Comey: More

by hilzoy

Marty Lederman has a fascinating post that puts Comey's testimony in context, and spells out exactly why it was so troubling. (Here's video of the crucial part of the testimony.) It's really, really worth reading in its entirety, not least because Lederman used to work for the Office of Legal Counsel, and so, though he isn't relying on any confidential anything, he does bring a much more informed sense of how DoJ works than, say, I do. After laying out all the reasons why it is astonishing that Ashcroft, Comey, et al were prepared to refuse to sign off on the program, he writes:

"And yet not only would Ashcroft, et al., not budge -- they were prepared to resign their offices if the President allowed this program of vital importance to go forward in the teeth of their legal objections.

In light of all these considerations, 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.

And recall this, as well: These are hardly officials who were unwilling to push the legal envelope, or who were disdainful of the objectives or need for the NSA program. Two or three weeks later, OLC did develop an alternative legal theory that permitted a narrower version of the surveillance program to go forward. By all accounts, that legal theory is some version of the argument that the 2001 Authorization for the Use of Military Force against Al Qaeda authorized this form of electronic surveillance, notwithstanding FISA. That is a theory that I and many others have harshly criticized (see, for example, the letters collected here). It is, to say the least, an extremely creative reading of the relevant statutes -- a reading that not a single member of Congress who voted for the AUMF could possibly have imagined, and one that (to my knowledge) not a single member of Congress has approved once reading of it in DOJ's "White Paper."

These DOJ officials were willing to sign off on that very tenuous legal theory. What does that tell us about the OLC theory that they inisted upon repudiating?"

That's the crucial question. What in God's name was the Bush administration doing that John Ashcroft, of all people, was prepared to resign over, along with the Director of the FBI and significant chunks of the leadership of the DoJ?

Glenn Greenwald also has an excellent post on this, and it too is worth reading in its entirety. He argues, basically, that the administration probably relied on the idea that the President's Article II powers allowed him to do whatever he wanted until late 2003, when Jack Goldsmith took over at the DoJ's Office of Legal Counsel, that it was only after that that they came up with the idea of basing their legal justification for whatever program we're talking about on the Authorization of Military Force, and that the program itself had to be altered to fit this new justification. (I had assumed that; if all they needed to do was come up with a new legal justification for the program, I have no idea why they wouldn't just have done that, without requiring the President's go-ahead.) He then argues that the alteration in question was something like this:

"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?"

One of his commenters makes another good point:

"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."

Glenn adds: "It might be worthwhile asking why the FBI Director was so intimately involved in eavesdropping which allegedly did not include purely domestic communications." It might indeed.

Finally, he quotes Anonymous Liberal:

"First, it appears that the White House was willing (and in fact did, for a time) authorize a program that the Justice Department--including the Attorney General, the Deputy Attorney General, the head of the OLC, and the FBI Director--had determined to be illegal. And if all of these people had not threatened to simultaneously resign, it is very likely that the White House would simply have continued renewing this program without the Justice Department's blessing.

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."

Yep.

***

A couple of other points: first, Comey said (pdf) that when all this happened, " 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." I was struck by the "factually" part, which would seem to indicate that they were worried not only that the legal justification for this program was inadequate, but that the facts of the program were not what they had understood them to be. It's worth asking: why not? Were aspects of the program kept secret from DoJ? If so, why?

[UPDATE: To elaborate: Suppose that there was some fact that the people at DoJ did not know about at first, but then discovered, and that this either affected the legal justification or was so egregious that it made Comey, Goldsmith, Ashcroft et al think: Oh my God, this has to be stopped. In the second case especially, the point of changing both the legal justification of the program and changing the program itself to comport with that justification could have been: to keep anything like that from happening again. END UPDATE.]

Second, if we needed any indication of how important people took this to be besides what Marty Lederman describes, note how many people seem to be willing to drop everything and careen around in the middle of the night because of it. For instance: Ted Olson, the Solicitor General of the United States, was willing to be pulled out of a dinner party just to go and be a witness to Comey's conversation with Andy Card at the White House. Comey did not need Olson's expertise or the benefit of his experience or anything like that; he just felt he needed a witness, and he thought it should be Olson. Offhand, I would be inclined to doubt that Ted Olson is prepared to walk out of dinner parties whenever people decide they'd like him to observe their conversations.

