Illegal Eavesdropping A Legal Mess

Jack L. Goldsmith, now a Harvard Law Professor, once led the Justice Department Office of Legal Counsel (OLC) that questioned the legality of the Bush Administrations domestic eavesdropping plan, reportedly told a Senate Committee that the situation became a “legal mess” because the White House didn’t believe that the Courts or Congress had any role to play — senior White House officials were adverse to ANY restraint on presidential power and were devoted to extreme secrecy.

“It was the biggest legal mess I had ever encountered” said Professor Goldsmith in his testimony. He went on to describe how David Addington, Vice President Cheney’s counsel, told him that his position of the program being illegal might mean failure to halt a new terrorist attack that would leave him with the blood of thousands on his hands.

In his testimony, Professor Goldsmith took pains to dispute the notion that the Bush Administration was indifferent to legal constraints in fighting terrorism. “In my experience, the opposite is true. The administration has paid scrupulous attention to law” he said.

Contrary to his testimony however, Professor Goldsmith wrote in his book “The Terror Presidency” that he found many of the legal opinions undergirding the Bush Administration’s antiterrorism policies “sloppily reasoned, overbroad and incautious in asserting extraordinary constitutional authorities on behalf of the president.”

Gag Orders From The Bush Administration

Professor Goldsmith testified to the committee about his account of the confrontation in 2004 at the bedside of then Attorney General (AG) John Ashcroft while in the Intensive-care unit, between Justice Department officials and White House officials when they learned that Alberto Gonzales, then White House counsel and Andrew Card, then the White House Chief of staff, were trying to get the AG to approve an extension of the wiretapping program.

When he testified, Professor Goldsmith said he believe that Gonzales and Card had been sent by President Bush, but he wasn’t certain.

When asked by Senator Charles E. Schumer (D-NY) if he was planning to resign if the program had been allowed to continue without changes, Professor Goldsmith replied “yes sir.” Professor Goldsmith didn’t discuss any details of the objections or changes to the wiretapping program, saying that the Bush Administration prohibited him from publicly discussing his legal analysis.

The Senate Judiciary Committee has been trying to get documents from the Justice Department and the White House since the beginning of the year regarding the legal basis for the wiretapping program, but so far neither the Justice Department or the White House has cooperated — they’re still waiting.

Senator Arlen Specter (R-PA) attempted twice to get Professor Goldsmith to expand what Constitutional principle was violated by the illegal wiretapping program, but both times Goldsmith said the executive branch told him that he couldn’t discuss any of his legal analysis.

Walls Of Secrecy Beginning To Crumble

A couple important recent rulings may be an indicator of how the walls of secrecy surrounding the Bush Administration may be slowly beginning to crumble:

U.S. District Judge Colleen Kollar-Kotelly reportedly invalidated part of President Bush’s 2001 executive order (Executive Order 13233) allowing former presidents and vice presidents to review executive records before they’re released under the Freedom of Information Act, ruling that by law the National Archives has the final say over the release of presidential records.

Executive Order 13233 was probably the result Bush’s 1976 drunk driving conviction in Kennebunkport, Maine that was divulged during the 2000 “elections.”

Recently, two provisions of the USA Patriot Act were reportedly ruled unconstitutional because they allow search warrants to be issued without a showing of probable cause, violating the fourth amendment.

These cases probably won’t be resolved for a couple more years, long after Bush is out of office. It’s possible that the rulings could be overturned by an Appeals court or by the Supreme Court.

If the decisions are overruled, Congress can always go back and revise the laws, provided Congress is willing to do anything about the Bush Administration fiasco by then.

Laws and Orders Convoluted Along the Way

Here’s a small sampling of laws and executive orders created or convoluted along the way:

U.S. Patriot Act from the Library of Congress

The U.S. Patriot Act allows the government to search your home without a warrant and without your knowledge among other things. It also gives powers that should and did belong to federal judges to the U.S. Attorney General.

Military Commissions Act of 2006 from the Library of Congress

The Military Commissions Act of 2006 makes it ok to extract information from an individual in any way that defines torture as anything that could lead to organ failure and takes away rights under Habeas Corpus for “anyone suspected” of being a terrorist. You can be held for indefinite periods of time and not told what you’re being charged with.

