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The President's Secret Program: A Timeline
By Paul Kiel - May 17, 2007, 10:50 AM
Ever since James Comey's testimony Tuesday, there's been a renewed burst of speculation about just what secret domestic surveilance program(s) the administration has been running.
Marty Lederman over at Balkinization offers a great rundown of the best guesses about what the administration has been up to.
But Comey's testimony and new details in The New York Times this morning mean that it's now possible to lay out a timeline of why all of this came to a head in March of 2004 when the program had been going on for more than two years at that point.
A TPM Reader writes in to lay it all out:
We’re starting to see a timeline emerge on the confrontation between the White House and Justice on domestic spying.
The first date to mark on your calendar, I think, is October 3, 2003. That’s when the Senate confirms Jack L. Goldsmith as the Assistant Attorney General for the Office of Legal Counsel. In June, with Goldsmith’s nomination before the senate, John Yoo had left his job as the deputy at OLC to return to his teaching gig at Boalt.
Fast forward to December 11, 2003, when Comey is confirmed as Deputy Attorney General. He immediately assumes a more aggessive posture than his predecessor, Larry Thompson. The Times reports this morning that “with Mr. Comey’s backing, Mr. Goldsmith questioned what he considered shaky legal reasoning in several crucial opinions, including some drafted by Deputy Assistant Attorney General John Yoo.”
But that was just the beginning. Thompson had not been authorized access to the details of the NSA program. But, reports the NYTimes, “Comey was eventually authorized to take part in the program and to review intelligence
material that grew out of it” (1/1/06). He set Goldsmith to the task of sorting through the program’s dubious legality. Goldsmith’s “review of legal memoranda on the N.S.A. program and interrogation practices became a source of friction between Mr. Comey and the White House,” the Times reports today. And we know from Comey’s testimony that by “the White House,” we mean, principally, Dick Cheney and David Addington.
Continued:
Up until this moment, Ashcroft had been signing off on the program every 45 days. That means his signature was last required in late January, shortly after Comey assumed his post, and perhaps even before he’d been authorized access to the program. Suddenly, the March 11 date comes into clearer focus. For the first time, trained and qualified attorneys within the Justice Department had conducted a careful review of the program. Comey took the evidence he had gathered to Ashcroft, as he testified on Tuesday: “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.” By the end of that meeting, Ashcroft and Comey had “agreed on a course of action,” to wit, that they “would not certify the program as to its legality.”
Thereupon follows the late-night drama that’s already been exhaustively chronicled. I’d simply note that one of the people in that hospital room was Goldsmith. On March 11, the President made the determination that the program was appropriate and lawful, and reauthorized it without Justice signing off.
On the morning of March 12, the president, faced with open revolt, backed down. The Times reported on what happened next last year: “The White House suspended parts of the program for several months and moved ahead with more stringent requirements on the security agency on how the program was used, in part to guard against abuses. The concerns within the Justice Department appear to have led, at least in part, to the decision to suspend and revamp the program, officials said. The Justice Department then oversaw a secret audit of the surveillance program” (01/01/06). Comey’s testimony refines that a little. He claims that it was a matter of weeks before the program was brought into compliance.
There’s a sad coda to this story. On June 17, 2004, Goldsmith announced his resignation after scarcely a year on the job.
What to make of this long narrative?
Simply this. The warantless wiretap surveillance program stank. For two and a half years, Ashcroft signed off on the program every forty-five days without any real knowledge of what it entailed. In his defense, the advisors who were supposed to review such things on his behalf were denied access; to his everlasting shame, he did not press hard enough to have that corrected.
When Comey came on board, he insisted on being granted access, and had Goldsmith review the program. What they found was so repugnant to any notion of constitutional liberties that even Ashcroft, once briefed, was willing to resign rather than sign off again.
