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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Sunday, March 26, 2006

DoJ's Responses to Congress: The NSA Scandal in Microcosm

By Anonymous Liberal

As Glenn highlighted yesterday, the Bush administration has released written responses to questions about the NSA program submitted to the administration by the Republicans and Democrats on the House Judiciary Committee. If you haven't already read through these documents, I highly recommend it. Both the questions themselves and the administration's responses to them perfectly encapsulate everything that is so disturbing and frustrating about this scandal.

The questions submitted by the Democrats are very simple, straight-forward legal and factual questions, usually no more than one line long. They are the obvious questions that anyone interested in understanding this issue (and its legal implications) would ask. The administration's "answers" to these questions are uniformly non-responsive and, for the most part, simply repeat boilerplate language about the classified and sensitive nature of the program. Even purely legal questions are completely dodged. It takes the DOJ only 15 pages to respond to all 45 of the questions submitted by the House Democrats.

The questions submitted by the Republicans, however, are almost all long, convoluted, argumentative questions, many of which misstate key legal concepts. They are, for the most part, leading questions which assume away the most important distinctions in the law. The Republican questions are clearly not intended to augment anyone's understanding of the program, but rather to establish a legal and political defense for the administration. In stark contrast to the Democratic questions, the administration's responses to the Republican questions are generally fulsome and detailed (albeit highly misleading). It takes the DOJ a full 40 pages to respond to the 51 Republican questions.

The administration's responses to the Democratic questions, particularly when compared side-by-side to its responses to the Republican questions, are as blatant an example as I've ever seen of partisan stonewalling. For instance, consider the response to this important question submitted by the Democrats:

25. What is the limiting principle of the President's claimed inherent authority as commander-in-chief? For example, does this interpretation of the law authorize the opening of first-class mail of U.S. citizens under the DOJ's interpretation, and if not, why not?

The DOJ response merely repeats the administration's boilerplate description of the NSA program and then states: "Whether the President's authority under the Constitution would permit the interception of mail would require a different legal analysis."

The next Democratic question asks:

26. Under the Administration's legal interpretation, does the President have the authority to wiretap Americans' domestic calls and emails under his inherent constitutional power and the AUMF, if he feels it involves al Qaeda activity?

The DOJ response merely points out that NSA program is much narrower than programs authorized by President's Wilson and Roosevelt and ends by noting: "Interceptions of the contents of domestic communications would present a different legal question."

Is it even possible to craft a less responsive answer to a legitimate and important legal question? The entire point of the question is that there does not appear to be any relevant legal distinction between intercepting calls to which one party is a U.S. citizen and calls where both are; the Democrats want to know--for obvious reasons--why the Bush administration's legal reasoning doesn't extend to purely domestic calls. In response they are told merely that interception of domestic communications "would present a different legal question."

That's an insulting and totally unacceptable response to an incredibly important (and purely legal) question. There is simply no excuse for this behavior in our system of government. Congress has a right to have questions like this answered, particularly when the DOJ, at the same time, offers long-winded responses to Republican questions that are nowhere near as fundamental or important.

Indeed, the responses to the Democratic questions at times contradict the responses to the Republican questions. Throughout the Republican responses, the DOJ plays up the importance of the line of dicta in In re Sealed Case, the 2002 decision by the FISA court of review. Indeed the administration's entire legal position hinges on that line; it's the only case they cite in response to numerous questions. At one point in the Republican response--citing Sealed Case--the DOJ states that "the President was entitled to rely on the definitive pronouncement of the specialized court that Congress created to address precisely these matters." In other words, In re Sealed Case, offers the "definitive pronouncement" on the issue of whether the President has the inherent authority to conduct warrantless surveillance, regardless of what FISA says.

This is, of course, total rubbish, something the DOJ all but acknowledges in its responses to the Democratic questions. Given the administration's clear reliance on this particular line of dicta in Sealed Case, the House Democrats asked an obvious question:

36. Was any judge on the FISA court of review informed of the NSA program as part of the briefing of the 2002 appellate case, In re Sealed Case? Were any of the lawyers on that case read into the program? How many?

Here's the administration's response:

As we noted above, the identity of individuals who have been briefed into the Terrorist Surveillance Program is generally classified. We note, however, that In re Sealed Case, 310 F.3d 717 (For. Int. Surv. Ct. Rev. 2002), involved whether the FISA Court had statutory or constitutional authority to place restrictions on interaction of criminal prosecutions and foreign intelligence investigators as a condition for granting surveillance orders. The Terrorist Surveillance Program would not have been relevant to the question before the court in that case (emphasis added).

This is an explicit acknowledgement that the decision in Sealed Case had nothing whatsoever to do with the issue of whether the president has the inherent authority to act outside of FISA. It's also a tacit acknowledgement that no one involved the case even knew about the NSA program. Yet in the responses to the Republican questions, the DOJ describes this case as the "definitive pronouncement" on the issue of inherent authority. They devote literally pages to discussion of a case which they acknowledge has nothing to do with the legal questions raised by the NSA program and was argued and decided by people who had no idea that FISA was being circumvented. Indeed, the core holding of Sealed Case was that FISA is constitutional ("We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable.")

As an attorney, I can't even express to you how bewildering and pathetic it is to see the government repeatedly citing as their sole authority for a legal proposition--that the president's power to conduct warrantless surveillance survives FISA--a case that so obviously does not stand for that proposition.

The questions asked the House Republicans and Democrats and the answers provided by the DOJ are a perfect microcosm of this scandal. One side asks simple, obvious questions that cry out for answers. The administration responds by stonewalling. The other side asks silly, misleading questions, and the administration responds with long, convoluted and equally misleading answers that fail to address all the most obvious objections and legal distinctions. And when presented with these insulting and incomplete responses, neither side does much of anything about it, and the media pays no attention. Wash. Rinse. Repeat.

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