His Word Was Law

I was out and about last night, so I didn’t get to write about the IG report (pdf). Luckily, other people covered the role of John Yoo in all this; besides Steve, publius and Anonymous Liberal are particularly good on this point. I want to focus on another bit.

To set the stage: Comey and Goldsmith have been read into the surveillance program, and have discovered that Yoo’s memos are both legally flawed and factually inaccurate, and that some parts of the program are probably illegal. The programs need to be reauthorized by the President, and normally he does so after the Department of Justice certifies that they are legal. By now, Ashcroft is in the hospital, and Comey and Goldsmith refuse to provide this certification. For this reason, Bush sends Alberto Gonzales and Andrew Card to the hospital to try to get Ashcroft to sign off on the reauthorization, which he refuses to do. So:

“On the morning of March 11, 2004, with the Presidential authorization set to expire, the President signed a new authorization for the PSP. [Ed. note: the Presidential Surveillance Programs.] In a departure from the past practice of having the Attorney General certify the authorization as to form and legality, the March 11 authorization was certified by White House counsel Gonzales. The March 11 Authorization also differed markedly from prior Authorizations in three other respects. It explicitly asserted that the President’s exercise of his Article II Commander-in-Chief authority displaced any contrary provisions of law, including FISA. It clarified the description of certain Other Intelligence Activities being conducted under the PSP to address questions regarding whether such activities had actually been authorized explicitly in prior Authorizations. It also stated that in approving the prior Presidential Authorizations as to form and legality, the Attorney General previously had authorized the same activities now being approved under the March 11 authorization. (…)

At approximately noon, Gonzales called Goldsmith to inform him that the President, in issuing the Authorization, had made an interpretation of law concerning his authorities and that DOJ should not act in contradiction of the President’s determinations.”

‘The President had made an interpretation of law’. Think about that. President Bush is not a lawyer. He has no expertise on this matter. Commanding the DoJ to accept his word about what the law is is as crazy as commanding the Environmental Protection Agency to accept his determination that some power plant does not, in fact, pollute, or commanding the FDA to accept his determination that some drug is safe. (Or, alternately, to take his word for it that that power plant or drug is not a “power plant” or “drug” within the meaning of the relevant statutes, and thus that they don’t need to make any determinations about it.)

If the President gets to do that, then laws have no meaning, and we might as well have a monarchy.

This would be less awful had the President recognized any obligation to inform the Congress about his novel interpretation of the law. In that case, they could have weighed in on the matter, and passed a new law. More importantly, the President’s actions would have been open to public scrutiny: if he said “the law means what I say it does!”, and Congress passed a new law that was absolutely unequivocal, he could of course “interpret” that law as well, but it would be clear to the public what he was doing.

The fact that he was acting in secret prevented that. President Bush was asserting a completely novel power, and no one outside the Executive Branch knew. That should terrify us.

Luckily, some people in his administration had principles. Comey and Goldsmith threatened to resign. Mueller refused to let the FBI participate without DoJ approval, and threatened to resign if he were ordered to participate anyways. The President met separately with Comey and Mueller, and suddenly
everything changed:

“On the morning of March 12, 2004, Comey decided not to direct the FBI to cease cooperating with the NSA in conjunction with the program. Comey’s decision is documented in a one page memorandum from Goldsmith to Comey in which Goldsmith explained that the President, as Commander in Chief and Chief Executive with the Constitutional Duty to “take care that the laws are faithfully executed”, made a determination that the PSP, as practiced, was lawful. Goldsmith concluded that this determination was binding on the entire Executive Branch, including Comey in his exercise of the powers of Attorney General.”

On March 16 Comey advised the President that some activities under the PSP were illegal and should be scrapped or changed. On March 17, the President did so.

It’s hard not to conclude that Comey, Goldsmith, and/or Mueller cut a deal with the President. They were willing to resign rather than accept the President’s “interpretation” of the law one day; the next, they did a complete about face, quickly followed up with their opinions about which aspects of the programs were illegal, and those aspects were immediately brought into line with their interpretation of the law.

But I think it’s profoundly dangerous to have, on the record, a statement that the President’s interpretation of the law is binding on the Executive Branch. The President does have an obligation to “take care that the laws are faithfully executed”. I can imagine cases in which a President with no legal training might go against the DoJ and still fulfill that obligation (e.g., if the DoJ were wholly corrupt.) This is not one of them.

The fact that the President was willing to defy the Department of Justice on a question on which he had no expertise shows that he was not taking his obligation seriously. Going along with the idea that even in a case like this, he has the authority not just to set policy but to decide what the law is, and to do so in secret, without allowing for any checks and balances, is antithetical to our system of government.

I’m glad Comey, Goldsmith, and Mueller managed to stop those parts of the PSP that they believed were illegal. But they should not have played along with the fiction that the President gets to say what the law is. In our system, the President is not a dictator, and public servants should not pretend that he is.