zed

I certainly don’t know the answer to your question, but Addington always got what he wanted. What was his power? Why did everyone buckle?

Digg it!

They scared the b-jeebus out of everyone. Possible take over of the country? Am I paranoid or did we just get rid of the bad guys by the skin of our teeth? And, if so, why did they leave?

Dugg

He had time, Looseheadprop, because being a Bush Regime member meant that one was emotionally removed from the attack on 9/11/01, because they were anticipating this attack for a long, long time. In fact, they stepped aside and allowed it to happen making sure it went smoothly, so they could get what they wanted.

I don’t know, but the premise of this memo is that FISA is a real law and we have to follow it. I would love to see the evolution htat went from this to thr NSA spying program.

Don’t forget that Addington- who has NO role on DOJ –supposedly kept at least one OLC opinion locked in his own safe, rather than having the opinion s stored at DOJ

There is a story yet to come out.

Thank you LHP!

I cannot imagine what life would be like in America had McCain won.

Dugg

This is going to be fascinating. Fact stranger than fiction and all that…

AND THE KILLIN’ GOEZ ON AND ON AND…

Citizen looseheadprop and the Firepup Freedom Fighters:

“…did Kris put a rush on his OLC opinion request to try to get out front of Addington’s plan to ignore FISA?”

Yes. So now where does this leave us…are we any closer to getting justice and an application of law to crimes and actions we have known to have been goin’ on for at least five fuckin years? Are we any closer to applyin’ comsequences for criminal and possibly treasonous behavior that we have known to have gone on for almost 8 God damned years? While we diddle along tuggin on our forelocks and scratchin’ our (ahem) armpits breathin’ heavily over aknowlegment of shit we have long since known was goin on, are we just too scared ta say that the rule of law in this country is nuthin more than a lethal injection to truth and justice?

Enough of this mannered, drawing room dance while our country is crumblin’ around us…I don’t want to know the fine points of error of the fascist mouthpieces’ memos justifying the unjustifiable…I want to know what, if anything, the Obama Department of Justice can do about bringin’ this behavior to account and sendin’ the fascist perpetrators to hell via Leavenworth! What can be done and what do we hafta do ta get it done??!!!

KEEP THE FAITH AND PASS THE FUCKIN AMMUNITION, AND GOD SAVE US FROM LIBERAL INTELLECTUALIZIN’!!

Good luck my brother.

I was thinking of it a different way. FISA came about in reaction to the Church Committee finding that Nixon had spyed on AMericans and called it “national security/foreign intelligence” work.

So Congreess passed FISA. Cheney hated the restricitns imposed on the Executive in reaction to Nixon.

Remember that Bushco wanted a reason to onvade Iraq even before 9/11, soon after the attacks they were trying to figure out a way to use 9/11 to justify invading Iraq.

Addigton famously told Goldsmith that we were “just one bomba away from getting rid of FISA”

I’, wondering if the admin was aready looking for a reason to ignore or get rid of FISA before 9/11 and that Kris (acurately) anticipated that Cheney/Addington would try to use 9/11 as a way to gut/ignore/repeal FISA and was trying to cut them off at the pass/

Shock Doctrine

Norske, I luv ya brother, but I flatter myself that I have moments of liberal intellectualism

Glenn today:

But — after a few symbolic (and potentially important) decrees in the first week, which I praised at the time — the Obama administration’s approach to civil liberties, constitutional protections and the reining in of executive power abuses has been absolutely abysmal. None of this has anything to do with complaints that he hasn’t yet done enough. It’s the opposite: these are all affirmative, even extraordinary, actions undertaken by the Obama DOJ not merely to copy, but in the Al-Haramain case, virtually to surpass, the worst aspects of the Bush/Cheney/Addington use of extreme secrecy and assertions of unlimited executive power.

i think Obi’s phrase is “Result Oriented Policy” or some such thing.
but
EXACTLY!!!
SURE SEEMS LIKE there’s movement happening tho, a whole lotta peeps are on this train and EXPECTING to reach a destination!

hi Norske.

Are you kiddin, what else is this place?

