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What Did Ashcroft Sign Off On Every 45 Days?... And Why Stop?

Mon May 21, 2007 at 05:56:12 PM PDT

Reading georgia10's diary from Jan 01, 2006, entitled Ashcroft, Domestic Spying, And Why This Scandal Won't Go Away, there is this astute observation that needs revisiting, after James Comey's testimony last week about the race to Ashcroft between himself and Alberto Gonzales and Andrew Card in March, 2004:

To understand how deep-seeded [the] legal reservations were, I remind you that Comey refused to authorize and Ashcroft was "reluctant" to authorize the program in 2004. This was after the program had been in place for some two and a half years. This was after Ashcroft had presumably authorized the program ever 45 days since late 2001.

Continue this below the fold...

georgia10 certainly hit the nail on the head.

While everyone is wondering if they had John Ashcroft wrong all that time, there surely is that: That he was signing off on the NSA program for over 2 years.

But on the face of it, does that make sense?

If the program that Comey was talking about - remember that he would NOT name it before the Senate committee - was, in fact, the NSA wiretapping program, here are questions I have (I am asking for info here, as much as anything, and not making a point):

  1. Did the NSA wiretapping program, in fact, require re-approval every 45 days?
  1. Wasn't it FISA warrants that needed approval every 45 says?
  1. If it wasn't the NSA wiretapping that was being re-approved every 45 days - that very much was made clear by Comey - then what was he talking about?  

3.a. What ELSE requires such approvals?

3.b.  By what authority would such 45-day re-approval be required - something that Bush would rush Abu and Card to end-run Comey on?  Something that Bush was hyper to get done then and not later?  What authority was Bush bowing to?

  1. As per georgia10 (I give her all the credit in the world on this one), does it make sense that Ashcroft would have approved the NSA program for over 2 years and then been so hostile toward it that he was willing to resign, along with several top people at the DOJ (AND FBI Director Mueller, if I am not mistaken)?
  1. If Ashcroft HAD been approving Comey's referenced program all that time, then what had transpired to make Ashcroft see the light of legality?

Something is not adding up, not in my mind.  What are we really talking about here?  I keep thinking there was another program, other than the NSA one.  The press keeps on saying that Comey was talking about the NSA program, but that may not be the only possible program he could have been talking about.  If not, then what?  And even if we get that understood, georgia10's question is still out there, regardless what the program was - Why did Ashcroft change his mind - and so completely?

Or did he?

Is it within the realm of possibility that this was another program, one that had only been in effect for one 45-day period?  One that Ashcroft had NOT ever signed off on?  It keeps coming back to understanding which programs required re-approval every 45 days...

Tags: James Comey, John Ashcroft, George W. Bush, Andrew Card, Alberto Gonzales, warrantless wiretapping, domestic spying (all tags) :: Previous Tag Versions

Permalink | 37 comments

  •  What did Comey say? (4+ / 0-)

    Did Comey say that it was the NSA program?  If so I don't see why we should go blue in the face speculating otherwise.  

    On the other hand, if Comey was ambiguous about the "program" he was referring too and did not name it specifically then it is something to look into.  You should really try to find some Comey quotes in the transcript that are ambiguous in nature and put them up.  It would strengthen the diary.

    The day may come, when the rest of the animal creation may acquire those rights which never could have been withholden from them but by the hand of tyranny.

    by Tetris on Mon May 21, 2007 at 05:49:26 PM PDT

  •  The way I heard it (8+ / 0-)

    Ashcroft wanted to know more about "The Program" but was rebuffed by the White House, who said, "It's classified, but it's all OK. Trust us." Ashcroft did trust them, and signed off repeatedly.

    Comey came along and challenged the White House firewall, and what he found out persuaded him and Ascroft that The Program was not OK. Then his gallbladder went south (the same day Comey discussed his news with Ashcroft).

  •  Or maybe they learned something new about... (7+ / 0-)

    ...the existing program.

