Another great article from Anonymous Liberal.

Sunday, May 20, 2007

Why John Ashcroft's Signature Was Necessary

One important question raised by James Comey's testimony last week is why Andrew Card and Alberto Gonzales were so intent on getting John Ashcroft's signature. After all, he wasn't officially the Attorney General at the time, and the President didn't need anyone's signature to re-authorize the program.Well, Shayana Kadidal, an attorney at the Center for Constitutional Rights, has an interesting new post over at the Huffington Post exploring this very question. Building off of a suggestion made by Marty Lederman, Kadidal writes:

For my money, the most intriguing answer Professor Lederman provides is that "the [Attorney General's] signature might have been necessary to induce the requisite private actors -- telecom companies in particular -- to continue to go along with the program." (Orin Kerr, a more conservative expert on surveillance issues, concurs.)


Here's how that would work: the Wiretap Act contains a section, 18 USC 2511(2)(a)(ii), that allows telecom providers and other private parties (e.g. your landlord) to help the government carry out electronic surveillance if those private parties have been "provided with ... a court order" or "a certification in writing by ... the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required."



So, the government can go to AT&T with a court order -- a warrant -- allowing the government to put a wiretap in place, and AT&T is allowed to help them without such help subjecting AT&T to criminal or civil liability under the various wiretapping laws. That seems pretty intuitive to most people. But you might wonder why the statute allows the Attorney General to simply sign a written certification "that no warrant or court order is required by law" -- doesn't that undercut the requirement to go to court and get a warrant? Well, even the wiretapping statutes allow some limited surveillance without a court order. For instance, the AG can implement emergency wiretaps (18 USC 2518(7); 50 USC 1805(f)), lasting no more than 2 or 3 days -- basically a grace period after which the AG must bring the court a full warrant application. Another example is the FISA provision allowing foreign diplomatic communications to be intercepted without court order (50 USC 1802(a)). Those permissive legal provisions -- the emergency provisions in particular -- wouldn't serve the purposes they were intended for if private actors couldn't help implement them just based on the AG's signature on a certification.


With this legal framework in mind, it becomes pretty easy to see why Gonzales and Card might so doggedly pursue John Ashcroft's signature even though he was under sedation in a hospital bed. If the government was taking these "reauthorization" documents -- recall the NSA Program was reauthorized every 45 days by the president and Attorney General -- to the telephone companies to reassure them that they would never be held liable for helping operate NSA's vast illegal program of surveillance, and then one day (thanks to Jim Comey) the Attorney General's signature disappeared from that reauthorization,* well, it might not matter very much to a phone company that the president is, as matter of constitutional theory, empowered to provide authoritative interpretations of federal law to guide the rest of the executive branch. Because the laws making private phone companies liable for helping breaking into your phone conversations in the absence of a certification from the Attorney General were made by Congress, not the president. And unless Congress somehow lacked the constitutional power to stop the president from wiretapping wherever he pleases (recall these were the John Yoo-style arguments Comey and DOJ were probably tossing overboard in early 2004), it wouldn't help a private phone company very much that the president said they could break laws that that pesky legislative branch had made. Especially with the prospect of thousands of private litigants seeking up to $1000 a day in damages each.


I think Kadidal and Lederman are probably right and the White House was motivated here by a desire to keep the telecom companies from pulling the plug. I still find it somewhat odd, though, that Gonzales would think that John Ashcroft's signature would solve this problem.