collect a penalty would have some kind of property right, of which they are being dispossed, but heck if I know - not my area, no research and a shoot from the hip. I'll have to go back and re-read your posts when I have more time but it would be nice to be able to craft something. Since it is in the nature of liquidated damages, if the invasion of right has already occured and damages are set by law, it's a hard thing to buy that the law can take away the right to collect those damages without any compensation to those deprived. But it's just not your usual circumstance, is it? I mean, I think those penalties are of the kind that might not even be dischargeable in bankruptcy - but Congress can snuff them?

I'm not sure I follow you re: #1 and the need to find an additional waiver of sovereign immunity beyond stating a Bivens claim. Mine post was a quickie (I mostly wanted to get to the Comey testimony) jotted down things that took my eye as I went through the comments, but my understanding of a Bivens action is not that you would need some other statutory basis for waiver of immunity - ? I haven't looked for a long time, but 1983 actions only apply to state actors, don't they? In any event, I think it would be a reach to try to fashion a qualifying Bivens claim against the telecoms, i.e., to go after the telecoms as agents of the Federal gov, violating the Fourth Amendment under color of an authorization from the Atty General or "Counsel to the President." Still, I think if you get that framed, the whole point of Bivens is that no other waiver is required to get past sovereign immunity vis a vis the individuals coattailing on that immunity. A violation of the Constitution of the kind that would truly sound in a Bivens claim being ultra vires enough with the Constitution as the trumping mechanism that you don't need more (provided you hit all the requirements of Bivens). If you've got a different take, I won't say you're wrong bc I haven't researched it.

On Comey's testimony (which was mostly what I wanted to point out) - something has to be going on. I'm sure he knew exactly what Specter was getting at - after all, it has to have been a big item of discussion while he was there, as well as after he left what was in the papers. It makes no sense that he says there was no statute involved - but I don't try to figure out the labyrinth of tortured mind and morals that it takes for someone to have be a "top Justice official" for the Bush administration.

At a minimum, Leahy and Specter need to follow up with him (and/or Goldsmith or Philbin) in a closed session, now that they have both been "cleared" for reading about "teh program".

[[phred - what bmaz said on color of law - someone holding themselves as acting a law enforcement official when they act. ]]

Mary - I too will have to return to make more considered answers (dinner awaits), but as to your Number 1, I made what was thought to be an articulate answer to this question “Can Congress legislate ‘color-of-law’ actions for Constitutional violations (Bivens) out of existence via statutory immunity”. In retrospect, answer was not so articulate. Shorter bmaz: Yep, from everything I know, they can indeed do just that. Hope I am wrong on that ....

thanks, bmaz. Your thoughts and Mary's are instructive (and also somewhat over my head), and I appreciate your time to instruct us.

I just started teaching myself the history of constitutional law this weekend, and, as you can see, I still have 2 centuries to go. :)

Since the Founders were regrouping after removing a crazy unitary executive from their own lives, I figure concentrating on their 18th century concepts might be more instructive for us today, than judicial thought in subsequent kinder/gentler times of our history such as 7 years ago.

Is the idea of corporations as persons really sacrosanct? If yes and our future is to be dominated by megacorporations, it would be nice if they were not immortal, able to outlive us all to become our grandchildren's de facto government.
As a society why not agree that corporations be designated a limited lifespan like in the old days of corporations?
Making them mortal wouldn't prevent all our woes, of course. There should still be oversight (and no colluding with US Presidential candidates and ex-Presidents). We shouldn't have to wait for a mushroom cloud (oh, um I mean an Enron-style meltdown of a megacorporation in a pyramid scheme) for the next time to jump to action to save the lives and pensions of the American citizen.

Mary and bmaz;

I agree that the Comey testimony is most important.
bmaz you note that:

I almost wonder if he wasn't engaging in some unintentional inner self preservation of ego here. By this, I mean there was the story of how he and a bunch of others almost walked out in unison over the illegality of the program. But they didn't. In spite of the fact that they knew Bush was continuing on his merry way without the signature from them. How can they intellectually justify not leaving over that fact alone, absent some way of rationalizing a legal basis behind Bush continuing? So they must have conjured up some rationalization, and I am going to guess that the hook they are hanging their hat on here is nothing more than the AUMF + Commander in Chief War Time Powers nonsense.