    Ashcroft and Comey discussed not renewing BEFORE Ashcroft got sick. And after an "intensive reevaluation" of the program.

    And the — and I remember the precise date. The program had to be renewed by March the 11th, which was a Thursday, of 2004. And we were engaged in a very intensive reevaluation of the matter.

    And 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.

    And at the end of that hour-long private session, he and I agreed on a course of action. And within hours he was stricken and taken very, very ill...

    SCHUMER: (inaudible) You thought something was wrong with how it was being operated or administered or overseen.

    COMEY: We had — yes. We had concerns as to our ability to certify its legality, which was our obligation for the program to be renewed.

    Via Think Progress

    •  See? Why did they have to have that (1+ / 0-)

      Recommended by:
      nancelot

      "intensive reevaluation" in that time frame?

      They both knew that the resubmission of the affidavit was coming due, so that makes partial sense.  But then why not before any of the previous re-submissions?

      SOMETHING had changed - before Ashcroft took ill.

      Now, go to my comment below "Further thoughts, and maybe I have something" and seeing if it makes any sense.

  •  I agree that something does not add up (6+ / 0-)

    and I don't understand why they don't bring Comey into closed session so he can confirm that it was this program or something else.  Remember, the WH keeps insisting that they've always briefed Congress so why can't our elected reps find out for sure?

    "There are only the politics of fear and the politics of trust." Sen Edmund Muskie

    by JEB on Mon May 21, 2007 at 06:19:14 PM PDT

  •  Paging Janet Ashcroft...paging Janet Ashcroft (7+ / 0-)

    Are you noticing a distinct lack of curiosity as to whether Janet Ashcroft can verify Comey's intuition that the President had called her personally to gain her approval to lift the ban on visitors?

    See here and here and here as well as here, and here.

    Anybody picking up a pattern?

    It's a far more simple issue than the possible illegalities inherent in the programs in question.

    Why is there total silence regarding the one person who can verify whether the President was personally involved? This is the blue dress people. Nobody is even bothering to say "Mrs. Ashcroft has refused to comment." That should tell us all quite a lot.

  •  Whatever It Is (7+ / 0-)

    ....it's worse than you think it is.

    That's why I no longer ask that famous rhetorical question: "How much worse could it be?"

    Because it's not really a rhetorical question.

    •  No sh*t, Sherlock (0+ / 0-)

      No matter HOW bad anyone thought Bush's decisions and actions and mendaciousness could be, EVERYONE underestimated the the guy pretending to be the President.  BTW, I usually refer to him as "The Resident".  As in squatter.  In our White House.

  •  I'm starting to wonder whether Ashcroft's illness (1+ / 0-)

    Recommended by:
    bethincary

    could have been induced.  The timing seems like an amazing coincidence, and this crowd would do anything.

  •  Good job for Katie Couric. (0+ / 0-)

    Interview Janet Ashcroft. Dig deep, Katie. Make yourself semi-legit again.

  •  Further thoughts, and maybe I have something... (4+ / 0-)

    (This was a mental process as I typed this, not a complete idea until the end...)

    FISA.  It had to be FISA.  But didn't FISA require that Bush go back to the FISA court?  What did the AG have to do with FISA?  Okay, maybe FISA says both that the court AND the AG have to sign off.

    But then, that would mean that up to that time, Bush WAS going to the FISA court for approval.

    Per Glenn Greenwald at The potential benefits of the Specter legislation

    For any warrantless eavesdropping program the Administration wishes to implement, the Attorney General is required to submit an affidavit to the FISA court every 45 days detailing a wide range of information about the program...

    Ah, so it was not Ashcroft's approval Bush was seeking.  Bush was asking for an affidavit "detailing the required information" to be presented to the court.

