Comey's testimony raises new and vital questions about the NSA scandal

The testimony yesterday, while dramatic, underscores how severe a threat to the rule of law this administration poses.

Published May 16, 2007 10:16AM (EDT)

(Updated below - Update II - Update III - Update IV)

The testimony yesterday from James Comey re-focuses attention on one of the long unresolved mysteries of the NSA scandal. And the new information Comey revealed, though not answering that question decisively, suggests some deeply troubling answers. Most of all, yesterday's hearing underscores how unresolved the entire NSA matter is -- how little we know (but ought to know) about what actually happened and how little accountability there has been for some of the most severe and blatant acts of presidential lawbreaking in the country's history.

The vital issue highlighted by Comey's testimony

President Bush ordered the NSA to engage in warrantless eavesdropping back in October 2001. The incidents which Comey described yesterday -- whereby the DOJ refused to certify the program's legality -- occurred in March, 2004, two-and-a-half years later. Since the NSA was spying on Americans outside of FISA the entire time, what prompted the DOJ suddenly to "reexamine" the legality of the program after all that time?

Comey did not say specifically what prompted that re-evaluation. This is all he said on that topic:

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. And it was a program that was renewed on a regular basis, and required signature by the attorney general certifying to its legality.

And the -- and I remember the precise date. The program had to be renewed by March the 11th, which was a Thursday, of 2004. And we were engaged in a very intensive reevaluation of the matter.

Comey then made clear that he and Ashcroft met, determined that the NSA program lacked legal authority, and agreed "on a course of action," one whereby the DOJ would refuse to certify the legality of the NSA program. Yet even once Ashcroft and Comey made clear that the program had no legal basis (i.e., was against the law), the President ordered it to continue anyway. As Comey said: "The program was reauthorized without us and without a signature from the Department of Justice attesting as to its legality."

Amazingly, the President's own political appointees -- the two top Justice Department officials, including one (Ashcroft) who was known for his "aggressive" use of law enforcement powers in the name of fighting terrorism and at the expense of civil liberties -- were so convinced of its illegality that they refused to certify it and were preparing, along with numerous other top DOJ officials, to resign en masse once they learned that the program would continue notwithstanding the President's knowledge that it was illegal.

The overarching point here, as always, is that it is simply crystal clear that the President consciously and deliberately violated the law and committed multiple felonies by eavesdropping on Americans in violation of the law.

Recall that the only federal court to rule on this matter has concluded that the NSA program violated both federal law and the U.S. Constitution, and although that decision is being appealed by the Bush administration, they are relying largely on technical arguments to have it reversed (i.e., standing and "state secrets" arguments) and -- as has been true for the entire case -- are devoting very little efforts to arguing that the program was actually legal or constitutional.

Yet even once Bush knew that both Aschcroft and Comey believed the eavesdropping was illegal, he ordered it to continue anyway. As Anonymous Liberal wrote yesterday:

That's a rather stunning fact, and one that I wish at least a few mainstream journalists would attempt to grasp the significance of. The White House authorized a program that everyone of significance in the Justice Department had determined to be lacking any legal basis. They willfully violated the law.

Even The Washington Post Editorial Board -- long tepid, at best, concerning the NSA scandal -- recognizes that Comey has offered "an account of Bush administration lawlessness so shocking it would have been unbelievable coming from a less reputable source." And as I documented yesterday, these "shocking" revelations were long concealed due to Alberto Gonzales' patently false assurances that the testimony of Comey and Ashcroft -- which Democrats on the Senate Judiicary Committee sought last year -- would not "add to the discussion."

What more glaring and clear evidence do we need that the President of the United States deliberately committed felonies, knowing that his conduct lacked any legal authority? And what justifies simply walking away from these serial acts of deliberate criminality? At this point, how can anyone justify the lack of criminal investigations or the appointment of a Special Counsel? The President engaged in extremely serious conduct that the law expressly criminalizes and which his own DOJ made clear was illegal.