I have to disagree here. After reading Jack Goldsmith's book, it is pretty clear that the nonsense justification (of TSP, torture, tribunals) is a big part of what Comey, Goldsmith et al opposed, and was largely the basis for the resignation crisis. I am sure that new-found acceptance of Article II + AUMF was not what kept them from resigning. So what was it?

From Comey SJC:

In the early part of 2004, the Department of Justice was engaged -- the Office of Legal Counsel, under my supervision -- in a reevaluation both factually and legally of a particular classified program.

So they were also looking at what the program was actually doing (Think Minimization).

And a week before that March 11th deadline, I had a private meeting with the attorney general for an hour, just the two of us, and I laid out for him what we had learned and what our analysis was in this particular matter.

So something about the review was troubling. Domestic targets? What was happening to Domestic targets?

SCHUMER: (inaudible) You thought something was wrong with how it was being operated or administered or overseen.

COMEY: We had -- yes. We had concerns as to our ability to certify its legality, which was our obligation for the program to be renewed.

OK. Schumer likely knows more about Comey's problem with the program- he is leading Comey through the testimony. Comey does not directly endorse Schumer's lead, but it sure sounds like the legality issue is in how the program was in fact being run....

So then Schumer gets Comey to describe how the issue gets resolved:

COMEY: We had the briefing [With Bush over the revolt]. And as I was leaving, the president asked to speak to me, took me in his study and we had a one-on-one meeting for about 15 minutes -- again, which I will not go into the substance of. It was a very full exchange. And at the end of that meeting, at my urging, he met with Director Mueller, who was waiting for me downstairs.

He met with Director Mueller again privately, just the two of them. And then after those two sessions, we had his direction to do the right thing, to do what we...

SCHUMER: Had the president's direction to do the right thing?

COMEY: We had the president's direction to do what we believed, what the Justice Department believed was necessary to put this matter on a footing where we could certify to its legality.

And so we then set out to do that. And we did that.

So whatever it was that got Comey not to resign, it had the President's blessing, and it was apparently something that could be done within the walls of the DOJ (and FBI?). And it apparently was done.

So what could it have been?

1. Get a specific law on the books to permit the activity- NO. We know this was not done til 8/07.

2. Do a proper legal analysis; perhaps the problem was that the existing OLC opinion was flawed, and Goldsmith wanted to redo it but he and his deputies were restricted from doing so, or were prevented from having full access to the details of the program for proper analysis. I would imagine that Addington/Cheney resisted new analysis because they already had what they wanted and by then knew Goldsmith was a bean-counter who might pull the rug out from under them. So maybe the President's directive was a go-ahead to re-analyze or for decompartmentalization and disclosure so OLC could "find the legal footing". But this means that within 60 days (the time until DOJ came back to supporting the program), they found some rationale to circumvent FISA outside the Article II and AUMF justification (unlikely)

3. Change the program to remove 4th amendment issues for American Citizens. This might be stopping acquisition of communications of Americans on American soil, or going through FISA to get further warrant for surveillance when an NSA search identified an American target. Perhaps. Goldsmith et al were all in for "fighting terror". They just wanted to be sure they would not be charged with crimes when the next administration or congressional investigations wanted to know why their terrorism cases all melted away.

Along these lines, it seems certain that the original problem was FBI involvement in domestic investigations that were initiated with the NSA program. FBI would have been building cases that all started with warrantless information from the secret program. It seems certain that the NSA work was generating domestic targets, and Goldsmith et al knew that FISA should govern this activity. I wonder if FBI was 1) pissed about following numerous bogus leads, and 2) getting panicky that the warrantless NSA work that identified the targets was inadmissable and would ruin later prosecutions.

I don't know what the solution was that kept Comey et al on board, but it was resolved within 60 days, as there was AG signature thereafter.
It was not new law.
It seems likely that the solution was an agreement not to use the NSA program as a basis to initiate domestic investigation unless FISA court was involved.

Alternative Hypothesis

When we think about the fact that Mueller, Comey, Goldsmith, and perhaps even Ashcroft were prepared to resign from government over the Program, it seems unlikely that it was over data-mining without a warrant.

Here is another consideration: I am wondering if the programmatic issues for Goldsmith et al was not a 4th amendment issue after all. Could it be that the issue was not actually over the acquisitions, but rather what happens to the target after they are identified? I have always been perplexed as to why FBI director Mueller was so deeply invested in this issue. Perhaps the Program was being used in some domestic cases to classify people as enemy combatants, allowing extraordinary interrogation measures....

