No Way to Run a Government
No Way to Run a Government
Slate's blog on legal issues.
March 31 2008 9:13 AM

No Way to Run a Government

Eric Lichtblau, in an excerpt from his forthcoming book, confirms that the NSA wiretapping programwas 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 astonishinglystill, that the lawyers at the NSA itself were not permitted to see theJohn Yoo-penned legal opinions that provided the basis for the programthe NSA was operating! (I can't even imagine what those meetings lookedlike: "No, really -- you guys do have the legal authority to secretly violate FISA; but we can't showyou the legal theory why that's the case. Just trust us." And the NSAresponded: "Oh, in that case, ok, we'll get right on it." Huh?)

Thestory also appears to confirm that the original Yoo legal theory was ineffect that the President could disregard any laws he wished indeciding 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


Idon't think there's much more to be said about this that many of ushave not already said multiple times over -- except that it remainsscandalous that the Congress would even consider the Administration'srequests for new legislation until the Administration has made publicthe entire set of OLC opinions on this issue and interrogationtechniques, etc. (redacted, of course, to protect secret NSAtechnological capabilities). Congress has quite a bit of leverage here;they simply seem unwilling to use it.

Marty Lederman teaches constitutional law at the Georgetown University Law Center. He was deputy assistant attorney general in the Department of Justice's Office of Legal Counsel 2009-10 and an attorney advisor in OLC 1994-2002. He has been a regular contributor to several legal blogs, including Just Security, Balkinization, and SCOTUSblog.

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