Thursday, May 17, 2007

The Speculation Game

(NOTE: This was originally going to be an update to my last post, but the information grew so quickly as to overrun it).

Perhaps I owe James Comey (though not John Ashcroft) an apology. Comey gave dramatic testimony about the attempt to force Ashcroft to approve warrantless wiretapping in March, 2004, and how Justice Department officials, by threatening mass resignations, forced the Bush Administration to make modifications. I cynically pointed out that Ashcroft and Comey had been approving the illegal program for two and a half years before raising any objections and that even with modifications they did not actually require the Administration to comply with the law. This raises two obvious questions: (1) Why did they suddenly object after the program had been in place for two and a half years? (2) What "modifications" were made? (Which naturally also raises the question of what the original program was).

Professor Marty Lederman of Balkinization, has a plausible answer to the first question. Professor Lederman is a former official of the Office of Legal Counsel (OLC), the branch of the Justice Department that advises the President. According to Lederman, once the OLC gives an opinion on the legality of a White House action, the DOJ signs on 99% of the time. Prior to October, 2003, John Yoo headed the OLC and advised the the President's authority was essentially unlimited. What he authorized, John Ashcroft approved. In October, 2003, Jack Goldsmith replaced John Yoo and found a lot to clean up. Although it is very rare for the OLC of any one administration to change its mind, Goldsmith found many of Yoo's opinions (such as the Torture Memo) so odious as to require reversal. Reviewing and revising OLC opinions is time consuming; it took Goldsmith two months to reverse the Torture Memo and another three months to reverse Yoo's opinions on warrantless surveillance. Comey, as I understand it, came on board about the same time as Goldsmith and perhaps can be excused taking some time to become oriented. Ashcroft is a different matter; he know the Administration was violating FISA and regularly signed off on it until the OLC rebelled.

As to the second question, be have only speculation, but Professor Lederman offers a good roundup of the best guesses. There are two main speculations. The more commonly held view is that the change was two-fold. Prior to the DOJ revolt, the program was justified under John Yoo's theory of the President's inherent authority under Article II of the Constitution to conduct foreign intelligence surveillance, even in defiance of a Congressional statute (FISA). After the revolt, the justification switched to a claim that Congress authorized such surveillance when it passed the Authorization to Use Military Force (AUFM) against Al-Qaeda. This was not merely a change in rationale. The AUFM theory limited surveillance to cases in which some sort of Al-Qaeda involvement was suspected; the Article II theory imposed no such limits. Lederman appear to favor the alternate explanation. The original program began with wiretapping numbers captured from Al-Qaeda and then expanded out to their contacts, the contacts of those contacts, and so on without limit. The DOJ revolt set limits on how far the surveillance could extent.

Of course, we don't know. Both proposals are speculation. But since the game is on, let me add my own speculation. Following the initial report were later rumor that the program was much broader than just wiretapping caputured numbers. Instead, the NSA was engaged in computer monitoring and filtering of a wide variety of international calls. This was classic data mining, with nothing approaching probable cause. The estimate was that out of 5,000 calls screened, about 10 were worth seeking a warrant. Furthermore the NSA was asking the FBI to investigate its suspicions. Most leads the FBI was asked to investigate were false. Agents became so frustrated with false leads they began calling them "more calls to Pizza Hut." Could this broad system of data mining be what the DOJ demanded stopped? Far be it from me to gainsay the experts, but anyone can play the speculation game. And I will add one advantage to my proposal. As one
observer noted, the FBI seems very interested in what was supposedly an NSA program of wiretapping. What was their role? The Observer believes they were also involved. But maybe they just wanted to be spared investigating all those "calls to Pizza Hut."

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