This is probably a pathetically minor point, and I’d rather have posted it nearer to when this thread began [plus I recognize it’s likely to be lost in the fog of events], but I want to make before the thread is closed for eternity or my ghost might have to wander the earth til then.

Part of ew’s post and 3 earlier responses pertain: numbers 14 and 26 from williamockham and 28 from masaccio.

[1] ew observes a disconnect among:

[1.1] AlG’s testimony of as to a “consensus in the room” from the briefing of the Gang of 8 – which perhaps among other things ends up being put in albertospeak as “remediation”

[1.2] the Speaker’s acknowledgment of the “majority of those present supporting continuing the activity”

[1.3] each of Daschle and Jello characterizing his characterization of never even being asked for approval, of any sort

and

[1.4] the opening of AlG’s bed-time for Ashcroft explanation of their having been a “remediation”.

If I hadn’t already embarrassed myself a half a kajillion times in this life already, it would be embarrassing to suggest that one could drive all the cattle in Texas through the open spaces left in these four conceptions.

[1.1.1] The word “consensus” could, but does not necessarily, connote universal, or indeed majority agreement. It’s many meanings included “accord”, “harmony” etc.

[1.1.2] We don’t know who all was in “the” room; I’m can’t recall if it’s even been established that all were in one room at the same time- and if not it would not shock me to learn that was by intention. It’s not that easy to get the 8 of the so-called “Gang” in one room at the same time, and awfully easy on the one hand to accommodate their schedules by staggered meetings with various attendees and to use that to manipulate.

[1.1.3] Assuming silence is assent, particularly the sort of silence that follows the sort of labrynthian constructs one can imagine coming from the mouth of Cheney on being derived from an earlier Cheney-Addington meeting, then there would be, in the mind of Cheney, or rather in the minds of Cheney and Addington, one voice being raised in articulating the crux of the matter, no matter how obscurely, and that would be the voice of Cheney.

That is: Mr. Fourth Branch himself, one foot in the executive, but another in Congress. If Cheney [Cheney-Addington] take that voice as partly speaking from Congress, then “the voice of consensus” is right there in Cheney.

This has the additional attraction of fitting into the notion of Addington having impressed on AlG a lengthy rationalization of how decisions are to be made on topics falling under the jurisdictions of both the executive branch and the legislative branch. I realize this poses the notion of Cheney overseeing himself, but I’ve never understood consistency and sanity were essential to the unitary executive concept.

The top reason I have for raising it is the fact that Cheney [and Addington] would know that this “meeting” would involve Cheney, appearing to speak for the president, but without actually articulating it as such, and indeed with Hayden and possibly other executive branch types present, including AlG, being able to posit that not having articulated his limiting his presence to the foot in the executive branch, he was present in his legislative branch form, and, somewhat collegially, was informing them, and indeed formally himself, as to what his executive branch side knew in terms of the situation. You might call it the Joker conception of the VP, particularly the Heath Ledger version.

But it’s pretty delicate, with the obscured phrases used by Cheney and all, so the fact that a convenient lackey counsel like AlG was there to, or able to, later “memorialize” what happened, would appear to hold some arguable potential value should someone raise a squawk- particularly the sort of pre-squelched squawk that Congress critters read into secret squirrel stuff are required to sign off on.

[1.2.1] “A majority present” could be explained by the Speaker being alone with Cheney, Hayden and AlG; or a great number of configerations, including even all of the Gang of 8 plus Cheney, Hayden, AlG, and a couple of aides for each, which is pretty unremarkable, for a total of 17, of which 9 are executive branch.

In the case of Cheney, I would expect he would not characterize himself as holding one office with 50% of its authority in each of two branches, but rather wearing 2 hats [at least 2: the dual nature could itself be another hat, and so “the 4th branch” itself would have the head of a hydra.

By now, even I can see how weird this is getting. But under the pressure of emergency, I don’t see how its any weirder to imagine Addington coming up with a dashed-off piece of lawyerish gibberocity that once pared down is at least as nuts. That certainly would put some high anxiety in AlG about what the Addington memo states, considering in particular his having observed all the craziness unfold in front of him.

As to the idea of such a memo, this would not surprise me; indeed it would surprise me if there were not such a memo. It seems to me AlG would not be alone in wanting such a thing to cover his own ass, or that of his patrone [and note that the suggestion is that it was his patrone who urged he make his own ex post facto notes to “memorialize” the Gang of 8 meeting- and if that they why not other ancillary events?]. The whole Nixon idea of speaking through and writing through and commanding through lawyers and using them as repositories of whatever written material is generated is not without its minor risks.

