Bush the Fiscal Conservative?

Here's what Goldsmith wrote about Addington in an excerpt from his recent book published on Slate: "The vice president's counsel, who was the chief legal architect of the Terrorist Surveillance Program, was singing the White House tune on FISA. He and the vice president had abhorred FISA's intrusion on presidential power ever since its enactment in 1978. After 9/11 they and other top officials in the administration dealt with FISA the way they dealt with other laws they didn't like: They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations. My first experience of this strict control, in fact, had come in a 2003 meeting when Addington angrily denied the NSA inspector general's request to see a copy of OLC's legal analysis in support of the Terrorist Surveillance Program. Before I arrived in OLC, not even NSA lawyers were allowed to see the Justice Department's legal analysis of what NSA was doing."

In a related story, Ellen Nakashima writes in The Washington Post: "Key Democratic lawmakers are pressing telephone companies to disclose how they shared Americans' calling and Internet data with the government, part of an inquiry into domestic surveillance efforts such as the National Security Agency's warrantless wiretapping program.

"The House Energy and Commerce Committee, which has jurisdiction over the telecom industry, yesterday sent letters to three major carriers, AT&T, Qwest and Verizon, posing questions aimed at understanding what consumer information is being shared with the government. . . .

"The moves come as the Bush administration is pushing Congress to grant telecoms immunity in lawsuits charging them with invading Americans' privacy by aiding the government's post-Sept. 11 counterterrorism program."

Georgetown University law professor Marty Lederman blogs: "Think about that for a second. Numerous telecommunications executives and technicians were informed about this top-secret program, and (presumably) were given some account of why their participation would be legal notwithstanding FISA. But the Administration continues to refuse to inform Congress about that legal justification (even though it is now asking Congress to immunize the telecoms for having relied on the legal advice that Congress itself cannot see!); and moreover, the White House would not allow the Deputy Attorney General or the General Counsel of the NSA itself to be let in on the secret! . . .

"Obviously, the reason these officials were not 'read into' the program until Goldsmith and Ashcroft insisted upon it was not fear that they would leak vital information to Al Qaeda, but instead that the legal justification was so transparently flawed that it could not withstand any independent review at all -- a judgment that turned out to be true, of course: As soon as anyone outside the Cheney/Gonzales/Yoo circle saw the legal analysis, they realized it was so extreme and untenable that they would have to resign if the President continued to act in reliance upon it. Goldsmith testified today that the NSA program was 'the biggest legal mess I encountered [at OLC].' In light of the August 2002 Torture opinion, that's really saying something!"

And Pamela Hess notes for the Associated Press that while Goldsmith "said that parts of the President Bush's much-criticized eavesdropping program were illegal . . . . he would not say exactly what law or constitutional principle the surveillance violated. Goldsmith said the White House has forbidden him from saying anything about the legal analysis underpinning the program -- key details long sought by majority Democrats and some Republicans."

Here is the text of Goldsmith's opening statement yesterday: "Secrecy is obviously important in war. But too much secrecy can be counterproductive. In my opinion, the Bush administration was excessively secretive inside the Executive branch when it came to the production and receipt of legal advice. . . .

"FBI Director [Robert] Mueller has noted that Attorney General Ashcroft complained 'that he was barred from obtaining the advice he needed on the program by the strict compartmentalization rules of the WH.' I too faced resistance from the White House in getting the clearance for the lawyers I needed to analyze the program. . . .

"This extreme internal secrecy was exacerbated by the fact that the people inside the small circle of lawyers working on these issues shared remarkably like-minded and sometimes unusual views about the law."

Iraq on the Hill

Jonathan Weisman writes in The Washington Post: "The House, with overwhelming, bipartisan support, voted yesterday to give the Bush administration two months to present to Congress its planning for the withdrawal of combat forces in Iraq.

"The 377 to 46 vote was the first salvo of a new legislative strategy adopted by House Democratic leaders, away from partisan confrontation and toward a more incremental approach to war policy that can bring Republicans to their side...