    Here is what Ashcroft had been required to have in the affidavit (according to Greenwald):

    (4) a statement that the surveillance sought "cannot be obtained by conventional investigative techniques" or by obtaining a FISA warrant;

       (6) "the means and operational procedures by which the surveillance will be executed";

       (7) a "statement of the facts and circumstances . . . to justify the belief that at least one of the participants in the communications to be intercepted" is an agent of a foreign power" or a "person who has had communication with the foreign power" and,

       (14(D)) "the identity, if known, or a description of the United States persons whose communications. . . were intercepted by the electronic surveillance program."

    Now, obviously the NSA program itself was not listing these things in the affidavit, not for wiretapping the general public - it would have never flown, even in the rubber-stamp FISA court.  

    But what if - WHAT IF - Bush had some phony surveillance as a cover for the NSA program?  And what if Comey and all of the people at the DOJ had found out the affidavit was a snow job on the FISA court?  And what if they had shared this with Mueller and Ashcroft during that then-current 45-day period?  That would explain why Ashcroft was so intransigent at that time, but not before.

    So if this is right, Bush, Abu, Card, and possibly others went to the FISA court and got them to authorize something that Ashcroft WAS signing affadavits for, but then they were doing their own Unitary President thing.  And THAT is also why Bush was always - before the NSA wiretapping was outed - claiming that they were always following FISA:  They never thought anyone would catch on that they were selling the FISA court one program and actually DOING another.

    And it would also explain why so many were willing to resign THEN and not before: They had not been previously aware of the defrauding of the FISA court.  The fraud had gone on for over 2 years, but when they found out about it, these people were saying, "No more!"  They would not be part of scamming the FISA court.  It totally explains why they were all in such a tiff about it at that time - even Ashcroft.  He may not have been such a hero after all.  He wasn't necessarily standing up for the 4th Amendment - he just was not going to sign off on fraud.

    Comey also said that on Friday, he met with Bush and Bush told him to go back and determine what they could do to enable them to sign off on the affidavit.  And, Comey said, Bush kept the program running in the previous way until Comey got back to him.  And Comey DID sign off on the program afterward, according to his testimony, after he was asssured that they and Bush were on the same page.

    After that, Comey was under the understanding that Bush followed their guidelines.  If so, then the program was cleaner after the revolt than before.  But only IF...

    In all likelihood, Bush pulled the same fraud on Comey, Mueller, Ashcroft and the others as they did on the FISA court - they simply agreed to one thing and then did what in the hell they wanted to do, anyway.

    That all seems to fit.

    And, if so, this is really, really, really REALLY CRIMINAL.  As in "high crime".  No high misdemeanor about it...

    •  Um, (1+ / 0-)

      Recommended by:
      nancelot

      five FISA judges apparently told Lichtblau for the NYT. that they knew secret illegal warrentless wiretapping was going on. The NYT was either convinced or censored  by the White House until December 16th 2005, when the rest of us found out they were warrentlessly illegally wiretapping domestically. And of course they were datamining (Poindexter in dKospedica). My point here is that the FISA judges knew what was going on.

      "You don't make peace with friends. You make it with very unsavory enemies." -Yitzhak Rabin

      by sailmaker on Mon May 21, 2007 at 07:41:00 PM PDT

      [ Parent ]

  •  Original Tags: (2+ / 0-)

    Comey, Ashcroft, Bush, Card, Gonzales, 45-day, NSA wiretap program, Comey testimony, hospital

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  •  Analysis, reasonable lawyers, and legal ethics (0+ / 0-)

    does it make sense that Ashcroft would have approved the NSA program for over 2 years and then been so hostile toward it that he was willing to resign

    The Office of Legal Counsel did a thorough analysis of the program.  And this is part of the executive branch, run by political appointee Comey (who is a stand up guy, IMHO), so I don't doubt that they were looking for any Constitutional hook, no matter how small, to hang the program on.