Finally, I completely agree with Glenn on this point, which I was also struck by:

"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)."

Again: yep.

But the most important point, I think, are these: (1) The President was prepared to order a program that his entire Justice Department seems to have thought was illegal. So much for taking Care that the Laws be faithfully executed. (2) We still have no idea what, exactly, this program was. But if what we've heard about is the tamer, less extreme version, and if John Ashcroft was prepared to resign over the old one, then it must have been pretty dreadful.

And one more point: those who were prepared to resign over this showed themselves to have some line they were not prepared to cross, or some indecency they were not willing to commit, and showed in addition that they were willing to give up their jobs for those principles, for the rule of law, and for the sake of the country. We owe them a lot.

Comments

[dmbeaster]

Since the only remedy for this form of secret and abusive government is probably elections, it shows the cowardice of the NY Times in holding the story for a year until after the 2004 election.

[Gary Farber]

[...] For instance: Ted Olson, the Solicitor General of the United States, was willing to be pulled out of a dinner party just to go and be a witness to Comey's conversation with Andy Card at the White House. Comey did not need Olson's expertise or the benefit of his experience or anything like that; he just felt he needed a witness, and he thought it should be Olson. Offhand, I would be inclined to doubt that Ted Olson is prepared to walk out of dinner parties whenever people decide they'd like him to observe their conversations.

I think the Solicitor General of the United States, the fourth highest ranked person at the Department of Justice, is probably generally willing to be summoned by his boss, the Deputy Attorney General, the second highest ranked person at the DoJ, actually. Coming somewhere at your boss's request isn't terribly unusual behavior.

This particular tiny point is so weak that it detracts from the otherwise consistently strong points which surround it.

As an ultra-trivial point of phrasing that I probably shouldn't bother mentioning, I was distracted by the phrasing of "Glenn Greenwald also has an excellent post on this, and it too is worth reading in its entirety. He argues, basically...," since it seems to me that Balkin, whom you previously cited, included the same article, and thus I was jarred by the implication that Glenn's point was somehow entirely separate.

But, as I said, I shouldn't get hung up on such trivial presentational points; that's mostly my own quirk.

I fail to include, as a rule, enough congrats on another fine post, whenever Hilzoy posts, because I dreadfully take for granted that pretty much all posts by Hilzoy are fine, with only very rare and partial exceptions. Typically the only variation tends to range from merely "fine" to "extremely fine" to "extraordinarily fine" and points in between.

So: my apologies for my tendency towards insufficient acknowledgement of said fineness in favor of finding those One Or Two points, generally only small to trivial, to quibble with.

Of course, I owe that apology to many other folks, as well, although, to be sure, not everyone.

[Gary Farber]

"since it seems to me that Balkin, whom you previously cited, included the same article"

Included the same argument, drat it, not "article."

I blame Jerry Falwell.

[Katherine]

1) I am SO glad that I no longer work for Alberto Gonzales.

2) It's interesting--Ashcroft is only the most extreme example of the general truth that none of these guys necessarily had any sort of commitment to what I consider pretty fundamental civil liberties or human rights. So far as I know none of them has clean hands. There's Ashcroft and the post 9/11 immigration sweeps; Goldsmith's memo on taking Padilla case; etc.. Ashcroft was the Attorney General when the initial torture memo and NSA justifications were issued. He, Comey and Goldsmith presumably consented to revised memos that authorized a wiretapping program based on a legal argument only slightly less frivolous than Yoo's, which still could quite possibly have included, e.g., conversations between habeas lawyers and Guantanamo prisoners' families; to revised memos that still authorized CIA waterboarding. If we're looking for heroic defenders of human rights & civil liberties, these are not the guys. To put it mildly.

But for all that, it could've been worse. And they were willing to resign their jobs to prevent that. That takes something, something that DOJ badly needs.

I was going to say it shows integrity--which is certainly true--but I'm not sure that is exactly the right word for what distinguishes Comey, Goldsmith, etc. from some of the other people. Gonzales just seems like a hack, but it's entirely possible that David Addington and John Yoo are actually totally honestly convinced that the Constitution grants the President an unlimited commander-in-chief power. Yoo's been dishonest enough often enough to cast some doubt on that, but then again, he was making these arguments back when he was just publishing them in obscure law journal articles, before there was a real market for them in the executive branch. Addington I know less about, but some reports make him sound a true believer too. They may sincerely believe that the various legal opinions they issue are correct. It's at least possible.

