Editore"s Note
Tilting at Windmills

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May 17, 2007
By: Kevin Drum

PALACE REVOLT....Why did the Department of Justice suddenly get antsy about the NSA's domestic spying program in March 2004, more than two years after the program started up? I think Paul Kiel has it about right here. I suspect that the key player, by far, is Jack Goldsmith, as Newsweek told us over a year ago. A couple of days ago I linked to their 2006 piece, "Palace Revolt," about Goldsmith and others, and if you didn't click through to read (or reread) it, you should take a minute to check it out. It's worth your while.

Kevin Drum 1:07 PM Permalink | Trackbacks | Comments (29)

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If we ever learn the truth, which I suspect we won't, it will probably be something along Digby's line here:

===========
http://digbysblog.blogspot.com/2007/05/what-could-possibly-be-so-bad-by-digby.html

How over-the-top must this have been for staunch Republican John Ashcroft to have risen from his ICU bed to argue against it and the entire top echelon of the DOJ were preparing to resign? These are not ordinary times and the law enforcement community has not been particularly squeamish about stretching the Bill of Rights. None of those people are bleeding heart liberals or candidates for the presidency of the ACLU. For them to be this adamant, it must have been something completely beyond the pale.

My suspicion has always been that there was some part of this program --- or an entirely different program --- that included spying on political opponents. Even spying on peace marchers and Greenpeace types wouldn't seem to me to be of such a substantial departure from the agreed upon post 9/11 framework that it would cause such a reaction from the top brass, nor would it be so important to the president that he would send Gonzales and Card into the ICU to get Ashcroft to sign off on it while he was high on drugs.
==========

Posted by: Cranky Observer on May 17, 2007 at 1:24 PM | PERMALINK

I really want to know what was so bad with the programs Ashcroft had been authorizing that when he and his team really found out what they had been authorizing they were all willing to resign over the matter.

Let's remember that Aschroft used to have buildings swept for calico cats prior to entering as he saw them as denizens of satan. He had already sold his soul to bush and he was willing to resign? There is profound ugliness here that the people should know about in a government by and for the poeple.

Posted by: Trypticon on May 17, 2007 at 1:26 PM | PERMALINK

Thanks for re-highlighting the Newsweek piece the Palace Revolt. It was relevant and important then, it is relevant and important now - too bad we see relatively little of such jounalism and that it fails to command the attention it deserves.

I suppose the silver lining is that we have a pretty strong and robust system. Six years into the Bush administration we have numerous abuses and polticalization run amok, but the damage is not irreperable -- yet -- I hope. IF we see the problem for what it is. This is NOT politics as usual. This NOT the same old same old. However, this message is not loudly and clearly getting through to America.

These actions by the Bush administration undermine the fundamentals of our system of Justice. Everyone needs to take a stand as it appears that Comey did. Unfortunately these men still appear to be exceptions, meanwhile others have been maligned and tarred.

This need not leave permanent harm upon our system, but its not going to reverse itself by itself.

Posted by: Catch22 on May 17, 2007 at 1:28 PM | PERMALINK

amen Cranky/Digby.

Posted by: Trypticon on May 17, 2007 at 1:32 PM | PERMALINK

> Six years into the Bush administration we
> have numerous abuses and polticalization
> run amok, but the damage is not
> irreperable -- yet -- I hope.

One and only one prosecution so far (Libby), and that was because he was the first and wasn't careful enough about strict omerta. The Administration is basically refusing to acknowledge Congress, Congressional subpoenas, and the concept of oversight (not the mention the press). When the time comes I suspect they will invoke "Article II" to ignore any adverse Supreme Court rulings (e.g. on subpoenas) as well - assuming Roberts allows any adverse rulings.

So I am not as confident as you; the precedent is very close to being set that the President of the United States is actually a Dictator Lite (and presumably later a Dictator in Full).

