« previous | MUCK HOME | next »
Goldsmith: Legal Basis for Surveillance Program was "Biggest Mess"
The senators did their best to wring more information from Jack Goldsmith about the administration's warrantless surveillance program during today's hearing. It was Goldsmith's legal analysis, after all, which led to the Justice Department leadership's revolt in 2004. But it was a mixed result.
Since the beginning of this year, the Senate Judiciary Committee has been seeking documents from the Justice Department and the White House about the legal basis for the program. They're still waiting.
And today, Sen. Arlen Specter (R-PA) tried a more modest tack. He tried to get Goldsmith to say what Constitutional principle had been violated by the program. Goldsmith replied that the executive branch had told him that he couldn't discuss any aspect of his legal analysis. Specter asked again, and Goldsmith again said that he'd been instructed not to.
Goldsmith did manage to add some details, however. He revealed that only four lawyers at the Justice Department were permitted to examine the program -- that's including the attorney general and Goldsmith himself. When asked why the administration had so restricted that access, he said that it was probably because they did not want the legal analysis (that had, until Goldsmith, allowed the program to go forward) scrutinized.
As it was, he said, the basis for the program was "a legal mess" when he took over the Office of Legal Counsel in 2003 -- the "biggest," he said, he'd ever encountered.
And counter to former Attorney General Alberto Gonzales' testimony to Congress, Goldsmith said there were "enormous disagreements about many aspects of the Terrorist Surveillance Program." Goldsmith repeatedly used the plural when describing those disagreements, making it clear that it was not a single aspect of the program that was at issue.
After "several months" of reviewing the program -- a process made more difficult, he said, by the fact that so few lawyers were allowed to know the details of the program -- Goldsmith told then-Attorney General John Ashcroft, and then Deputy Attorney General James Comey in the spring of 2004 that he could not find a legal support for certain aspects of the program. The rest, they say, is history.
Comments (15)
litigatormom wrote on October 2, 2007 5:09 PM:The biggest mess he'd ever seen? I guess he never read Bush v. Gore.
greg wrote on October 2, 2007 5:53 PM:Any mention of what basis the administration forbade Goldsmith's testimony? Is it an executive privilege claim? Lawyer-client privilege? National security?
Or is the Senate just fine with a, "They didn't want me to talk about the 'ignoring the Constitution' part"?
Anonymous wrote on October 2, 2007 6:34 PM:greg,
sailmaker wrote on October 2, 2007 7:37 PM:I don't think he was under subpoena, so the committee presumably didn't have the power to compel testimony. I think that means no privilege necessary.
Goldsmith didn't reveal much more in his book then he did before Congress. The Bush folk would not even allow NSA lawyers to see the legal reasoning behind the illegal wiretapping and other terrorist surveillence that they (NSA) were doing, only a few in the OLC could see the reasoning.
Goldsmith was so disgusted with the mess he inherited from Yoo/Bybee that he started withdrawing their memos and opinions in December 2003. By June 2004, when Goldsmith was leaving, David Addington sarcastically asked him if there were any opinions that Goldsmith did NOT think should be withdrawn. Addington had a list on a 3 x 5 card of the opinions left.
Goldsmith is VERY conservative, and so the revolt he lead (the Comey/Mueller/Ashcroft hospital room) is incredibly significant. An action such as withdrawing memos that Yoo/Bybee had put out was equivalent of pulling the legal rug out from under whole departments and their field operatives, something that a conservative would not do lightly. That Goldsmith figured out a way to justify the reach around the FISA court 3 weeks later speaks not only of Goldsmith's legal mind, but his willingness to find a path to enable the Bush administration's violations of the law. He did this not only with FISA (his reasoning remains secret, but IMO it somehow utilized the AUMF), but with torture (he took health industry standards of pain), and with Gitmo detentions (he took a novel view of the 3rd Geneva Convention), to name a few. When one considers his view points (which are well reasoned if not morally viable), one has to wonder what twisted mess was left behind by Yoo (who was blackballed by Ashcroft) and Bybee.
I strongly urge people to read "The Terror Presidency" for a limited, keyhole vision of the inner workings and the 'logic' of the Bush administration.
moondancer wrote on October 2, 2007 8:10 PM:There has to be a way to audit all these exec privilege claims. What is the course when we the people do not trust the exec?
Joe wrote on October 2, 2007 8:36 PM:If there is to be no impeachment, then is it up to congress or the courts to insist on oversight. Some body has to have clearance to overview. This issue isn't going away in 500 days.