I think what the difference is actually at least some ability to differentiate between law and power; some level of commitment to the rule of law or an institution that's separate from the President (or Vice President).

[Katherine]

Oops.

That should be: Goldsmith's memo on taking prisoners out of Iraq; Comey and the Padilla case

[CharleyCarp]

Lawyers who are confident in their theories would, it seems to me, look for opportunities to have their views vindicated by courts. Not look for excuses to avoid judicial review. (By vindication, I mean a court order that the particular point is unreviewable).

Gary you might be a little distant from DClegal culture to get just what an iconic and prestigious figure an SG is.

[hilzoy]

Katherine: a gesture at the distinction you're working on: somewhere, I read that Comey's friends all joked that in the movie version of his life, he'd be played by Jimmy Stewart. I frankly cannot imagine anyone saying that of Addington or Yoo.

I don't think sincerity is the point. I once read an article in (I think) the Atlantic that annoyed me no end, in which the author was arguing that bin Laden was sincere, and that this raised serious questions about whether he was evil. Personally, I think sincerity proves very little, since it can be conjoined with the beliefs of, say, Hitler or bin Laden, about which I think: it's very, very hard for me to imagine a morally sound way of arriving at those beliefs. Very, very hard. You have to imagine, somewhere in there, a failure to really think about what your conduct means for others, about simple human decency, etc., a failure that would itself be culpable.

I think it's that they care about the rule of law and the country, and while their views of what this entails undoubtedly differ quite a lot from mine, and not just in those respects that reflect their having been high officials in the DoJ and me not being a lawyer, that concern is real, and they were willing to act on it.

I am quite tempted by my explanation of the AUMC rationale above, though, of course, on the basis of nothing more than a hunch, and the thought: it's too flimsy, could they really accept it on its merits?

[CaseyL]

You might be amused to know that, over at Maguire's place, they've concocted an impressively deranged theory:

Comey, because that evil Democrat Schumer recommended him for Assistant Attorney General, was a cat's paw sent into the Bush Administration for the specific purpose of getting his buddy Pat Fitzgerald appointed Special Counsel to investigate the Plame Matter, which as everyone knows was really about Joe Wilson and Valerie Plame being the masterminds behind a plot to bring down the Bush Administration. Therefore not only can Comey's account of what happened that night be totally dismissed as lies, but his refusal to authorize renewal of the NSA surveillance program was really part of the plot to get Totally Innocent Scooter Libby convicted of perjury and obstruction of justice, while ensuring that the Wilsons would get away with... whatever it is they were supposedly getting away with.

Oh, and since neither Gonzales nor Card actually threatened Ashcroft outright, they couldn't possibly have been trying to coerce him into doing something he didn't want to do.

Or maybe they were, but that's OK, because the surveillance program Protects America, and if Ashcroft didn't want to recertify it, then he must have been in league with Comey and Mueller to, um - I'm not quite sure what they were all in league to do, exactly; the JOM Commentariat gets a little nonspecific there - either bring down George Bush, or let terrorists make phone calls, or persecute poor Scooter, or let the Wilsons get away with... something.

Honestly, JOM has much more entertaining crazies than BW.

[hilzoy]

CaseyL: words fail. -- Clever Chuck Schumer to have amassed so much secret influence over the Bush Administration that he can direct the appointment of an Assistant AG.

[Katherine]

That's possible. There may be a similar explanation for Goldsmith's memo on taking captives out of Iraq. If you arrive there with these opinions on the books already, and you want to have any hope of keeping your job long enough to change anything, you'll need to pick your battles. I don't know what they did, what they knew (did Comey in fact know about Padilla's treatment and the treatment of his accomplice?), what they could have done, etc. I also suspect that if I knew the whole story I'd find a lot more in common w/ Goldsmith & Comey than with Ashcroft....and, I had been thinking that the OLC memo withdrawal didn't have much actual effect at all, but Lederman's posts reminded me that the first memo Goldsmith seems to have withdrawn was one that authorized really bad "enhanced interrogation techniques" for the military--which would directly affect far, far more prisoners than the CIA memo. The final story, if we ever learn it, may resolve a lot of my reservations, or it may not....

Obviously, in my skepticism I am thinking of the similar press coverage of, e.g., Lindsey Graham. But Graham never seriously risked or sacrificed his job like these guys did.