I note this from the 1/15/09 Bradbury memo concerning this 9/25/01 memo to Kris

(reasoning that because the Government’s post-9/11 interest in “preventin terrorist attacks against American citizens and property with in the continental United States” implicated the “right to self-defense…of the nation and of its citizens,” and because the courts had recognized that “deadly force is reasonable under the Fourth Amendment if used in self-defense justifies the use of deadly force, then it certainly would also justify warrantless searches”).

We believe that this reasoning inappropriately conflates the Fourth Amendment analysis for government searches with that for the use of deadly force.

http://www.usdoj.gov/opa/docum…..152009.pdf

Bradbury also says that Yoo’s analysis failed to take into account the fact dependent nature of any self-defense justification, i.e. that there had to be real threat to those executing the warrant and that this had to meet a reasonableness review. And that none of this has anything to do with the execution of warrantless searches. (pp.10-11)

Or did Kris ask his question fully expecting to get a No from a properly functioning OLC, but Cheney and Addington headed him off by getting the job assigned to Yoo who sabotaged Kris by returning a craptastic Yes instead?

I think FISA was in Cheney & Addington’s sights looooong before 9/11, and would not be at all surprised if they had started asking about how to get around it upon Bush’s inauguration.

“..the first thing that strikes me is: How did he get this researched and written so fast (especially during a period when many people where spending lots of work hours reconnecting with friends and family and chewing over every scrap of information coming out of the attack sites)? Or had he started work on it earlier? And if so, why?”
If memory serves, the president of Quest, in his testimony, said that his company had been asked in the spring of 2001 to cooperate with NSA. He also said that after his legal people told him ‘no’ and they refused, Quest was cut off from all Federal telecom contracts.
Not to put a tin foil hat on it, but I think we can safely say that other telecoms were being asked for this NSA cooperation at the same time and that they were already listening in and getting emails, etc. before the fall. I also think that the decision was made that they were not getting everything they wanted to get and that Yoo was asked to get to work on this opinion before 9-11 happened.
As just an aside – the plans for that secret NSA room in San Francisco’s CO on Folsum Street in San Francisco were completed by early December, 2002. http://www.wired.com/science/d…..6/05/70908

The butler, in the dining room. . .candle stick!

I think it helps to put into context that Kris had been playing a lead role in the issue of “the wall” and how it should be handled, even prior to the problems after 9/11.

He was involved, along with the figure heads of Olsen, Ashcroft and Thompson (Ok, they might have really worked the case, but I tend to think notsomuch), in handling In re Sealed Case and in addition to being chosen for providing briefings to Congress on the issue of “the wall” he also took time when he was out of Gov to come back and serve as a witness and provide testimony on the issue.

I have to say that I disagree deeply and fundamentally with Kris on whether or not there should be a wall – I think it is absolutely a requirement in some fashion. He was far more persuasive than anyone else I read (many of whom were just nuts) on this topic, though.

I do not agree with using the FISCt and easy access to surveillance orders that are not based on probable cause to back door surveillance that is for criminal litigation purposes but there is no criminal probable cause in existance to get the courts to issue a criminal warrant. And I don’t think that there is any way to prevent that back dooring in the current approaches and I further don’t see why many suggestions involving more judicial input and process have not even been considered.

But I do think you are right that Kris did want to try to bring everything within FISA legislation.

I just think people keep forgetting that the ONLY judicial reasoning that even begins to support the existence of something like FISA and FISCt is based on the Sup Ct’s dicta statements about the ability of the Executive to possibly engage in warrantless surveillance solely for foreign intelligence accumulations. Nowhere did the court say – oh, and btw, also just ditch the criminal probable cause requirements and feel free to engage in surveillance until you can find something that you could get around to using in a criminal case, as long as you can make up some kind of intel reason to also be surveilling.

Oh, Hugh. I’m not suggewsting that Yoo’s analysis is any better int his memo than any of the others.

I was more focused on the question posed by Kris.

Because we know that Addington did not want ot follow FISA. We know that The WH gave Ashcroft those NSA spying authorizations to sign, but wouldn’t let him get internal advice from career DOJ lawyers about whether or not he SHOULD sign it.