[1.3.1] Does anyone here really think it would be that difficult for Addington to whip up an argument in legalish to support treating silence, including the silence of shock, or astonishment or from having no comment, as assent? There are a number of circumstances in orthodox English-derived and American-adopted evidentiary principles in which silence is treated as bearing particular meaning. The fact that there would be absolutely no jurisprudence on point or anywhere near it would not daunt Addington; I would think he’s still hoping to use Henry II’s “will no one rid me of this meddlesome priest?”, if he has not already.

1.4.1] I posit that the word “remediation” is something which is entirely consistent with what we observed in the testimony of AlG before the House and Senate judiciary committees, and moreover characteristic of the “bent” mind.

That lawyers can have “bent” minds should not come as a surprise to anyone. It’s a common enough sight in the court system.

Now:

[2] williamockham @ 14: “The notes appear to be an effort to provide cover for that particular lie”.

I agree, and that’s not put unfairly. But I suggest a slight amendment, to this or something like it [and if someone could go it better, I would not be hurt]:

THAT the notes appear to have been made on the contingency that they, or some part of them, might turn out useful or convenient to called upon to provide cover for a particular lie, or to reconcile one or more lies.

Can I just return to “remediation”. Firstly…wow, what a classicly AlG word. Still, it would not shock me to see it having been contrived by Shakespeare, particularly in the course of Richard III. Secondly, part of its charm lies in the attraction it would pose to a pretentious asshat like Ashcroft. Thirdly, another attraction is that I don’t think one would encounter it in any credible English dictionary, and not even for Scrabble, so there’s a lot of room to swim around in its boundaries. Thirdly, to the extent it sounds like it’s implying some quasi-formal process, it sorta kinda engages some aspects of unitardic “theory” [and if not, why in hell not?] Fourthly, with the route being “mediation” it implies a ‘bargain’, which fits squarely within one chapter out of the Bush school of Constitutional amendment: if the Constitution forbids X, then make an off-the-books bargain with the Congressional leaders, and presto zesto: a brand new Constitution without the messiness of public debate and putting the matter to the states for ratification.

“Remediation” is of even greater bent genius for its containing a host of unspecified “when did you stop beating your wife” assumptions. This, by the way, is IMO its chief ‘value’, because the permutations of rationalization are as the stars in the universe [which, if I recall my Sagan, number something like the 300M stars in the Milky Way times the 200M galaxies- so quite a few].

[3] williamockham @ 26 on the Addington draft P.O. with-attached-excert-from-Addington-on-law-the-way-it-oughtta-be.

I’m figuring with an ignoramus like Bush and dolt like AlG, when AlG showed the “notes” [or the package containing his notes among other things] to the folks in Fielding’s office, that set off some real loud internal alarm bells.

Now: am I right in thinking there is no suggestion of any integrity to the chain of custody as to these notes, both before and after that meeting?

[4] masacchio @ 28: With respect, the kind presented to a possibly dying man under sedation in a hospital who even when healthy appears to have some problems picking out red flags.

I actually think that the fact that Ashcroft was doped to the gills helps explain the remarkable risen-from-the-bed sermon that each of Comey and Goldsmith have described in terms of their awe. The folks in this story are unlikely to be familiar with what LSD among a wide range of other “recreational” drugs are capable of producing. I think the typical DeadHead might not find the scene quite so mind-blowing.

Boyoboy does Bart Gellman ever have a nose for the fun stuff.

If they knew they were ‘making-up’ a false reality to institute a dictatorship by stealth, lies and criminal conspiracy, why is that not treason?

Was it the military thing that was presented to the phone companies?
Is this what they were prepared to say? That the President issued military orders to them?

It’s been reported that Bush’s orders for the program were not typical Executive Orders, but instead were being issued as military orders. But in some bizarroland fashion, he was trying to get the imprimatur of law behind them by having the civilian Attorney General sign off on the military orders, as being legal.

It’s been reported that, upon being given some kind of surface briefing on the program, the Chief FISCt Judge determined that it was so unconstitutional that he put some kind of firewalls in place to try to insulate the FISCt from the program. I’m pretty much thinking that this was done by formal or informal court order to the DOJ.

