Legal Commentary

The idea behind the statute, in other words, is to prevent a government agency's unlawful surveillance by insisting that the telecoms cannot offer the necessary technical assistance unless and until they receive the assurance of the nation's chief law enforcement officer that "all statutory requirements have been met" -- and here, the statutory requirements had most decidedly not been met.

What to do?

In his new book, Eric Lichtblau reports John Ashcroft as telling one of his aides that when the Administration first concocted the program (which Lichtblau describes as -- surprise -- Dick Cheney's brainchild), "the White House just shoved [the certification] in front of me and told me to sign it."

Our Government at its finest.

(Apparently Ashcroft would not act as a rubberstamp -- not at first, anyway. He refused to sign the certification until John Yoo assured him the program was legal (although, since John reportedly relied only on the President's article II authority to ignore FISA, it's not clear how Ashcroft could possibly have certified that "all statutory requirements have been met"). As we also know, when Ashcroft and Comey finally did refuse to issue the requisite certification in March 2004, the White House went ahead with presenting it to the telecoms anyway, but it was signed by . . . Alberto Gonzales. The current telecom immunity controversy is, among other things, about whether it was reasonable for the telecoms to (i) accept the AG's certification that "all statutory requirements have been met" when the requirements had patently not been met; and (ii) why at least some of the telecoms provided assistance pursuant to the certification of the White House Counsel rather than the Attorney General in March 2004 -- a plain violation of the law.)

Full post as published by Balkinization on April 16, 2008 (boomark / email).