Let's consider something else that was happening in the same time frame. Look at the stand the LA Times reports Mueller took on torture interrogations:

[FBI agents] said Mueller pulled many of the agents back from playing even a supporting role in the interrogations to avoid exposing them to legal jeopardy, in the belief that White House and Justice Department opinions authorizing the coercive techniques might be overturned.

"Those guys were using techniques that we didn't even want to be in the room for," one senior federal law enforcement official said. "The CIA determined they were going to torture people, and we made the decision not to be involved."

Now look back at
Mueller's notes, in the days after the standoff, Mueller meets numerous times with Comey, but also discusses issues with CIA's Tenet. Could this indicate a turf issue for Mueller? Most of the TSP legwork was likely foreign CIA business, but when it ended up on domestic soil, the FBI should have been called in. Did CIA remain involved in domestic legwork? Could the FBI have been compelled under the program to help "acquire" "good" domestic targets that were turned over to the CIA for secret rendition or aggressive interrogation? FBI-style criminal case-building would likely be tainted if CIA was involved in domestic investigations.

Perhaps the programmatic change that got Mueller and the DOJ mutineers back on board was to make the FBI the exclusive authority for dealing with domestic targets, or to ensure that domestic targets of the program were headed for criminal investigations rather than suspension of constitutional rights as an enemy combatant...?


It's been reported that there were two OLC opinions relevant to the NSA program, one written in 2001 by John Yoo and the other in 2004 by Jack Goldsmith. It's also been reported that the AUMF-based legal justification for the program was not a part of the original legal analysis. And in 2005, after he left the OLC, Goldsmith published a massive Harvard Law Review article arguing that the AUMF authorized all sorts of things. He was clearly drawing upon research he did while at the OLC.

Putting this all together, it seems very likely that part of what happened in 2004 was that the OLC, under Jack Goldsmith, issued a new opinion authorizing a scaled-back version of the program that was based on the AUMF authorization, not John Yoo's crazy reading of Article II. They likely scaled the program back to tailor it to their new legal argument. Because it was now tied to the AUMF, it could only involve al Qaeda, not terrorism or national security generally. They likely insisted on various procedural changes as well.

That's my theory at least. Based on what I've read, I don't believe the FBI was ever involved in the surveillance aspect of the program, even pre-2004.

Didn't the Goldsmith Law review focus more on Habeas and tribunals and note significant difficulty with labeling people enemy combatants who were 1) not in uniform, and 2) not in a field of battle (especially if located on American soil?

As to this:

I don't believe the FBI was ever involved in the surveillance aspect of the program, even pre-2004

I go back to Comey Testimony and Mueller Notes:

So I hung up the phone, immediately called my chief of staff, told him to get as many of my people as possible to the hospital immediately. I hung up, called Director Mueller and -- with whom I'd been discussing this particular matter and had been a great help to me over that week -- and told him what was happening. He said, "I'll meet you at the hospital right now."

On 3/9/04, per Mueller notes, he met with Top FBI lawyers: Fedarcyk, Pistole, Caproni (and perhaps Wainstein and Gebhardt)

So it seems FBI was intricately involved in the Program, and Comey testimony cites that FBI director Mueller was prepared to resign with the others. I can't imagine that issues with the FBI were not central to the legality issue....

bmaz - we may not be talking about the same things on immunity. I would agree that Congress can give statutory immunity for violation of their statute - the FISA and telecom act provisions. However, to the extent the claim rests on violations of 4th Amendment grounds (and the telecoms move it there themsleves by saying they were acting in accord with a Federal program under AG authorizations) then I do not believe that Congress can pass legislation conferring on Federal or State actors immunity for violations of the 4th Amendment. I think that was the heart of Bivens - agents claimed immunity but, even with no statutory waiver of immunity, they were not immune bc the nature of the violation was Constitutional. There are some high threshholds on mens rea etc. that are set, but I think the whole point of the Constitution is that it can only be changed in the manner set forth in the document (well, that and expansive or restrictive court interpretations - left for another day) But the 4th Amendment can't be repealed legislative as against Federal actors by a blanket grant of immunity - imo, fwiw.