The Insurrection Act aka the John Warner National Defense Authorization Act for Fiscal Year 2007

The Insurrection Act aka the John Warner National Defense Authorization Act for Fiscal Year 2007 was amended in 2006 to give the President control over each states National Guard units over the wishes of the Governors of each state for law enforcement power, eliminating Posse Comitatus incorporated into the Constitution so there is a separation of powers from State and Federal Government.

Executive order: Blocking property of certain persons who threaten stabilization efforts in Iraq

Executive Order: Blocking property of certain persons who threaten stabilization efforts in Iraq which says that anyone interfering with the pacification of Iraq could have their assets taken from them by the Treasury Secretary, whether here or abroad. Does that apply to the White House administration too? They’ve been interfering with the pacification of Iraq for years.

National Security Presidential Directive 51

National Security Presidential Directive 51 makes Bush the head of the Judicial, Legislative and Executive Branches of Government in the event of an emergency, although he won’t tell members of Congress what an emergency might consist of.

More Executive Orders can be found on the White House web site.

Links to more information

As usual, links to the above information and a whole lot more can be found below:

FBI Office Under Investigation Involved in Secret Spying Controversy article from

“Ostensibly the spying operation was focused on external threats to the country, so the spying information should have been mostly funneled to the CIA. But new FBI documents released today by Congress hint that a controversial FBI office that is already under legal scrutiny may have been involved (SEE UPDATE that questions this conclusion).

The FBI’s Mueller joined with then-Attorney General John Ashcroft and his deputy James Comey in threatening to resign unless the program was changed. So the FBI had to have been deeply involved in either doing some of the data mining or receiving leads from the NSA.”

Cheney Blocked Promotion of Lawyer Who Questioned Wiretapping Program article from

“Vice President Dick Cheney blocked the promotion of a Justice Department lawyer in retaliation for his role in a review of a government surveillance program that led to the Intensive Care Unit Showdown, where then White House Counsel Alberto Gonzales and Chief of Staff Andrew Card attempted to persuade a post-op John Ashcroft to give legal cover to the government’s secret domestic spying program, according to written answers provided to Congress by former Deputy Attorney General James Comey.”

Former Official’s Account of Intensive Care Showdown Over Gov Spying Raises Six Issues article from

Goldsmith Muzzled By White House On Spy Program article from Think Progress

Talking Points Memo – Goldsmith: Cheney Lawyer Is Frothing Lunatic article from TPMmuckraker:

“If there’s a villain in Jack Goldsmith’s account of his time in the Justice Department, it’s David Addington, Dick Cheney’s legal alter ego. Addington, who became the vice president’s chief of staff after Scooter Libby resigned following his indictment, served as Cheney’s eyes and ears in the legal battles within the administration over warrantless surveillance, coercive interrogations and indefinite detentions. His style of argument, as recounted by Goldsmith, isn’t exactly a subtle one.”

What Will Be Done About James Comey’s Revelations? article from Salon

Talking Points Memo – Goldsmith: Legal Memos Were “Advance Pardons” for Lawbreaking article from TPMmuckraker:

“Why did Dick Cheney’s lawyer David Addington get so upset over rescinding this or that Office of Legal Counsel memorandum? The purpose of the OLC’s review process is to collect legal guidance about courses of prospective policies an administration might want to pursue. Under the Bush administration, however, OLC review became a waiver of immunity for breaking the law.”

The Gonzales Coverup article from The Washington Post:

“WHY IS IT only now that the disturbing story of the Bush administration’s willingness to override the legal advice of its own Justice Department is emerging? The chief reason is that the administration, in the person of Attorney General Alberto R. Gonzales, stonewalled congressional inquiries and did its best to ensure that the shameful episode never came to light.”

What Was “The Program” Before Goldsmith and Comey? article from Balkinization BlogSpot

Bush Lets U.S. Spy on Callers Without Courts article from The New York Times

Legality of Eavesdropping Questioned article from Google News / The Associated Press

Former DOJ Lawyer Couldn’t FInd Way To Legalize Bush Spying Program article from

News From Bizzaro World: Ashcroft Opposed Taps article on Threat Level article from

“In 2004, then-Attorney General John Ashcroft had doubts about the legality of the White House’s NSA surveillance program — so much so that a deputy refused to reauthorize the warrantless spying while Ashcroft was in the hospital.”

