In a press conference yesterday afternoon, SJC chairman Patrick Leahy informed us that the White House failed to comply with a subpoena requesting documents detailing the legal basis for the Warrantless Wiretapping Program.
However, during the press conference, Leahy indicated that the Office of the Vice President had responded to the subpoena with a letter, listing documents in the Vice President's Office that were responsive to the subpoena.
The Vice President's list of documents reveal that the Warrantless Wiretapping Program was continued unchanged for at least 9 days, despite knowledge that the program was illegal.
Dan Eggen at the Washington Post reports on the contents of the Vice President's document list and notes that the list sheds light on changes made to the NSA-drive Surveillance Program in response to the findings by James Comey that the program had "no legal basis".
(Blockquote text from Eggen Article)
The List includes dates of:
43 separate authorizations from President Bush for the program, which had to be renewed approximately every 45 days beginning on Oct. 4, 2001.
The letter also lists dates, from October 2001 through February 2005, for 10 legal memoranda from the Justice Department.
We know from Comey's SJC testimony that the legal analysis of the program had been ongoing for months in early 2004, and that Comey's objection to the program was communicated to Ashcroft, who concurred, on March 4, 2004. Comey's refusal as acting Attorney General to sign off on behalf of the DOJ for reauthorization prompted the infamous Hospital Signature Mission. This incredible dark-of-night excursion by Card and Gonzales to extract approval for the program from the critically-ill Ashcroft was thwarted by Janet Ashcroft, Ashcroft's Chief of staff and James Comey, with the support of Robert Mueller and FBI agents:
The disclosure of the existence of the documents and their dates sheds new light on some events surrounding the NSA program, including a now-famous legal dispute in March 2004. A half-dozen senior Justice officials threatened to resign if the White House did not agree to change parts of the program that Justice lawyers had determined were illegal.
Despite knowledge that the NSA-driven Surveillance Program had been found to be illegal by DOJ lawyers, and despite a desperate but failed attempt to get an approval signature from a delerious Ashcroft, The Program was reauthorized unchanged by Bush on March 11, 2004.
We now know from the OVP letter to SJC Chairman Patrick Leahy that:
Bush ordered The Program, known to be illegal, continued unaltered for 9 days before it was amended on March 19, 2004. The Program was changed a second time with an amendment on April 2, 2004, 23 days after reauthorization:
Coffin's letter indicates that Bush signed memos amending the program on March 19 and April 2 of that year.
b. How long did the classified program continue without legal certification from DoJ?
I don’t recall exactly, but believe it was approximately several weeks.
We still do not know what aspects of The Program Comey and other Justice Department Lawyers found to be illegal. We do not know how these illegal aspects were altered to remove the DOJ objection. But it is clear that the knowingly illegal program was continued for 9, and probably 23, days after the March 11, 2004 reauthorization.
Yesterday, many of us voiced frustration that the Admninistration had not produced documents in response to the SJC subpoena, and that Leahy seemed powerless to compel disclosure. Yet clearly as a result of the SJC investigations and subpoenas, Leahy has elicited a new document that adds more information to the puzzle of Bush Administration malfeasance.
The administration should be compelled to disclose not only the legal justification for all of the activities included in the NSA-driven Surveillance Program, but also what the justification was for continuing the program despite knowledge that it was illegal.
Although knowledge of illegality does not change the basic fact that an illegal act is committed, it does show intent. It changes the constitutional violation committed by the Bush Administration from Constitutional Manslaughter, to Constitutional Murder in the First Degree.
For an excellent timeline and further analysis of the Program amendments, please see this post by emptywheel at The Next Hurrah.
Update: On SECRET MEMORANDA
One important exercise left incomplete in the Eggen article is connecting the dots regarding the dates of the 10 legal memoranda related to The Program that were disclosed in the Cheney Letter:
There are 6 legal memoranda pre-dating the March 10, 2004 Hospital Showdown that allegedly pertain to the NSA-driven Surveillance Program. Cheney's letter notes that these memoranda "were not rendered to the Office of the Vice President (suggesting they may be retained within the White House, presumably to be covered by a future claim of Executive Privilege). However, Comey's testimony asserts that he was unaware of the existence of any legal memoranda prior to March 10, 2004.
d. Did the response include any legal opinion or memorandum from the White House, or any other federal agency related to the classified program? If so, please identify what individual(s) or entities prepared and reviewed the legal opinion or memorandum.
I am not aware of any other such memorandum or legal opinion prior to March 10,
- Some time shortly after March 10, I received a memorandum from White
House Counsel Gonzales.
Does this Comey statement indicate that the DOJ Lawyers charged with reviewing the legality of the NSA-driven Surveillance Program were not given existing memoranda on the legality of The Program when they were conducting their analysis?
Is the conflict between the Comey Testimony and the newly disclosed existence of DOJ memoranda evidence of the "compartmentalization" that was hindering effective review, and the source of Ashcroft's March 10, 2004 complaint noted in the Mueller notes?
If so, who was the original author(s) of the 6 memoranda, and where are these memoranda? It is time for a direct subpoena to the DOJ....
Marty Lederman at Balkinization makes a good case that the author of the prior legal analysis was John Yoo.