I strongly suspect that any doubts NSA lawyers may have had about the legality of the new program(s) were overcome by one or more opinions issued by OLC. Those have binding legal force throughout the executive branch.

Prior to the kidnapping, “the program” was supposedly brought under the FISCt (or at least the “is al-Qaeda calling?” portion of the program that Gonzales always carefully specified as the *program the President has admitted/acknowledged*) But after that non-advocacy, not subject to public legislation, not subject to appeal and review “transition” of “the program” to the FISCt, IIRC there were reports of a FISCt ruling that pissed the NSA/DOJ crew off – the FISCt disallowing some activity. Didn’t some Republican member of Congress get on tv and start talking about that “classified information” opinion in the efforts to push harder on the “need” for more and more unconstitutional transfers of surveillance powers?

In any event, I have to wonder about whether or not, after “the program” was brought under the court, and the court ruled that a certain kind of, or approach to, surveillance was not allowed – if it isn’t that very kind of surveillance that they wanted to institute. As lots of people noted when the hearings were going on for the revisions to FISA and the intel crew were trying to bring up this incident as a reason for needing to proceed with legislation that took the supervision away from FISCt and placed everything under [just a rogue] AG, there were all kinds of surveillance options available in Iraq already – and some of those were already under “old”FISA able to be conducted by AG authorization alone.

We also know from Baker, Lamberth, etc that in “life or death” type of situations, all it took were phone calls to a FISCt Chief Judge to get orders issued – Lamberth was issuing them from his phone in his car on 9/11. So again, what the heck was going on that engendered all these meetings, foot dragging and more to the point, a “life or death” situation where there would have been foreign surveillance and yet neither the DAG (I think McNulty, who was on his way out but still there) nor the acting AG (Clement for the day IIRC, as Gonzales was on the road) could be brought in to sign off in good faith on an emergency surveillance app that would get the ball rolling right away and at worst be subject to the FISCt having a tsk about it a few days later?

Unless – what they really wanted to do was something the FISCt had told them they couldn’t. So it wasn’t a matter of an emergency surveillance being too complicated and too time consuming – but instead a matter of them wanting to do something that the court had already said no to on a prior occassion. Maybe that’s not it, but that kind of thing seems to me to fit the circumstances more than anything else I can think of.

So what if Gonzales, who is pretty used to signing off on things over the objections of FISCt (he’s the guy who ok’d the program’s continuation after OLC withdrew approval)took what they had been told they couldn’t do and put it into an emergency notification and ordered it anyway? It would make sense that McNulty – who was under fire from other places and on his way out and might not have wanted to finish up with flouting the FISCt – and Clement, who also has managed to remain relatively unscathed by all the scandals despite his blatant misrepresentations to the Sup Ct on torture – if both of those guys were reluctant to authorize under the guise of emergency surveillance actions that the FISCt had ruled could not proceed.

And then there was the later, kind of inexplicable, resignation of Gonzales and since his issues with finding work He and Bush had blown off a lot and guys who wrote torture memos now publically circulated have gone on to find slots. But we also know that there had been some reports that the FISCt pretty much kicked Fran Fragos Townsend out of their court and to the curb bc of her alleged role in an earlier scandal involving false FBI applications in the court. We know that Lamberth has talked very openly – oddly for him openly – about the FISCt taking action to bar abusers of the court from the court. We know that Kollar-Kotelly was already breathing fire about DOJ abuse in her court – and that she reportedly made Rumsfeld take hat in hand and apologize to the court and that she had been willing to go after both Mueller and Ashcroft for their earlier abuses.

I may be way off base, but I tend to wonder if what really happened was that the “emergency” surveillance really was just an attempt at cover for doing something they had done before the program was brought under the court fairly routinely, but something that, once the program was brought under the court, the court ruled to be unconstitutional or otherwise illegal(which also would explain why the new legislation had to give some of the powers it did to the AG and not the court, bc the court had some existing ruling(s) that would not allow some of the shenanigans that could be pushed through with an AG operating free from the court’s constraints)

So Gonzales just ok’s it anyway, puts it in an emergency surveillance notification, and figures – eh, the worst that will happen is that after 3 days the court will say we shouldn’t have. Only maybe the court did more. Maybe it said – you shouldn’t have and we are considering barring you from further applications before the court. Now, given the situation of FISA applications vis a vis the AG’s office, that would have been pretty huge. And if the court didn’t start blinking, it might have been a reason for even Gonzales to finally step down. Bush,egged on by Cheney, might have believed “what can they really do, Fredo?” but Gonzales would have known a bit more about what they could do to his legal career.

