The National Security Curtain

THE NATIONAL SECURITY CURTAIN....The legal justification for the NSA's domestic spying program, originally written by the infamously hackish John Yoo, was repudiated in March 2004 by the Department of Justice after Yoo left and a new team insisted on taking a serious look at both the program and Yoo's legal arguments for it. Marty Lederman points out today that this team — John Ashcroft, Jack Goldsmith, and James Comey — was no bunch of weak-kneed liberals. They were, under every other circumstance, hardnosed conservatives dedicated to an expansive view of executive power in wartime. What's more, the NSA program was one the administration considered critical to the war on terror; repudiating a previous finding is highly unusual; their actions undermined a key legal tenet of the president's wartime powers; and they knew that both the president and vice president would be furious at what they had done.
And yet not only would Ashcroft, et al., not budge — they were prepared to resign their offices if the President allowed this program of vital importance to go forward in the teeth of their legal objections.

In light of all these considerations, just try to imagine how legally dubious the Yoo justification must have been that John Ashcroft was so profoundly committed to its repudiation. It's staggering, really — almost unimaginable that anything such as this could have happened, especially where the stakes were so high.

....Moreover, the "revised" NSA program that OLC and DOJ approved some weeks after the March incident...still allowed electronic surveillance of communications as long as the NSA had a "reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda." Presumably this extremely generous guideline was required by the need to bring the program under the aegis of the AUMF....If that's the narrow version of the NSA program, just how broad and indiscriminate was the surveillance under the program that Ashcroft, et al. would not approve?
Even the Washington Post, not exactly a keen critic of President Bush's executive excesses, has had enough: "The president would like to make this unpleasant controversy disappear behind the national security curtain. That cannot be allowed to happen."

That's a start. A little late, but a start.

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