Cranky

Posted by: Cranky Observer on May 17, 2007 at 1:35 PM | PERMALINK

Why did the Department of Justice suddenly get antsy about the NSA's domestic spying program in March 2004

Probably just a slow review process. This happens with big government bureaucracies like the DOJ. Review of the program took several years, and the review finished right before Ashcroft went to the hospital suggesting some minor changes to the terrorist surveillance program. What's the big deal? The White House made the suggested changes and the AG immediately signed off on the program. Pretty simple story. Certainly not the conspiracy theory you're imagining.

Posted by: Al on May 17, 2007 at 1:36 PM | PERMALINK

It was getting rid of John Yoo as well as getting Goldsmith in. Yoo is an absolute disgrace to the legal profession in general and to my alma mater UC Berkeley's Boalt Hall, who continues to keep him on the faculty, prompting me to stop our family's contributions to the school.

Posted by: Mimikatz on May 17, 2007 at 1:36 PM | PERMALINK

What's the big deal?

Of course there was no big deal.

That's why there was a late night car race to the hospital of a gravely ill man to try to overturn a decision against Bush's program. It's also why the very top people at Justice, all staunch conservatives, including the Attorney General, the acting Attorney General, and the head of the FBI, all threatened to resign if it weren't changed.

All over "no big deal".

What drama queens!

Posted by: frankly0 on May 17, 2007 at 1:54 PM | PERMALINK

Ashcroft had his issues, yes.

Didn't he lose his Senate seat to a dead guy?

Didn't he "cloak" the statue of Lady Justice?

And, Al, didn't he "sign off" on the program several times before the slow review process was complete?

Posted by: wishIwuz2 on May 17, 2007 at 1:56 PM | PERMALINK

Some of these same clowns have been named in a war crimes filing
...Along with Rumsfeld, Gonzales and Tenet, the other defendants in the case are Undersecretary of Defense for Intelligence Stephen Cambone; former assistant attorney general Jay Bybee; former deputy assisant attorney general John Yoo; General Counsel for the Department of Defense William James Haynes II; and David S. Addington, Vice President Dick Cheney's chief of staff. Senior military officers named in the filing are General Ricardo Sanchez, the former top Army official in Iraq; Gen. Geoffrey Miller, the former commander of Guantanamo; senior Iraq commander, Major General Walter Wojdakowski; and Col. Thomas Pappas, the one-time head of military intelligence at Abu Ghraib....
[That case was rejected in Germany but has been refiled in Spain]

Posted by: Mike on May 17, 2007 at 2:03 PM | PERMALINK

Paul Kiel wrote: [Regarding Goldsmith's review at Comey's direction] For the first time, trained and qualified attorneys within the Justice Department had conducted a careful review of the program.

Evidently this was a spy program of questionable legality or Consitutionality. Some lawyers believed it passed muster; others bellieved it did not.

Which lawyers were correct? I don't know. But, in the above quote, Kiel presumes that the lawyers who approved the program were wrong and that they were unqualified or hadn't even conducted a careful review.

Kiel has no reason to so slam the Justice Dept. lawyers who approved the program. In particular, Prof. John Yoo is clearly well qualified. There's no reason to believe he made careless evaluations. He just has a different understanding of the Consitution than Goldsmith does.

Posted by: ex-liberal on May 17, 2007 at 2:12 PM | PERMALINK

Hey Al. I congratulate you on the most coherent post I've ever seen you write. I still disagree with the spin, as it has been pointed out that Asscraft was authorizing a program he knew he didn't know enough about and that he was willing to resign over when he did know something about it. But for like the first time ever, for a moment, you sound like a competent hack rather than a meth addled christofascist child molester. Hats off.

Posted by: Trypticon on May 17, 2007 at 2:21 PM | PERMALINK

Hey Ex -- Yoo is an enemy of the state. Pun intended.

Anti-liberty
Pro-torture
Anti-due process
Anti-rule of law

These are philosophies the greatest generation fought to defeat. Yoo is an apologist and promotor of proto-fascism in America.