WHich is why Goldsmith taking over OLC was so important.

WHat I was focused on was why would a guy like David Kris who already knew the answere to the question he was posing ( an knew it better and in greater detail than Yoo could ever hope to understand) even ASKING this question?

If not to esptablish via OLC opinion that all wiretapping had to go through either an Article 3 court or through the FISA court.

WHy would he feel the nneed to establish such an obvious point?

WHy do this memo SOOOO early?

Was there talk about gutting/ignoring FISA either before 9/11 or right after (like within a day or two) 9/11?

The existance of the Question, so soon after 9/11, asked by a guy who obviously already knew the answer to the question, and asked to a guy who had much less expertise than the questioner, is a BIG HONKIN’ CLUE.

But clue to what exactly?

I dopn’t know that the answer is necessarily “no”, though I would hate to see FISA amended in quite that way.

Yoo’s analysis fails hughly, but not merely because I don’t like the conclucison.. In this instance a “yes” give much more due process protections, more importantly, a “yes” means that the only way to wiretap is either through a Title III warrant or through a FISA warrant.

A “yes” means you can;t have warrantless wiretapping

Dugg IT!

Seems to me they were already breaking the law with warrantless wire taps as they had already told the TelCos to start the program in February 01 iirc.

I agree with you. I don’t know how I would have come out if I had been asked to write that memo, becasue it looks like the lesser of two evils, is to answer the question “yes” because that brings all survaillances under “some”" kind of prior judical scrutiny.

The flip side is that if foreign survaillance is one “one” of the purposes of a Fisa surveillance, then any crime with a foreign nexis is going to have a wink wink nod nod FISA warratn instead of a proper Title III warratn.

However didn’t the answer he got take surveillance outside of both federal courts and the FISC?

BTW, KO just said before the commercial break that he going to have John Dean up next totalk about these memeos.

* memos were relased today and nore are supposed to be coming in future.

I want to read the one Addington kept in his safe

I want to read the one Addington kept in his safe

Didn’t Gonzo keep one in his briefcase, too? Any idea which one that was?

No, the anser he got worked from the assumption that you needed a warrant.

Something else happened to cause the WH to ignor FISA. We haven’t seen that yet.

The memo you cited criticized the part of Yoos crappy ananlisis that applied the wrong standard for reasonable searches–which BTW is SOOOOOOO reminiscent of Yooo conflating the standard for when you don’t need rpior approval from medicaide to go to the emergency room (imminent death , loss of limb, organ failure) with a standard for tortutre

Yoo conflates dissimilar things –a lot

I don’t think it has been released yet.

(This is probably very wrong, but:) Ah, I meant viewing the question the other way round, i.e. Kris asks OLC “Mother may I act as though ‘the purpose’ actually means ‘a purpose’, as in one among others,” hoping to be told “No, you may not!” in order to make it crystal clear to the Bush Admin that what they want to do is way too outre; instead, Cheney sticks his hand inside the OLC puppet head via the instrument of Yoo, who answers “Why yes, yes you can!” and Kris is appalled and has to start working with that answer.

29 – you’re right. And I have to say, while I disagreed with him, I thought in writing Kris was way more persuasive than anyone else and his demeanor in the testimony I watched was way more reassuring then anyone else I saw. If you thought the Dept was clones of him, you might disagree but not lose a lot of sleep necessarily.

It’s not an easy area, but I think there are solutions that involve much more and better supervision and tighter hoops to jump through to use info. I also thought that the In re Sealed case opinion, from the Silberman three, was pretty incoherent and is something that needs to be excised in some way, shape or form from having any status as authority.

OTOH, I think you’re take on Kris trying to pull it all within FISA could be very much on point. It also makes me recall, albeit vaguely, something from way back when in the debates and revisions – something about someone, maybe Dewine, wanting to make surveillance even easier and someone – I’m thinking Baker, having to respond politely and say, golly, that’s a great suggestion but we kind of think it might not e constitutional …

Which has always made me wonder if there is a non-OLC opinion floating around too, from Baker’s division perhaps.

