by TravelerDiogenes [Subscribe] [Edit Diary]
Mon May 21, 2007 at 05:56:12 PM PDT
Reading georgia10’s diary at DailyKos from Jan 01, 2006, entitled Ashcroft, Domestic Spying, And Why This Scandal Won’t Go Away, there is this astute observation that needs revisiting, after James Comey’s testimony last week about the race to Ashcroft between himself and Alberto Gonzales and Andrew Card in March, 2004:
To understand how deep-seeded [the] legal reservations were, I remind you that Comey refused to authorize and Ashcroft was “reluctant” to authorize the program in 2004. This was after the program had been in place for some two and a half years. This was after Ashcroft had presumably authorized the program ever 45 days since late 2001.
georgia10 certainly hit the nail on the head. Or very nearly so… (This diary is a mental process that led me to something I hadn’t figured on. Read on…)
While everyone is wondering if they had John Ashcroft wrong all that time, there seems surely that: That he was signing off on the NSA program for over 2 years.
But on the face of it, does that make sense?
If the program that Comey was talking about – remember that he would NOT name it before the Senate committee – was, in fact, the NSA wiretapping program, here are questions I have (I am asking for info here, as much as anything, and not making a point):
1. Did the NSA wiretapping program, in fact, require re-approval every 45 days? (I mean, it was almost certainly by Bush’s authority – probably in a Presidential Order – that the NSA wiretapping program was created, and why would he put in that the AG had to sign off on it every month and a half? That simply makes no sense! If it was a program that Bush created by EO, then no other authority was needed.)
2. Wasn’t it FISA warrants that needed approval every 45 says?
3. If it wasn’t the NSA wiretapping that was being re-approved every 45 days – that very much was made clear by Comey – then what was he talking about?
3.a. What ELSE requires such approvals?
3.b. By what authority would such 45-day re-approval be required – something that Bush would rush Abu and Card to end-run Comey on? Something that Bush was hyper to get done then and not later? What authority was Bush bowing to?
4. As per georgia10 (I give her all the credit in the world on this one), does it make sense that Ashcroft would have approved the NSA program for over 2 years and then been so hostile toward it that he was willing to resign, along with several top people at the DOJ (AND FBI Director Mueller, if I am not mistaken)?
5. If Ashcroft HAD been approving Comey’s referenced program all that time, then what had transpired to make Ashcroft see the light of legality?
Something is not adding up, not in my mind. What are we really talking about here? I keep thinking there was another program, other than the NSA one. The press keeps on saying that Comey was talking about the NSA program, but that may not be the only possible program he could have been talking about. If not, then what? And even if we get that understood, georgia10’s question is still out there, regardless what the program was – Why did Ashcroft change his mind – and so completely?
Or did he?
Is it within the realm of possibility that this was another program, one that had only been in effect for one 45-day period? One that Ashcroft had NOT ever signed off on? It keeps coming back to understanding which programs required re-approval every 45 days…
FISA. It had to be FISA. But didn’t FISA require that Bush go back to the FISA court? What did the AG have to do with FISA? Okay, maybe FISA says both that the court AND the AG have to sign off.
But then, that would mean that up to that time, Bush WAS going to the FISA court for approval.
Per Glenn Greenwald at The potential benefits of the Specter legislation
For any warrantless eavesdropping program the Administration wishes to implement, the Attorney General is required to submit an affidavit to the FISA court every 45 days detailing a wide range of information about the program
Ah, so it was not Ashcroft’s approval Bush was seeking. Bush was asking for an affidavit “detailing the required information” to be presented to the court.
Here is what Ashcroft had been required to have in the affidavit (according to Greenwald):
(4) a statement that the surveillance sought “cannot be obtained by conventional investigative techniques” or by obtaining a FISA warrant;
(6) “the means and operational procedures by which the surveillance will be executed”;
(7) a “statement of the facts and circumstances . . . to justify the belief that at least one of the participants in the communications to be intercepted” is an agent of a foreign power” or a “person who has had communication with the foreign power” and,
(14(D)) “the identity, if known, or a description of the United States persons whose communications. . . were intercepted by the electronic surveillance program.”
Now, obviously the NSA program itself was not listing these things in the affidavit, not for wiretapping the general public – it would have never flown, even in the rubber-stamp FISA court.
But what if – WHAT IF – Bush had some phony surveillance as a cover for the NSA program? And what if Comey and all of the people at the DOJ had found out the affidavit was a snow job on the FISA court? And what if they had shared this with Mueller and Ashcroft during that then-current 45-day period? That would explain why Ashcroft was so intransigent at that time, but not before.
So if this is right, Bush, Abu, Card, and possibly others went to the FISA court and got them to authorize something that Ashcroft WAS signing affadavits for, but then they were doing their own Unitary President thing. So Bush, Abu, Card, and possibly others went to the FISA court and got them to authorize something that Ashcroft WAS signing affadavits for, but then doing their own Unitary President thing. And THAT is also why Bush was always – before the NSA wiretapping was outed – claimed that they were always following FISA: They never thought anyone would catch on that they were selling the FISA court one program and actually DOING another.
And it would explain why so many were willing to resign THEN and not before: They had not been aware of the defrauding of the FISA court. The fraud had gone on for over 2 years, but these people were saying, “No more!” They would not be part of scamming the FISA court.
Comey also said that on Friday, he met with Bush and Bush told him to go back and determine what they could do to enable them to sign off on the affidavit. And, Comey said, Bush kept the program running in the previous way until Comey got back to him. And Comey DID sign off on the program afterward, according to his testimony.
And after that, Comey was under the understanding that Bush followed their guidelines. If so, then the program was cleaner after the revolt than before.
But in all likelihood, Bush pulled the same fraud on Comey, Mueller, Ashcroft and the others as they did on the FISA court – they simply agreed to one thing and then did what in the hell they wanted to do, anyway.
That all seems to fit.
And, if so, this is really, really, really REALLY CRIMINAL. As in “high crime”. No high misdemeanor about it…
