“Basically Thugs”

by tristero

Glenn Greenwald truly outdoes himself here:

What more glaring and clear evidence do we need that the President of the United States deliberately committed felonies, knowing that his conduct lacked any legal authority? And what justifies simply walking away from these serial acts of deliberate criminality? At this point, how can anyone justify the lack of criminal investigations or the appointment of a Special Counsel? The President engaged in extremely serious conduct that the law expressly criminalizes and which his own DOJ made clear was illegal…

[I]t has been assumed for some time that what changed at that point was that the AUMF legal “justification” was concocted, and it was the addition of that argument — one which at least had the appearance of being grounded in Congressional authorization — that is what convinced the DOJ to certify the program’s legality. In other words, what changed in 2004 was not the eavesdropping program itself, but merely the DOJ’s theories about why the program was legal.

But Law Professor Orin Kerr offers some speculation on that question which strikes me not only as persuasive, but also as the only logically possible answer. He suggests that there were changes to the program itself — i.e. changes in the operational rules of the NSA’s eavesdropping — not merely changes to the DOJ legal theories (emphasis added):

It sounds like the President personally either gave in or reached a compromise with Comey (it’s not clear to me which) that refashioned the program in a way that DOJ was willing to approve.

The only real possibility for how the program could be “refashioned” in order to convince the DOJ of its legality would be tighten the nexus between the warrantless eavesdropping and the AUMF.

Since the AUMF authorized, in essence, the instruments of war to be used against Al Qaeda and other terrorist groups, that would mean that — in order to make the program appear more legal in the eyes of these DOJ officials — the warrantless eavesdropping would need, presumably, to be tied to terrorist groups encompassed by the AUMF. That’s the only conceivable way that the program could have been “refashioned” in order to make it seem as though it had legal authority.
But if that’s the case — if it was only in 2004 that a requirement was created that the eavesdropping be tied closely to terrorists encompassed by the AUMF — then that would mean that prior to that time, there was no nexus between the eavesdropping and those terrorist groups. It would mean that prior to this 2004 DOJ rebellion, the scope of the NSA eavesdropping — the list of those who were subject to warrantless eavesdropping — was far broader than the Islamic terrorist groups against whom the President was authorized by the AUMF to use military force.

That would necessarily mean that — contrary to what the administration has repeatedly insisted was true — it was not merely Al Qaeda and similar groups who were the targets of the eavesdropping conducted in secret, but targets beyond that category…

[J]ust consider what it says about this administration. Not only did Comey think that he had to rush to the hospital room to protect Ashcroft from having a conniving Card and Gonzales manipulate his severe illness and confusion by coercing his signature on a document — behavior that is seen only in the worst cases of deceitful, conniving relatives coercing a sick and confused person to sign a new will — but the administration’s own FBI Director thought it was necessary to instruct his FBI agents not to allow Comey to be removed from the room.

Comey and Mueller were clearly both operating on the premise that Card and Gonzales were basically thugs. Indeed, Comey said that when Card ordred him to the White House, Comey refused to meet with Card without a witness being present, and that Card refused to allow Comey’s summoned witness (Solicitor General Ted Olson) even to enter Card’s office. These are the most trusted intimates of the White House — the ones who are politically sympathetic to them and know them best — and they prepared for, defended themselves against, the most extreme acts of corruption and thuggery from the President’s Chief of Staff and his then-legal counsel (and current Attorney General of the United States)…

How is this not a major scandal on the level of the greatest presidential corruption and lawbreaking scandals in our country’s history? Why is this only a one-day story that will focus on the hospital drama but not on what it reveals about the bulging and unparalleled corruption of this administration and the complete erosion of the rule of law in our country? And, as I’ve asked times before, if we passively allow the President to simply break the law with impunity in how the government spies on our conversations, what don’t we allow?

If we had a functioning political press, these are the questions that would be dominating our political discourse and which would have been resolved long ago.

Exactly.