drational - the program that Judge Taylor reviewed was the "post-Goldsmith, post-Comey" program. That's the one she said on the law violated the 4th Amendment. Also, the treatment Jose Padilla was receiving, as well as other legal US residents, continued after the showdown and not only that, but a couple of months later a Pentagon report based on a Gen's investigation is issued (conveniently after the Clement oral argument) that says the treatments being visited on Padialla and the other So. Car. brig detainee violate the Geneva Conventions, listing some and some were apparently bad enough and "classified" to cover up wrongdoing enough that they are not referred to specifically. It was, btw, a month after this report came out and after Comey put together a 'team' to review the info on Padilla, that he held his press conf and claimed all was goodness and light and wasn't GWB a heckuva guy?

I have said all along I thought that a big part of the problem was the factual application of what was being done - I think this is what got the FISA court so crosswise with them at the time. Personally, I'm still waiting for anyone to flat out ask the FISA chief judges if anyone at DOJ has violated orders or directives the FISA court has/had put into place.

Still, no matter how you spin it out to discuss what Goldsmith or Comey did or didn't want done to the program, that is a separate and apart question from the question of whether or not what was being signed off on was being tendered as the statutory AG certification to meet the safe harbor requirement. If it was, Comey has to have realized that and couldn't really say that it was not, but maybe the document that generated the problems that night was not the certification, although perhaps as a result of that night the certifications that would also have been given were withheld. That's a very parsed approach which I would have thought Comey wasn't taking at that hearing, but maybe I was overly optimistic on what could or could not be relied upon fromt hat hearing. Parsing IS what they all do, over and over. It's certainly what he did in the same kind of smiling, ingratiating way during his Nifong moments. So there you go I guess - easy answer is that the particular document from that night wasn't the certification, but certifications were also held up as 'teh program' got re-worked. Evasionary answers to the committee, with later insulation of telecoms-Hayden-Bush-NSA operatives-DOJ conspirators --- all in one swellfoop. If that's not it, and if there were not really safe harbor certification being given through the revolt point, then the people who do know anything different are all sitting back and staying mum while the fraud is perpetrated.

And on the "state secrets" front, it's ridiculous to say that the telecoms can't defend themselves when a) none of them have filed any OBJECTION to the invocation of state secrets, and b) there is no conceivable state secret involved in providing an answer that they received either the warrant or the AG's certification as required by statute in every instance of compliance under the statute (which would meet the statutory safe harbor issues, even if compliance when applied to the facts was so unreasonable as to still constitute a 4th Amendment problem). Of course, the bigger "secret" may have been, not the "state secrets" of methods and sources, but rather the fact that, even under a best case scenario, even the statutory safe harbor was not met for a period of time.

Responding to the question: did you always operate with either a warrant or an AGs certification - could in no way, shape or form be deemed to be a state secret. They just didn't want to do it. Until now, when they get immunity for confessing they broke the law.

I also think it is very questionable whether anyone could claim the telecom statute contemplated a "blanket" AG authorization - one good for any kind of interceptions during a 45 day period of time - and I have to wonder if they issued specific certifications with each underlying request to the telecoms, during the certified period of time. Which might also be what Comey was getting at - the order "certified" teh program, but there were supposed to be other direct certifications from the AG for each warrantless request made upon the telecoms (those were the ones required by statute - and the 'reason' the AG could give them was this overall certification of 'teh program' which did not have any statutory basis). It may be the factual review showed that the telecoms were giving info not based on separate AG certifications for each request. Which, with data mining, would make sense. Certainly, the statute doesn't indicate any contemplation of "blanket" requests, warrants or authoriztions. Off the cuff, fwiw.

pdaly - corporate "personhood" is something that imo gets whipping boy treatment by those who don't really understand the overall impact of this type of "separate entity" treatment for businesses. In particular, there is a lot of sabre rattling that it is the underpinning for all kinds of evils that would not exist without it. It is actually a long an complex subject, but if it is not "sacrosanct" (and nothing is imo) it is such a foundational support that many things you wouldn't begin to tie together collapse with any other approach.

What is not so foundational (although still very fundamental) is the concept of limited liability. Such a concept did not exist at common law, where partnerships were given separate entity status but such status did not relieve partners from liability - and still does not). Many countries that have followed common and civil laws entity fictions for hundreds of years have never adopted the concept of limited liability to the extent the US has - many years back when I was doing big firm work I had to sit down some guys who were being asked to be on the board of a foreign entity and explain to them that in that country, if the entity went into bankruptcy, the directors could and likely would get jail sentences, something to factor in with that entity in particular.

