What Does Comey's Testimony Tell Us about the NSA Program? (by Shayana Kadidal at HuffPost)

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Shayana Kadidal


05.17.2007
What Does Comey's Testimony Tell Us about the NSA Program? (8 comments )

The astonishing story of Alberto Gonzales' March 2004 bedside visit with John Ashcroft (then in intensive care after having his gall bladder removed during a bout with pancreatitis) in order to force him to reauthorize the NSA warrantless surveillance program has been all over the news today after former Deputy Attorney General James Comey's riveting testimony before the Senate Judiciary Committee yesterday.

(The whole video is here and the transcript is here. The New York Times' account of the testimony is here, and Dahlia Lithwick's is here, but, good as those summaries are, the whole thing is worth watching/reading.)

Here's my 10-cent summary: Comey had taken over Ashcroft's powers while the Attorney General was in the hospital. But Comey --an outstanding career prosecutor, not a "Bushie," who'd joined the AG's staff in 2003-- had serious misgivings about the legality of the NSA program, doubts shared by other non-partisan-hack lawyers who'd come to DOJ in 2003 and 2004. The program was then being periodically reauthorized by the president, with DOJ officials signing off as well, every 45 days. As Acting Attorney General, Comey decided he wouldn't reauthorize it. So, despite Mrs. Ashcroft's orders that no one was to visit her husband in the hospital, the President himself calls her to tell her that Gonzales (then White House counsel) and Andrew Card were headed over to see Ashcroft. She calls Comey. He races over to the hospital, his security detail running the emergency lights, and, arriving first, waits for Gonzales and Card in the darkened room. Meanwhile, Comey has called FBI Director Mueller, who orders the security detail not to allow Comey to be removed from the room under any circumstances. Gonzales and Card arrive, and, after very terse formalities, ask Ashcroft to sign the authorization they are carrying. And Ashcroft slowly pulls his head up from the pillow, upbraids them, refusing to sign it, and then says that his opinion doesn't matter anyway, "because I'm not the attorney general, there" --pointing the icy finger of death at Comey-- "is the Attorney General." Having said his peace, his head sinks back to the pillow. Afterwards, Card (who says he was only visiting Ashcroft (quoting here) "to wish him well") orders Comey over to the White House; Comey refuses unless Solicitor General Ted Olsen is present as a witness. Olson is dragged out of a dinner party and heads to the White House with Comey. Card voices concern that mass resignations are afoot at DOJ over the program. Eventually the President reauthorized the program without the signature of anyone from DOJ attesting to its legality. The program is suspended briefly and retooled in still-unknown ways. Comey later reveals that he, Ashcroft, their top deputies and Mueller all were prepared to resign if the illegal program went on over their objections.

There's been a ton of fascinating speculation (here, here, and here) about what this dispute was about on the merits (Comey, of course, can't speak about that). A number of commentators point out that in late 2003 a new set of DOJ and Office of Legal Council lawyers was replacing the group (Yoo, Bybee, Delahunty) that authored the torture memos and other documents setting forth a theory of uncheckable Presidential power. Comey's testimony referred to DOJ "factually and legally" reevaluating the program prior to March 2004. The legal blogosphere's speculative consensus seems to be that DOJ decided in 2004 that John Yoo et al.'s justifications for the program, predicated on the absolute power of the President to act without regard for any Congressional legislation limiting his surveillance powers, could not hold water. (As Marty Lederman points out, given how infrequently OLC repudiates its own legal advice, "just try to imagine how legally dubious the Yoo justification must have been that John Ashcroft was so profoundly committed to its repudiation. It's staggering, really -- almost unimaginable that anything such as this could have happened, especially where the stakes were so high. ... hardly officials who were unwilling to push the legal envelope, or who were disdainful of the objectives or need for the NSA program.") Surveillance in wartime was not the absolute prerogative of the executive branch, Comey and his new colleagues thought; the President had to follow whatever rules Congress had laid out to limit that discretion by forcing him to go to courts for warrants.

If this speculation is right,* then the Administration's main defense against our lawsuit early last year --that the NSA program had in fact been implicitly authorized by Congress when it passed an Authorization to Use Military Force (AUMF) against al Qaeda after 9/11-- was in fact a more limited sort of legal defense than had been initially conceived by Yoo. If the program continued after the 2004 incident--after a brief suspension --in revised form more acceptable to DOJ, then presumably it had been narrowed to fit the contours of the AUMF, which authorized force against only "against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored" them --basically, al Qaeda and (close) friends. .....(more)

The complete piece is at: http://www.huffingtonpost.com/shayana-kadidal/what-does-comeys-testimo_b_48686.html