Good Job, rat in the wiring!

Posted by: Trypticon on May 17, 2007 at 2:26 PM | PERMALINK

I suspect from hearing interviews with Yoo that the problem was he saw his job as being like that of a private attorney: His client was the President and he was willing to develop and back whatever theory was necessary to support the position his client wanted to take. This is how private attorneys work in public, you usually don't advise your clients as much as you seek ways to defend the things they already did (or want to do). Sometimes you even know that your theories are a little stretched, but you never disclose that outside of private communications with your client.

Unfortunately, and this is where Yoo was tragically wrong, that's not really the job of a government lawyer (at least not one in the DOJ) because, at the end of the day, your real client is not the President, it's the People. That's what the DOJ revolutionaries figured out after Yoo left.

Posted by: Doug-E-Fresh on May 17, 2007 at 2:39 PM | PERMALINK

A more interesting Why Now? question is, why is the press suddenly so interested in this after brushing off the entire NSA spying thing when it first appeared. My guesses:

1) The midnight trip to the hospital thing is just too gothic to ignore. The fumbling in Vince Foster's office gulled many who should have known better into thinking there was nefariousness afoot; this more legitimately dubious incident similarly arouses the suspicions of those fond of cheap melodrama.

2) Testimony that Comey and Ashcroft found the program as constituted too out-there suggests something really skeevy. What must have been involved? Speculation that it extended to spying on political opponents doesn't seem completely beyond consideration.

3) Bush and, especially, Gonzales have fallen so far in public opinion that it's now easier to take shots at them that the press would have avoided a year or two ago.

Bush was directly asked today whether he authorized the hospital trip, and he plainly dodged the question. Will the press push it till he's forced to either answer or make it obvious he's afraid to (i.e., bring it up every time he takes questions)?

The beauty of the ongoing disintegration of the administration is, things you thought they were getting away with tend to resurface. The attorneys' story looked like it'd never get traction; NSA spying was dismissed in a cloud of machismo. That they are both still alive today suggests real reckoning is on the agenda.

Posted by: demtom on May 17, 2007 at 2:55 PM | PERMALINK

Trypticon and Doug-E-Fresh: John Yoo has as impressive a legal background as you could wish. Instead of demonizing him or claiming that he didn't do his job properly, you ought to recognize that this superbly qualified scholar simply diagrees with you on some legal issues.

Professor Yoo received his B.A., summa cum laude, in American history from Harvard University. In law school, he was an articles editor of the Yale Law Journal. He clerked for Judge Laurence H. Silberman of the U.S. Court of Appeals of the District of Columbia Circuit. He joined the Boalt faculty in 1993, and then clerked for Justice Clarence Thomas of the U.S. Supreme Court.

Professor Yoo was a visiting professor at the University of Chicago Law School in 2003 and at the Free University of Amsterdam in 1998. In 2006, Professor Yoo held the Distinguished Fulbright Chair in Law at the University of Trento (Italy). He has received fellowships from the Olin Foundation (for work on treaties and constitutional law) and the Rockefeller Foundation (for a book on the effects of globalization on American constitutional law). He has received the Bator Award for excellence in legal scholarship and teaching from the Federalist Society.

http://www.law.berkeley.edu/faculty/yooj/

Posted by: ex-liberal on May 17, 2007 at 2:58 PM | PERMALINK

"ex-liberal"'s lame defenses of this Administration, however feeble, reveal once again that he/she/it isn't here to comment in good faith, but to carry the Administration's water. "ex-liberal"'s steadfast obtuseness and refusal to comprehend the plain text of the public record would be almost charming, an a deranged way, if it weren't so reprehensible and in defense of such an unabashedly mendacious, incompetent and corrupt Administration.

There's simply no reason to believe even one of "ex-liberal"'s assertions (except that Yoo has a different understanding of the Constitution. And how!).

