In addition to “certifying” in some way “the program(s)” keep in mind that Ashcroft was also subject to firewall orders from the FISCt. How do you comply with the court’s order if you don’t look at the program? And “duh, I never bothered to look” isn’t a grounds for getting around contempt and other liability for violation of the court’s orders. And you go around violating court orders – you end up having license problems, which dries up a lot of the income going to Ashcroftco these days.

Also, wasn’t there reporting at some point that these certifications were in the nature of military orders? I’m sorry, but without much due diligence needed, we have pretty specific case law that the 4th amendment isn’t suspended in a time of war. Yoo opining to the contrary is wrong on its face.

I wonder, as well, now that more is coming out, to what extent the program involved not just violating the FISCt’s firewall orders, but also violating FISCt minimization orders. I’ve wondered how someone gets a full transcript of non-target US Citizen and Member of Congress and ranking member of INtel Committee Harman’s “end” of the conversation with a targeted contributor, all with no apparent minimization efforts. Gets it and trots it around. My spec when that came out was that Harman would probably feel free to call the bluff, bc there’s likely no way for anyone to produce that “transcript” without simultaneously proving that they were violating court orders, but I wonder how extensive those violations were?

IOW, it is one avenue for telecommunications companies and others to get authorizations under a “military order” that purportedly gives them power to disregard FISA statutes and other unframed, not ruled upon by a court, th amendment concerns – but that avenue (power to trump statute) would not preclude another avenue (power to trump courts). So why wouldn’t a part of the program include ability to override minimization requirements on Exec whim? Or even Exec whim delegated down the line to a floor supervisor? The lawyers involved in advising that laws can be disregarded have less potential personal exposure than the ones who advise that court orders can be disregarded. No pardon or non-prosecution agreement can preserve the law license of those who deliberately disregard court orders if it comes out and if the court chooses to take action. And there’s not necessarily a statute of limitations for court action on finding out their orders were violated deliberately. (See why I think any mandate that isn’t broad enough to explore all aspects of Exec branch interactions with the other branches on the GWOT programs will fall short? A court can’t act on what it doesn’t know).

Skipping tracks, I don’t buy that Ashcroft didn’t know all he says he didn’t know and I think he’s worried about getting into the weeds on that, given the kinds of discussions that might have been had in Principals meetings and even in his knowledge of things like deliberately cutting out some (like Powell and Taft) who should have been included in Principals info that was circulated. When you know you have as one of the Principals and his advisor guys who are well versed with the military and the problems that would emmanate from saying that the President’s CIC powers mean he can violate domestic law and abrogate the Congress and the Courts at will — you have to cut the out of the loop. You don’t want Powell saying things like the military is subject to civilian government and the President as CIC is only a part of that military apparatus taht is subject to civilian govt and you can’t enact affirmative violations of domestic law under the guise of “military orders.”

And I think we should be looking for documents that pre-date 9/11.

On September 21, 2001 Yoo wrote a 20 page memorandum in response to question posed by Timothy Flannigan about ”hypothetical” scenarios regarding the Fourth Amendment and domestic military operations. In the memo, Yoo wrote that his ideas would likely be seen as violating the Fourth Amendment. But he said the terrorist attacks on 9/11 and the prospect that future attacks would require the military to be deployed inside the U.S. meant President Bush would “be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties.”

”We think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection,” Yoo’s memo stated.

Yoo also wrote in the Sept. 21, 2001, memo that domestic surveillance activities, such as monitoring telephone calls and without a court’s permission, might be proper notwithstanding the ban in the Fourth Amendment on unreasonable searches and seizures.