    When it became clear that the program was just as illegal as everyone had suspected, the DoJ attorneys simply could not continue to approve the program.  Here's where the legal ethics come into play: lawyers can usually go ahead with actions on which there's good faith difference if they could imagine a reasonable attorney finding the action ethical or legal.  My speculation is that the essence of the OLC report, then, was to deny that a reasonable attorney could find the program legal.

    So they probably signed off on the program out of their duty to the President, all the while waiting for the opinion of the proverbial reasonable attorney in the form of the OLC report.  Once the report said no-go, legal ethics absolutely would absolutely prohibit a lawyer's participation in the program.

    Ashcroft learned that the OLC had formally concluded that the program was illegal just days before his illness struck, hence the stark change in position.  

    •  The AG was req'd to have certain specific things (0+ / 0-)

      in the affidavit to the FISA court.

      Here is what Ashcroft had been required to have in the affidavit (according to Greenwald):

      (4) a statement that the surveillance sought "cannot be obtained by conventional investigative techniques" or by obtaining a FISA warrant;

            (6) "the means and operational procedures by which the surveillance will be executed";

            (7) a "statement of the facts and circumstances . . . to justify the belief that at least one of the participants in the communications to be intercepted" is an agent of a foreign power" or a "person who has had communication with the foreign power" and,

            (14(D)) "the identity, if known, or a description of the United States persons whose communications. . . were intercepted by the electronic surveillance program."

      That said, there is no way the court, receiving the NSA wiretapping, as it was being done in actuality, would ever sign off on it.  Therefore, it is reasonable to speculate that they were scamming the court, via the AG's affidavit.

      It is my current guess that they were also blowing it right by Ashcroft, too, having him sign off on something relatively straightforward - kind of like Radar O'Reilly putting things in front of Colonel Blake on M.A.S.H..  And that when Ashcroft became aware of it, the shit hit the fan.

      It is quite clear that at that point in time, some kind of shit hit the fan.  The question is "What shit?"  Something had changed.

      Check out my comment above "Further thoughts, and maybe I have something..."

  •  I have a slightly different question - that might (0+ / 0-)

    get the same answer.

    Who gave Arlen Specter's stooge the memo to insert the perversion into the reauthorization of the Patriot Act?  By perversion I mean the ' USAs don't have to be confirmed by the Senate' clause.  We know Harriet Meiers had the original idea to fire all 93 USAs to make it seem logical at the new 2004-2005 change of Congress. But who had the idea for the new law, who got it slipped into the law, who diseminated the info to the tools at the DoJ and to the Republican Congressional members? The info didn't just fall into their laps from the ether, someone had to tell them, and also tell them to be quiet or the Dems would know as well.  IMO just looking for who conconted the list of USAs to be fired is small potatoes in the face of the whole operation. This is alittle o/t, but damn they are all the same players, and how do we know that Arlen Specter's stooge didn't put the same clause into the first Patriot Act, but the powers that be/were just didn't use the clause before an election and after starting a war?

    Back to the question 'what was Ashcroft signing off on every 45 days and why did he change his mind?'  Goldsmith and Comey came to the DoJ in 2003. Their review of the unnamed secret program lead them to believe it was illegal, so they went to Ashcroft and Mueller with their conclusions. Because Mueller was a part of this, a by stander such as myself would conclude that it must have been a secret domestic program, but you can decide for yourself. I say subpeona Goldsmith and ask for clarification about the program, and what amendments allowed it to suddenly pass muster with all those folks who wanted to resign rather than allow the program to go forward (I'm choosing Comey's version over Gonzales', if any one is keeping track of the hearsay evidence this arguement is built upon).