Since limited liability is a statutory creature, and not one born of the Constitution or common law, it can indeed be whittled away at in a way that could definitely make corporations - their owners, directors and officers - much more responsive to law and societal considerations. Again a fwiw, but I don't get all that taken by the cries that we need to undo separate entity status , something that goes back tot he beginning of the common law and would put us opposed to every other modern or industrialized country and would have ripples for international capitalization that could pretty much crater our economy. The 14th amendment wasn't really an evil with unforseen problems, imo, and the free speech and other issues would have evolved as a matter of interstate commerce even without the lever of the 14th - all premised on the original underlying common law principals.

Mary - I think we are talking about the same thing, but in different lights. You state "I do not believe that Congress can pass legislation conferring on Federal or State actors immunity for violations of the 4th Amendment." Irrespective of the truth of that statement, the fact is that there is no remedy for a violation of the 4th Amendment of this type absent a statutory provision for the same. There are two reasons for this: one, there is no remedy in the document; and, two, under sovereign immunity, there is no right to redress unless specifically permitted by the sovereign (Federal Government). So, if the statutory scheme is altered such that there is no action available in these cases, which is what is proposed, it really does confer "on Federal or State actors immunity for violations of the 4th Amendment". Now, in light of Bivens, the FTCA etc., there may need to be additional legislative tweaking to fully accomplish the deed, but my point is that if Congress really wants to do it, I see no bar to them accomplishing the goal. It may not technically be "immunity" per se, but if there exist no right of redress, what is the difference? I hope this explains what I am trying to say better. Not sure I am correct, but I think so.

As to the telco general wiretapping statute, not only are blanket warrants not contemplated, they have been ruled unconstitutional under the statute before.

On the corporate personage, I agree completely that a complete reversal is not going to happen, nor would you particularly want it to. I wrote a ton on this some time back, even getting into some esoterical thoughts on the unintended consequences that could result and why it is unlikely to be sought by any competent plaintiff with standing. I agree the corporate veil being reeled in a little and a few other subtle tweaks would be a lot better way to go.

Mary- the 4th amendment issue is exactly what has me still scratching about the revolt.
I am not so sure this was the primary comey/ goldsmith concern. especially since the 4th amendment issues persisted after they were gone- unless the "fix" they instituted to avoid resignation was later rescinded to produce the 4th amendment violations taylor found.

so either they were opposed to some egregious domestic 4th search and seizure issue and did not care about less egregious infractions (whatever Taylor found wrong), the program was reverted after their departure (and Taylor saw the same problems they did), or they fixed some other issue we are missing that did not have to do with the actual warrantless initiation of domestic wiretapping. maybe it was poor minimization or other domestic abuse without the FISA oversight.

Your point that these guys are no angels, and in fact probably willing to cross lines for the "war on terror" is well-taken. Comey on Padilla and Goldsmith's ode to congressionally-approved unitary executive underscore the point that they are generally hardliners. I can't imagine they would take a stand simply on a theoretical risk of wiretapping innocents. Something significant had to have spooked them.

Mary -- Since I am one of the saber rattlers about corporate personhood with respect to campaign finance laws (but admittedly am utterly ignorant of the host of unintended consequences that would result from removing that status from corporations). How would you propose we attack the problem of undue influence of corporations via campaign financing without running afoul of the Supreme Court decision that said curtailing contributions would infringe on corporate free-speech?

bmaz -- what sort of tweaks would you imagine could do the trick of restoring the responsiveness of elected officials to their constituents rather than their major underwriters?

drational -- fwiw I think it was Mary here who suspected they got spooked when they thought they might personally be on the hook for illegal conduct. It seems to me given the conduct they were willing to condone, that they only felt compelled to draw a line in the sand when they were the ones who might find themselves on the wrong side of the law. Self-preservation is a powerful motivator.

phred- I certainly understand this argument. But the "legal basis" having been established by predecessors, they could have simply deferred to status quo, as it seemed Ashcroft was content doing prior to 3/04. Certainly Yoo, Gonzales, Addington and Cheney did not favor looking back. Goldsmith inherited bogus legal reasoning. Was it just the fear of being culpable for what might happen under expansive permission? Or did they look into the eye of the beast and find a tangible reason for concern? Comey was quite content with Padilla's detention and public smearing. Certainly unethical and with respect to the detention, possibly illegal.
I wonder that they tolerate so much, yet chose to make a stand here. I think it must be more than fear of the possible...

drational -- I have not read Goldsmith's book, but from interviews it seems he was genuinely freaked out by what he observed of detainee treatment. If he believed it constituted torture and that Yoo's legal justifications were wrong, then I can easily imagine him calling a halt if he thought that he and other officials at Justice could be prosecuted.