All fwiw, and it all may be way off base, but off base or not, the whole incident is surrounded by so many contradictory stories (most given in the context of testimony to Congress where there are some requirments for telling the truth) that I think it all bears a pretty significant look-see. jmo, fwiw.

20 – or got some kind of input from the FISCt that they SHOULD be saving all the paperwork.

This contains within it a couple items:
1. an admission that the “authorization” evolved, i.e., changed over time. We knew the Program changed over time, but this seems to make clear that those changes (or at least some of them, see 2, infra) were not made without the Preznit authorizing them.
2. We knew (or surmised and it was later confirmed, more or less) that the program changed over time, which can also indicate the initial plan for the program contained “phases” within it and that the program “Changed” as phase objectives were met.
3. This text also admits the Presidential authorization affected agencies other than NSA. What the entire list was, we still don’t know.

You also note:
“It strikes me that the NSA wants to tell Congress that it didn’t have access to John Yoo’s crappy memos authorizing this.”

IIRC (and I think it comes from Goldsmith or Comey or one of the books), that was one of NSA’s big beefs – the NSA General Counsel was not allowed to see (let alone comment on) the legal basis (i.e., memos) for what NSA was being ordered to do. The impression I have is that NSA got an order to execute and was told not to look beyond the four corners of that order – the hallmark of compartmentalizing the information and program. That points right back to Addington and Cheney chopping the program up into various compartments right in their offices.

You also note:
“Also like DOJ, NSA had started on this process before Congress ordered it to do a report.”

Evidently, someone in the bowels of the bureaucracy (NSA’s analog of Comey/Goldsmith, maybe?) decided/realized/knew that at some future time this would all come out and that it was necessary to save all the paperwork. Or at least to save all the paperwork that would show their agency in a good, law-abiding light.

Why wasn’t the notifiation of emergency surveillance given earlier (why did they have to wait for Gonzales to come back) why wouldn’ the DAG who was there and can act under FISA or the acting AG while Gonzales was on the road (IIRC, it was Clement – who happened to have ‘left the building’ and no one thought of calling him on his cell to come back and sign????)

The soldiers were kidnapped in a pre-dawn attack May, 12 2002.
If the sun came up at 6 am, this is 11pm, May 11 in DC. I’d asssume their 72 hour emergency surveillance clock for conducting surveillance started shortly after that, meaning that it was likely expired sometime in the night of 5/14 or early morning of 5/15/07.

In the morning of 5/15/07, Comey gave his jawdropper testimony at SJC. The hot potato FISA warrant episode happened May 15, 2007, immediately following Comey’s SJC testimony. In the aftermath of that testimony, and FISA judges already being pissed off, perhaps they were all (except Gonzo) too chickenshit to sign off on a warrant with >72 hours of surveillance already logged?

First, given that it has been reported that both Lamberth and Kollar-Kotelly believed that the Program was unconstitutional and both created firewalls, it’s interesting to see the difference in the language about FISCt orders with respect to DOJ/FBI and NSA. For DOJ, they are going to “describe” (as opposed to the “examine” element of the first part of the scope) the following:

…any use of Program information in the FISA process, and the transition to Foreign Intelligence Surveillance Court orders related to the Program.

Now I’ll have to fess up that I don’t know what the heck it means for them to say they are going to “describe” the transistion [to FISCT orders related to the Program, but I’m thinking that this means they are only going to look at the FISCt interplay in connection with the DOJ’s effort to bring the program into the court.
I don’t see anything in there about examining DOJ and FBI COMPLIANCE WITH FISCt firewall orders re the Program prior to transitioning. Maybe that’s one they should handing off to OPR as well, since it would be a legitimate grounds for people to face bar charges, but it is also a big procedural and operational issue. IOW, if DOJ and the Executive believe they do not have to comply with FISCt orders or that it is not clear that Congressional FISCt legislation makes them subject to the court’s orders – that should be “described” (or more to the point, “examined”). And the IG seems to be taking that position by excluding review of compliance with pre-transition FISCt orders re the program – he’s pretty much saying that either DOJ was not bound by FISCt orders relating to the program prior to the transition OR he saying that if we look at DOJ compliance with FISCt orders re: the program prior to the transition, we have a problem we can’t deal with so let’s just ignore even “describing” it, much less “examining” it.