“True enough: Justice looked at it. And when the department didn’t authorize the surveillance for three weeks, Bush just went ahead and did it anyway. Once Ashcroft got out of the hospital, he signed off on the program, and the spying went from grossly illegal back to just seriously illegal.”

President Discusses 2006 Agenda press release from The White House:

Where he lied about how he only launched the NSA spying program after consulting with his AG and Justice:

“But before I implemented the program — I’m mindful of the fact that I took an oath to uphold the Constitution and the laws of the United States. So I had lawyers — the Attorney General and the Justice Department look at what I was doing. I’m also mindful that people want to make sure the President safeguards civil liberties while we protect the country, that there needs to be a balance. And so this is a program — and I became comfortable with that balance, and confident that I had the legal authority to do what I did.”

US aides fought over data mining – Disclosure casts light on furor over AG’s testimony article from The Boston Globe

Bush Lets U.S. Spy on Callers Without Courts article from The New York Times

NSA has massive database of Americans’ phone calls article from USA Today

Questions and answers about the NSA phone record collection program article from USA Today:

In December 2005, the New York Times published a report detailing how in 2002 President Bush secretly authorized the NSA to eavesdrop on Americans and others inside the U.S. to search for evidence of terrorist activity without court approved warrants required for domestic spying. More information about the illegal warrantless wiretapping can be found from USA Today.

National Journal – Cheney Authorized Leak of CIA report, Libby says (4/14/2006)

Gonzales Hospital Episode Detailed article from The Washington Post

Gonzales Was Told of FBI Violations article from the Washington Post:

In further attempts to renew the patriot Act Gonzales had to testify before Congress. 6 days before he appeared before Congress, the FBI had sent Gonzales a report (one of at least six) stating that its agents had obtained personal information they weren’t legally entitled to have. 3 months before he testified he had received reports of legal or procedural violations made by the FBI. But in his testimony he assured lawmakers that the FBI had not abused the their powers.

The FBI reports detailed unauthorized surveillance, an illegal property search and a case in which an internet film improperly turned over to a compact disc containing data the FBI was not entitled to collect. Each report said administrative rules or laws protecting civil liberties and privacy had been violated.  Despite all that, Gonzales told Senators “There has not been one verified case of civil liberties abuse” when he testified on April 27, 2005.

Talking Points Memo – Gonzales: I Only Visited Ashcroft’s Hospital Bed Because Congress Wanted It article from TPMmuckraker

Talking Points Memo – Goldsmith: Legal Basis for Surveillance Program was “Biggest Mess” article from TPMmuckraker

White House Secrecy On Wiretaps Described article from The Washington Post

Former Presidents Can’t Withhold Records article from News Vine / The Associated Press

Gonzales: Did He Help Bush Keep His DUI Quiet? article from MSNBC News / Newsweek

2000 Presidential Election information from Rutgers University

Gonzales reportedly helped then Governor Bush get excused from jury duty in a drunk driving case involving a dancer at an Austin strip club in 1996. By getting Bush excused, he was able to avoid questions that would have required Bush to disclose his own 1976 arrest and conviction for driving under the influence in Kennebunkport, Maine. This was divulged during the 2000 “elections.”

When five voted for millions article from The St. Petersburg Times Online:

“One of the darkest hours in the history of the U.S. Supreme Court was Dec. 12, 2000, at 10 p.m., when the five-member conservative majority handed the presidency to George W. Bush over his rival Al Gore.

Despite Florida’s 61,000 statewide undervotes – possible legal votes that had not been counted by the machines – the high court claimed it was acting in the name of fairness to the state’s voters when it overturned a decision by the Florida Supreme Court and stopped the recount.

At the time, there were still six days before the state’s electors were scheduled meet and fully 25 days before Congress was to count the electoral votes. Yet the high court claimed there was no more time, effectively anointing Bush the winner in Florida by 537 votes.”

Part of Patriot Act ruled unconstitutional article from MSNBC News / The Associated Press

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