Sunday, May 20, 2007

a february 8, 2006 letter from rep. sensenbrenner offers some context for the dramatic james comey video

everyone's understanding of
james comey's dramatic testimony
detailing, first-hand, the march 2004
attempted hospital-bed hoodwinking of
a sedated AG john ashcroft
might benefit
from some in context color -- and to do
so, let's excerpt some of the republican
talking-points, such as they were, offered
by rep. sensenbrenner, in a house judiciary
committee letter to alberto gonzales
text-pdf-in-link] in february 2006, when he
was still the chair of that committee:

pay particular attention to the questions he asked then:

Review Process

30. On December 17,2005, the President stated that "[t]he authorization [he] gave the National Security Agency after September the 11th helped address that problem in a way that is fully consistent with [his] constitutional responsibilities and authorities." He stated that "the activities [he] authorized are reviewed approximately every 45 days.

Each review is based on a fresh intelligence assessment of terrorist threats to the continuity of our government and the threat of catastrophic damage to our homeland. During each assessment, previous activities under the authorization are reviewed. The review includes approval by our nation's top legal officials, including the Attorney General and the Counsel to the President.,m This appears to explain the ongoing review of the program for compliance.
a. Please explain how the proposal for the program was reviewed before it was authorized and initiated.

b. Who was included in this review prior to the program going into effect?

c. What was the time line of the discussions that took place?

d. When was the program authorized?

e. Was the program implemented in any capacity before receiving legal approval?

31. With regard to the ongoing review process of the NSA's activities that includes thorough review by the Justice Department and NSA's top legal officials, including NSA's general counsel and inspector general, please explain this review process, what each review constitutes, and how reviews were conductedwhen new individuals assumed positions previously held by others who already had been consulted. What is the process for reauthorizing the program?

32. To what extent were FISA judges informed of the program? Did FISA judges who were informed about the program object to it? In what manner were objections raised? How did the Administration respond to the objections, if they were raised? If a Member had problems with the program, what were they legally permitted to do?

33. Did any ofthe individuals involved in the pre-program review express concern or refuse to sign-off on the program?

a. On January 9, 2006, Newsweek published a story on the development of the program. The article claims that "On one day in the spring of 2004, White House chief of staff Andy Card and the then White House Counsel Alberto Gonzales made a bedside visit to John Ashcroft, attorney general at the time, who was stricken with a rare and painful pancreatic disease, to try -- without success -- to get him to reverse his deputy, Acting Attorney General James Corney, who was balking at the warrantless eavesdropping." Is this accurate?

b. On January 17,2006, the New York Times reported that FBI officials repeatedly complained about the NSA "eavesdropping program" and believed that it was intruding upon the rights of everyday law-abiding U.S. citizens. Are there documented complaints by FBI officials challenging the legality of this program at the time of its inception or throughout its activity?

c. The Times article claimed that Director Mueller also raised concerns about the legal rationale of the NSA program. Is this claim accurate and, if so, were Director Mueller's concerns addressed to his satisfaction?. . .

remember that mr. gonzales re-affirmed his
2006 testimony -- this week -- in response to
these questions. . . so, what on earth
was going on with the program he plainly
"testifying" about in 2006?

it might very well have involved inter-
cepting calls and e-mails orginating, and
terminating, entirely inside the
united states of america -- in other words, it
may have been warrantless, no-judicial-review,
wire-tapping of the lines of united states
citizens, without even "articuable suspicion"
of any wrongdoing whatsoever.

and, as professor laurence tribe, the carl m. loeb
professor of law at harvard university law school,
indicated in a letter to rep. john conyers
in january 2006, that would plainly violate the
fourth amendment, even in a time of war (as quoted
in question 9 of the sensebrenner letter):
. . .In a January 6, 2006 letter from Professor Laurence Tribe to Congressman Conyers, the Professor states that the National Security Agency program "in question, far from being authorized by Congress, flies in the face of an explicit congressional prohibition and is therefore unconstitutional without regard to the Fourth Amendment. . . . The inevitable conclusion is that the AUMF did not implicitly authorize what the FISA expressly prohibited. . . It follows that the presidential program of surveillance at issue here is a violation of the separation of powers -- as grave an abuse of executive authority as I can recall ever having studied. . ."

now, the full-quote from the original
professor tribe letter to rep. conyers:
. . .A strong case can be made that, even under the circumstances confronting the United States in the aftermath of the terrorist attacks launched by Al Qaeda on September 11, 2001, and even with assurance that conversations are being intercepted solely to aid in preventing future terrorist attacks rather than for use as evidence to prosecute past misdeeds, so indiscriminate and sweeping a scheme of domestic intrusion into the private communications of American citizens, predicated entirely on the unchecked judgment of the Executive Branch, violates the Fourth Amendment “right of the people to be secure . . . against unreasonable searches and seizures” even if it otherwise represents an exercise of constitutional power entrusted to the President by Article II or delegated to the President by Congress in exercising its powers under Article I.

The precise question of such a scheme’s consistency with the Fourth Amendment has never been judicially resolved — nor is it likely to be resolved in this situation. For the scheme in question, far from being authorized by Congress, flies in the face of an explicit congressional prohibition and is therefore unconstitutional without regard to the Fourth Amendment unless it belongs to that truly rare species of executive acts so central to and inherent in the power vested in the President by Article II that, like the power to propose or veto legislation or to issue pardons, its exercise cannot constitutionally be fettered in any way by the Legislative Branch. . .

. . .then certainly an unchecked presidential program of secretly recording the conversations of perhaps thousands of innocent private citizens in the United States in hopes of gathering intelligence potentially useful for the ongoing war on a global terrorist network not only falls outside that category but misses it by a mile. . .

so -- in its original context, we
now see that professor tribe frames
the question of the lawfulness of all
of these non-statutory, extra-judicial
"clandestine" wire-tap programs (thus
very much like the one -- as yet unnamed,
but plainly referred to -- by mr. comey's
testimony, and mr. gonzales' carefully-
his-2006-testimony) by asking how
"central" or "core" the putatively-
exercisable power is to his article II
grant of authority as commander-in-chief.

i think that is the right way to analyse
these programs. i also think it means the
program described as having been opposed
by messrs. comey, ashcroft, and mueller,
must have been so far beyond the pale that
even were it in the core of the president's
article II powers, it would have shocked
the conscience
of any court reviewing it.

and that most likely means one thing:

they were conducting "general" wiretapping.

they were listening-in on the conversations
of perhaps tens-of-thousands of law-abiding
u.s. citizens, without even an articuable
suspicion that unlawful -- let alone terror-
related -- activity was under discussion. . .

so -- welcome back to j. edgar hoover's
america -- this time from late-2001 to today.

sad, indeed.

let me leave you with the most-
compelling bit of mr. comey's
courageous testimony on tuesday,
past -- thanks to talkingpointsmemo
for the below-clip:

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