In any event, it appears to me from the scope vis a vis DOJ/FBI, that there is no intention to review compliance or non-compliance of DOJ with FISCt orders prior to the program “transitioning” to the FISCt.

Comparing with NSA, that IG’s report

… will also examine NSA’s interaction with the Foreign Intelligence Surveillance Court and the transition of Program activities to operations under court orders

NSA’s IG is supposed to examine (not just describe) the NSA’s interaction with the FISCt AND the transition of the Program. So it isn’t focused just on the transition, however, the main “interactors” with FISCt would not be the NSA – it would be DOJ and FBI.

Compare further with the DOD scope, which does not reference the FISCt at all. And yet the published accounts indicate that at one point Rumsfeld had to actually apologize to the court about violations of the firewall orders and promise better supervision and that it wouldn’t happen again. None of that appears to be a part of the review.

IMO, rather than beating the drum with the IG, Congressional committees (Judiciary and Intel) should put together an investigative staff to interview FISCt about its interactions with DOJ, FBI, NSA, DOD, etc. re the Program. That might not only get a more reliable and complete story, but it would also put a bit of pressure on the IGs to take a more truthful course.

I have to say, I don’t necessarily think Fine has been much of a standout on torture and felonious wiretap programs and I really don’t have anything much in the faith category on what he’ll produce. He’s been around a long time bc he knows how to go along and get along. As soon as there was word being published that FISCt firewalls had been violated, he should have been all over it and he’s still not there. Once there was info out on the program, too, he should have been all over what DOJ told the telecoms and again, he’s still not there. He’s let this mess go on and on and Congress vote on legislation based on the telecoms “good faith” without there ever being an investigation into what memos were given to the telecoms, whether they were for reliance by them or not, whether they were told of the FISCt Chief Judges’ determinations on the program, whether they were told of the Hospital showdown or its aftermath with the program going forward without DOJ approval, etc. And it looks like all of that is STILL off the table.

One reason I think that, even with the wildly pared down scope, they are still only “describing” DOJ’s transition to FISCt supervision of the Program with no “examination” is that they do not want to get into some of the problems that apparently came up between DOJ and FISCt. For example, it doesn’t look like we are going to get any digging into the representations made to Congress by various person, including DNI and counterterrorism lawyers like Wainstein etc. about that little incident of *not being able to start emergency surveillance under FISA to try to find kidnapped soldiers bc FISA was haaaaaaaaard*

Congress was told more stories than you could shake a stick at about that incident and every one of them leaked like a sieve. Why wasn’t the notifiation of emergency surveillance given earlier (why did they have to wait for Gonzales to come back) why wouldn’ the DAG who was there and can act under FISA or the acting AG while Gonzales was on the road (IIRC, it was Clement – who happened to have ‘left the building’ and no one thought of calling him on his cell to come back and sign????) What happened when the FISCt did get its opportunity to review that application in the lookback? Was Gonzales censured by the court? Was there really a problem with how long the notification would take (Baker seemed pretty definite that there was NOT that kind of problem)?

I have no faith in Fine or the others and it looks very much like the IG for the Dept of JustUs has made sure that his report will basically look out for all the boys and girls who flaunted and violated court orders and knowingly promoted the execution of felonies and misrepresentations to the court. Durbin and Whitehouse both know how you get around some of this – by going straight to the entity Congress created, the FISCt, to get a real review and assessment of how DOJ interacted with the FISCt. The legislation should have done that too (provided for reports not just by the AG but by the FISCt – a gang of 8 report and a full intel and judiciary committee report) They either just want the Kabuki and don’t really want to know or they somehow haven’t noticed that they are spinning wheels and flinging mud without getting anywhere. There are all kinds of very specific incidents that have been reported or are otherwise in the public domain and they are not forcing an investigation of any of them.

Several points here. First, DOJ OIG is investigating whether any information from the program got dumped into FISA warrants later.

In other words, the efficacy of the investigation can be measured against existing reports of program contamination of the FISC:

In 2005, Baker learned that at least one government application for a FISA warrant probably contained NSA information that was not made clear to the judges, the government officials said.

I still suspect this particular issue could be a central feature of the Al-Haramain case- the possibility that there was a FISA warrant generated based on illegal information that the government can no longer depend upon. I suspect that a “state secret” Bush and Obama need to keep covered is that a lot of FISA warrants were obtained illegally (secret and illegal NSA surveillance used to secure the FISA warrant for “legal” surveillance).