So what were they fighting over? Who knows. But there’s certainly evidence to suggest that the underlying issue was was whether constitutional or statutory protections of civil liberties ought to be binding on the president in a time of war. The entire fight, in other words, was driven by the expansive notion of executive power embraced by Cheney and Addington. And here's the kicker - it certainly sounds as if the program was fairly easily adjusted to comply with the law. It wasn't illegal because it had to be; it was illegal because the White House believed itself above the law.
PS: There’s hope we’ll find out what was really going on. I’d highlight this portion of Specter’s remarks from the hearing: “Mr. Comey, it's my hope that we will have a closed session with you to pursue the substance of this matter further. Because your standing up to them is very important, but it's also very important what you found on the legal issue on this unnamed subject, which I infer was the terrorist surveillance program. And you're not going to comment about it. I think you could. I think you could even tell us what the legalisms were. Doesn't involve a matter of your advice or what the president told you, et cetera. But I'm going to discuss it with Senator Leahy later and see about pursuing that question to try to find out about it.”
And then Leahy, in response: “We will have a closed-door hearing on this. Senator Specter and I are about to have a briefing on aspects of this.” Can’t wait to hear what leaks out of that.
http://www.warandpiece.com/blogdirs/006129.html
May 16, 2007
A reader raises a good point. Why were FBI director Mueller and the FBI so involved in Comey's decision-thinking on the NSA warrantless domestic spying program? Was this about a separate component of the program, that involved the FBI spying without warrants on Americans? Not just the NSA? Now that the Senate Judiciary committee anticipates a confirmation process for the DAG nominee, will its members ask to review some sort of list of those specifically targeted and who signed off on it and get a determination of why it was not possible to get a warrant for these people? And to get all the documents involved? Comey was more than adamant in his testimony yesterday that these conservative Republican appointee Justice department officials -- he, Ashcroft, Goldsmith, Philbin -- could find no legal basis for the program until modifications were made. As Marty Lederman says, imagine just how bad it must have been. And Marty worked in the Justice Department's Office of Legal Counsel until just over a year before the events described, so he's in a position to imagine that scenario pretty vividly.
Update: Did Gonzales lie under oath, when he said Comey did not object to the NSA domestic spying program whose existence the president confirmed? Or was he in fact suggesting that Comey's problem was with a second covert warrantless domestic spying program, one perhaps run by the FBI, such as I outline above?
Update II: After a conversation with a knowledgeable lawyer, I think I have at least a plausible theory of what roughly might have been going on. The NSA program targeted calls from terrorism suspects (however loosely defined) say from abroad to the States, and vice versa, without obtaining warrants, including for the US persons targeted. According to this speculative theory, the presumed second, FBI part of the program - the part that Comey and Goldsmith et al found objectionable, conceivably - then, without warrants, tracked all of the other communications that recipient made and received. How might the program have been brought into compliance when Comey et al objected? If the gov't decided to use the first part - the calls received from a terrorism suspect - as probable cause to obtain a warrant* for all of the recipient's domestic and other communications. The problem? Getting a warrant could presumably cause the FISA judge to question why and how the target was identified in the first place. Maybe they found a way to get around the problem of illegal search and seizure. Just a theory. (*It could not have been to get a warrant, because the program didn't get FISA warrants at all until recently. The NYT article below suggests with Comey's modifications, it just came in for some sort of internal DOJ audit).
As Balkinization's Lederman tells me, the relevant Congressional committees need to get all the documents from the DOJ. "They need to see the documents - about torture, about the NSA spying program, about military commissions, treaties, everything John Yoo wrote. And they have not appeared to be willing to get that. They just back down. Just yesterday, Comey says he can't talk about this, and can't talk about that. This is ridiculous. You don't give away NSA operational capabilities. You go into closed session for that. This is: we want to know what the legal theories were, what the programs were. ... Until the committees see the documents, they're totally speculating. If the Senate really wants to find out what's going on, they must get all the documents before them, and stop this nonsense."
More: NYT: "Mr. Bush allowed new procedures in the N.S.A. program, which officials have said included Justice Department audits, and the eavesdropping continued without the court warrants some legal authorities believe the law requires."
And from the Post.