    From Dkopedia

    NSA Director Michael V. Hayden, without Presidential authorization and using Executive Order 12333 as "authority", begins an expansive surveillance program. The program is separate from the one authorized by the President in early 2002. (Hayden Speech)
    Hayden meets with his senior staff. His staff tells him NSA does not need to change its transformation roadmap, it needs to accelerate changes contained in the existing map. (Hayden Statement)
    [edit]

    More DKospedia

    November 18
    The United States Foreign Intelligence Surveillance Court of Review makes its first ever ruling, In Re Sealed Case No. 02-001, overturning the May 17 FISC decision and approving Justice Department expansion of powers to spy on U.S. citizens. (ACLU, Jurist, NYT, Wikipedia)
    [edit]

    Snip

    2004

    Sometime in 2004, James A. Baker, the counsel for intelligence policy in the Justice Department's Office of Intelligence Policy and Review, discovers that the government's failure to share information about its spying program had rendered useless the "tagging" compromise the FISC presiding judges had insisted upon to shield the court from tainted information. He alerts Colleen Kollar-Kotelly, who complains to Attorney General John Ashcroft, prompting a temporary suspension of the NSA spying program. The judge requires that high-level Justice officials certify the information was complete, or face possible perjury charges (WaPo). This suspension may possibly be the same as the March suspension reported by the New York Times.  Emphasis supplied
    [edit]

    So here we have a purjury threat from a judge - would that scare Card and Gonzales into their end run around Comey and the Constitution? If it did, I want to know who that judge is so i can kiss his/her feet, a thank you for knowing how to put teeth into a ruling.

    "You don't make peace with friends. You make it with very unsavory enemies." -Yitzhak Rabin

    by sailmaker on Mon May 21, 2007 at 07:28:27 PM PDT

    •  Yes, somewhat o/t, but a question, nevertheless.. (0+ / 0-)

      You quote Dkopedia,

      NSA Director Michael V. Hayden, without Presidential authorization and using Executive Order 12333 as "authority", begins an expansive surveillance program.

      That seems internally contradictory.  It says Hayden began the program "without Presidential authorization",  but an Executive Order IS specifically and completely a Presidential authorization, by definition.

      Am I missing something?

      I know it's not your quote, but you are citing it, so I have to ask.

      •  I got that from (0+ / 0-)

        here.   It in the after 2000 section.

        Michael Hayden is one of the more dangerous men on the planet - I looked into his background when they were trying to make him a Federal Judge (4 times they tried, that they failed says alot).

        What I think Hayden did (IANAL) is to 'find' some authority, any authority would do,  in Executive Order 12333  which dates from 1981, and reads, to my untutored eyes like a charter for the NSA system. It does not seem to me to authorize warrentless domestic wiretapping.

        "You don't make peace with friends. You make it with very unsavory enemies." -Yitzhak Rabin

        by sailmaker on Mon May 21, 2007 at 07:58:45 PM PDT

        [ Parent ]

    •  I've read something about this (1+ / 0-)

      Recommended by:
      nancelot

      in reference to your question about who gave Brett T. or Mochella the provision to put into the Patriot act behind specter back or possibly ith his knowledge- group called CDC Christian Defense---. It's a small group of WH lawyers who are writing it-then passing it off as this 'CDC" to Mochella. (Of course it may look improper for the WH to be handing DOJ provosions directly-that would be "Partisan".

    •  Your last two quotes... (0+ / 0-)

      I really want to sink my teeth into.

      #2:  November 18th of what year?  2003?

      And May 17th of what year?  2004?

      #3:  

      James A. Baker, the counsel for intelligence policy in the Justice Department's Office of Intelligence Policy and Review, discovers that the government's failure to share information about its spying program had rendered useless the "tagging" compromise the FISC presiding judges had insisted upon to shield the court from tainted information.

      What could "failure to share information with" mean?  If this is THE James Baker, he would never call a GOP President's presentation of information a lie or a fraud.  This kind of terminaology sounds like a euphemism for lying or fraud.

      Also #3: You quote:

      The judge requires that high-level Justice officials certify the information was complete, or face possible perjury charges (WaPo).

      But then you say, "would that scare Card and Gonzales...?"  Card and Abu were not in the DOJ.  But the point is well taken: It would explain why Ashcroft, Comey, et al, would be hyper enough to threaten resignation, not wanting any part of it.  