I think an ability to differentiate between law and power is pretty much required for being an ethical lawyer (and Yoo probably does care about the country at some, but he honestly doesn't even seem to grasp the difference--he never even bothers to consider whether the President has an obligation to obey laws that he can't be forced to obey on pain of contempt of court or prosecution; the question doesn't seem to occur to him.) But you could call it a lot of things; you could call it basic decency; you could actually call it integrity if you defined integrity to require something more than just sincerity.

[Gary Farber]

"Gary you might be a little distant from DClegal culture to get just what an iconic and prestigious figure an SG is."

The Solicitor General? That distinguished office? The person in charge of presenting the Administration's case to the Supreme Court?

The figure who has held such pivotal positions in our history such as when Robert Bork chose to fire Archibald Cox? (And whom I therefore intensely studied up on in 1973.)

The figure whom the whole point of why Comey wanted him is that he's the Solicitor General of the United States Of America, and if he isn't a credible witness to something, who is?

The figure whom I corrected Paul Kiel about when he referred to him as "the Solicitor General to the White House" yesterday? (They don't believe in links to comments, so do a "find" on my name if you care.)

Yeah, I wouldn't have a clue about that sort of thing.

Because if there are things I'm uninterested in, they've always included Washington political and legal culture, and SCOTUS and how it works, and the history of all that there. I doubt I could get it.

Oh, and heck, I've only known the sons of two different SGs. I'm very far away from it all.

Have I ever mentioned that one of Robert Bork's sons wound up staying in my house on more than one occasion, and was one of the six people I had over to my apartment to spend Election Night 1984?

One of Erwin Griswold's sons is the other fellow I slightly knew.

Have I ever mentioned the half-year I spent as a pseudo-Yalie, living with my Yalie girlfriend, who was slowly decompressing from having been deeply involved in Yale's Party Or The Right?

Just incidentally.

But it's true that I can only name about 15 Solicitor-Generals off the top of my head; I couldn't tell you much about the rest of them. (Basically, anyone earlier than Taft, or between him and Bullitt, or Bullitt and Robert H. Jackson; after Jackson, I'm on reasonably familiar ground.)

Have I mentioned that I'm a guy who grew up obsessed by political biographies, among many other obsessions? That I started reading SCOTUS decisions when I became a news junkie in the late Sixties, back in the days when the Times would print important full decisions in small print?

[Gary Farber]

"I read that Comey's friends all joked that in the movie version of his life, he'd be played by Jimmy Stewart. I frankly cannot imagine anyone saying that of Addington or Yoo."

Jimmy Stewart played quite a few dark, and evil, characters. His Scottie Ferguson in Vertigo, for instance, is hardly an admirable, cheery, figure. I can, in fact, imagine Yoo or Addington waking up screaming like Jimmy Stewart.

[Gary Farber]

"Comey, because that evil Democrat Schumer recommended him for Assistant Attorney General"

Deputy Attorney General. That's the guy just under Attorney-General. There are something like 12 Assistant Attorneys General, and they are subordinate positions to the Deputy Attorney General, as well as to the Associate Attorney General, and to the Solicitor General. The assistants run the various Divisions of the DoJ; the Deputy AG is their boss.

[Gary Farber]

"Honestly, JOM has much more entertaining crazies than BW."

BW?

Kinda amusing to read Hilzoy comment: "Clever Chuck Schumer to have amassed so much secret influence over the Bush Administration that he can direct the appointment of an Assistant AG."

Followed by Katherine's: "That's possible. There may be a similar explanation for Goldsmith's memo on taking captives out of Iraq."

Leading me to understand that Chuck Schumer must also be responsible for that.

[moe99]

at the time of the incident, Comey was the ACTING Attorney General, so he was, in fact, no. 1.

[Gary Farber]

"at the time of the incident, Comey was the ACTING Attorney General, so he was, in fact, no. 1."

True, but I'm not clear how that's directly relevant to... what are you responding to?

[Gary Farber]

There's always more:

The Justice Department considered dismissing many more U.S. attorneys than officials have previously acknowledged, with at least 26 prosecutors suggested for termination between February 2005 and December 2006, according to sources familiar with documents withheld from the public.

Attorney General Alberto R. Gonzales testified last week that the effort was limited to eight U.S. attorneys fired since last June, and other administration officials have said that only a few others were suggested for removal.