The new unresolved issue highlighted by Comey's testimony

Beyond the indisputable crimes that were committed here -- and violating the law and engaging in eavesdropping that the Congress has prohibited are "crimes" in every sense of the word, in this case punishable with five years in prison and a $10,000 fine for each offense -- there is still the completely unanswered question of how the President used these illegal eavesdropping powers. And Comey's testimony raises some very troubling questions about that matter. Here is why:

In January of 2006, the DOJ released its 42-page position paper purporting to set forth the "legal justifications" for the President's warrantless eavesdropping program. It advanced two arguments -- (i) that the President had "inherent authority" under Article II of the Constitution to engage in warrantless eavesdropping regardless of what Congress said, and independently, (ii) that Congress "implicitly" authorized the Bush administration to eavesdrop in violation of FISA when it enacted the 2001 Authorization to Use Military Force against Al Qaeda and Afghanistan, which implicitly authorized them to use warrantless eavesdropping as part of that "war."

It has long been clear that when the NSA program began in 2001, the only legal basis cited was the Article II claim (which amounts to a declaration that the President can eavesdrop however he wants, including in violation of Congressional law). The AUMF "justification" was one that was only added some time later as an afterthought -- quite likely once Ashcroft and Comey advised the White House in 2004 that the program had no legal authority (the definitive background on that development is here, in a February 2006 post by A.L, who first suggested the late apperance of the AUMF theory).

In other words, Ashcroft, Comey and other DOJ officials did not accept the Article II theory that the President could simply ignore the laws passed by Congress in how he eavesdropped on Americans, and therefore wanted to create an alternative legal basis for the program -- one which claimed that Congress did authorize warrantless eavesdropping when it enacted the AUMF.

Comey testified yesterday that after the dramatic hospital scene, once it became clear that there would be mass DOJ resignations over the illegal NSA program, the President met privately with Comey, and then-FBI Director Robert Mueller. Comey testified that Bush instructed them to make whatever changes to the program they thought needed to be made in order to convince them that the program was legal:

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.

In fact, given that FISA makes it a felony to eavesdrop on Americans without warrants, no changes could render a warrantless eavesdropping program legal. And whatever changes were made did not make it legal, as the federal court ruled last August. But the question still remains: what changes were made that convinced Comey and Ashcroft that the program was legal?

As indicated, it has been assumed for some time that what changed at that point was that the AUMF legal "justification" was concocted, and it was the addition of that argument -- one which at least had the appearance of being grounded in Congressional authorization -- that is what convinced the DOJ to certify the program's legality. In other words, what changed in 2004 was not the eavesdropping program itself, but merely the DOJ's theories about why the program was legal.

But Law Professor Orin Kerr offers some speculation on that question which strikes me not only as persuasive, but also as the only logically possible answer. He suggests that there were changes to the program itself -- i.e. changes in the operational rules of the NSA's eavesdropping -- not merely changes to the DOJ legal theories (emphasis added):

It sounds like the President personally either gave in or reached a compromise with Comey (it's not clear to me which) that refashioned the program in a way that DOJ was willing to approve.

The only real possibility for how the program could be "refashioned" in order to convince the DOJ of its legality would be tighten the nexus between the warrantless eavesdropping and the AUMF.

Since the AUMF authorized, in essence, the instruments of war to be used against Al Qaeda and other terrorist groups, that would mean that -- in order to make the program appear more legal in the eyes of these DOJ officials -- the warrantless eavesdropping would need, presumably, to be tied to terrorist groups encompassed by the AUMF. That's the only conceivable way that the program could have been "refashioned" in order to make it seem as though it had legal authority.

But if that's the case -- if it was only in 2004 that a requirement was created that the eavesdropping be tied closely to terrorists encompassed by the AUMF -- then that would mean that prior to that time, there was no nexus between the eavesdropping and those terrorist groups. It would mean that prior to this 2004 DOJ rebellion, the scope of the NSA eavesdropping -- the list of those who were subject to warrantless eavesdropping -- was far broader than the Islamic terrorist groups against whom the President was authorized by the AUMF to use military force.

That would necessarily mean that -- contrary to what the administration has repeatedly insisted was true -- it was not merely Al Qaeda and similar groups who were the targets of the eavesdropping conducted in secret, but targets beyond that category. Obviously, this is speculation, though I would suggest for the reasons indicated that it is approaching the realm of logically necessary speculation. What other changes besides tying the eavesdropping to Al Qaeda-type groups could have been made that would have enabled Ashcroft, Comey & Co. to conclude that there was a plausible legal basis for warrantless eavesdropping?

