You can read the email exchange in PDF
here. In his correspondence, Kris, who was the DOJ's top national security lawyer from 2000-2003, concludes that the President's actions are subject to FISA, and that the justifications for the program have a "slightly after-the-fact quality" to them. It appears that the Department of Justice reached out to Kris after the program was disclosed in order to shape its legal defense. Naturally, the best time to do legal analysis on a program is
after it is disclosed and starts causing the President's poll numbers to free-fall.
I have always been bothered by Attorney General Gonzales's statement that the legal justifications for the program have "evolved over time." Reading through these emails, it becomes apparent that that is perhaps one of the biggest understatements of this scandal. Four years after the program allegedly first passed legal review, the Department of Justice was still scrambling to find legal footing for the program. This despite the fact the program was allegedly reviewed every 45 days for the last four years by legal experts.
The AUMF argument, as we now know, was not part of the original justification for the program. Rather, it was added afterwards, maybe when the administration found out the NY Times had the story. In his emails, Kris calls the AUMF argument "weak." He also had this to say about the argument that FISA was too "cumbersome" and thus had to be avoided:
"Claims that FISA simply requires too much paperwork or the bothersome marshaling of arguments seem relatively weak justifications for resorting to constitutional powers in violation of the statute,''
And as for the interplay between FISA and the President's Article II powers:
"My major disagreement with this, I think, is that the President's inherent authority to conduct to conduct electronic surveillance or physical searches in the absence of legislation is not the same as as his inherent authority to do so in the presence of legislation". (emphasis in original)
In numerous sections, Kris acknowledges that he is not aware of the facts or intricacies of the program. Yet Kris was one of the top national security lawyer at the Department of Justice at the time the program was reviewed and well into 2003. We know that those in the Department of Justice who were aware of the program--Ashcroft, Comey, Goldsmith--all objected to the program's illegality. So just who did approve of the program? And what was their basis, if, four years after the fact, the Department of Justice still can't find legal ground to justify the program?
The Kris correspondence also reveals a little-talked about aspect of the domestic spying scandal: the role of the Vice-President. In one email about how the DOJ had decided to press first with the inherent powers argument instead of the AUMF, Kris remarks that reflects the Vice-President's strategy that "the best defense is a good offense." It's no wonder the administration went on the offensive; as these emails reveal, there was hardly no defense of the program--no defense to the crime at all.
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