In fact, D. Kyle Sampson, then Gonzales's chief of staff, considered more than two dozen U.S. attorneys for termination, according to lists compiled by him and his colleagues, the sources said.

They amounted to more than a quarter of the nation's 93 U.S. attorneys. Thirteen of those known to have been targeted are still in their posts.

And so on.

[Gary Farber]

"I read that Comey's friends all joked that in the movie version of his life, he'd be played by Jimmy Stewart."

Not just you:

Steven R. Peikin, who prosecuted securities fraud cases under Mr. Comey when he was United States attorney in Manhattan, said he found Mr. Comey’s intervention in the N.S.A. program “totally unsurprising.”

“We always joked that Jimmy Stewart’s going to play him in the movie,” Mr. Peikin said.

The caricature view of Jimmy Stewart is widespread, though not so much amongst film fans.

[CharleyCarp]

Gary, I didn't say that I thought you didn't know what the position of the SG is, and who's been SG. In fact, I remembered your connection to Griswold as I was writing the comment. What I said, and what your response does not address, was that I'm not sure you appreciate the way the SG is regarded within the DC legal universe. (Which is, I think, quite different from how the office is viewed in, say, New York).

[thag]

on Card's thuggery:

another revealing moment is when Card lies about why they went to the hospital room. This is when he is trying to get Comey to meet him at the WH. And he says something like "oh, we just went there to wish him well."

Which is a manifest lie, given that he and Gonzalez showed up at the bed-side *with an envelope full of papers to sign*.

You know, it's trivial in one way--lying on that scale is peanuts compared to conducting illegal and unconstitutional searches and wiretaps.

But it is deeply indicative of the dishonesty of the people involved, their brazenness, and, yeah, thuggery.

[nabalzbbfr]

Comey was one of the folks at DOJ with a pre-9/11 mindset who stubbornly refused to adjust to the changed realities. When Ashcroft fell ill he deliberately attempted to undermine a vital national security program, which was the sole reason for the supposed crisis at DOJ. He has now presented a distorted self-serving version of the events at that time, playing into the hands of the Administration's partisan enemies. Note that Ashcroft and Mueller are conspicuously silent about this. There was also a personality clash -- Comey is an arrogant elitist who shows open contempt for Gonzales' humble Hispanic origins.

[cleek]

anonymoose, i heard that Comey was also the one who really leaked Plame's name to Novak. he should be hung for treason!

[Steve]

I think the Solicitor General of the United States, the fourth highest ranked person at the Department of Justice, is probably generally willing to be summoned by his boss, the Deputy Attorney General, the second highest ranked person at the DoJ, actually. Coming somewhere at your boss's request isn't terribly unusual behavior.

I want Gary as my defense lawyer. I enjoy the thought that if I asked my secretary to come by the office in the dead of night and help me make copies of all the files (a scene I've shamelessly stolen from "The Firm"), Gary would be there to point out that, in fact, it's not at all unusual to ask your secretary to make photocopies.

First, it's rather unusual to demand a witness to a conversation in the first place. Conversations take place one-on-one all the time, even very important conversations. You typically don't go through the process of bringing a witness unless you have a particularly high concern that the proceedings be documented.

Second, it's unusual to pull someone away from a dinner party for this purpose. Over my legal career, I've been asked several times to witness conversations, but no one has ever called me at home or at a dinner party to request that I do so. What hilzoy is calling attention to is the fact that, from the context, it's apparent that this was a situation of such importance that only Olson himself would do as a witness. It's not so much that we expect Olson to throw a hissy fit and flatly refuse his boss's request, so much as we presume that, if you're in the middle of a dinner party when you get this sort of request, you'd most likely be curious, at a minimum, if they couldn't maybe find someone else to do it instead of you. Then again, maybe it was a totally boring party.

Third, the situation is remarkable simply because of who Ted Olson is. His bona fides within the conservative movement are beyond question; amongst Republicans, he's going to be regarded as about the most unimpeachable source you could find. The fact that Comey insisted that Olson be the one to witness this particular meeting instantly debunks all sorts of crazy theories that Comey was a mole doing the Democrats' dirty work, or that he was somehow engaged in a power play at the expense of the White House.

[john miller]

"in a reevaluation both factually and legally of a particular classified program."