There is also the scuttle that Kris advised Thompson not to sign off on some FISA applications that didn’t pass the smell test, so I think that while I disagree on the form of operations he thought the Dept should be entrusted with, I can’t help but think he was always on the up and up and always trying to do the right thing. I wish I felt like I could say something like that more frequently.

Except that teh question asks about “amending” FISA, which clearly contemplates COngressional action.

I couldn’t find a link when I was writing the post ( I suck at teh Google) but I remeber an interview that Goldsmith gave where he said that the Admin could have done many of the things they wanted to do surveillance-wise if they had only gone to COngress to ask for ammendments to statutes, but hta the Unitary Executive didn’t want ot admit that OCngress could contain a wartime president

I wonder, did Kris put a rush on his OLC opinion request to try to get in front of Addington’s plan to ignore FISA?

Sure sounds like it, doesn’t it?

Wow. if David passed the MAry test—-well that IS something.

I hope he is reading this — it’s a magic moment

LHP and Mary: Can we read anything, good or bad, into the fact that Kris is Obama’s nominee for Assistant Attorney General for the National Security Division?

39 – :b

I, personally, am a big fan of David Kris’s. But I also like him as a person.

He is a rule of law guy, not a beef up and expand the Bill of Rights guy.

So, it depends greatly on where you fall on that continuim. I’m a rule of law gal, so it’s easy for me.

I do think he is intellectually honet., so with him, what you see is what you get

We’re also assuming that the White House made the decision early.

I suspect that it was Cheney who made it, much earlier, and that like Elliot Abrams, he had plenty of lessons he learned under previous administrations that he integrated as early as possible into Dubya’s administration.

Why, after all, had Cheney already up Iraq’s oil fields at this point eight years ago in the Bush administration, having already met with energy companies multiple times setting the Energy Task Force in motion? This effort began literally days, hours after Bush took oath.

Awfully well coordinated activity, highly efficient and organized so, so early.

So would it be fair to say that his objections to what what Yoo and Addington were trying to pull off were based in what he might have seen as their flippant and disrespecting attitude towards The Law?

Can hardly wait to hear from Seymore Hirsh.

I don’t mean it that way. If you look at the COurtney Ellwood emails, he clearly advocates in fovor of privacy rights.

But he is not looking to “improve” the alew or change the law, he appears to be trying to follow the aw as it already existed

Thanks — that’s kinda what I meant. He’s not the sort of person who would ever dream of usurping the power of the legislative branch to write laws, as opposed to Yoo and Addington and their ‘unitary executive’ fetish.

I’m just ready the Yoo memo, only half way through. So I haven’t gotten to the point where this draws intelligence under FISA. If anything, there first 6 pages or so all seem designed to establish the principle that if the question is foreign intelligence, even if solely within the US, the Prez has all the power he needs. I’m still looking for how this gets back to Congress limiting the President’s powers via FISA.

Kris asks, is it constitutional to subtitute “a” for “the,” and Yoo answers, of course, because the statute doesn’t matter. Hes not talking about whether a warrant based on “a” versus “the” is constitutional; he’s explaining that warrant is not required. Am I reading this wrong?

Of course, that’s just half way through, so . . . I’ll keep reading.

O/T, but BREAKING, and sorta’
related: Colorado federal District
Court Judge Arguello has just ruled that
Dick Cheney may be deposed — sworn,
under oath, about the events that
led to the arrest of Steven Howards,
in Beaver Creek, CO — when he told
Mr. Cheney that he disagreed with the
Administration’s policies in Iraq, back
on June 16, 2006.

YES!!!! Watch Cheney squirm!

Ever wonder why Richard Clarke chose the title he did?

nolo,
Where ya been? Long time no see. Or are my eyes failing me?

Good to see you here, in any case.

Bob in HI

nah — bob, your eyes are strong.

my “keepin’ up with things” skills
are what’s a-lacking. . . been workin’
on health care reform, and a pharma-
muck-rakin’ blog (of which there is plenty to
rake!). . .

so i rarely work on mr. cheney, any more.

thanks for the shout-out!

p e a c e

Bingo.