Posted by: Gregory on May 17, 2007 at 2:59 PM | PERMALINK

Instead of demonizing him or claiming that he didn't do his job properly, you ought to recognize that this superbly qualified scholar simply diagrees with you on some legal issues.

So much for "ex-liberal"'s claims of believing in "freedom" -- he/she/it is now fully on record as carrying water for an unapologetic authoritarian.

Now on record, did I say? "Once again" on record is more like it.

Yoo fully deserves to be shunned by patriotic Americans. By embracing Yoo, so does "ex-liberal."

Posted by: Gregory on May 17, 2007 at 3:03 PM | PERMALINK

Hey Ex, I'm not saying you is stupid or unqualified, I'm saying he's demonstrably advocating for the dissolution of legal traditions and priciples that have been integral to our nation and society. The values he has been unraveling in the manner described by demtom were those generations of Americans supposedly fought to preserve. As such, Yoo is an enemy of the State and a trator to our traditions. He's not an idiot. He's effectively eroding rule of law.

Posted by: Trypticon on May 17, 2007 at 3:05 PM | PERMALINK

Ex-Lib, I never said anything about Yoo's qualifications. The guy has a great resume and an excellent mind for what he does. I'm just saying that I think his ideology forced him to overlook a lot of things, including what his real job should have been. I'm sure he would disagree with me because to him, serving the President is the same thing as serving the country. That's the kind of thinking you get when a person achieves messiah status to his followers. But its not necessarily true, and those of us willing to look objectively at the man and his administration can see that.

Heck, one of the things I'm becoming more and more convinced of with respect to this administration is that most of the people that remain in high ranking positions by this time are true-believers in the Bush cult (See Monica Goodling who just wanted to serve the President) and really do see the guy as a messiah. Is there any doubt that Gonzales, Rice or Harriett Meiers are just enamored with the guy and think he walks on water(Cheney and his brood, however, see him as a convenient puppet)? Well if that's what you believe, you can't take any position other than to think everything the guy does must be correct. Once somebody has messiah status thrust upon him (and Bush has done little to discourage this kind of thinking with his black and white view of the world) he can't make mistakes.

Posted by: Doug-E-Fresh on May 17, 2007 at 3:12 PM | PERMALINK

John Yoo's impressive resume is beside the point. Not to isinuate that Yoo is a Nazi, but I am sure that Nazis had amonge them a number of scientists and even legal scholars with impressive resumes, but no one would say for any one of the latter that one ought to recognize that this superbly qualified scholar simply diagrees with you on some legal issues.

Posted by: gregor on May 17, 2007 at 3:39 PM | PERMALINK

Trypticon, please take a realistic look at the legal traditions of our country during past wars. Lincoln jailed people for publicly disagreeing with his war policy. FDR put Japanese Americans in concentration camps (and this was approved by the Supreme Court.) Even though there wasn't a war, Bobby Kennedy as AG wire-tapped Martin Luther King. The methods approved by Yoo are of questionable Constitutionality, but civil liberties infractions of that magnitude are hardly unprecedented.

Doug-E-Fresh, your idea that Yoo saw serving the President as the same thing as serving the country is not supported by any evidence that I know of. Furthermore, since Yoo left the Administration and joined the Boalt Hall faculty, I believe he has written books and/or articles continuing to support his non-mainstream legal theories. That suggests that he sincerely believes in the legal advice he gave when in the Justice Dept.

Doug, I sure don't think Bush walks on water, although I support a lot of what he does. Many liberals say that "chimpy" Bush has a low IQ and isn't involved in his duties. You even call him a puppet. It's hard to see how that kind of person could inspire messiah status.

I will again acknowledge that Bush was using all his powers to fight terrorism, even those of dubious Constitutionality. I think he was right to do so. YMMV.

Posted by: ex-liberal on May 17, 2007 at 4:21 PM | PERMALINK

Ex-liberal: John Yoo has a "different" view of the US Constitution in the way that King George III and Jameds Madison had different views of the Constitution. Yoo's theories of the unitary executive, the President Who Can Do Nothing Illegal and the defense of torture are so far outside our legal traditions as to put him beyond serious consideration in a democratic society. He just proves that going to a good college and law school does not keep someone from being stupid.