I have to admit that when I first read of the reevaluation I missed the factual part. I had been thinking that obviously, the program had been approved up until now and they were doing a regular reevaluation, and I was wondering if it was just the chaneg at OLC that prompted this sudden reluctance to sign off on the program

It now appears, IMO, that the adminsitration not only withheld information on the program, but may have actually purposely lied to DOJ about certain aspects of the program.

As mentioned above, none of these people were exactly shining stars of progressiveness or what many of us consider the upholding of the Constitution. Yet the administration must have felt that they had sufficient integrity that they would object to what was being done. And again, consider who they were withholding information from and then consider how outside the law the activity must have been.

I wonder if we will ever find out what the "facts" were that really riled Ashcroft, Comey etal.

[Gary Farber]

"Note that Ashcroft and Mueller are conspicuously silent about this."

Indeed, the fellow traitors, not pointing out Comey's lies!

Comey is as bad as Bush's other traitorous Cabinet secretaries, subcabinet appointees, and aides, who lie about the Leader so! Secretary of the Treasury O'Neill, EPA Administrator Whitman, Secretary of State Powell, Deputy Secretary of State Armitrage, Acting Attorney General Comey, and on and on goes the list of filthy traitors that hypnotic mind-control satellites forced the Leader to hire! Damn the control of those satellites by the enemy terrorists, the Democratic Al Qaeda Party!

Someday the Leader's mind will be free, and then the truth will be known to all! And the earth shall be scourged of his enemies by his wrath!

I pray for a rescue of Ashcroft and Mueller from their terrorist captors to soon come and testify as to these terrible lies about the Leader! You, you, you, Leader slanderers!

[John Thullen]

Nazgulzbbzer or Nabalzbbfr or whomever counters Comey's Jimmy Stewart with his impression of the high cackle of Strother Martin (an actor who described his career as devoted to playing "prairie scum") from his role as sidekick to Liberty Valance in the "The Man Who Shot Liberty Valance".

Martin's character (Floyd) at one point receives the toe of John Wayne's boot directly under the chin when he too eagerly moves to retrieve John Wayne's steak from the floor where his master Valance has deposited it after tripping Stewart.

" .....Gonzales' humble Hispanic origins".

I think Eli Wallach played Gonzales in "The Magnificent Seven", though in this case Freddie Prinz ("it's not my yob") might have had a shot at the role in the remake, if he hadn't check out early.

Before you think try that, Valance, .... my man Pompey ... there.

[CharleyCarp]

Strother Martin! Yes! Maybe the Nabal guy could be induced to change his handle. "Coffer" would be a nice contrast to our prodigal Gorch brother.

Instead of DNFTT, we can all respond with 'What we have here, is a . . .'

[Jay C]

John T.:

I think the handle is pronounced "no balls beefer": but I may be incorrect.

[cleek]

I think the handle is pronounced "no balls beefer"

i pronounce it "Rot13(anonymoose)"

[cleek]

TPM has a long excerpt from a new NTY article on this. my favorite part:

Up until this moment, Ashcroft had been signing off on the program every 45 days. That means his signature was last required in late January, shortly after Comey assumed his post, and perhaps even before he’d been authorized access to the program. Suddenly, the March 11 date comes into clearer focus. For the first time, trained and qualified attorneys within the Justice Department had conducted a careful review of the program. Comey took the evidence he had gathered to Ashcroft, as he testified on Tuesday: “A week before that March 11th deadline, I had a private meeting with the attorney general for an hour, just the two of us, and I laid out for him what we had learned and what our analysis was in this particular matter.” By the end of that meeting, Ashcroft and Comey had “agreed on a course of action,” to wit, that they “would not certify the program as to its legality.”

...

What to make of this long narrative?

Simply this. The warantless wiretap surveillance program stank. For two and a half years, Ashcroft signed off on the program every forty-five days without any real knowledge of what it entailed. In his defense, the advisors who were supposed to review such things on his behalf were denied access; to his everlasting shame, he did not press hard enough to have that corrected.

When Comey came on board, he insisted on being granted access, and had Goldsmith review the program. What they found was so repugnant to any notion of constitutional liberties that even Ashcroft, once briefed, was willing to resign rather than sign off again.

oh boy oh boy oh boy.

[Donald Johnson]

Note to self--Don't question Gary's knowledge of Solicitor Generals.