      But why Mueller?

      Back to the quote, though, the affidavit required by the AG was certainly actually done by others, below him, but still high up.  If it (evidently the one in effect at the time) was incomplete, and Ashcroft signed off on it, all of them were complicit in the shortcoming.

      So, when Bush cam back with essentially the same thing in early March (Ashcroft and Comey's hour-long conference), they knew it wouldn't fly without more info?  Sounds about right.  The AG couldn't sign the affidavit without putting a noose around their necks.  Yes, it does sound like Ashcroft had a "convenient" operation... he certainly didn't want to stand up to Bush - but then he had to, anyway, but still weenied out by saying, "There is the Attorney General", pointing to Comey.

      But it basically sounds like Bush was being mendacious in his previous presentation(s), by not giving the whole story, but that it had slipped by, maybe for a long time, maybe only once - until Baker caught it.  There is NO way the court would have allowed an exception to paragraph (14(D)) requiring the AG to provide

      "the identity, if known, or a description of the United States persons whose communications. . . were intercepted by the electronic surveillance program"

      I cannot conceive that the FISA court would allow fishing expeditions such as the warrantless wiretapping program.  Maybe I am naive...

      •  Sorry for confusing quotes (0+ / 0-)

        #1 is in the 'after 2000' section
        #2 is November 2002
        #3 is generic '2004'

        All from here.

        In your first question, IMO Baker is mad because Bush is not telling the FISA courts about the NSA spying, however, the NYT says that the FISA court knew anyway (IMO the FISA courts were presented with illegally gathered evidence from NSA).

        Card and Gonzales - you saw Senator Whitehouse's chart of how the White House and the DoJ are corresponding with each other - no traditional firewall. So, again conjecture, DoJ told Card and Gonzales that  Comey and Ashcroft were not going to sign off, and were going to resign if pushed.

        One FISA judge DID resign (Judge James Robertson) over the illegal wiretapping, 4 others talked to the NYT.

        "You don't make peace with friends. You make it with very unsavory enemies." -Yitzhak Rabin

        by sailmaker on Mon May 21, 2007 at 08:32:57 PM PDT

        [ Parent ]

  •  If you read seversl (0+ / 0-)

    of the FRONTLINE interviews with  john YOO-you may get answers on it.

  •  After reading some interviews on John Yoo (1+ / 0-)

    Recommended by:
    nancelot

    I have some theories. I don't have the Frontline interviews in front of me.But when Yoo talks about FISA in the interview, he thinks the Pres. has the power to ignore it. One particularly interesting thing,Yoo seems to have alot of contempt for the Justice system. He thinks by going through FISA, anyone convicted under FISA runs the risk of the DOJ letting suspects off. He also does not think the Pres should have to show "reasonable cause" to get the warrant from FISA to begin with. So if they were running a program to round "suspects" up based on keywords in thier conversation-FISA could find GW doing illegal things. So it looks like he's trying to tailor the laws to suit him. So, my theory is that there was some program which was doing this-but rather than any suspects being tried by DOJ-(where evidence could be thrown out)-GW may have set it up where different courts-maybe military tribunals or some other courts that bypassed DOJ-that way-no evidence has to be admitted- no "reasonable search". My theory is that Comey & Ashcroft just figured out they were being runaround and were probably pissed.What would have made them mad enough as well as many other career DOJ people? To know they were being circumvented by GW on the NSA program.
    Just a theory. But read Yoos words in Frontline.

  •  This is THE question (1+ / 0-)

    Recommended by:
    nancelot

    of the moment. Thanks for raising it.

    If anything has the potential to lead to impeachment, it's certainly this issue.

    John McCain: The only mavericky straight-talker surrounded by corporate lobbyists

    by atrexler on Mon May 21, 2007 at 08:48:12 PM PDT

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