It’s been reported that the successor Chief FISCt Judge had the same reaction to the program and took some kind of similar actions regarding firewalls.

It’s been reported that the court became aware of breaches of the firewalls on more than one occassion.

It’s been reported, but to very little scrutiny, that DAG Thompson, who had no qualms on signing off on sending Arar to Syrian torture or taking the torture field trip to GITMO, began to have such concerns about how the unconstitutional domestic surveillance plan was operating that he quit signing FISCt applications. To me, that’s pretty darn big.

In one previously undisclosed episode, Deputy Attorney General Larry Thompson refused to sign off on any of the secret wiretapping requests that grew out of the program because of the secrecy and legal uncertainties surrounding it, the officials said. With the veil of secrecy around the program, Mr. Thompson was not given access to details of the N.S.A. operation, and he was so uncomfortable with the idea of approving this new breed of wiretap applications that he had a top adviser write a memorandum assessing the legal ramifications. The adviser warned him not to sign the warrant applications because it was unclear where the wiretaps were coming from.

Keep in mind that this might have been pre-Goldsmith and more importantly, this is memo that I don’t think anyone in Congress seems to have demanded or seen. It doesn’t sound like an OLC memo from the way Lichtblau describes it (coming from a top adviser). It would sure be nice to know more about why, in the middle of the heat on the “war on terror” the torture enabling Deputy AG got such a sense of concern and self preservation that he began refusing to sign off on FISCt applications.

Since most of the “legal ramifications” under FISA itself involve the actual surveillance without court order (which DAG Thompson wouldn’t have undertaken or authorized), it seems possible that the legal ramifcations Thompson was concerned about had a different source – one, perhaps, tied to a lawyer directly violating FISCt firewall orders and covertly salting the FISCt with fruits from a program that the court had barred? Maybe not – maybe it just the worry about suddenly ending up in front of a court and judge with the feloniously and/or unconstitutionally acquired information, but since the Chief judges did establish a procedure, via the firewalls, for the victims of the unconstitutional program to be subject to a FISCt applications, then it seems that as long as the firewalls were respected, there would have been little to be concerned about.

So it seems one possiblity is that Thompson knew the firewalls were not being respected – maybe knew that the way the program operated, the firewalls could not be respected. If he knew that the program was being acutally operated (and here, you have to wonder what info was given to the FISCt Chief Judges in their brifings) in such a manner that the court ordered firewalls could not be complied with and every application risked being in direct violation of the court’s orders – that might give him a little pause. BC unlike torture field trips and disappearing Canadians from their young children, for the purpose of unrepentant torture, – there might be personal consequences for engaging in that kind of showdown with the FISCt.

Especially with technicians with the FBI, unaware of the FISCt orders, raising some of the same questions as to legality:

Inside the Federal Bureau of Investigation, meanwhile, technicians stumbled onto the N.S.A.’s program accidentally within 12 hours of its inception, setting off what officials described as a brief firestorm of anxiety among senior officials. Some who had not been told about the program were concerned that the agency was violating laws that required a court order for the singling out of Americans in wiretaps, and they immediately alerted higher-ups to what they had discovered. “What’s going on here? Is this legal?” one F.B.I. official asked after learning of the N.S.A. operation on American soil.

Has there ever been much investigation of when and how Mueller was briefed into the program? However it happened, he likely knew that his own technicians and officials had concerns about the program. He was probably briefed on the firewalls for his applications, indicating he also knew that FISCt thought the program was unconstitutional, but despite his position in law enforcement, he shrugged it off. Then Mueller and Ashcroft both pretty much had to become aware that Thompson would help disappear people to Syria, but he took the no guts no glory approach to signing off on FISCt applications that would put him in front of an actual judge who had issued orders on how those applications should be firewalled.

Think they knew of the memo Thompson received?

In any event, by the time Goldsmith and COmey were coming on, Mueller and Ashcroft almost had to have already known that Thompson wouldn’t sign off on FISCt applications. No wonder Comey was concerned – he was now stepping into a slot where his immediate predecessor not only was so worried that he wouldn’t sign FISCt applications, but where there was also a memo on liability floating around.

Keep in mind under olden days FISA, every FISA application required “the approval of the Attorney General based upon his finding that it satisfies the criteria and requirements of such application” (1804 (a)) and also that “) “Attorney General” means the Attorney General of the United States (or Acting Attorney General) or the Deputy Attorney General ” (1801(g))

So Thompson backing off left it all on Ashcroft.