What still puzzles me though is what specifically they were afraid of. It may be Goldsmith really felt the torture had gone too far. Yet even now he supports the UE theory. Meanwhile, Comey was on board with Padilla's treatment, so it's hard to imagine him putting a stop to torture. And given the dust-up at the hospital being centered around what appears to be some kind of spying, I wonder if you are correct that the tie in to the FBI is central. IANAL but as I understand it, there are very clear lines that exist separating what NSA, CIA, and FBI are allowed to do. Perhaps in the interest of streamlining their operations, they blew off those distinctions. Perhaps Goldsmith thought this would expose DoJ officials to future litigation that they would be hard pressed to win.

It is much easier for me to imagine men who adhere to the authority of the Unitary Executive and defend indefinite and abusive treatment of prisoners (even if they themselves would not go so far as to call it torture) as being afraid of being personally prosecuted for some bureaucratic violations of the law than of being deterred by ethical considerations.

phred- the goldsmith book was a great read. not endorsing him or his ideology, but it was essentially this: UE is critical for President's to wage war and protect country, but President's should behave like Licoln (Habeas) and FDR (Destroyer Lend-lease) and lobby congress and the American public for at least informal approval before doing things that contradict existing law.
He is critical of Bush admin for grabbing UE unilaterally, when they could have easily gotten everything they wanted by asking. His point was that the grab was so secret and unilateral that in addition to no consent, there was no advice. This made a bunch of bogus OLC opinions that put the CIA and other agents following the advice at real risk of prosecution.

Much of the book is criticism of existing culture of worry of prosecution for action in CIA. He seems to hate the threat of hindsight review, but at the same time sees a need to make legal opinions that don't open the door to risk. he says this threat hampers effective WOT and needs to be removed by good opinions based on sound legal reasoning.

He criticizes a "stack" of opinions under yoo/bybee that were unsound, and implies that these screwed the agents who followed bogus OLC advice. He lamented his role in pulling the bogus justifications on torture and warrantless wiretap because he felt he would be held responsible if he put a kink in surveillance and there was an attack. But since there was not an attack, he is essentially touting that he was right and claiming his actions. For what gain, you be the judge. It is certain to me that had there been a major attack, or had there been no congressional oversight, there would be no Goldsmith book.

I think a big part of the book is to stick it to Addington. Goldsmith paints a pretty clear picture that Addington was a big bully who usually got his way, as Cheney's pitbull. Goldsmith was the nerdy chubby boy who got pushed around a lot but used the letter of the law to defeat Addington on wiretap (at least temporarily) and torture.

It's kind of interesting that like much of Neoconia, Goldsmith laments the use of international courts as a tool for inflicting damage on superpowers in assymetrical conflicts. But despite being chased from Government, Goldsmith himself uses the letter of the law and the Constitution to defeat the clearly more potent Addington in thier own little assymetrical personal conflict....

In the end, Abu Ghraib precipitated Goldsmith's acute repudiation of the torture memo which he states in his book that he had been working on revising for 6 months. I wonder if the same sort of egregious abuse of the NSA program (yet to be revealed) prompted him, Comey and Mueller to take drastic measure to get that program changed....

Basically, I don't see Goldsmith himself as being afraid of his own culpability/prosecution, but perhaps he was. He certainly did not embrace the UE as handed to him on a stick by the Yoo memos. His book paints the portrait of a man retreating from the prior OLC opinions from the moment he takes over the OLC, much to the chagrin of Addington/Cheney/Gonzales. I got the feeling that he was viewing himself as a part of the Bush Legacy from the perspective of his expertise on historical presidential power. It now seems that since the cat is out of the bag, history will certainly not be kind to this Presidency, and he was trying to secure himself and asterisk as a conscientious objector when a Harvard Law professor reviews the Bush power grab 100 years down the road.

