A thrice told tale

Barton Gellman of the Washington Post has written a book called Angler: The Cheney Vice Presidency. The book runs to almost 400 pages, so I assume it attempts to provide a comprehensive account of that vice presidency.

The Post is carrying two excerpts from Angler. Both deal with the story of how the Justice Department won a showdown with the vice president’s office over the contours of the NSA warrantless terrorist surveillance program. The selection strikes me as odd because this story has been reported at least two times: in connection with the testimony of one of the key actors, James Comey, before the Senate Judiciary Committee and in connection with a book by Jack Goldsmith, another key actor. It has already become a Washington legend.

To be sure the story is quite dramatic and pertains to matters of the highest importance. But the same is true of Douglas Feith’s book about key decisions regarding Iraq policy. Yet the Post has refused to review Feith’s book and it ran only one hastily prepared story about its content.

Gellman’s rendition of the Cheney/DOJ story emphasizes (as have past accounts) the extent to which review of the legality of the surveillance program was restricted. It appears that the only legal scrutiny came from Addington, from the Justice Department’s Office of Legal Counsel (OLC), and from the office of Alberto Gonzales, then the White House counsel. We are led to believe that Gonzales’ review was cursory.

Gellman seems oblivious to the downside, from a national security perspective, of having a secret program reviewed by lawyers in multiple federal agencies. Clearly, the more lawyers who are involved, the greater the likelihood the program will not remain secret. In addition, the more lawyers who provide input, the greater the likelihood that the program will be “over-lawyered,” which in this context means “watered-down” in response to questionable objections from hyper-cautious attorneys.

On the other side of the equation (the one that Gellman and others are fixated upon), before a surveillance program like this one goes into operation, there must be meaningful scrutiny of its legality by top-quality government lawyers. Anything less would represent a violation of the president’s duty as chief law enforcement officer of the United States.

In this context, “meaningful scrutiny by top-quality government lawyers” requires, at a minimum, review by the appropriate lawyers at the Department of Justice. But I doubt that it requires much more. Review by DOJ and the White House counsel’s office should be sufficient, assuming the independence and competence of both shops.

Here, both DOJ and the White House counsel were in the loop. Indeed, John Yoo at OLC wrote a memorandum concluding that the surveillance program was lawful. On that basis Attorney General Ashcroft certified the legality of the program. According to Gellman, Ashcroft would later claim that Addington prevented him from getting the advice he needed. But this may be a cop-out. Ashcroft was, after all, Yoo’s boss. And Ashcroft should not have certified the surveillance if he thought he needed more information.

Gellman calls Yoo “Addington’s close ally.” He may be implying that Yoo did not bring to bear an independent legal analysis but instead was straining to reach the result Addington (and his boss Cheney) wanted. Such a theory would be mere surmise,

Gellman also suggests that Yoo’s legal analysis was shoddy. This comes through in the vehemence with which other Justice Department lawyers later denounced that analysis. Since I have not read Yoo’s analysis, I cannot opine as to its quality.

Eventually, Yoo left DOJ (as did his boss, the head of OLC, Jay Bybee). The lawyers who took their places – Patrick Philbin and Goldsmith, both excellent lawyers – concluded that aspects of the surveillance program were illegal. The now-famous “brawl,” complete with the Gonzales-Card visit to John Ashbrook’s sick bed, ensued.

In the course of the brawl, several top DOJ lawyers and officials stated their intent to resign. According to Gellman, Cheney was unmoved. But when Bush learned of the impending resignations (belatedly in this telling), he deferred to DOJ.

Jack Goldsmith has acknowledged that his adversaries in the administration “thought they were doing the right thing.” That’s how it looks to me too, and it’s also worth keeping in mind that the legal issues involved were novel and complex. The vice president and his lawyer pushed hard both to preserve a program they viewed as vital to our security and to uphold their view of presidential power. The DOJ lawyers pushed hard to uphold the rule of law, as they saw it. President Bush made the final decision, one that Gellman appears to believe was correct.

The actor who seems most clearly to have come up short is Gonzales. His role should have been to make sure the president was informed of the dispute and to provide sound advice as to its proper resolution. As I read Gellman’s account, Gonzales did not keep the president fully informed. And though Gonzales says he eventually advised Bush to “find common ground with Justice,” this advice (if he actually gave it) seems to have been political in nature, not advice on the legal merits.

One might have hoped that the president’s top lawyer would advise the president that one camp or the other was correct on the law and on the basis of that substantive analysis, in the interest of our nation’s security, recommend that the Bush adopt the most expansive surveillance program consistent with the law. If Gonzales didn’t do this, then he let the president down.

JOHN adds: I have studied the relevant federal court decisions with considerable care, and in my opinion, the NSA’s warrantless surveillance of international terrorist communications was plainly legal under the governing precedents at the time it was ordered, and continues to be legal today. While it is true that capable lawyers have argued to the contrary, it seems obvious to me that such arguments have been based on those lawyers’ personal opinions, and not on an objective reading of the controlling case law.

A government lawyer who advises the President or any other executive branch official has a duty to base his or her advice on the controlling precedents at the time, not on his or her opinion about what the law ought to be, or on a prediction as to how the law could change based on the current composition of the Supreme Court. Notwithstanding the many books and articles that have been written by liberals who would like the law to be otherwise, which quote plentifully from liberal law professors who also would like the law to be otherwise, the NSA’s terrorist surveillance program was and is legal, as I argued here.

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