Now add in the reports that at about the same time as the “hospital showdown” the successor FISCt Chief Judge had learned that firewalls were being violated and she was out for blood. It almost makes you think that the someone in DOJ had decided to act like a real lawyer and, in addition to advising Thompson of his “liability” they did what they were professionally and ethically and “legally” (but for the exemptions from application of law apparently available to All the President’s lawyers) bound to do and advised the court of the violations.

Certainly, it has to have raised some questions when no applications with Thompson’s signature were coming through – the circle is too tight for the court not to have found out that there were problems.

My guess is that Comey and Goldsmith pushed for confirmation of something they were already being told – which is that the way the program was operating, there was no way to give any certification the court’s firewalls COULD be followed. So without certain changes to the program (not necessarily changes to make it less egregious, just changes to make it possible for DOJ officials – the AG and DAG – to not be violating court orders when they signed off) then the AG and DAG or any acting AG on down the line would be in direct violation of court orders every time they signed off.

Worse still, from a loyal Bushie point of view, the Court was AWARE of the fact that they were violating the orders. Aware, and willing to take action. Aware, willing to take action, and, unlike the Dems in Congress, the FISCt judges had a recent history of NOT blinking, one that Comey would have known about in how it impacted his friend, Townsend.

If any of the unsubtantiated speculation above is even partly right, it might explain why there was such concern on the hospital visit. What they were doing was pushing the AG to authorize a program that could not operate without causing violations of the FISCt orders. An existing member of the bar, Gonzales, with knowledge of the court orders, was pushing to have the program signed off on in violation of those orders (nonsequitor: I have to wonder, too, about his later actions as AG, and the three day authorization that no one else seemed to have been willing to sign, and what the court did with that at the end of the 3 day period)

If you walk that cat back to the President, you have the President pressuring his AG to sign off on a program that could not operate without violating FISCt firewall orders.

You basically had the Nixon/Tapes situation. Only here, Nixon orders his DOJ to ignore the court’s rulings.

Just a fwiw.

if you want to bluff at the poker table, a part of the art is to show concern or for that matter lack of concern at inappropriate times with varying degrees of effort that have nothing to do with the seriousness of jeopardy or advantage.

Then your opponent doesn’t know which hand is strong and which is weak.

… and you have to vary the method of the bluff.

I like to wipe my lips with a tissue or adjust my cap, and so on. Maybe a scratch. Give out lots of signals rather than trying not to indicate anything at all.

I think that this is what those guys do all the time.

A lot of us have known this for quite a long time now Radio. Thanks for laying this episode out so neatly as proof or at least reasonable suspicion of guilt. I’ve never paid real close attention to the “hospital visit” and what exactly it signifies – until now.

There are so-ooo many other visible examples of crime in the White House – perhaps not provable but hey its all quite obvious isn’t it?

the first gellman comment i wrote down was that cheney wanted to make every american get a smallpox vaccination, but got over-ruled. maybe that was it.

So, let me get this right. He’d given himself the power, worked tirelessly to keep it hidden, pretended that government was running as it always had by going through the motions, and only blinked when much of the DOJ including Comey and Ashcroft, counsel to FBI and CIA, Mueller, and others who asked to be kept in the loop called his bluff on “the program”?

Or are some here implying that certain officials knew and were protesting against Bush’s crowning himself king?

Assuming that to be the case, what possible legal basis could have supported a surveillance program that had nothing to do with the GWOT? The answer has to be an assertion of authority that exceeded the scope provided by the theory of the unitary executive, which was based on fighting a war against a foreign enemy.

This super duper secret surveillance program must have involved domestic eavesdropping to gain a political advantage. Perhaps the reason the democratic members of the House and Senate have been so spineless for so long is they have been blackmailed into supporting Bush’s radical transformation of our government with information obtained with this out-of-bounds surveillance program that was a sophisticated version of Nixon’s Watergate spying and COINTELPRO program and J. Edgar Hoover’s collection and use of private and personal information to control political adversaries during his tenure as Director of the FBI.

If this is true, Card and Gonzales went to the hospital intending to run an end run around Comey. They wanted to conceal their visit to the hospital so that no one would start asking questions about the exclusively domestic spying program, an unlawful abuse of power more extensive and abusive than the program that led to Nixon’s impeachment and resignation.