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No Way to Run a Government

By Jack M. Balkin

Eric Lichtblau, in an excerpt from his forthcoming book, confirms that the NSA wiretapping program was operated beneath an unprecedented and remarkable veil of secrecy. He confirms Jack Goldsmith's earlier testimony that the Deputy Attorneys General (Larry Thompson and then Jim Comey) were not permitted to be read into the program and, more astonishingly still, that the lawyers at the NSA itself were not permitted to see the John Yoo-penned legal opinions that provided the basis for the program the NSA was operating! (I can't even imagine what those meetings looked like: "No, really -- you guys do have the legal authority to secretly violate FISA; but we can't show you the legal theory why that's the case. Just trust us." And the NSA responded: "Oh, in that case, ok, we'll get right on it." Huh?)

The story also appears to confirm that the original Yoo legal theory was in effect that the President could disregard any laws he wished in deciding how to surveille al Qaeda. How often have we heard this?: "[Yoo's Opinion] was revised in 2004 by a new cast of senior lawyers at the Justice Department, who found the earlier opinion incomplete and somewhat shoddy, leaving out important case law on presidential powers."

I don't think there's much more to be said about this that many of us have not already said multiple times over -- except that it remains scandalous that the Congress would even consider the Administration's requests for new legislation until the Administration has made public the entire set of OLC opinions on this issue and interrogation techniques, etc. (redacted, of course, to protect secret NSA technological capabilities). Congress has quite a bit of leverage here; they simply seem unwilling to use it.

Full post as published by Balkinization on March 31, 2008 (boomark / email).