My take.

drational -- thanks for the synopsis. So then did you get the impression that his objection was NOT about the conduct per se (torture &/or spying) but simply the legal footing? If so, then it still seems that his objections were not so much about ethics but bureaucratic technicalities. Or did you get a sense that it was a combination of both?

phred- definitely technicalities. He gave the flavor of a hard core legal bean counter- but in light of the rest of the administration, a bean counter who had some fundamental respect for the bill of rights. Certainly not because he embraced the civil liberties ideals they are based upon, but because they exist and cannot simply be ignored. So in this regard, there was an air of ethics about his ideology.

Had there been a law on the books permitting torture and warrantless wiretap, Goldsmith would have crafted a solid OLC opinion based upon them. In other words, a conservative republican, but not a Bushie.

Morally challenged, but not evil incarnate?

Yeah, well, my take is that Goldsmith is fat little self serving and agrandizing prick. Listen to him talk about his book and his story; it is enough to make you puke. He says (except Addington) what great people everybody in the Administration is and how they all meant so well. I call bullshit on that. I will give Comey credit before I will give one iota to this Pillsbury doughboy; and I am not nearly as hot on Comey as many are. Goldsmith is just trying to clean up his image and make himself look good after the fact; he is completely undeserving. He will get nothing but loathing from me.

Don't hold back bmaz, tell us how you really feel ;) Fwiw, I agree with you.

Thanks drational for your take on things. Definitely morally challenged, but I'm leaving the door open on evil incarnate until we know exactly what they objected to, and more importantly what they didn't object to in the end.

Has anyones asked a question like "Was John Kerry's phone tapped too?" In other words something like THAT might give these otherwise shady characters pause; myabe that is what happened during those 60 days that they tapped all of us at once.

I respect your views, but will disagree on a couple of things.
whether he is sincere or not, goldsmith presents a narrative in his book that makes it seem his motives are letter of the law. he tends to extend respect to those who understand it, and is critical of those who don't.
I would say he is very critical of:
Addington- as mentioned above; he finds him completely polarized yet forceful, but criticizes his lawyering as idiosyncratic and limited in scope- Comey shared this analysis- I cannot recall the exact article, but there was a NYTimes piece in the last month that had a quote- "no lawyer would support this particular analysis" (think it was torture). Someone said "Addington does". Comey replied "No good lawyer"

Gonzales- Goldsmith criticizes him as a lightweight with no understanding of the presidency in war. He ridicules Gonzales as someone who could not be trusted with a decision without Addington. On the hundreds of occasions Goldsmith met with Gonzales to discuss OLC issues in terrorism, Addington was present for all but one, and Gonzales usually did no talking.

Yoo- strongest criticism for Yoo's work, as someone who produced stacks of flawed legal documents. He used to be a personal friend, but Goldsmith rescinded so many of his opinions that they no longer talk.

Cheney/Bush- the theme of the book is the terrible error made by acting unilaterally to grab power. He basically blames their leadership for putting everyone following the bogus OLC opinions at risk for prosecution. He also ridicules them for making the presidency weaker when they were cocksure they were making the presidency stronger.

Basically, Goldsmith's political ideology is "conservative" and something pretty much everyone here would fight against- strong presidency, ready to sacrifice civil liberties for the "war on terror". But to be objective, he in no way admires the terror policy architects of the Bush administration. There is no way you can read the book and say he believes that everybody in the Administration are "great people". His imputation of them "meaning well" is only so far as he can project motives- his criticisms allow the reader to determine their meaning, and he certainly provides enough quotes, examples and background (including history of presidential power in wartime) for a reader to recognize that regardless of whether the author believes these men had "good intentions", they so deeply gutted the rule of law and so defiled the OLC, DOJ and office of the presidency that Goldsmith has very little respect for any of them.

To "get the point" requires one to suspend a visceral reaction to his politics, self aggrandizement, and whitewashing motives. No one should feel compelled to like the guy, but if you can get beyond his profound faults, he has clearly added an insiders point of view that in my view provides important details and analysis. One can hate the guy and what he stands for, but I think it a terrible mistake to choose to not read or think objectively about what he has to say.

The comments to this entry are closed.

Where We Met

Blog powered by Typepad