The key questions still demanding investigation and answers

But the more important issue here, by far, is that we should not have to speculate in this way about how the illegal eavesdropping powers were used. We enacted a law 30 years ago making it a felony for the government to eavesdrop on us without warrants, precisely because that power had been so severely and continuously abused. The President deliberately violated that law by eavesdropping in secret. Why don't we know -- a-year-a-half after this lawbreaking was revealed -- whether these eavesdropping powers were abused for improper purposes? Is anyone in Congress investigating that question? Why don't we know the answers to that?

Back in September, the then-ranking member (and current Chairman) of the Senate Intelligence Committee, Jay Rockefeller, made clear how little even he knew about the answers to any of these questions in a letter he released:

For the past six months, I have been requesting without success specific details about the program, including: how many terrorists have been identified; how many arrested; how many convicted; and how many terrorists have been deported or killed as a direct result of information obtained through the warrantless wiretapping program.

I can assure you, not one person in Congress has the answers to these and many other fundamental questions.

The NSA scandal has always presented two equally critical but completely distinct issues: (1) the eavesdropping was against the law; and (2) precisely because it was conducted in secret, we do not know whether the administration engaged in the eavesdropping abuses which the law (by requiring judicial oversight) was designed to prevent.

Proposition (1) has long been established, and ought to result in serious consequences by itself. But we still do not know the answer to (2) -- were these eavesdropping powers used for improper purposes? -- and whether anyone in Congress yet knows is still a mystery. But Comey's testimony yesterday adds some obviously significant information that ought to heighten the concern about whether there was such abuse.

There is one other aspect of Comey's testimony worth highlighting. This is part of what he said when describing the scene in Ashcroft's hospital room:

I tried to see if I could help him get oriented. As I said, it wasn't clear that I had succeeded. I went out in the hallway.

Spoke to Director Mueller by phone. He was on his way. I handed the phone to the head of the security detail and Director Mueller instructed the FBI agents present not to allow me to be removed from the room under any circumstances.

Comey repeatedly stated that it appeared that Ashcroft was not even oriented to his surroundings. Compare that to Tony Snow's disgustingly dismissive defense yesterday of the behavior of Andy Card and Alberto Gonzales: "Trying to take advantage of a sick man -- because he had an appendectomy, his brain didn't work?"

But more revealingly, just consider what it says about this administration. Not only did Comey think that he had to rush to the hospital room to protect Ashcroft from having a conniving Card and Gonzales manipulate his severe illness and confusion by coercing his signature on a document -- behavior that is seen only in the worst cases of deceitful, conniving relatives coercing a sick and confused person to sign a new will -- but the administration's own FBI Director thought it was necessary to instruct his FBI agents not to allow Comey to be removed from the room.

Comey and Mueller were clearly both operating on the premise that Card and Gonzales were basically thugs. Indeed, Comey said that when Card ordred him to the White House, Comey refused to meet with Card without a witness being present, and that Card refused to allow Comey's summoned witness (Solicitor General Ted Olson) even to enter Card's office. These are the most trusted intimates of the White House -- the ones who are politically sympathetic to them and know them best -- and they prepared for, defended themselves against, the most extreme acts of corruption and thuggery from the President's Chief of Staff and his then-legal counsel (and current Attorney General of the United States).

Does this sound in any way like the behavior of a government operating under the rule of law, which believes that it had legal authority to spy on Americans without the warrants required for three decades by law? How can we possibly permit our government to engage in this behavior, to spy on us in deliberate violation of the laws which we enacted democratically precisely in order to limit how they can spy on us, and to literally commit felonies at will, knowing that they are breaking the law?

How is this not a major scandal on the level of the greatest presidential corruption and lawbreaking scandals in our country's history? Why is this only a one-day story that will focus on the hospital drama but not on what it reveals about the bulging and unparalleled corruption of this administration and the complete erosion of the rule of law in our country? And, as I've asked many times before, if we passively allow the President to simply break the law with impunity in how the government spies on our conversations, what don't we allow?

If we had a functioning political press, these are the questions that would be dominating our political discourse and which would have been resolved long ago.