And Doug-E-Fresh is absolutely right about the different roles of a government lawyer and a private lawyer. A government lawyer's ultimate clients are the People and the Constitution. It is the duty of a government lawyer to tell his/her client so when what they want to do is outside the bounds of legality.

The Bush/Cheney/Yoo version is perilously close to dictatorship, and for what? So we can piss away our young people and our treasure in a senseless war in the desert? Mortgage the next generation's future to pay for tax cuts for the rich and risk their very survival through inaction on global warming? Create a bloated contractor class beyond oversight to overlay the bloated bureaucracy? You are not only an ex-liberal; I daresay from your "argument" that you are an ex-constitutionalist and no believer in democracy as well.

Posted by: Mimikatz on May 17, 2007 at 4:42 PM | PERMALINK

Cranky,
I hope that you and Digby are wrong. But it doesn't take Sherlock Holmes to see where the logic goes. Ashcroft may have been an jerk, but he probably had some principles; obviously it cost him his job in the end.

Posted by: Tim on May 17, 2007 at 5:50 PM | PERMALINK

Al: "Probably just a slow review process."

In a very fast car.

ex-thinker: "I will again acknowledge that Bush was using all his powers to fight terrorism, even those of dubious Constitutionality. I think he was right to do so."

Pyongyang would love more like you in the ranks. Do you think George W. Bush would care if YOU were wrongly accused, thrown in a cold jail cell and had electrodes attached to your genitals? He doesn't give one more shit about you than you do about all the brown-skinned people rounded up and tortured in your name. You bring shame to Americans everywhere, and what's more, you know it. Get some therapy somewhere else, motherfucker.

Posted by: Kenji on May 18, 2007 at 12:38 AM | PERMALINK

Didn't he lose his Senate seat to a dead guy?

Yes, he did. But in fairness - Mel Carnahan, beloved Governor, did not actually pull ahead in the polls until after his tragic death, and had Carnahan not perished in a plane crash just days before the election, it is likely Ashcroft would have retained his seat. That whole process was really quite surreal to behold.

Posted by: Blue Girl, Red State (aka G.C.) on May 18, 2007 at 12:55 AM | PERMALINK

"I will again acknowledge that Bush was using all his powers to fight terrorism, even those of dubious Constitutionality. I think he was right to do so."

That is absolutely the most unpatriotic, un-American thing I have ever heard. I feel physically ill reading those words. Oh. My. God. The Constitution is what those troops you feign support for pledge fidelity to. You just totally dissed everyone who ever served.

I will never address you, ever again. I shun you. If you address me, I will simply post the permalink to this comment.

You, sir, are not fit to walk among decent people.

Posted by: Blue Girl, Red State (aka G.C.) on May 18, 2007 at 1:02 AM | PERMALINK

You, sir, are not fit to walk among decent people.

BGRS, you must have the patience of a saint. "ex-liberal" established his/her/its unfitness for the company of decent people ages ago.

I agree that his/her/its overt embrace of the Nixonian theory of politics is disgusting -- and you should check out "ex-liberal"'s endorsement of torture a few threads hence.

"ex-liberal"'s rapid decline from neocon to unabashed authoritarian is symptomatic of the degeneracy of the Republican Party.

Posted by: Gregory on May 18, 2007 at 9:00 AM | PERMALINK

> FDR put Japanese Americans in concentration
> camps (and this was approved by the Supreme
> Court.)

And Ronald Reagan apologized on behalf of the United States to its citizens that she so wronged. I guess everything Saint Ron does is canon unless it is something the Radical Right doesn't like - then it goes down the memory hole.

Cranky

Note also that that FDR did so against the advice of the Army.

Posted by: Cranky Observer on May 18, 2007 at 11:08 AM | PERMALINK




 

 

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