If they want oversight, then Congress will have to fix the Intelligence Committees. Neither of them have sole authority over the intelligence budget. The bureaucracy knows how to play Mom against Dad to get their way like a spoiled kid in a dysfunctional family.
What's the solution? Have House and Senate Intelligence Committees with both appropriation and authorization authority over the entire intelligence community budget. Create an oversight staff large enough to do real oversight and grant them access to every classified program using the same laws that create those programs. Make Congressional staff access to those programs a legal prerequisite for continued use of those funds. No access means they lose funds for the rest of the year. The intelligence community keeps secrets for a living, so Congress will need some pretty big sticks and carrots if they want to change that. Skull and Bones!
mls wrote on October 2, 2007 8:49 PM:The fact that he was not under subpoena is irrelevant. Even if a witness voluntarily appears before a congressional committee, he is legally obligated to answer questions.
mls wrote on October 2, 2007 8:49 PM:The fact that he was not under subpoena is irrelevant. Even if a witness voluntarily appears before a congressional committee, he is legally obligated to answer questions.
EH wrote on October 2, 2007 8:56 PM:So, the restricted access to the legal reasoning is based on maintaining the administration's ability to plead ignorance. If people can't scrutinize the analysis it won't get narrowed.
Richard L. Adlof wrote on October 2, 2007 10:24 PM:Actually he had three valid legal choices:
Answer the committe's questions accurately and truthfully, or
Take the Fifth if his answer would have in criminated his pasty white ass for some malfeasance, or
Get locked up in the Congressional cell for his bullshit "I was ordered not to speak" answer. If Congress were doing their job, they would have pressed his narrow backside for the answer AND OPENED AN INVESTIGATION INTO THE WHITE HOUSE'S OBSTRUCTION & COMTEMPT OF CONGRESS . . .
George Bush should be in front of the Committee at 7:00 AM sharp tomorrow with or without leg-irons. I am pissed that the Senators did not pursue this one on the spot.
tekel wrote on October 2, 2007 10:36 PM:How can this fail to boil down to an obstruction of justice charge against the executive branch?
parrot wrote on October 2, 2007 11:28 PM:Blame it on the House, they're like the third leg of the lame duck President. And speaking of "third", what we need is a third party and maybe a fourth too...to get the idiots running our nation out of office as soon as possible. These folks are trying to avoid hearing about the violations of our treaty obligations. They don't want to know about all the breaking of our own laws that have occurred...because, they are less afraid of being war criminals than they are interested in staying in federal office buildings, ruining our nation and the world that they seem to believe they deserve to rule.
anon wrote on October 3, 2007 3:22 AM:In theory, in general, I can't see anything wrong with Adlof's reasoning. What am I missing?
Three choices
...Answer the committee's questions accurately and truthfully...
or
...Take the Fifth...
or
...get locked up...
It's unclear why those are not the clear and (basically) only uncomplicated choices in all of these hearings. Regardless of taking the oath, if you don't answer the question, and you don't take the fifth, but you admit you know the answer, you head toward jail, right?
As a rule, in any court, if you say "I was at that meeting that you need to know about to judge this case but I'm not going to tell you what happened and I'm not going to take the fifth." you get scolded a couple times and then head toward jail or something like that. You can, of course, lie--and hope no one catches you--but there are messy legal consequence for serious lying to the court.
Does congress have less power than, say, a grand jury? When I was on criminal jury duty and grand jury, there were clear penalties for not following the testimony rules. (Which were pretty loose but not as free styling as these hearings. Is intelligence corruption and judicial misconduct somehow less serious than, say, your average felony trial?
Habanero wrote on October 3, 2007 9:22 AM:The Bush folks would not even allow NSA lawyers to see the legal reasoning behind the illegal wiretapping because one of several programs they won't talk about named "Sentinel" so flies in the face of the Constitution it could never pass legal scrutiny.
EMPY wrote on October 3, 2007 12:42 PM:If they want answers, just once I want to see the following exchange.
Leahey: What, why, how.........
Goldsmith: I have been instructed not to answer.
Leahey: I will ask you one more time. If you do not answer, you will be arrested for contempt of congress....
Goldsmith: But, but I can't answer that.
Leahey: Sergeant at Arms, escort Mr. Goldsmith to the Senate holding facility until such time as he feels he can answer the question.