UPDATE : It is not merely Bush followers and our establishment journalists who insisted that President Bush did nothing terribly wrong here, but also -- perhaps most destructively -- the "liberal" punditocracy, which spent all of 2006 shrieking that Democrats must do nothing about the NSA lawbreaking because the President was justified in his Protective conduct and Democrats would thus suffer politically unless they acquiesced like good little Patriots.

Hence, in January, 2006, the truly odious Joe Klein -- in a Time column entitled "How to Stay out of Power" that should be a featured exhibit at a Museum for what went wrong with our country during the Bush presidency (h/t Atrios & rootless) -- attacked Nancy Pelosi for daring to challenge the Leader's NSA lawbreaking. Klein openly defended lawbreaking and actually said: "these concerns [i.e., that Bush's eavesdropping is illegal] pale before the importance of the program. It would have been a scandal if the NSA had not been using these tools to track down the bad guys."

Klein then obediently repeated this administration-dispensed idiocy: "There is also evidence, according to U.S. intelligence officials, that since the New York Times broke the story, the terrorists have modified their behavior, hampering our efforts to keep track of them." He then oh-so-presciently pronounced: "until the Democrats make clear that they will err on the side of aggressiveness in the war against al-Qaeda, they will probably not regain the majority in Congress or the country." In September of 2006, the Democrats blocked enactment of a bill legalizing NSA warrantless eavesdropping and then proceeded to crush the Republicans in the election.

Identically, "liberal" pundits like Eleanor Clift and The New Republic's Ryan Lizza chided Russ Feingold for criticizing the Leader's lawbreaking and wanting to censure him for it because, they insisted, such criticism would harm the Democrats politically and/or was without merit. This is why the administration has, with impunity, been able to behave with such transparent lawlessness. It is because the Beltway class is as corrupt and barren of integrity and judgment as they are.

UPDATE II: One of the blogosphere's most knowledgeable experts on the NSA/FISA matter, Just an Observer, makes this superb point in Comments which perhaps an intrepid reporter may want to consider:

Note that nowhere in Comey's story are NSA officials mentioned. But FBI Director Robert Mueller was a central player in the drama -- he even met personally with President Bush -- and also was one who threatened resignation. This indicates that, whatever was going on before the program was modified, those activities were being conducted by the FBI, not just the NSA. That could mean purely domestic unwarranted wiretaps, unwarranted black-bag jobs, or similar misconduct.

It is indeed quite notable how prominent a role the FBI Director played in the Comey episode, and how absent are NSA officials. It might be worthwhile asking why the FBI Director was so intimately involved in eavesdropping which allegedly did not include purely domestic communications. Whether there was warrantless eavesdropping on purely domestic communications is, of course, yet another still-unanswered question.

UPDATE III: As Peter Swire over at Think Progress notes, Gonzales testified to the Senate Judiciary Committee last year that "there has not been any serious disagreement about the program" and "to my knowledge, none of the reservations dealt with the program that we are talking about today."

Gonzales was emphasizing there that the objections from Ashcroft, Comey and others were directed toward an eavesdropping program different than the one in place in 2006, which strongly suggests that the program itself was changed operationally to satisfy the DOJ, not merely that its legal justifications expanded. Prior to the 2004 changes made to satisfy Ashcroft and Comey, in what types of eavesdropping was the administration engaged for the prior 2 1/2 years? Purely domestic eavesdropping? Non-terrorist-related eavesdropping? Why do we not know the answers to those questions?

On a different note, via Jane Hamsher, Comey's testimony can be viewed on YouTube here.

UPDATE IV: The always insightful Marty Lederman -- who worked in the Office of Legal Counsel in the Clinton DOJ -- provides some further detail about the events which almost certainly prompted the 2004 re-evaulation of the legality of the eavesdropping program, as well why the revelations of yesterday were so extraordinary.

As Marty says, he and I are "singing from the same hymnal" on virtually every one of these issues -- particularly the high likelihood that the pre-2004 eavesdropping program was even far broader than the extremely broad (and illegal) post-2004 eavesdropping activities which satisfied Ashcroft and Comey: "This is the real heart of the Comey story -- What happened between September 2001 and October 2003, before Comey and Goldmsith came aboard? Just how radical were the Administration's legal judgments? How extreme were the programs they implemented? How egregious was the lawbreaking?"

By Glenn Greenwald

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