So, Gary, ever read any science fiction?

[Gary Farber]

"So, Gary, ever read any science fiction?"

Once or twice.

"TPM has a long excerpt from a new NTY article on this. my favorite part:"

Isn't at all from the New York Times; you're quoting "A TPM Reader."

The actual Times article, which came out last night, is here. None of what you quote and attribute to the NY Times (or NTY) is, in fact, from the NY Times.

[cleek]

you're quoting "A TPM Reader."

quite right

[russell]

i pronounce it "Rot13(anonymoose)"

Rot13?!?! So it is.

How 80's. How USENET. anonymoose, you couldn't even come up with a nice anagram?

"yeoman soon", or "anyone moos", or "no easy moon". So much more fun, and takes just a minute.

Instead we get the unpronouncable, unimaginative "nabalzbbfr".

Rot13. I'll never be able to take the guy seriously again.

Thanks -

[Jay C]

Note to self--Don't question Gary's knowledge of Solicitor Generals.

Fixed.

[Donald Johnson]

Thanks.

[Dantheman]

A slightly different take from Orin Kerr at Volokh. If his speculation is correct, Gonzalez comes off as an even bigger weasel, giving Bush credit for the safeguards Comey fought for.

[Gary Farber]

"A slightly different take from Orin Kerr at Volokh."

Which is the same post discussed at length in both the Balkin post and the Greenwald post we discussed above, yesterday. This is getting a tad circular, though presumably now someone can link to Marty Lederman's new post, in which he has a slightly different take as Kerr, and we can consider this new information. Then someone can point out Kerr's "new post."

[Dantheman]

Gary,

Funny, but even if both Greenwald and Lederman both cite Kerr, no one here cited him, nor discussed his views. Unless you believe that linking and discussing a post is the equivalent of linking and discussing all posts linked to in that post, and perhaps even all of the posts linked to in all posts linked in the first linked post, and so on into infinity, calling the citation "a tad circular" seems an overstatement.

Or in other words: Chill. Seriously.

[Gary Farber]

"Or in other words: Chill. Seriously."

I'm very chill. I didn't mean to sound as if I was coming down on you (I don't think I did, but perceptions vary); I was merely rolling my eyes a bit at the general tendency for this sort of repetitive circularity to occasionally happen.

On the specifics, Marty Lederman (not Jack Balkin, sorry) merely emphasized: "For more along these lines, see this terrific post by Orin Kerr" -- and sure, one can ignore that sort of endorsement in a post, and presumably we responded differently on that point.

It's impossible, however, to have read the Greenwald piece Hilzoy linked to, in the part where she wrote "Glenn Greenwald also has an excellent post on this, and it too is worth reading in its entirety" and goes on to discuss it at length -- just above, covering the point of her post -- without reading the lengthy excerpts from and discussions of Kerr's piece, unless one just skips the middle of Glenn's piece:

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 [...]

And Glenn goes on discussing Kerr at length. (Marty Lederman also linked to Glenn's post as "his usual bang-up, comprehensive job.") Thus the point of his piece. Thus the point of Hilzoy's post.

Greenwald also linked to Lederman's post, and discussed it and praised it for several paragraphs.

We're theoretically discussing these things, so I tend to assume that contributors to the discussion are following the discussion. Practices vary, to be sure.

[AndyK]

You know, if you can get nabalzbbfr to say his name backwards, he'll have to return to the fifth dimension for three months.

[bril]

Hey, I thought Bush wasn't capable of listening to anyone else. Wasn't that just the theme of a post a few weeks ago?

Sound like Bush does know how to compromise.

But heck. Let's don't focus on that.

[Steve]

There you have bril's takeaway from the story: when faced with the threatened resignations of the entire senior management of the Justice Department, after his attempt to send his underlings to the hospital room of the sedated Attorney General to wrangle a signature out of him failed, Bush finally gave in. And what we learn from this is that we should all celebrate Bush's willingness to compromise.

YAY FOR BUSH! I swear, I had the guy all wrong.

[KCinDC]

An amazing display of hackishness by Douglas Kmiec on Diane Rehm today, explaining how Comey's story is overblown and there's really nothing to see here, since the president is within his rights to do whatever he needs to do to keep us safe (it was the week of the Madrid bombing, after all!), or anything's okay as long as he can dredge up at least one lawyer to say it's legal, or something.